Proposed Rule to Amend the Safe Harbors to the Anti-kickback Statute Affects the Provision of Local Transportation Services

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On October 3, 2014, the Office of Inspector General (OIG) issued a proposed rule to amend the safe harbors to the anti-kickback statute and the civil monetary penalty rules. See 79 Fed. Reg. 59717 (October 3, 2014).  Comments on the proposed rule are due on December 2, 2014.  The OIG’s proposed rule is another example of how regulations that are aimed at reducing fraud and abuse by health care providers and suppliers end up disadvantaging the patients they serve.

“Established Patient” versus “New Patient”

One proposed change is to add a new safe harbor to protect an “Eligible Entity” which provides free or discounted local transportation services to federal health care program beneficiaries, provided the services meet specified criteria. The OIG proposes to add this safe harbor under the authority of section 1128A(a)(5) of the Social Security Act.  The OIG notes that “Congress intended that the statute not preclude the provision of complimentary local transportation of nominal value,” citing H.R. Conf. Rep. No. 104-736 at 255 (1966).  79 Fed. Reg.  59721.  The OIG interprets “nominal value” to mean “no more than $10 per item or service or $50 in the aggregate over the course of a year.” Id.

The proposed safe harbor would protect free or discounted local transportation made available to an “established patient” and a person to assist the patient, if necessary, to obtain medically necessary items and services. However, it would not protect free or discounted local transportation made available to a “new patient.”  As explained by the OIG, an example of an “established patient” is a patient who “has selected an oncology practice and has attended an appointment with a physician in the group.”  79 Fed. Reg. 59722.  Under the OIG’s proposal, “the physician could offer transportation assistance to the patient who might have trouble reliably attending appointments for chemotherapy.” Id.  The OIG states this requirement is designed to reduce the risk of a health care provider or supplier using a transportation program to increase business by transporting patients to its premises or by inappropriately inducing referrals from other providers or suppliers by transporting patients to their premises.

But what about the patient who has not yet been diagnosed with cancer because he/she will not take that first step to schedule an appointment with a physician due to the fact that he/she does not have and/or cannot afford to pay for transportation? For that patient, the availability of free or discounted local transportation to a physician’s office may be a deciding factor in whether the patient lives or dies from the disease.

Eligible Entity

The proposed definition of an “Eligible Entity” excludes individuals and entities or family members of others acting on their behalf that primarily supply health care items, including but not limited to, durable medical equipment suppliers or pharmaceutical companies, as well as laboratories. The OIG believes these individuals and entities would use transportation services to generate business for themselves by steering patients to practitioners and referral sources who order their products.  The OIG is soliciting comments on whether home health agencies also should be excluded, in whole or in part, from protection as an “Eligible Entity” as it is concerned about the overutilization of home health services.  Specifically, the OIG is concerned that if a home health agency provides free or discounted local transportation to physician offices, it might induce the physician to refer to that home health agency and might result in overutilization in the form of unnecessary physician visits or unnecessary home health care prescriptions.  Because of this concern, the OIG is considering excluding home health providers from the safe harbor protections when they provide transportation to referral sources, such as physicians, but including them in the safe harbor protections when they provide transportation to non-referral sources, such as pharmacies.

But what about patients in need of free or discounted transportation services to attend their physician office appointments? If the OIG adopts a final rule which excludes home health providers from the safe harbor protections if they provide patients with free or discounted transportation services to referral sources, those patients will need to find an alternative source for transportation services.

If you have any questions about the OIG’s proposed rule or would like to submit comments on the proposal, please contact Rochelle H. Zapol, a partner in Prince Lobel’s Health Care Practice Group and the author of this post. You can reach Rochelle at 617 456 8036 or rzapol@PrinceLobel.com.

Zapol

-Rochelle H. Zapol

There Are Legal Issues In Blogging? – Amanda Schreyer’s Guest Post on Mom 2.0 Summit

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The following piece by Prince Lobel media and intellectual property attorney Amanda Schreyer first appeared on the Mom 2.0 Summit website.

I get some quizzical looks when I tell people what I do. I used to get them more often, though. I’m not asked “Why would a blogger need a lawyer?” as often as I once was. I think that’s a result of greater mainstream acceptance of blogging as an industry in the past few years. Increasingly, in addition to using a blog as a platform for self-expression and to connect with a community of like-minded people, opportunities exist for bloggers to use their social media platforms to benefit financially. Many of you have created businesses with your blog (whether you intended to or not), so you may be encountering some issues you have never dealt with before. And whether you blog for fun or for money or both, there are legal aspects to consider–such as intellectual property rights (yours and others’) and consumer protection rules. Here are some of the topics I discuss most often with bloggers:

1. Trademarks and branding

A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods or services of one party from those of another. In the context of blogging, your blog name, as well as any logo you use in your blog, could be used as a trademark. In the United States, your rights in a trademark arise from your use of that trademark, not merely from being the first to register the mark with the government. A blog name or logo functions as a trademark when you are using it in connection with the services you provide (i.e., blogging), in interstate commerce (i.e., on the Internet). Once you have been using the name long enough to have established trademark rights in it, you can generally stop someone else from using a blog name “confusingly similar” to yours, if you can demonstrate you were using the name as a trademark first. The goal is to have your blog name act as a source identifier. This means that when people see the name/logo of the blog, they know the content comes from you. Using the name/logo consistently – same font, same color – over time will help you to create this kind of recognition and build goodwill in your brand.

2. Domain names

There are people who purchase domain names in which they have no intellectual property rights–domains often including other people’s trademarks, or common typos of those trademarks–and “cybersquat” on them. Typically, they buy the domains and hold them hostage unless you are willing to pay them a fee to have them transferred to you. Let’s say you have purchased the domain name www.uniqueblogname.com, and you are gaining a following on your blog located there, and by using @uniqueblogname as your handle on Twitter and Instagram. Then you learn that someone else has purchased www.uniqueblogname.net, and your readers are getting misdirected there. That person is also using @uniqueblognamedotnet, and you have received emails from your readers asking if both handles are yours. Again, if you were first to use uniqueblogname as the name of your blog and @uniqueblogname as your handle, then you may be able to stop that person from using that “confusingly similar” domain and handle through a non-judicial remedy such as a Uniform Domain-Name Dispute-Resolution Policy procedure.

3. Content and copyright

Copyright considerations in blogging involve ensuring that you are only using content that you have the right to use, and enforcing your rights to exclusively use content you create. Because digital content is so easy to reproduce, it can easily end up where it does not belong.

In the United States, as soon as you have fixed your work in a tangible medium (i.e., written content and posted it on your blog), you have secured copyright in that content. While there are benefits of registering your work with the Copyright Office, it is not required in order to stop someone else from using your content unlawfully.

I hear many common assumptions about copyright law and blogging, like “As long as I only use X number of words, or X seconds of music, from someone else’s work, I don’t need permission;” “I can repost someone else’s photo, or a portion of someone else’s article, on my blog without permission as long as I give that person credit;” “I can repost someone else’s photo, or a portion of someone else’s article, on my blog as long as I link back to the original source” and “If it’s on the Internet, it’s in the public domain.” While some of the above may be acceptable practices among content creators, generally they are not consistent with copyright law.

Unless your use of someone else’s work on your blog is truly an exception to copyright infringement such as fair use, reproducing someone else’s blog post, article, photo, or illustration will likely violate that person’s exclusive right to control copying of the work (i.e., her copyright).

In addition, you might find your article, photo, or illustration on someone else’s blog. Multiple avenues exist for enforcing your copyrights in those works, and you might not even need a lawyer to do it. For example, the Copyright Act contains a mechanism through which a copyright owner can direct an internet service provider to take down infringing content upon receipt of a properly-worded notice. Note, however, that a copyright registration with the Copyright Office is your ticket into court. You can’t file a lawsuit without one.

4. Endorsements and FTC required disclosures

Once you have gained a following, you may have the opportunity to provide sponsored content on your blog. In this method of monetization, you create a post or tweet or pin or video about a product or service (an endorsement) in exchange for some kind of consideration from the company owning that product or service. “Consideration” does not only mean money. If you have received clothes, hotel rooms, gadgets, subscriptions, etc., from the company sponsoring the post, then you have received consideration, and you must disclose this to your readers. The Federal Trade Commission wants to protect consumers, so it wants to make sure that your readers have the information they need to be able to decide whether they believe your endorsement was influenced by your receipt of consideration. In furtherance of this goal, the FTC has published guidelines for bloggers regarding advertising and endorsements of products and services to help you understand your obligations for disclosing your relationship with a sponsor.

5. Hosting contests and sweepstakes

If you are hosting a promotion on your blog or Facebook page or Twitter account where your readers enter to win a prize, you are hosting a sweepstakes or contest, and there are rules you need to follow to make sure you are doing it lawfully. A sweepstakes includes a prize, and a random chance to be chosen to win that prize. A contest includes a prize, and the use of the skill of the entrant to win the prize based on criteria (e.g., “best essay,” “cutest puppy photo”). A sweepstakes cannot require consideration to enter, because that would convert it into an illegal lottery. A contest can have consideration, because the awarding of the prize is based on skill, and not chance. Again, consideration does not mean only money. In some states consideration can be anything of value to the promoter, which may be submitting a friend’s email address, subscribing to a newsletter, or filling out a burdensome entry form. Laws regarding online promotions vary from state to state, and some states require that you register the promotion with the state or that you post a bond to cover the value of the prize. The official rules of the sweepstakes or contest are your contract with the entrant, and must contain certain terms required by each state’s laws. You should also make sure that any promotion you run on a platform outside of your blog – such as Facebook or Twitter – complies with that platform’s terms and conditions for running promotions.

Regardless of where you are in your blogging experience, you are dealing with intellectual property. And as you grow your blog, compliance with other laws and regulations may be necessary. By being aware of some of your rights and obligations, and being able to recognize issues early on, you will be able to spend less time thinking about any of them, and more time focusing on creating great content.

If you have any questions about blogging, media, or intellectual property, please contact Amanda Schreyer, attorney in Prince Lobel’s Media and First Amendment Law Practice Group. You can reach Amanda at 617 456 8091 or aschreyer@PrinceLobel.com.

Schreyer

A Tale of Junk Faxes, Wily Lawyers, and Super Bowl Seasickness

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faxThere’s very little common sense to be found in this story.

Dubious Fact No. 1:  When the folks who ran Firefly American Bistro behind Boston’s Copley Place received an unsolicited fax inviting them to a 2007 Super Bowl party on a cruise ship, they did not do what the rest of us would do: deposit it immediately in the circular file, to be picked up with the evening trash.

No, the restaurant’s parent company—quaintly known as Hazel’s Cup and Saucer—called its lawyers, who filed what they hoped would be a class action lawsuit.

Dubious Fact No. 2: The lawyers then engaged in what the Massachusetts Appeals Court described as “difficult and costly procedures” to engage an expert witness and hunt down the sender of the fax: a Florida travel agency using a New York fax broadcasting agency known as “Business to Business Solutions.”

Dubious Fact No. 3: Under the federal Telephone Consumer Protection Act, the 1,640 recipients of the 2,000-plus junk faxes, if certified as a class by the court, would potentially be entitled to anywhere from $1.1 million to more than $3.4 million.  Of which the lawyers would, of course, get their cut.  (Maybe those lawyers knew what they were doing, after all.)

Seized by a moment of startling clarity and good sense, Superior Court Judge Frances McIntyre thought an award of that size would be preposterous, given that “the nature of the harm suffered by individual claimants—the cost of paper, ink, and toner—amounts to pennies.” To allow such claims to proceed as class actions, she said, would result in the TCPA being used by lawyers “as a device for the solicitation of litigation.”

So Judge McIntyre threw the 1,640 junk-fax recipients out of court, and sent them down the street to seek redress in Small Claims Court, where they could each receive automatic damages of $500.

Today, the Massachusetts Appeals Court (here comes Dubious Fact No. 4) reversed Judge McIntyre’s ruling, saying that anyone hiring a lawyer to bring a TCPA claim in small claims court would end up paying more for the lawyer than she or he would ever conceivably gain in a damages award.  (That’s sensible enough – until you ask yourself, “Who hires a lawyer to bring a claim in Small Claims Court?”)

The Appeals Court said the class action can now proceed in Superior Court.  That ruling seems plainly correct under the law–proving that, in the immortal words of Mr. Bumble, “The law is a ass.”

The ruling, while sound, leaves unanswered three pressing questions that confound this commentator.  The first:  “Who will benefit from this lawsuit other than the lawyers?”  The second: “Who sends faxes anymore?”  The third: “Who’d want to go a Super Bowl party on a cruise ship, anyway?”

Have at it in the comments: Can you explain to me what I’m missing?

–Robert A. Bertsche

Robert A. Bertsche

Prince Lobel Wins Appeal Affirming Availability of Escrow Arrangements for Secured Creditors

Prince Lobel attorneys Thomas M. ElcockKristin M. Knuuttila and Thomas R. Sutcliffe representing BHC Interim Funding II, LP and BHC Interim Funding III, LP (“BHC”) recently won an appeal before the Massachusetts Appeals Court in an important case involving questions of first impression under Article 9 of the Uniform Commercial Code.  BHC had intervened in a Superior Court case and sought to enforce its prior perfected security interest in funds that a judgment creditor, William Zimmerling, was trying to claim.  The Superior Court judge entered a preliminary injunction placing the disputed funds in escrow pending resolution of the competing claims.  Zimmerling, however, argued that once the funds were placed in escrow, BHC’s prior security interest was extinguished under M.G.L. c. 106, § 9-332(b).  Section 9-332(b) states that “[a] transferee of funds from a deposit account takes the funds free of a security interest in the deposit account.”  Zimmerling reasoned that, when the funds were placed into escrow, they were “transferred” either to the escrow agent (by virtue of the agent having physical control over the funds) or to Zimmerling (by virtue of his having received an equitable interest in the funds).  The Superior Court disagreed and ruled in favor of BHC.  Zimmerling appealed.

Prior to this dispute, no Massachusetts appellate court had opined on the meaning of the word “transfer” under Section 9-332(b).  Furthermore, case law in other jurisdictions was scant, and some of what did exist supported Zimmerling’s position.  The Appeals Court, however, relying heavily on arguments that Prince Lobel had made, concluded that neither the text of Section 9-332(b), nor the policy rationale behind that provision, supported a reading that would extinguish a creditor’s interest in funds simply because those funds were placed in escrow.  The Court determined that Zimmerling was not himself a “transferee.”  As the Court explained (and as Prince Lobel argued in the Superior Court and on appeal), the plain language of Section 9-332(b) applies only to a transfer “of funds” – i.e., the actual receipt of the funds themselves, not just a mere equitable interest.  The Court rejected Zimmerling’s claim that the escrow agent was a transferee because (as Prince Lobel had also argued), the escrow agent simply held the funds as a fiduciary and therefore did not have legal title.  The Court further determined that case law to the contrary in other jurisdictions was unpersuasive.

The Court further observed, as had Prince Lobel both in its briefing and at oral argument, that there were strong policy reasons for not allowing the placement of funds into escrow accounts to affect prior security interests. The purpose of Section 9-332(b) is to ensure the liquidity of funds and the finality of transactions in which funds are exchanged. But as the Court also recognized, “[b]y definition, a court-ordered escrow account is the antithesis of finality”; such escrow accounts, rather, are intended to freeze money pending resolution of the parties’ claims.  Therefore, the Court concluded, Zimmerling’s argument, when “[t]aken to its logical conclusion, . . . would render inoperable the use of escrow agreements in commercial transactions involving secured parties,” a result that would impede the U.C.C.’s goal of  “‘permit[ting] the continued expansion of commercial practices through custom, usage, and agreement of the parties.'” (quoting M.G.L. c. 106, § 1-103(a)(2)).

The Court’s decision applied a pragmatic analysis that accommodates both the importance of ensuring the liquidity of funds and the reality of commercial transactions involving escrow accounts – particularly where a court orders money placed into escrow.  Whether other jurisdictions will follow Massachusetts’s lead remains to be seen.

A copy of the Appeals Court’s decision can be found here.

For further information please contact Thomas M. Elcock at 617 456 8155, telcock@PrinceLobel.com, Kristin M. Knuuttila at 617 456 8170, kknuuttila@PrinceLobel.com, or Thomas R. Sutcliffe at 617 456 8054, tsutcliffe@PrinceLobel.com, the authors of this alert and counsel for BHC.

ElcockKnuuttilaSutcliffe

Massachusetts Ruling Reduces Access to Criminal Court Records

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Analysis and discussion by Robert A. Bertsche

In a stark about-face, the highest court of Massachusetts today took a step toward reducing access to criminal court records.  It reversed its own ruling from 20 years ago—and picked a fight with the federal First Circuit Court of Appeals that could someday be decided by the U.S. Supreme Court.

The unanimous 46-page decision from the Supreme Judicial Court is a victory for individual privacy rights at the expense of public access to the court system.  It was a bow to our age of “rapid informational access through the Internet and other new technologies.”

The Court made it substantially more likely that a certain category of criminal court records—those that have been dismissed or have been the subject of a “nolle prosequi,” or decision not to prosecute—will simply vanish from public view.

Less than 20 years ago, the same Court had ruled that the First Amendment required a strong presumption favoring public access to the records of such cases.  But the Court said today that its 1995 decision “no longer achieves the proper balance of interests,” and it lay down a new standard that makes it far easier for secrecy to prevail.

* * *

Imagine this not-entirely-hypothetical scenario:

It is 2017, and the mayor of Smalltown, Mass., is considering his nephew, John Johnson, to be head of the town’s Department of Public Works. 

You hear a rumor that, some years ago, Johnson was picked up by police. You ask Johnson about it, and he insists he has no criminal record. You go to Smalltown District Court, but you find no criminal records about him.  

Nonetheless, and unknown to you, the rumors are true.  In 2014, before he ever got involved in town affairs, Johnson was charged with operating a motor vehicle while under the influence of alcohol (OUI) and leaving the scene of an accident.

He admitted to facts sufficient for a finding of guilty, and in 2015, a Smalltown Municipal Court judge continued the charges without a finding for one year, suspending Johnson’s driver’s license for 45 days and sending him to rehab. 

A year later, the judge dismissed the case on the recommendation of the probation officer—who just happened to be the niece of Smalltown’s state representative.

Why couldn’t you find any court records?  Because as of today, under Massachusetts law as re-interpreted by the Supreme Judicial Court in Commonwealth v. Pon, Johnson only had to meet a deferential standard of “good cause” before getting his entire criminal case file sealed.   The decision makes it clear that facts like those described above would warrant a judge to find that the “good cause” bar had been met.

* * *

Here’s what you should know about today’s decision:

  • The Standard For Sealing Is Far Easier to Meet Than It Was Before. 

By statute (G.L. c. 276, § 100C), a judge may seal the criminal record of a former criminal defendant whose case resulted in entry of a nolle prosequi or a dismissal, if the judge determines that “substantial justice would best be served” by sealing.  The question in 1995, and again in 2014, was what those words really mean.

In 1995, in Commonwealth v. Doe, the SJC said that sealing the record is permitted only if the defendant proves “that the value of sealing … clearly outweighs the constitutionally-based value of the record remaining open to society.”  It said that sealing “should occur only in exceptional cases,” and that an individual’s general reputational or privacy concerns aren’t enough.  “A defendant must show that specific harm is threatened by the continued existence of the record.”

The Court in 2014 is singing a different tune.  Now, the requirement of “substantial justice” is met merely by a showing of “good cause” for the secrecy.  That’s the same standard that governs when a court is asked to impound a particular document in the court record—but here it is being applied in a far more extreme setting, one in which the entire case is being made to disappear from public view.

  • The Court Makes It Sound Easy to Establish “Good Cause.” 

The decision says “good cause” for secrecy is determined by a balancing test.  But while it says it is striving to provide “clearer guidance” than under the prior standard, the scales it establishes seem already weighted in favor of sealing.

In one pan, the Court heaps amorphous ideals: the “general principle of publicity,” and the public’s “general right to know so that it may hold the government accountable.”  Quoting its 1995 decision in Doe, the court does concede that “‘[e]ven [where] a case has not been prosecuted, information within a criminal record may remain useful’ to the public.”

The other pan overflows even before the weighing has begun.  The SJC says there are “compelling” and “fully articulated” “governmental interests in reducing recidivism, facilitating reintegration, and ensuring self-sufficiency by promoting employment and housing opportunities for former criminal defendants.”

Judges don’t even have to make case-specific findings on that point; they “may take judicial notice that the existence of a criminal record, regardless of what it contains, can present barriers to housing and employment opportunities.”  Those barriers are “heightened by the immediate and effectively permanent availability of criminal history on the Internet.”

As to the specific factors to be considered, the following is the non-exclusive list laid down by the Court:

–“the particular disadvantages identified by the defendant arising from the availability of the criminal record”;

–“evidence of rehabilitation suggesting that the defendant could overcome these disadvantages if the record were sealed”;

–“any other evidence that sealing would alleviate the identified disadvantages”;

–“relevant circumstances of the defendant at the time of the offense that suggest a likelihood of recidivism or of success”;

–“the passage of time since the offense and since the dismissal or nolle prosequi“; and

–“the nature of and reasons for the particular disposition.”

  • The First Circuit Court of Appeals No Longer Matters.

The Supreme Judicial Court had reached its anti-sealing ruling in 1995 by adopting the reasoning of a 1989 ruling from the federal First Circuit Court of Appeals.  In 2014, the SJC is defiantly going it alone, noting that state courts “‘are not bound by decisions of Federal courts except the decisions of the United States Supreme Court on questions of Federal law.’”

In a footnote, the Court turns the principle of stare decisis on its head.  It notes that the relevant federal precedents are more than two decades old, from which it concludes that because “our society has changed drastically since either we or the Federal courts have given great thought to the consequences of sealing,”  Therefore, “[c]learly, the issue is ripe for revisiting….”

  • The First Amendment No Longer Matters. 

In 1995, following the lead of the First Circuit , the SJC repeatedly spoke of the First Amendment-based “constitutional right of access to judicial records.” By 2014, the First Amendment is on the sidelines: “We conclude that the records of closed criminal cases resulting in these particular dispositions are not subject to a First Amendment presumption of access.”

The Court acknowledges that its conclusion is “at odds with that of the First Circuit” and other federal appellate courts, but finds solace in the fact that “at least one” other state supreme court (Florida) has reached the same result.  Take that, First Circuit.

  • In Fact, the Real World Doesn’t Matter Much, Either.

The Court briefly acknowledges that commercial background check services may disclose the criminal arrests that are meant to be hidden by a court-ordered sealing of records.  While noting that such services are “immune in practice (but not in law) from sealing,” it says that to factor in the futility of court-ordered sealing would lead to the apparently unacceptable result of barring sealing altogether: “Were we to accept this argument, sealing would never be justified.”

There is a second problem with the commercial background check services: that they can be inaccurate, a fact that the Court acknowledges.  The Court fails to note, however, that if actual court records are put under lock and key, then the public and media will be more likely to turn to those commercial services.  In other words, unreliable information will take the place of reliable information.

  • The Court Might Apply a Different Analysis if the Arrestee is a Public Figure.

One can take some comfort from the fact that the Court notes, in an aside, that if the former criminal defendant is a public figure, then “a different analysis may be necessary.”  Certainly it seems less justifiable to seal a sitting politician’s past brushes with the law, than to seal the same material when it relates to a private individual.  The problem is that today’s private individual may be tomorrow’s public figure.  In the hypothetical above, John Johnson obtains sealing as a private figure; only later does he go into public life, and by then his prior arrest record is safely hidden away.

  • This Decision May Be Just the Beginning.

The Court says it will not address the public-figure issue because “those facts are not before us.”  It is not as reticent when it comes to discussing whether the eased sealing standard it sets out should also apply to the records of criminal court proceedings that end in an acquittal instead of a dismissal or nolle prosequi.  In a page-long footnote, the Court suggests that even if one cannot enforce the purported statutory requirement of mandatory sealing of court records of cases that result in acquittals, nonetheless discretionary sealing can occur, and should be subject to the same “good cause” standard.

* * *

It should not, perhaps, be altogether surprising that the SJC has established a new, more deferential standard for sealing of certain cases.  The Court is primarily concerned with effectuating what it sees as the legislative goal of CORI reforms: to foster rehabilitation and integration into the community of former arrestees, and to reduce the housing and employment blacklisting of those who have been through the judicial system and come out of it without a criminal conviction.  The Court is also concerned that the legislative goal is made more difficult by the impossibility of erasing facts from the Internet.

What is surprising, and disturbing, about the Pons decision is how little discussion there is of the public right to know, or the media’s role in monitoring the integrity of the judicial system.  Take the hypothetical of John Johnson, above.  In that situation, there is a public interest in knowing why the charges against John Johnson led only to a continuance without a finding, followed by a dismissal after a politically connected probation officer testified.

If You Don’t Like This Decision: Who’s to Blame?

CALL TO ACTION:  Perhaps those of us who represent the media and who advocate for public access to the courts have ourselves to blame.  The Supreme Judicial Court routinely calls out for amici curiae to submit briefs to help the Court consider points of view that will not be adequately represented by the parties.  In this case, such briefs came only from parties who supported a more deferential sealing standard.

Is it time for a coalition of public access advocates and media entities to step up to the plate to be sure that the arguments in favor of public access are adequately represented to the Court?

Robert A. Bertsche is a partner in Prince Lobel’s Media and First Amendment Law Practice. You can reach Rob at 617 456 8018 or rbertsche@PrinceLobel.com.

How Media Coverage Affects Judicial Independence

Click on the image to check out Rob Bertsche’s first Storify, based on live tweets from the American Bar Association’s Annual Conference in Boston on Aug. 8, 2014.

Bertsche Storify

Robert A. Bertsche is a partner in Prince Lobel’s Media Practice. You can reach Rob at 617 456 8018 or rbertsche@PrinceLobel.com.

The Administration of Psychotropic Drugs in Nursing Facilities

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Will the Massachusetts Department of Public Health (MDPH) provide clarity on the administration of psychotropic drugs in nursing facilities when it implements Outside Section 140 of the Fiscal Year (FY) 2015 Massachusetts State Budget, or will nursing facilities still find themselves in a Catch–22 situation?

Outside Section 140 of the FY 2015 Massachusetts State Budget amends the nursing facility licensure statute to allow the administration of “psychotropic drugs” (to be listed on a schedule established by the MDPH) to a resident, if a facility obtains informed written consent (on a form approved by the MDPH) from the resident, the resident’s health care proxy, or the resident’s guardian.

According to a MDPH Circular Letter issued in 2003, a valid health care proxy (HCP) agent can consent to antipsychotic drugs (which is a psychotropic drug) without having to obtain a court approved treatment plan under Rogers v. Commissioner of the Department of Mental Health, 390 Mass. 489 (1983) if the following two conditions are met: (1) the resident has not limited the HCP agent’s authority to consent to treatment with antipsychotic medications on the HCP form and (2) the resident has not revoked or indicated an intent to revoke the HCP, for example, the resident has not refused to accept antipsychotic medication.

Is a resident’s refusal to accept antipsychotic medication an indication of an intent to revoke the HCP? Or is it merely a consequence of the resident’s underlying mental illness that resulted in the resident’s physician determining that the resident lacks the capacity to make health care decisions, thus invoking the HCP? Put another way, if the resident is not competent to make health care decisions, how can the resident form the requisite intent to revoke the HCP?

The following fictional account of a resident in a nursing facility illustrates the problem:

Resident A is an 86 year-old male who is a Holocaust survivor. He was admitted to a nursing facility on June 24, 2014. When he was admitted to the facility he was competent. He had executed a health care proxy several years ago appointing his wife as his health care agent. A month after his admission to the facility Resident A began to exhibit signs of a psychotic break. During the last few weeks he has suffered from delusions and paranoia. Resident A appears to think that he is a soldier who is a prisoner of war. He is belligerent toward the facility’s staff and toward his wife when she visits. He issues commands to the staff to refrain from approaching him and if they do approach him he spits on them. His treating physician has determined that he lacks the capacity to make health care decisions, thus invoking his HCP. His physician has recommended the administration of antipsychotic drugs in accordance with a treatment plan to control the resident’s delusions and paranoia. His HCP has consented to the administration of antipsychotic drugs. However, Resident A refuses to take the antipsychotic drugs orally, because he believes that the staff are trying to brainwash him.

The MDPH Circular Letter issued in 2003 states: “Please note that a refusal to accept antipsychotic medication may indicate an intent to revoke the health care agent’s authority. In such situations, the facility should take steps to obtain court authority to treat.”

Is Resident A’s refusal to take the antipsychotic drugs an indication of an intent to revoke the HCP’s authority or is it due to his delusions and paranoia? Should the facility take steps to obtain court authority?

Stay tuned to find out whether the MDPH provides clarity on the administration of psychotropic drugs in accordance with Outside Section 140 of the FY 2015 Massachusetts Budget.

If you have any questions about the administration of psychotropic drugs, health care proxies, or guardianships, please contact Rochelle H. Zapol, a partner in Prince Lobel’s Health Care Practice Group and the author of this post. You can reach Rochelle at 617 456 8036 or rzapol@PrinceLobel.com.

Zapol

Rochelle Zapol

Informed Consent – Back to Basics

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The Department of Health and Human Services’ Agency for Healthcare Research and Quality recently published notice of its intention to request that the Office of Management and Budget approve a proposed information collection project entitled “Improving Hospital Informed Consent with an Informed Consent Toolkit.” The Agency for Healthcare Research and Quality is concerned about the effectiveness of hospitals’ informed consent policies and processes. However, the issue of informed consent also affects other health care providers.

Whether you operate a hospital, long term care facility, physician practice, or other type of health care facility, you should be asking yourself the following questions about informed consent:

  • When is the last time you reviewed and updated your informed consent forms?
  • Does the informed consent form advise the patient of the risks and benefits of the proposed treatments or procedures?
  • Does the informed consent form advise the patient of alternative treatments and the risks and benefits of the alternative treatments?
  • Is the informed consent form easy to understand?
  • If your patient population has limited English proficiency, do you provide informed consent forms in other languages representative of your patient population or do you provide interpreter services?
  • Do you regularly review and update your informed consent forms to reflect new alternative treatments or newly discovered risks and/or benefits of existing treatments?
  • If you operate a long term care facility, do you have an informed consent form to obtain written consent from a resident who is competent prior to administering psychotropic medication?
  • Have you provided the patient with the opportunity to ask questions and have you adequately answered those questions?
  • Are your informed consent forms written in a way that minimizes liability?
  • Is the patient legally competent? If not, is the person signing the informed consent form the patient’s legally authorized representative?

If you have any questions about informed consent or would like assistance in updating your informed consent forms, please contact Rochelle H. Zapol, a partner in Prince Lobel’s Health Care Practice Group and the author of this alert. You can reach Rochelle at 617 456 8036 or rzapol@PrinceLobel.com.

Zapol

Rochelle Zapol

 

 

Asya Calixto Answers NENPA’s Media Law Hotline “Question of the Week” on Public Records

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Question: I am reporting on a Massachusetts town’s search for a candidate to fill the position of Town Counsel. The town appointed a committee to screen candidates for the position, and the committee announced that it will meet in a closed session to review and discuss the applications. Can they do this, or must their meeting be open to the public?

Answer: Massachusetts law provides that the meeting of a public body to discuss candidates for a job position is, like all meetings of public bodies, presumptively open to the public. If a public body tasks a subcommittee with screening the candidates, however, the law permits the subcommittee, under certain limited circumstances, to meet in executive session. (If a public body chooses to review applications itself, without appointing a subcommittee, it must do so in a public session.) A subcommittee must be comprised of less than a quorum of the public body, and it may only meet in private if the following two conditions are met: (1) the subcommittee’s meeting is a “preliminary screening” and (2) meeting in an open session would have a detrimental effect on obtaining qualified applicants for the position.

To read Asya’s complete answer, click here.

If you have questions about public records, please contact Asya Calixto, a lawyer in Prince Lobel’s Media and First Amendment Law Practice Group and the author of this alert, or Rob Bertsche, chair of Prince Lobel’s Media and First Amendment Law Practice Group. You can reach Asya at 617 456 8110 or acalixto@PrinceLobel.com, and Rob at 617 456 8018 or rbertsche@PrinceLobel.com.

The Media Law Hotline is a service offered free of charge to NENPA members in good standing, and is staffed by the media and intellectual property lawyers at Prince Lobel Tye LLP. You can reach the NENPA Hotline at 1-888-428-7490 or by email at media@princelobel.com.

Asya Calixto

Asya Calixto

 

 

 

 


Allianz’s Risk Barometer On Business Risks 2014: A Good Starting Point For Risk Managers and Insurers.

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For the past several years, global insurer, Allianz has issued an annual business “risk barometer” consisting of survey results ranking business risks faced by midsize companies and larger industrial companies. This year’s results are available here. And according to the survey, the top 10 global business risks are:

  1. Business interruption, supply chain risk
  2. Natural catastrophes
  3. Fire, explosion
  4. Changes in legislation and regulation
  5. Market stagnation or decline
  6. Loss of reputation or brand value
  7. Intensified competition
  8. Cybercrime, IT failures, espionage
  9. Theft, fraud, corruption
  10. Quality deficiencies, serial defects

The risks identified are hardly surprising, and some may question the validity of the survey of Allianz employees and consultants regarding risks facing their clients as an accurate predictor of business sentiment. Nevertheless, the barometer provides valuable insights for risk managers and specialty insurers – especially if one digs a little deeper into the data provided.

For example, cybercrime made it to the list for the first time this year, and that was before the recent data breaches reported by Target and others. The 2014 ranking of loss of reputation or brand value, which would seem to be related to concerns over cybercrime, jumped nearly 50% and was ranked as a top three risk by 21% of respondents for 2014 vs. 14% for 2013.

Risk managers that fail to take measures to identify, mitigate and/or efficiently transfer such risks, will have a hard time explaining their failures when the risk perception by their peers has been publicly acknowledged and documented.  Specialty insurers, already enjoying strong growth for insurance products addressing these risks, should also take notice of these developments.  Indeed, the survey results may imply a reverse in a trend observed by some. Click here for an article by IDG about the rise in data breaches and the resulting interest in cyberinsurance.

As is frequently the case, it will be important for insurers and risk managers to contemplate and converge on whether, and to what extent, these risks involve opportunities for efficient risk transfers vs. uninsurable core business risks. While insuring the value of an entity’s reputation from fortuitous (from the insured’s perspective) events presents a number of difficulties for insurers (e.g. valuation uncertainties, insurability of core business risks), the risk that a particular insured may suffer a defined event that warrants intervention by a crisis consultant to address reputational damage at the insurer’s expense may be eminently insurable.

For property and casualty insurers, the barometer may suggest that their core products (first party property insurance and CGL insurance) are becoming less relevant to their insured’s perception of business risks.  While many property insurers offer generic business interruption coverage (replacing business income when the Insured’s property suffers an insured physical loss), sophisticated supply chain interruption insurance (contingent business interruption) is difficult to underwrite and price and is far less available, notwithstanding the increasing importance of this risk to insureds as noted here.

In addition, while changes to the standard CGL policy over time have diminished coverage for reputational and soft IP risks (trademark and copyright) available in connection with the Personal  And Advertising Injury coverage available under the CGL Policy, the perception of the importance of such risks to insureds appears to have grown.

If you have questions, please contact Joseph S. Sano, a partner in Prince Lobel’s Insurance and Reinsurance Practice. You can reach Joe at 617 456 8000 or jsano@PrinceLobel.com.

Joseph S. Sano

Joseph S. Sano

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