August 2013 - Broward County Bar Association

August 2013
Deborah FitzGerald presents the
Stephen R. Booher Award to
Honorable Jeffrey E. Streitfeld
Also in this issue:
· Florida New P.I.P.
Insurance Law
· SMART Act Update
· Latest Supreme Court
Decisions
SERVING THE CITIZENS AND LEGAL COMMUNITY OF BROWARD COUNTY SINCE 1925
DEBTOR & CREDITOR RIGHTS
Corporate Financial Restructuring
Broward County
Bar Association
Recognizes 100% Membership Club
**For firms with 6 attorneys or more**
Bankruptcy and Insolvency
Commercial Loan
Restructuring
and Foreclosure
Litigation
Rice Pugatch Robinson & Schiller, P.A.
Gray Robinson, P.A.
Colodny, Fass, Talenfeld, Karlinsky, Abate & Webb
Brinkley Morgan
Wicker, Smith, O’Hara, McCoy and Ford, P.A.
Billing, Cochran, Lyles, Mauro & Ramsey, P.A.
Fowler White Boggs, P.A.
Fowler, White, Burnett, P.A.
McIntosh, Sawran & Cartaya, P.A.
Chimpoulis, Hunter & Lynn, P.A.
Cole, Scott, and Kissane
Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A.
Goldstein Law Group
Panza, Maurer, & Maynard, P.A.
Walton, Lantaff, Schroeder & Carson, LLP
Doumar,Allsworth,Laystrom, Voigt, Wachs, Adair, & Bosack, LLP
Ferencik, Libanoff, Brandt, Bustamante, & Goldstein, P.A.
Haliczer, Pettis & Schwamm, P.A.
Rice Pugatch Robinson & Schiller, P.A. provides
its clients with a sophisticated commercial legal
practice by offering practical litigation and
transactional solutions to the complicated legal
problems encountered in today’s marketplace. The
firm offers its clients representation in matters of
creditor rights, bankruptcy, insolvency, business
reorganizations, commercial litigation, real estate,
commercial transactions, as well as trusts, estates
and guardianships.
Keller Landsberg
Rogers, Morris & Ziegler, LLP
Green, Murphy & Murphy, P.A.
Bunnell & Woulfe, P.A.
Law Offices of Sheldon J. Schlesinger, P.A.
Cooney Trybus Kwavnick Peets, PLC
Phillips Cantor Shalek & Rubin, P.A.
Kelley Uustal
MacLean & Ema
Gladstone & Weissman, P.A.
Berman, Kean & Riguera, P.A.
www.rprslaw.com
101 N.E. Third Avenue, Suite 1800, Ft. Lauderdale, FL 33301
954-462-8000 305-379-3121
“The hiring of a lawyer is an important decision that should not be based solely upon advertisement.
Before you decide, ask us to send you free written information about our qualifications and experience.”
2 | August 2013
Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC
Catri, Holton, Kessler & Kessler P.A.
Moody, Jones, Ingino & Morehead, P.A.
Broad & Cassel
Fazio, DiSalvo, Cannon, Abers, Podrecca, Fazio & Carroll
Broward County Bar Association Barrister
CRIMINAL DEFENSE, DUI, TRAFFIC
All Federal And State Courts
150+ YEARS COMBINED EXPERIENCE
Attorney
John Musca
Selected Super Lawyers® 2012
Mutual Referrals?
Email: john@muscalaw.com
MUSCA LAW
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5
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302-5391
521 S. ANDREWS AVE. SUITE 11
FT LAUDERDALE, FL 33301
Broward County Bar Association Barrister
August 2013 | 3
inside this issue
5
7
9
11
14
15
17
20
Letter from the President
Staff Box
Alan S. Fishman
PUBLISHER
Broward County Bar Association
954.764.8040
Young Lawyers’ Section
Letter from the President
Marissa J. Pullano
PUBLICATIONS & PUBLICITY
COMMITTEE
Edwina V. Kessler, Chairperson
Florida New P.I.P. Law
By Russel Lazega, Attorney and
Author
BOARD OF DIRECTORS LIAISON
Laura Varela
SMART Act Update
EXECUTIVE EDITOR
Braulio Rosa
braulio@browardbar.org
2013-2014 BCBA Board
MEDIA MANAGER
Bonnie Ross
bonnie@browardbar.org
954.817.7032
Annual Meeting Pictures
Latest Supreme Court
Decisions
CONTRIBUTING WRITERS
Nancy Little Hoffman
Russel Lazega
Mark Popolizio
Nancy Little Hoffman
Calendar of Events
BILLING INQUIRIES
954.764.8040 Ext. 201
by
All
be
to:
We make every effort to ensure the accuracy of
the information published, but cannot be held
responsible for any consequences arising from
omissions or errors. Opinions expressed by
our writers and advertisers are not necessarily
opinions shared by the BCBA or the Barrister.
ON THE COVER:
Deborah Fitzgerald, BCBA
President July 2012 – June 2013, presents the
Stephen R. Booher Award to the
Honorable Jeffrey E. Streitfeld.
17
Mark Popolizio, Esquire
LAYOUT AND PRINTING
Park Row Printing
The Barrister is published monthly
the Broward County Bar Association.
editorial, advertising and photos may
submitted for consideration through email
braulio@browardbar.org
9
AUGUST 2013
Deborah FitzGerald presents the
Booher Award to
Honorable Jeffrey E. Streitfeld.
For information on upcoming
events, please check out:
www.browardbar.org/calendar/
SERVING THE CITIZENS AND LEGAL COMMUNITY OF BROWARD COUNTY SINCE 1925
4 | August 2013
Broward County Bar Association Barrister
letter from the president
2013 - 2014
BCBA Officers
Alan S. Fishman - President
John G. Jordan - President Elect
Robin S. Moselle - Treasurer
Charles A. Morehead, III - Secretary
Deborah FitzGerald - Past President
Braulio Rosa - Acting Executive Director
BOARD OF DIRECTORS
NORTHEAST
Michael Kean
Thomas Oates
Jerome R. Siegel
NORTHWEST
Gary Landau
WEST
Donald E. Fucik
Gary M. Singer
Russell M. Thompson
CENTRAL
Michael A. Fischler
Jeffrey Harris
Jose Izquierdo
Edwina V. Kessler
Jay Kim
Michael Leader
Steve Lubell
SOUTHWEST
Kenneth P. Hasssett
SOUTHEAST
Anita Paoli
Jeffrey Solomon
Laura Varela
JUDICIAL REPRESENTATIVE
The Honorable Jeffrey R. Levenson
ACTING EXECUTIVE DIRECTOR
Braulio Rosa
Broward County Bar Association
1051 SE 3rd Avenue
Fort Lauderdale, FL 33316
954.764.8040
It is 10:00 AM and you just
got back to your office from motion
calendar. You have an important
client meeting in the afternoon and an
evidentiary hearing tomorrow. Your
daughter has a soccer game at 7:00
PM. Or you promised your mother
that you would stop by for a visit this
evening. You open up your schedule
and see a noon lunch meeting of your
practice section at your voluntary bar
association. You would really like to
go to the lunch meeting and know that
your daughter or mother is looking
forward to your being there to watch
or see them, but you feel guilty about
Alan S. Fishman
the billable hours you will lose and
the work not done if you are not in the office.
Too many times we let the guilt win out, only to find it replaced by
the guilt of not attending the meeting or disappointing our family. Our work
ethic and training as attorneys is that our first responsibility is to complete the
problems our clients have given us to solve and to maximize our income in
order to best support our family.
A friend who is a wonderful therapist has told me several times when
I have allowed work to overshadow my life outside the office that we should
imagine ourselves at our own funeral. Four people will speak: a family
member, a friend, a colleague, and a respected member of the community.
What is it that they will say about us that will make us feel we have had a
fulfilling and meaningful life? Here are two options:
1. The family member will say that we always provided well for our
families. The friend will say that whenever he had a legal issue, he knew
we would be there to take care of it. The colleague will say that we devoted
our lives to our clients who waited in line for our successful services. The
community member will say we had a wonderful reputation as an attorney. or
2. The family member will say that that we were always there for
them when it mattered despite our busy schedule. The friend will say that he
always knew he could count on us to lend an ear or a hand. The colleague
will say that our clients and fellow attorneys respected us for our hard work
and perspective. The community member will say that we were respected
professionals and family members.
To make the second option the path of our lives, it takes a determined
effort to balance and prioritize all of the different demands on our time. It may
mean bringing work home to do after the kids are asleep or asking a colleague
to cover a calendar call. Yet, every time we go to one of those lunches, we
enjoy the camaraderie with our colleagues and come back to work refreshed.
Similarly, the day after the game or the visit with the family member, we feel
good about how it felt to spend time with them.
The work will get done and the quality of our lives will be at its best.
Broward County Bar Association Barrister
August 2013 | 5
6 | August 2013
Broward County Bar Association Barrister
2013 - 2014 BCBA
Young Lawyers’ Section
OFFICERS
Marissa Pullano - President
Liza Smoker - President Elect
Tobi Lebowitz - Treasurer
Jeffrey M. Wank - Secretary
Meghan Clary - Past President
BOARD OF DIRECTORS
Jamie D. Alman
Lauren M. Alperstein
Todd L. Baker
Patrick V. Douglas
Eric S. Rosen
Sara M. Sandler
Jonathan H. Stief
Lindsay M. Timari
Anthony H. Quackenbush
Cherie Smith Valbrun
Kelly M. Vogt
Stacy R. Weissman
JUDICIAL REPRESENTATIVES
The Honorable Stacy Ross
The Honorable Cynthia Imperato
Florida Bar
Board of Governors
17th Judicial Circuit
Walter G. “Skip” Campbell
954.763.8181
Lorna E. Brown-Burton
954.463.8322
Jay Cohen
954.763.6939
Adam Glenn Rabinowitz
954.764.7060
Diana Santa Maria
954.434.1077
Broward County Bar Association
1051 SE 3rd Avenue
Fort Lauderdale, FL 33316
954.764.8040
letter from the young lawyers’ president
Marissa J. Pullano, President
The month of August is always one of my favorite months even though the hottest
days of the year often fall in August. A quick google search of August also reveals that
August was a favorite of Roman Emperor Augustus Caesar from which the month derives
its name. Many of the most important events in Caesar’s life and his greatest triumphs
occurred in August, including his conquest of Egypt. Setting that historical fact aside, August is the start of the Young Lawyers calendar of events and we have quite a few events
(triumphs, if you will) that will require you to mark your calendar as soon on possible. On Thursday, August 15, 2013, the Young Lawyers Section will continue our outreach
to the Juvenile Diversion Record Expunction Workshop which assists youths who have
successfully completed a diversion program within the last six (6) months, expunge their
record. The Workshop is held on a quarterly basis at the Urban League in Fort Lauderdale
(located at 560 NW 27th Avenue, Fort Lauderdale, Florida 33311) from 5:30 pm – 8 pm. The Record Expunction Workshop is part of the Broward Diversion Coalition led by Assistant State Attorney Maria Schneider which offers an array of services to non-violent,
first-time misdemeanor offenders in an effort to better outcomes for at-risk youth. If you
are interested in volunteering with the Workshop, please contact marissa.pullano@brinkleymorgan.com by August 10, 2013. All training to participate is done at the Workshop
upon arrival, and participation is a wonderful way to give pro bono assistance back to our
community.
On Thursday, August 22, 2013, we will kick off our first monthly luncheon with a
judicial panel discussing the topic “Common Mistakes by Lawyers” which will be held
at the Tower Club. Judges Tim Bailey of the Family Division and William Haury of the
Civil Division have committed to join our judicial panel. Please mark your calendars for
this luncheon.
We will also be hosting our annual happy hour with Emerge Broward and Ghost Light
Society in August. This event usually takes place at the Broward Center for the Performing Arts but this year due to construction at the Broward Center, we are in the process of
securing a new venue. The event will be free to members of YLS, Emerge Broward and
Ghost Light Society. Please check the YLS website (www.browardbar.org/yls) for the
final date for this happy hour.
Please also mark your calendar for October 19, 2013 when YLS will host our 26th
Annual Golf Tournament benefitting HANDY (Helping Abused Neglected Disadvantaged
Youth). The tournament will take place at Jacaranda Golf Club in Plantation and we are
thrilled to be working with HANDY to exceed our previous fundraising efforts, to benefit
at risk youth in our Broward County community. YLS Secretary and Golf Tournament
chair, Jeff Wank, has already begun his hard work and has secured Warren Henry Infiniti as
a hole-in-one sponsor. You will not want to miss this incredible event. Please mark your
calendars today and stay tuned for YLS emails and check our website for updates about
this event. If you have any questions about sponsorship opportunities or participating in
this year’s event, please do not hesitate to contact Jeff Wank at jwank@cftlaw.com. Finally, a very special thank you to Judge Ari Porth who invited the Young Lawyers
Section Board of Directors and fifteen (15) members of the Young Lawyers Section to attend a breakfast with the newest members of the Broward County Judiciary, Judges Bailey,
Rosenthal, Rothschild, Scherer, Watson, Pole, McHugh and Levine on Friday, August 2,
2013. Thank you to Judge Porth and the newest members of the judiciary for their hospitality. If anyone has any questions about joining YLS or to learn more information about
YLS and our events, please feel free to call me at 954-522-2200 or email me at marissa.
pullano@brinkleymorgan.com. You can also find a calendar of our events on the Broward
County Bar Association web site at www.browardbar.org/yls. As always, it is an honor to serve the community and our profession this year as the
YLS President. I look forward to seeing you at our August programs and events.
Broward County Bar Association Barrister
August 2013 | 7
Congratulations to the those
attorneys in the 17th Circuit
who are celebrating 50 years
of service in The Florida Bar
Karl William Adler
W. George Allen
George E. Bunnell
Larry C. Fedro
Robert James Fogan
Alcee Lamar Hastings
Taylor Mattis
Estella May Moriarty
James O. Resta Murphy Jr.
Joseph John Navarra
Franklin Anthony Orlando
Carl Schuster
Lawrence Oliver Turner Jr.
26 th
Plantation Preserve
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Charity Golf Tournament
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Shotgun Start • 8 a.m., Saturday, October 19, 2013 • Jacaranda Golf Club, Plantation, Florida
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4 person scramble unlimited beverages prizes putting contest raffles silent action continental breakfast awards luncheon
Happy Hour: Thursday, October 17, 2013 from 5:30 – 7:30 p.m.
American Social on Las Olas
Visit www.younglawyersgolftournament.com for more information or
Jeffrey M. Wank, Esq. at jwank@cftlaw.com or 954-492-4010
All Proceeds donated to HANDY (Helping Abused Neglected Disadvantaged Youth)
8 | August 2013
Broward County Bar Association Barrister
Florida New P.I.P.
Insurance Law
Will it be Premiums or Coverage
that Drops Like a Rock?
By Russel Lazega, Attorney and Author
The ink has barely dried on Florida’s new P.I.P.
insurance law and already reports are coming in
from state insurance regulators that consumers
shouldn’t get their hopes up about seeing any savings on their car insurance – at least not any time
soon. The official word from Tallahassee: “Let’s
re-evaluate the situation in 2014 . . . maybe . . .
perhaps.”
So What Happened? Where did the Savings
and Legislative Fixes Go?
The short answer is we are in a state of legal limbo on the new P.I.P. Law – both with regard to its
implementation and its savings. On one side, the
statute was never given any teeth to enforce rate
reductions so most insurance companies simply
did not take them or requested less of a rate increase then previously sought. On the other hand,
many of the new “cost-saving” provisions of the
new bill have been challenged in the courts (with
challengers successfully obtaining an injunction
from a circuit court in Tallahassee) leading to a response by insurers that savings haven’t happened
yet because the law hasn’t really been able to fully
take effect.
So Do We Have a New P.I.P. Law or Don’t
We?
Well, yes . . . sort of. The decision of the circuit
court is on appeal and most insurers have simply
continued to apply the new statute until the appellate court says different. Moreover, the circuit
case only declared parts of the law unconstitutional, focusing its analysis on the provisions of
the statute capping P.I.P. benefits at ¼ their prior
amount for many non-emergency cases and the
language excluding certain classes of treatments
and treatment providers, namely acupuncture and
massage. The rationale in a nutshell was that P.I.P.
coverage had become so restrictive and cumbersome that it no longer provided a fair exchange
for the right to sue in tort. The result was a state
of confusion with some insurers implementing
the changes and others taking a “wait and see”
approach.
How Did This Mess Happen?
First, we need to take a trip back to early 2012
and the state legislative session to get an understanding of where our promised fix for P.I.P. went
dreadfully awry.
It was March 2012. Politics were hot and heavy.
The legislative session was waning to an end.
Governor Rick Scott (accompanied by Chief Financial Officer Jeff Atwater) were weighing in
heavy on the Senate floor trying to push their
sweeping car insurance bill through its final vote.
Deals were being cut; Budget items still lingered
on the bartering table. And most-importantly, the
great, pink elephant of legislative redistricting
(the once-every-decade redrawing of state legislator’s district boundaries) was still very present
and trumpeting in the corner of the room. In fact
party leadership was quick to remind any wayward political cog that his district could easily
end up looking like an upside down Chinese Yen
character if he stepped off the company line. The
battle was on.
What Was Lost in the Push to Win the Battle?
Perhaps the biggest problem was that in the rush
to proclaim victory in passing a bill few stopped
to look at what was actually in the bill or whether
it would actually produce savings and whether it
would even survive constitutional challenge.
Let’s look at what we got.
No Promise of Rate Reduction.
Maybe it’s better to say that we should look at
what we didn’t get. Glaringly absent from this
law is any requirement that insurers actually
lower your premiums. Repeat – no one actually
required that rates go down! There is little more
than a suggestion that insurers roll back rates
by 10 (and later 25) percent, or send an “excuse
note” to the insurance commissioner explaining
why they didn’t make the cut. That’s it. Naturally,
you guessed it – most insurers quickly pulled out
their post-it pads and penned their excuses for
why they weren’t ready to lower rates. “We’ll
cut rates by raising them less,” was the answer for
most insurance companies.
So What Did We Trade for “Maybe Less of
More Premium Hikes”?
Consumer and Plaintiff groups say it’s just less
coverage for more money. Insurers say this was
needed reform that will slow the skyrocketing rise
in auto insurance premiums and reduce fraud.
Here are the law’s key provisions:
Broward County Bar Association Barrister
• P.I.P. coverage drops from $10,000 to $2,500 for
certain claims where there was not an emergency
medical condition.
• Certain services such as massage and acupuncture are no longer covered.
• Treatment must be sought within 14 days of an
accident or no coverage will be extended.
• Reimbursement caps applied for hospitals and
most medical providers.
• Insurers are given an additional 60 days (up to
90 total days) to pay certain claims that are under
investigation.
• Insurers may now force consumers to sue for
information needed to verify if a claim was processed correctly (such as payment registers).
• Injuries not noted in the emergency room or primary treating physician’s records might no longer be covered. So if the emergency room fails to
document a complaint or a problem later develops, you may not be covered.
• Insurers may now require injured persons making a claim to submit to the insurance company
for an Examination Under Oath (essentially a deposition) conducted by the insurance company’s
lawyers or investigators before any payment will
be made. Fail to cooperate and you risk losing
your benefits.
Conclusion: So What’s Next Now That the
Rock Has Dropped?
At least one dramatic proposal was floated during the last legislative session and seems poised
to return again: namely, to eliminate P.I.P. and
replace it with a mandatory, fault-based, bodily
injury coverage system. That fix, proponents say,
will eventually get costs under control leaving insurers finally able to bring about those rate cuts
we’ve been promised . . . yeah, maybe then.
Russel Lazega is an attorney and author of several of
Florida’s most widely distributed legal textbooks on Florida Insurance Law: West’s
Florida P.I.P. Practice Series
and West’s Florida Insurance
Law & Practice. Mr. Lazega
represents Hospitals, medical
providers, accident victims,
insurance policyholders and
condominium
associations
and is based in Dania Beach,
Tallahassee, North Miami,
Orlando and Tampa, Florida.
Contact: Lazegalaw.com
August 2013 | 9
Bridging the divide
Upchurch Watson White & Max
Mediation Group
Serving Broward County, and all of Florida and Alabama, since 1996
(800) 264-2622 | www.uww-adr.com
Photo of Tree Tops Park in Davie from The South Florida Sun Sentinel
The Broward County
Bar Association
thanks its Annual Sponsors
The Arias Law Group
Bob Coury
Boss Certified Realtime Reporting
Broad & Cassel Attorneys at Law
Connections for Business
Crowe Paradis
Ellsley Sobol Attorneys at Law
Fiske and Company
Florida Power and Light
Lexis Nexis
Pankauski Law Firm PLLC
Sabadell Bank
Swamp City Productions
10 | August 2013
Bench & Bar Convention
October 18, 2013
Broward County Convention Center• Fort Lauderdale
HOLD THE DATE!
Over 750 participants expected • A day filled with CLE Seminars • Legal Vendors • Breakfast, Lunch, & Cocktail Reception
Keynote Speaker
Florida Supreme Court Justice Barbara J. Pariente
Keynote Breakfast Speaker
The Honorable Renee Goldenberg of the 17th Judicial Circuit will present “Top Ten Societal Shifts that Affect Legal
Ethics and Professionalism.”
For information about sponsorship or an exhibition table at the
Broward County Bar Association’s 2013 Bench & Bar Convention,
contact at your earliest convenience:
Robin Moselle, Convention Co-Chairperson
(954) 315-0923
Charles Morehead III, Convention Co-Chairperson
(954) 473-6605
Braulio Rosa, Acting Executive Director
(954) 832-3620
www.browardbenchandbar.org
Broward County Bar Association Barrister
SMART Act Update
CMS to Release Proposed SMART Act
Regulations this Fall
By: Mark Popolizio, Esquire
In a major development on the SMART Act
front, the Centers for Medicare & Medicaid Services (CMS) has announced that it will release
proposed regulations this fall regarding its implementation of key SMART Act provisions.1
Specifically, the forthcoming proposals will
focus on establishing regulations pertaining to (i)
Section 111 civil monetary penalties and (ii) the
new expedited conditional payment demand process created under the SMART Act.
This article provides a general overview of
CMS’ announcements and how they relate to
SMART Act implementation as follows:
Section 111 Civil Monetary Penalties
The SMART Act modifies Section 111’s penalty provision by adding a discretionary element
regarding the penalty’s application and amount.2
Further, the new law requires CMS to solicit proposals from the public to establish the formal Section 111 penalty provisions.3
To implement these provisions, CMS has
now announced that it will release an Advance
Notice of Proposed Rulemaking (CMS-ANPRM-6061) sometime in September 2013.
A copy of this notice can be obtained here.
This announcement indicates that the forthcoming ANPRM will “solicit proposed criteria
and practices for which Civil Monetary Penalties
(CMP’s) will and will not be imposed under the
Medicare, Medicaid and SCHIP Extension Act of
2007 (MMSEA).”
On a technical point, it is noted that the above
description does not make any reference to the
ANPRM seeking input on establishing “safe harbors” for applicable plans that make “good faith
efforts to identify a [Medicare] beneficiary” as
specifically required under the SMART Act.4
It is unclear if CMS, despite this omission, intends to include the safe harbor provision as part
of the upcoming ANPRM process. Regardless,
given the importance of this provision to many
industry stakeholders, it is expected that the public will press CMS on this point to ensure that the
safe harbor is in fact covered as part of the ANPRM process.
required to use CMS’ new Medicare Secondary
Payer Recovery Portal (MSPRC Portal). CMS
must update the portal within specified timeframes and the information it posts must meet
certain specificity requirements.
To implement these provisions, CMS has
announced that it will release an Interim Final
Rule (CMS-6054-IFC) sometime in October
2013.6
A copy of this notice can be obtained here.
This announcement contains a very general
description which simply indicates that the forthcoming interim final rule will address the process
for parties to access “beneficiary specific Medicare Secondary Payer information” from the new
conditional payment portal.
It is noted that this description does not reference anything in relation to the SMART Act’s
“appeals process.” Specifically, the SMART Act
extends formal appeal rights to primary payers
and other parties to challenge conditional payment determinations. CMS is required to promulgate regulations establishing “a right of appeal
and appeals process.” It is unclear if the forthcoming interim rule will also address this aspect, or if
CMS will address this through a separate process.
Going Forward…
With these new CMS announcements, several
important SMART Act components now move to
the all important rule making phase. As part of
this process, the industry will have the opportunity to provide its input and comments on the Section 111 penalty and the new expedited conditional payment process. It will be necessary to closely
monitor CMS and the Federal Register over the
next few months for CMS’ formal release of its
proposed regulations. Close attention should also
be paid to the exact comment submission process
outlined therein (including submission deadline
dates) to ensure that comments are properly submitted and received by CMS.
ISO Crowe Paradis will continue to closely
monitor these events and provide timely updates
as warranted.
“SMART Act” is the acronym referring to the Strengthening Medicare and Repaying Taxpayers Act. By way
of brief background, the SMART Act was introduced
into the United States House of Representatives as H.R.
1063 in March 2011, and in the Senate as S.1718 in October 2011. In mid December 2012, the SMART Act
was then merged with H.R. 1845, a bill directing Medicare to study the benefits of in home administration of
intravenous immune globulin. The SMART Act became
Title II of H.R. 1845 (Sections 201 -205). On December
19, 2012, the House passed H.R. 1845 by a vote of 406
to 3; the Senate passed the bill on the Unanimous Con1
Expedited Conditional Payment
Demand Process
The SMART Act creates a new expedited conditional payment demand process whereby parties
may obtain CMS’ “final” conditional payment
figure prior to a settlement, judgment, award, or
other payment.5
As part of this process, claimants or applicable
plans (with the consent of the claimant) will be
Broward County Bar Association Barrister
sent Calendar the following day. President Obama then
signed H.R. 1845 into law on January 10, 2013. As referenced, the SMART Act adds a discretionary
element to Section 111’s penalty in terms of application
and amount. Specifically, the SMART Act strikes the
“shall be subject” language as contained in the original
statute and replaces it with “may be subject to a civil
penalty of up to $1,000 for each day of noncompliance
with respect to each claimant.” See, SMART Act, Section 203.
3
Under the SMART Act, the Secretary of HHS is required to solicit proposed regulations regarding Section
111 civil money penalties within 60 days of the SMART
Act’s enactment (which was technically March 10,
2013), to include a 60 day public comment period. After considering the submitted proposals, the Secretary,
in consultation with the Attorney General, shall publish
in the Federal Register proposed “specified practices for
which sanctions will and will not be imposed,” to include a 60 day comment period. After then considering
any received comments, the Secretary is to issue a “final
rule” establishing the Section 111 penalty provisions. As part of this process, the new law requires that the
regulations contain a specific “safe harbor” provision
precluding the imposition of the Section 111 penalty
in situations where the applicable plan makes “good
faith efforts to identify a [Medicare] beneficiary.” See,
SMART Act, Section 203.
4
See, n. 3.
5
In general, the claimant or applicable plan may request
CMS’ final conditional payment figure (referred to as
a “statement of reimbursement”) by notifying CMS “at
any time beginning 120 days before the reasonably expected date of a settlement, judgment, award, or other
payment” that a payment is reasonably expected and the
date of such payment. CMS will then have 65 days to
post its conditional payment demand (subject to possible limited time extensions). The SMART Act also
sets forth a dispute process whereby an “individual (or
authorized representative)” may challenge any “discrepancies” with respect to the provided statement of
reimbursement. See, SMART Act, Section 201.
6
The text of the SMART Act states that CMS must promulgate “final regulations to carry out this clause not
later than 9 months after the date of the enactment of
this clause.” This would technically mean that the final
regulations would be due on or before October 10, 2013
(nine months from when President Obama signed the
bill into law on January 10, 2013). See, SMART Act,
Section 201.
2
Mark Popolizio, Esquire is Vice
President of MSP Compliance and
Policy for ISO Crowe Paradis.
Mark is a nationally recognized
authority in MSP compliance. He
has authored numerous articles
on MSP issues including MMSEA
Section 111, MSAs and conditional
payments. Mark is a regularly featured presenter at national seminars
and other industry events. Prior
to dedicating his practice to MSP
compliance in 2006, Mark practiced
workers’ compensation and liability insurance defense for ten years
representing carriers, employers,
third party administrators and self
insureds. Mark is based out of Miami, Florida and can be reached at
mpopolizio@cpscmsa.com or (786)
459-9117.
August 2013 | 11
Coral Springs Office Space
First Month Rent FREE
University Drive across from “The
Walk”. Two professionally decorated
window offices (11x14 and 10x14)
with available workstations. Shared reception area,
kitchen and conference room. Will rent individually.
Starting at $850/month.
Contact Mark Abzug, Esq.
(954) 753-1003  mabzug@coralspringslaw.com
THANK YOU
Phelan Hallinan, PLC
For Placing Your Legal Notices with Us
in BAY COUNTY, Florida
And Saving Your Clients Money!
PA N A M A C I T Y A R E A & B E A C H E S W E E K LY
We can help!
We’ve been using them for years!
•
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without aggravation!
•
Stay in compliance with court
requirements!
Visit www.rainydayfl.org or call us at 561-451-7387
BAY COUNTY BULLET
850-640-0855 / legalads@baybullet.com
12 | August 2013
RAINY DAY DISABILITY RESOURCES, INC. is a Florida non-profit whose
mission is to improve the lives of disabled individuals by providing
proactive and innovative funding options along with education and
specialized resources.
Broward County Bar Association Barrister
Thank you to the following
attorneys who accepted a
Pro Bono case from
Broward Lawyers Care*
January - March 2013
Jeffrey Solomon
June 2013
Broward Lawyers Care congratulates
Jeffrey Solomon, Esq.
as the June 2013,
Attorney of the Month!
Jeffrey Solomon has contributed countless hours
over the past couple of years, teaching, advising
and mentoring staff attorneys at Legal Aid Service
of Broward County (LAS) and Coast to Coast Legal
Aid of South Florida (CCLA). His expertise as a
behind-the-scenes mentor to these attorneys has
helped them to navigate the complicated and everchanging bankruptcy laws and court system. The
foreclosure crisis has resulted in an overwhelming
increase in clients seeking legal counsel about the
options associated with bankruptcy filings to save
their homes. Because of Mr. Solomon’s willingness
to share his expertise, the LAS and CCLA staff
attorneys are able to provide specialized legal
services to clients in crisis with issues like mortgage
foreclosure, tax liens, IRS issues and other complex
matters.
Jeffrey Solomon is a sole practitioner in Hollywood,
Florida. He is the former Section Chair of the
Broward County Bar Association Bankruptcy
Section and is a member of the Bankruptcy Bar
Association for the Southern District of Florida and
the National Association of Consumer Bankruptcy
Attorneys. He has lectured and published articles
on the new bankruptcy laws.
Thank you, Jeffrey Solomon, for your devotion to
Justice for All! Because of your contributions, we
have helped numerous clients who otherwise might
not have received legal representation.
Broward County Bar Association Barrister
Jamie Aleman
Mary Lewis
David Bazerman
Angela Lipscomb
Theresa Bennett
Edward Lohrer
Brion Blackwelder
Grace Manne
David Boyer
Reed B. McClosky
Yvonne Brown-Wright
James McDonald
Michael Cabrera
Amy McGrotty
Lisa Callahan
Dauna McPherson
Meghan Clary
Joanne McShane
Elizabeth Daugherty
Stephen B. Moss
Pilar De Jesus
Patrick Murphy
Stephanie Ducheine-Welsh
Robert Murphy
Zachariah Evangelista
John Page
Ben I. Farbstein
Blaise Picchi
Larry Fedro
Karol Pierce
Samantha Fitzgerald
Marissa Pullano
Nathaniel Flinchbaugh
Dawn Rapoport
Dexter F. George
Eric Rosen
Jill R. Ginsberg
Richard Sachs
Jennifer Gomez
Robert Sader
Seril Grossfeld
Sara Sandler
Andrea Gundersen
Stephanie Schneider
Ronald Hansen
Paula Schwartz
Yvette Harrell
Janet Shepherd
Diana Hedrick
Sherri Simpson
Michael Hoffman
Jon Stief
Jorge E. Hurtado
Ronald Surin
Ahiza H. Johnson
Mario Theodore
Matthew Karp
Russell M. Thompson
Theodore C. Kaufman
Chad Van Horn
Carol Kendall
Kelly Vogt
Patricia Keyes
Jeannette Watkin
Paul Kim
Melissa S. Zelniker-Presser
Tobi Lebowitz
John Zullo
*Includes Mission United Pro Bono Veterans Project, Tracey
McPharlin Pro Bono Dependency Project and Advice
& Counsel Hotline.
August 2013 | 13
2013-2014 BCBA BOARD OF DIRECTORS
Executive Committee
Alan Fishman
President
John Jordan
President Elect
Robin Moselle
Office of the Treasurer
NORTHEAST
Thomas D. Oates
Michael I. Kean
Jerome R. Siegel
Donald E. Fucik
Gary Landau
Jose Izquierdo
Steve Lubell
CENTRAL
Edwina V. Kessler
Jeffrey Solomon
Michael A. Fischler
SOUTHWEST
Michael Leader
Jay Kim
SOUTHEAST
Anita Paoli
WEST
CENTRAL
Russell M. Thompson
Jeffrey Harris
Deborah FitzGerald
Past President
NORTHWEST
WEST
Gary M. Singer
Charles A. Morehead III
Office of the Secretary
Ken Hassett
JUDICIAL REPRESENTATIVE
Laura Varela
The Honorable
Jeffrey R. Levenson
2013 Annual Meeting and Installation Dinner
On June 20, 2013, the Broward County Bar Association celebrated the installation of its 88th president, Alan Fishman,
as well as its incoming officers and board members. At the same event, the Young Lawyers Section installed its new
president, Marissa Pullano, and the YLS Board of Directors. Congratulations to Alan, Marissa and both Boards.
President’s Award recipient, Christin
Gallardo, with Deborah FitzGerald
(president July 2012 – June 2013).
A special thank you to Carey Fischer
for providing entertainment during the
cocktail reception.
Practice Chair award recipients, Leonardo Ortiz and Gavin Caddy (Construction Law), with Deborah FitzGerald
(president July 2012 – June 2013).
Committee Chairperson Award recipient, Edwina Kessler (Publicity and
Publications), with Deborah FitzGerald
(president July 2012 – June 2013).
Paul May Young Lawyers Section
Professionalism Award recipient, Diana
Sulea, with Liza Smoker Faw, YLS President Elect.
Joseph J. Carter Professionalism Award
recipient, Samuel Coffey, with Andrea
Gundersen, Professionalism Chairperson (July 2012 – June 2013).
Lynn Futch Professionalism Award
recipient, Jeff Solomon, with Andrea
Gundersen, Professionalism Chairperson (July 2012 – June 2013).
Judge Renee Goldenberg, Judge Sharon Zeller and Attorney Beverly Vesel at
the Cocktail Reception.
Practice Section Chair Award recipient,
Neal Falk (Worker’s Compensation Law),
with Deborah FitzGerald (president July
2012 – June 2013).
www.BossReporting.com
16 | August 2013
Broward County Bar Association Barrister
Latest
Supreme
Court
Decisions
By Nancy Little Hoffman
Supreme Court Rejects Attempt to Prevent Challenge to Legislative Apportionment Plan
The Legislature sought extraordinary
writ review to block the League of Women Voters from maintaining a lawsuit in
circuit court presenting fact-based challenges to the 2012 legislative apportionment plan. The Supreme Court held that
its constitutional authority to review the
facial validity of the plan within thirty
days based on a limited record did not
preclude the circuit court from determining the plan’s validity based on facts not
available at the time of the high court’s
initial review. Florida House of Representatives v. League of Women Voters,
38 Fla. L. Weekly S565 (Fla. July 11,
2013).
Implied Warranties Apply to Essential
Services in Residential Development;
Legislature Cannot Abolish Common Law
Right by Enacting Statute to Overrule Judicial Decision
Upholding a Fifth District decision, the
Supreme Court held that a homeowners’ association had standing to pursue
claims on behalf of homeowners against
a builder for breach of implied warranties
of fitness and merchantability, extending
those warranties to improvements that
provide services essential to the habit-
ability of residences. The Court also invalidated the Legislature’s enactment of
a statute purporting to overrule retroactively the Fifth District decision, because
(1) its retroactivity offended due process
by abolishing vested rights; (2) it violated the constitution’s access to courts
provision by attempting to invalidate a
common law cause of action; and (3) it
violated the separation of powers clause.
The Court noted: “The Legislature does
not sit as a supervising appellate court
over our district courts of appeal.” Maronda Homes, Inc. v. Lakeview Reserve
Homeowners Association, Inc., 38 Fla.
L. Weekly S573 (Fla. July 11, 2013).
Homeowners Allowed to Challenge Foreclosure Sale on Equitable Grounds Other
Than Inadequate Bid Price
Where a mortgage lender settled with
borrowers for a reduced amount, which
they paid timely, but the home was nonetheless sold at a foreclosure sale, the circuit court vacated the sale, dismissed
the action, and ordered repayment of the
purchase price to the third-party buyer. On appeal by the buyer, the Fourth
District affirmed and certified the question as to whether it is necessary to allege and prove an inadequate bid price
in order to vacate a judicial sale. The
Supreme Court held that vacation was
Broward County Bar Association Barrister
proper where, as here, the homeowners
alleged and proved adequate equitable
grounds, even though there was no challenge to the bid price or the manner in
which the sale was conducted. Arsali v.
Chase Home Finance, LLC, 38 Fla. L.
Weekly S562 (Fla. July 11, 2013).
Dual Prosecutions Under Separate Subsections of Drivers’ License Law Violated
Double Jeopardy
The Supreme Court held that a defendant cannot be prosecuted for both driving with a suspended license and driving
as a habitual traffic offender. The applicable sections reflect that the two crimes
are mutually exclusive, and prosecutions
for both would thus violate the prohibition against double jeopardy. Gil v.
State, 38 Fla. L. Weekly S581 (Fla. July
11, 2013).
Lawyer practicing in the
Fort Lauderdale area
since 1974. She may be
contacted at 954-7710606 or by e-mail at
NLHappeals@aol.com.
For more information, see
NancyLittleHoffmann.
com.
August 2013 | 17
RAE E. CHOROWSKI
RENITA F. HENRY
SUPREME COURT CERTIFIED
FAMILY LAW MEDIATOR
OF COUNSEL
PAULA REVENE, P.A.
MEGHAN M. CLARY
CHOROWSKI & ASSOCIATES, P.A. IS PLEASED TO ANNOUNCE
MEGHAN M. CLARY
HAS BEEN MADE A PARTNER IN THE FIRM AND
THE NEW NAME OF THE FIRM IS
CHOROWSKI & CLARY, P.A.
The addition of Meghan Clary’s name to our law firm has been made in recognition of her
extraordinary contributions to the firm and our clients. We are particularly proud of Meghan’s
diligent and distinguished service as President of the Young Lawyers Section of the Broward
County Bar for the past year and we look forward to the continuing contributions she will make
to this firm and to the legal community in the coming years.
Rae Chorowski
Meghan Clary
Chorowski & Clary, P.A. will continue to offer our clients exceptional
representation in all aspects of marital and family law.
Law Offices of Chorowski & Clary, P.A.
600 South Andrews Avenue | Second Floor | Fort Lauderdale, FL 33301
Office: 954.525.6566 | Fax: 954.525.6933 | www.cclawpa.com
PRSRT STD
STD
PRSRT
U.S.
POSTAGE
U.S. POSTAGE
PAID
PAID
FT.FT.
LAUDERDALE,
LAUD. FL FL
PERMIT NO.
2998
PERMIT
# 2998
1051 S.E. Third Avenue
Fort Lauderdale, FL 33316-5010
954.764.8040
www.browardbar.org
August
3 9:00 am – 5:00 pm
Eight Hour Adult Guardianship Class
Attorneys Welcome, approved by the
Florida Bar for CLE credits; Fee $180.
Venue: BCBA Offices
Address: 1051 SE 3rd Avenue, Fort
Lauderdale
Contact: Tish (954) 832-3617 to
register for this event
calendar of events
10 9:00 am – 1:00 pm
Four Hour Minor Guardianship Class
Description: Attorneys Welcome,
approved by the Florida Bar for CLE
credits; Fee $100.
Venue: BCBA Conference Center
Address: 1051 SE 3rd Avenue, Fort
Lauderdale
Contact: Tish (954) 832-3617 to
register for this event.
22 12:00 pm – 1:30 pm
West Broward Section CLE Luncheon
Description: Speaker: Mayor John P.
“Jack” Seiler: Includes Lunch and CLE;
$25, $30 at the door.
Venue: Plantation Preserve Golf
Course
Address: 7050 W. Broward Boulevard,
Plantation
Contact: Bonnie Ross (954) 832-3618
or bonnie@browardbar.org