Corporate and Securities Law
Can I accept an investor’s payment and follow up later on with the legal documents?
No. The legal documents will contain provisions which assure the recipient of the funds that the investment is legal. In the absence of that, accepting the funds may result in the company having conducted an illegal offering. There also can be state and federal filing requirements triggered by accepting the funds.
Do I need to comply with securities laws when I am raising a small amount of money to start a business?
Yes. If all of the investment capital is coming from persons who will be actively working in the business as directors or officers, then the requirements will be minimal. However, if any capital is raised from persons who will not be actively involved in the business as a director or officer, whether such capital is in the form of equity or debt, you will be required to comply with the federal and state securities laws in connection with raising such capital.
Why do I need to maintain corporate minutes?
There are several reasons why corporate entities need to maintain corporate minutes:
- It usually is required by a company’s by-laws.
- It provides legal protection to the officers of the corporation who take actions on behalf of the corporation with the authorization of the board of directors.
- It is a critical factor used by courts in determining whether to pierce the corporate veil of limited liability. Failure to keep proper corporate records, such as a failure to keep minutes of board of director and shareholder meetings (or written consents in lieu thereof), is a significant factor used by courts in finding shareholders personally liable for the obligations of their corporation.
What type of business entity should I form?
The primary alternatives are a corporation, which can be either taxed as a separate entity (a “C-Corp”) or on a “pass-through” basis (an “S-Corp”); a limited liability company; a limited partnership; or a general partnership. The selection is based on many factors which take into account the type of business activities that will be conducted; where the business will operate geographically; the number of investors which the business will have; etc. Tax considerations also play an important role in determining which business structure is most appropriate.
If my ex-spouse re-marries, do I have to continue to pay maintenance and/or child support?
The length of payments and termination of support will be determined by your agreement and/or the judgment of divorce.
Maintenance is designed to give a spouse economic independence and will generally continue only as long as required to allow the recipient to become financially self-sufficient. Maintenance generally terminates after a specific period of time, or upon remarriage by the spouse receiving support, whichever happens first.
Child support is money used for the benefit of your children, and your responsibility to pay child support does not end if your spouse remarries. In most cases, child support ends when your child becomes twenty-one years of age. Child support goes to the parent with whom your child primarily resides.
What are the grounds for divorce in New York?
In order to be granted a divorce in New York State, you must establish an appropriate statutory ground (i.e., a legally acceptable reason). Under a new “no-fault” provision which became effective in early 2011, such a statutory ground now includes a showing that the relationship between you and your spouse has broken down irretrievably for a period of at least six months. The remaining grounds, which range from adultery to abandonment, all require a greater level of proof. Fault is rarely a factor in determining the financial aspects of the case.
How is child custody determined?
Custody is generally determined by considering what is in the “best interest of the child”. A number of factors are taken into consideration in determining the best interest of the child. These include the mental and physical health, financial situation, religion, parenting skills, and lifestyle of each parent, as well as the child’s age, gender, special-needs, current living situation, and relationship with each parent.
In cases in which one parent is not clearly favorable over the other, the court will place more weight on trying to identify which parent is best able to maintain stability in the child’s life and foster a positive relationship between the child and the other parent.
There are a number of different types of child custody arrangements. These include legal, physical, sole, joint, and shared custody.
I’m told that I should have an employee handbook for my business. Is it o.k. to simply download one from the internet?
New York’s requirements and policies differ from those in other states. If a business owner simply copies a handbook off the web, the business may be inviting legal issues that would not otherwise apply in New York. A bit of self help can be a costly proposition. Handbooks should be drafted or reviewed by New York lawyers and should be periodically examined and updated.
What does “employment at will” mean?
In New York, all employees are employed at will unless a contract restricts a business’ right to terminate the employee. This means that the employer can terminate the employee for any reason or no reason at all. However, employers must still obey other protective statutes. For example, the employment at will concept does not protect employers from liability for terminating an employee for a reason that violates the anti-discrimination laws.
Can I deduct money from my workers’ wages as a penalty for breakage or to recoup money owed to me by the worker?
New York has very stringent rules prohibiting most deductions from wages. Generally, employers may not deduct from wages to compensate for breakage or other obligations, even if the employee authorizes such deduction.
Do different types of workers still need to be paid at designated intervals?
Yes. New York requires, for example, that manual workers be paid on a weekly basis. Other rules apply to other types of workers.
I’m the employer. Why can’t I designate a worker who wants to be treated as an independent contractor as one?
In New York State, as well as under federal standards, a worker for whom a business exercises direction and control will be deemed to be an employee, even if both the employer and employee prefer an independent contractor relationship. Because of increasing government scrutiny and significant penalties, businesses must pay attention to the issue of misclassifying workers.
If I commence a guardianship proceeding to bring help to my family member, am I responsible for paying the legal fees?
There is no definitive answer to this question. Initially, our office generally requires the Petitioner to pay us a retainer in order for us to move forward with the commencement of the proceeding. At the conclusion of the proceeding, an application can be made to the Court for a Court-ordered fee to be paid from the funds of the Incapacitated Person. If this application is granted, the guardian has the authority to pay the legals fees with the Incapacitated Person’s funds and the retainer is refunded to the Petitioner. However, if the application for fees is denied, or if the Court does not allow for payment in full to the law firm, the Petitioner is responsible for either the full payment, or any shortfall between actual fees incurred and the Court-ordered fees.
It is also important to know that if a Petitioner is unsuccessful and a guardian is not appointed, the Court may direct that all legal fees be paid by the Petitioner.
If I am appointed as the guardian for my family member, is it a permanent appointment?
It can be, but it does not have to be. It is common for Courts to appoint a guardian for an indefinite period of time because it is likely that the condition of the Incapacitated Person will not improve. However, if the Incapacitated Person does improve, the Incapacitated Person may petition the Court to end the guardianship. If the person is able to show that he or she is able to care for and manage his or her own affairs, the judge may terminate the guardianship. Alternatively, if the guardian, for whatever reason, feels that he or she can no longer act as guardian, or that there are no funds left in the guardianship account to be managed, he or she may petition the Court for removal as guardian, and, if necessary, the appointment of a successor guardian.
If I am appointed as the Property Management Guardian for my family member, am I personally responsible for the payment of his or her bills?
No. A property management guardian is given the authority to marshal the income and assets of the Incapacitated Person and to pay the bills of the Incapacitated Person with the funds belonging to the Incapacitated Person. These monies are typically kept in a guardianship bank account established in the name of the Incapacitated Person with the Social Security number of the Incapacitated Person. It is never expected that the liabilities of the Incapacitated Person are paid with the guardian’s own personal funds.
Will my family member have an attorney at the hearing?
It depends. In some specific situations, the Court will automatically appoint legal counsel for the Alleged Incapacitated Person. In other situations, the Court will only appoint a Court Evaluator, who essentially acts as the Court’s own witness and conducts an investigation, including an interview of the Alleged Incapacitated Person. If the Alleged Incapacitated Person requests an attorney during that interview with the Court Evaluator, or at any other time during the proceeding, the Court will appoint an attorney for the Alleged Incapacitated Person. In addition, the Alleged Incapacitated Person, if capable, always has a right to retain his or her own counsel.
If I commence a guardianship proceeding for my family member, will I need to testify at the hearing? If so, will my family member be present?
Yes. The Petitioner must be present at the guardianship hearing and provide testimony as to the functional limitations of the Alleged Incapacitated Person. The Alleged Incapacitated Person has a right to be present at the hearing. In fact, if the Alleged Incapacitated Person cannot physically come or be brought to the courthouse, the hearing must be conducted where the Alleged Incapacitated Person resides, unless the Alleged Incapacitated Person is completely unable to participate at the hearing or no meaningful participation will result from his/her presence.
Health Law (for physician practices)
Should I form a professional corporation or limited liability company?
Despite the modest cost involved in forming a professional corporation or limited liability company, there are many benefits from doing so—most notably, to protect your personal assets from claims that are business-related. Except for malpractice claims that relate to acts or omissions personally attributable to you, a professional corporation or limited liability company will insulate your personal assets, such as your home and bank accounts, from the reach of your creditors. For example, if your P.C. or LLC got sued for not paying the amount owed to an equipment lessor, that third-party vendor could not generally sue you personally for such debt. It could only sue your P.C. or LLC. This means that the only assets available to satisfy such debt would be those of the P.C. or LLC. If the P.C. or LLC did not have sufficient assets to pay such debt, the equipment lessor would be out of luck—he could not sue you simply because you were the owner of that entity.
What is “fee-splitting” and why is it illegal?
New York State’s Education Law prohibits physicians and many other healthcare providers from sharing the income they receive in the practice of their profession with people who are not licensed in that same profession. Any financial arrangement between a licensed professional and a non-licensed professional which is a percentage of, or otherwise, dependent upon such professional collections will be considered illegal “fee-splitting.” For example, it would be improper for a physician to structure a rental arrangement with his landlord which is based on a percentage of the monthly collections which he receives from his practice. The public policy underlying the “fee-splitting” prohibition is simple—the government does not want business people to be in a position to interfere with, or influence, a physician’s independent professional judgment on how he or she should be treating patients.
What’s a “tail” policy?
If you have a “claims-made” malpractice policy which is terminating for any reason, you will not be covered for claims which are filed after the policy terminates (even if they relate to acts or omissions which took place while the policy was in effect). This is the biggest drawback of “claims-made” policies. However, there is a way to protect yourself from such future claims. Most insurance companies will allow you to purchase a “tail” policy within a short period of time after your “claims-made” policy terminates. The “tail” policy effectively converts your “claims-made” coverage to “occurrence” coverage by obligating the insurance company to defend and indemnify you from acts or omissions that took place during the policy period, even if the lawsuit is not filed until after the policy terminated. Note that many insurance companies will provide you with a free “tail” policy if you die; if you become permanently disabled; or if you retire from practice after a certain age and after having maintained a “claims-made” policy for a specified number of years.
What’s the difference between “claims-made” and “occurrence” malpractice policies?
There are basically two types of malpractice insurance policies that are available to physicians and other healthcare professionals who practice in New York State. The less expensive policy is written on a “claims-made” basis and the more expensive policy is written on an “occurrence” basis. If you are covered under a “claims-made” policy, two things must happen in order for your insurance carrier to be legally obligated to defend and indemnify you from the lawsuit filed against you: (a) the underlying act or omission must have taken place while the policy was in effect; and (b) the actual lawsuit must have been filed while the policy was in effect. If the lawsuit is filed after your policy terminated or lapsed for any reason (even if the claim relates to something you did or did not do while the policy was in effect), you will not be covered. Under an “occurrence” policy, it does not matter when the lawsuit is filed. So long as the underlying act or omission took place while the policy was in effect, you will be covered.
Are restrictive covenants really enforceable?
In New York State, a restrictive covenant is legally enforceable if the court determines that it is reasonable. The court will look at a number of issues in reaching its conclusion. Most of these focus on whether the covenant is (a) overly broad (in which case it will not generally be enforced), or (b) reasonably tailored to protect the employer’s legitimate business interests without inhibiting the individual’s ability to make a living or interfering with an important public interest (in which case it will probably be enforced). The court will look at the following elements of the restrictive covenant to determine its overall reasonableness: (1) the scope of activities which are being restrained; (2) the length of time that the employee is being restrained from engaging in such activities; and (3) the geographic area that is covered by the restrictive covenant.
Is there any way that I can simply avoid being audited by the insurance carriers?
Generally speaking, the answer is no. Some physicians are targeted for an audit because they are considered “outliers”, physicians that perform certain procedures and/or bill certain CPT codes at a much higher frequency than their peers. Not only does the nature of the practice dictate what codes are being billed, but physicians are often unaware as to what their peers are billing. Moreover, carriers often make business decisions for various reasons to conduct audits for certain CPT codes, randomly auditing physicians who bill those codes. In this scenario, many physicians are simply “caught in the cross-fire”. Depending on the nature of your medical and billing practices you may be more or less likely to receive a demand for a post payment review, but you are unlikely to be able to avoid them altogether over the long run. In our opinion, the best practice for any physician is to periodically have their record keeping and billing practices reviewed by a certified professional coder to ensure billing accuracy and proper record keeping to support the CPT codes billed. We find these reviews to be extremely cost effective and one of the most useful tools physicians can employ to protect themselves from an adverse result in the event they receive a post payment audit.
I’ve received a repayment demand where the carrier reviewed a small sample of patient records and extrapolated its findings over a period of six years. Is extrapolation permissible and doesn’t the law say the carrier can only go back two years?
The easier answer is on the extrapolation issue. Under current New York case law, extrapolation is permissible as long as it is based upon a statistically significant sample for the extrapolation. Much of the legal wrangling when a carrier has attempted to extrapolate is on the issue as to whether the sample is “statistically significant”.
With regard to the time frame for which the carrier can seek repayment, under Insurance Law §3224(b)(2), a carrier is limited to seek repayment on a claim to a period of two years after payment has been made unless the physician/facility has engaged in fraud or an abusive billing practice. Prior to the 2010 amendment, there was generally no guidance or consensus as to what constituted an abusive billing practice. The 2010 amendment provided some guidance (but not much) on the question of what constitutes an abusive billing practice, adding the law the statement “‘abusive billing’ shall be defined as a billing practice which results in the submission of claims that are not consistent with sound fiscal, business or medical practices and at such frequency and for such a period of time as to reflect a consistent course of conduct.” Of course, this leaves open for argument what would be considered a submission which is inconsistent with sound fiscal, business or medical practices, as well as what period of time is necessary to establish a consistent course of conduct. Unfortunately, most carriers take an expansive view of what exactly constitutes and abusive billing practice.
I’ve received a demand from an insurance carrier that I refund fees for medical services rendered, what should I do and how do I protect myself?
The first thing is to take a breath. Remember, a refund demand is a claim made by the carrier, it is not a judgment or a final adjudication. That having been said, the best way to defend against a refund request is always specific to the practice and the nature of the audit itself. The first step in all cases it to do your homework. You should try to understand, to the best of your ability, the reason given by the carrier for the refund demand. Assess whether it has made any clearly erroneous conclusions or assumptions regarding the content of the records or the nature of your practice. Compile your own records to determine whether the amounts claimed to have been paid by the carrier are accurate. If the carrier has extrapolated the results of its audit through a universe of patients and dates of service, confirm that the universe is accurate. Whether you choose to attempt to resolve the matter on your own or with the assistance of legal counsel, performing the aforementioned will give you a preliminary assessment of your potential exposure to the audit demand.
I’ve received a request from an insurance carrier that I submit some patient charts, do I have to comply?
The answer to this question can be complex, as there are contractual and professional responsibilities which are implicated when you receive the records request. Requests for copies of a patient’s medical records often place physicians at odds between contractual obligations and patient privacy statutes, especially for practices that consistently treat patients with “sensitive” health issues such as HIV, mental health and alcohol/drug dependency status. Turning over the records should not be the knee jerk reaction. If you are a participating physician within the carrier’s health plan, you should consult your participation agreement. The more recent agreements generally contain clauses requiring a physician to comply with the carrier’s requests for medical records of its members, and the records request are often quick to point out that the members have given blanket authorization to the carrier to obtain the records. However, these same agreements often prevent the carrier from making such demands with a scope or frequency that is unduly burdensome to the practitioner. For non-participating physicians, even physicians that accept an assignment of benefits, frequently you cannot be compelled to turn over records absent direct authorization from the patient. In fact, you may be violating a patient’s privacy rights if specific consent is not obtained. In light of the potential for significant professional ramifications in disclosing or not disclosing a patient’s records, if you are not sure of your obligations and authority, you should seek legal advice.
If I’ve received a request from an insurance carrier that I submit some patient charts, does that necessarily mean that the carrier is going to be performing a post payment audit?
There are several possible “audits” that a carrier may intend to perform upon receipt of the records. Carriers still perform quality control audits, as well as data mining audits. In fact, there are federal statutes that require Medicare administrators of government programs to perform data mining audits. However, at this point in time the majority of audit letters that we see clients receiving are for post payment audits. It’s often difficult to determine, from the records request itself, just what type of audit the carrier is performing. Indeed, we often see many post payment audit letters couched in terms suggesting that the audit is for quality control or data mining reasons to avoid scrutiny by the physician. While the reason for the audit may not change a physician’s obligations with respect to the records request, it’s important to ascertain the reason for the records request as it may alter the way you approach the process.
Can I be forced to settle my claims prior to trial?
No one can force you to settle your claims if you do not wish to do so. However, depending upon the circumstances of your matter, it may be in your best interests to do so. Any decision on whether or not to settle your claims should be evaluated thoroughly with your attorney.
Can I be forced to arbitrate or mediate my claims?
Generally speaking, absent a contractual requirement to arbitrate or mediate claims, a person may not be compelled to do so. Depending upon the circumstances of your matter, however, it may be in your best interests to proceed with some form of alternative dispute resolution, such as arbitration or mediation.
Who determines the geographic location where my lawsuit will be heard?
The location of your lawsuit is known as the venue. Venue can be proper in more than one county, depending upon where the plaintiff and defendant reside or conduct business, and where the underlying claims first arose. The party commencing the lawsuit generally dictates where the proceeding will be conducted.
How can I assist my attorney if I am sued?
Make sure you maintain accurate records and that you keep copies of all documents relating to your matter. The more information and documentation that you can provide to your attorney, the better off you will be.
Can I get my opponent to pay my attorneys’ fees?
That depends upon the nature of your claim and whether or not an award of such fees is provided for in the relevant documents in your case or under a statute which applies to your claim. Generally, in the absence of a writing to the contrary or a statute, each party must bear its own legal expenses.
What can my practice do when one of our largest health plans continually fails to make timely payment on our claims?
By law, a health plan must make payment on “clean” claims which have been electronically submitted within 30 days of submission. Interest begins to accrue after 30 days. That being said, many health plans nonetheless “string providers along” and delay paying within this 30 day period. Providers may file complaints against such insurers with the New York State Department of Insurance under the New York Prompt Payment Law. Additionally, providers can directly seek recourse against such health plans under the terms of their Participating Provider Contract.
Can a health plan “pend” payment on a claim because the Enrollee has not completed an Enrollee questionnaire for coordination of benefits?
A health plan is prohibited by law from denying payment on a claim, in whole or in part, on the basis that it is coordinating benefits with other potentially liable payers, unless the health plan has a “reasonable basis to believe that the insured has other health insurance coverage which is primary for that benefit.” Where the insurer does have such a reasonable belief, it has only 45 days to request and receive such information. If no information is received at the end of 45 days, the claim must be adjudicated.
Where a health plan has pre-authorized a physician to provide services, can it retrospectively go back and recoup such payment from the physician on the basis that the Enrollee was not covered under the plan when the services were rendered?
A health plan may not deny a claim for services that were preauthorized on the basis that the Enrollee’s coverage was retroactively terminated more than 120 days after the health care services have been rendered, provided the physician submitted the claim within 90 days after the date the physician provided health care services.
If a physician applies for participation in a managed care plan, can the plan exclude him?
Yes. New York State is not what is known as an “any willing provider” state. This means that health plans are not legally obligated to accept every physician into their managed care networks. They can generally exclude them from participation for any reason or no reason at all.
Do I have too much income to qualify for Medicaid?
Income will not disqualify an applicant for Medicaid in New York State so long as the applicant has sufficiently high medical expenses. Depending on whether the applicant is applying for Community Medicaid or Institutional Medicaid, the applicant’s income will be treated differently. For Community Medicaid, to the extent the applicant’s countable income (after allowed disregards) exceeds $767.00/month in 2011, the “excess income” must either be contributed toward the Medicaid recipient’s medical expenses or deposited into a qualifying “pooled income trust.” (Pooled income trusts are administered by select non-profit organizations for the benefit of disabled persons.) In the Institutional setting, all of a Medicaid recipient’s income, after allowed exemptions, must be remitted to the skilled nursing facility in which the recipient resides as a type of co-payment obligation.
Can I qualify for Medicaid benefits while I own my own home?
The short answer to this question is…maybe. In New York State, up to $758,000 of equity in a Medicaid applicant’s home is exempt in 2011. To the extent that the equity in an applicant’s home is below this level, ownership of a homestead will not necessarily disqualify the applicant for institutional Medicaid benefits. In some situations, the applicant may be required to sign a statement manifesting his/her intent to return home after being discharged from a skilled nursing facility. By signing this statement, the homestead is not considered in determining eligibility for Medicaid, but the county providing Medicaid benefits has the right to impose a lien against the home to recover the benefits conferred. If the applicant actually returns home, the lien is extinguished.
What is the “five year look back period”?
The “look back period” refers to the time frame for which an applicant for Medicaid must produce financial documentation. The New York State Medicaid program offers two distinct Medicaid benefits: Community Medicaid and Institutional Medicaid. Community Medicaid covers hospitals, doctors, durable medical equipment, and home care services. An application for Community Medicaid with home care services requires production of only three months of back financial records. Different rules apply to an application for Institutional Medicaid benefits, which covers services received at a skilled nursing facility. For Institutional Medicaid, an applicant must produce five years of financial documentation. The Medicaid Agency “looks back” over this five year financial history to see whether the applicant divested him/herself of assets for the presumed purpose of qualifying for Medicaid. If the Agency discovers that the applicant or the applicant’s spouse made a gift within the look back period, the applicant is disqualified for Institutional Medicaid coverage for a period of time unless the applicant can rebut the presumption that the transfer was made for the specific purpose of receiving Medicaid.
If I am not a named defendant in the lawsuit, but am only being deposed as a non-party, why is it important that I be represented and spend time preparing for my testimony?
Even though you are not presently named as a defendant in the lawsuit, the plaintiff or another named defendant could add you as an additional defendant, based upon what you say during your deposition testimony. Therefore, it is important that you be represented at your deposition and that you and your assigned attorney thoroughly prepare for your testimony. Also, if you ignore a subpoena, you could be held to be in contempt of court.
I have been served with a subpoena to take my deposition as a “non-party witness” in a case where I have not been sued. What should I do?
Even though you have not been named as a defendant, and therefore are not presently being sued, you should again immediately contact your malpractice carrier and advise a claims representative. The carrier will assign a law firm, at no cost to you, to help you prepare for your “non-party” deposition and to attend the deposition with you. This preparation might be extensive as you may have to review multiple medical and hospital records in order to properly prepare for your testimony
The same rules apply with respect to not altering your patient chart and not contacting your patient.
What should I do if I am served with a summons and complaint naming me as a defendant in a medical malpractice lawsuit? What should I not do?
If you receive a summons and complaint naming you as a defendant in a medical malpractice lawsuit, you should immediately call your malpractice carrier and advise a claims representative. You will be given instructions to send the summons and complaint to the carrier for processing. Do not delay in putting your carrier on notice of the lawsuit, as a substantial delay could result in the carrier disclaiming coverage.
If the lawsuit involves an office patient, you should locate and safeguard the patient’s chart. You may be asked to send a copy of the chart to your carrier as well. Do not make any corrections, additions or changes to the chart. Plaintiff’s attorneys are very good at identifying alterations to a chart. The easiest way to turn a defensible case into a losing case is to have the plaintiff’s attorney prove that you altered your chart.
Do not try to contact your patient to discuss why you are being sued. Once you have been served with legal papers, it is too late for you to have such a discussion with your patient. At that point, as they say on television crime shows, “anything you say may be used against you.” Let your insurance carrier’s representatives and your assigned attorneys handle any discussions. That’s what you have paid those premiums for.
What public benefits can I secure for my mentally ill loved one?
Benefits can include Medicaid, SSI, SSD, Section 8 Housing, Food Stamps, private insurance and many others. The important thing to focus on is preparation and knowledge. Most benefits have lengthy and complicated application processes. Additionally, one should never quit at a first denial. It is best to seek assistance if there is any doubt when considering which benefits are most suitable for your loved ones.
How does New York State’s new Family Healthcare Decisions Act affect my child’s mental health care?
Recent passage of the Family Healthcare Decisions Act (FHCDA) has varying impact on psychiatric and/or medical care and is very fact specific. It is best to review hospital policy on this issue and to consult with a health care legal professional to navigate the myriad of issues surrounding care and the FHCDA.
What is a Mental Health Warrant?
New York’s Mental Hygiene Law provides the legal framework for a family member (and certain other individuals) to make a legal application before a Supreme Court Judge for a Warrant to produce an alleged mentally ill person before the Court. If the Judge is satisfied that the Petitioner (usually a family member) has made a sufficient showing that the alleged mentally ill person is in need of immediate hospitalization for observation, such an Order will generally be granted.
Our mentally ill loved one is accused of committing a crime. What can we do?
Seek legal help immediately from attorneys well versed in both criminal and mental health law. Time is of the essence when a person struggling with a mental illness enters the criminal justice system. Do not presume that law enforcement will be sensitive to your loved one’s disability. Statements, actions and other evidence will likely be used against your loved one in a criminal prosecution.
Can Guardianship assist us in caring for our mentally ill family member?
It should be noted that there is very clear guidance by our Appeals Courts as to what decisions a Guardian may make in terms of psychiatric care and treatment. It is limited and very fact specific.
If I file a No-Fault claim and it is denied, do I have any options?
Yes. The insurance company is required to act in good faith when handling your claim. If the insurance company unnecessarily denies your claim, or fails to promptly settle it, you can sue them for bad faith, breach of contract, and/or for violating of New York State’s insurance code. Therefore, it is crucial that you promptly seek out a law firm that handles insurance coverage litigation, such as Abrams, Fensterman, if you believe the insurance carrier is not handling your claim fairly.
When and where should I file my No-Fault claim?
The No-Fault Law requires that “in the event of an accident, written notice setting forth details sufficient to identify the eligible injured person, along with reasonably obtainable information regarding the time, place and circumstances of the accident, shall be given by, or on behalf of, each eligible injured person, to the applicable No-Fault insurer, or any of their authorized agents, as soon as reasonably practicable, but in no event more than 30 days after the date of the accident, unless the eligible injured person submits written proof providing clear and reasonable justification for the failure to comply with such time limitation.”
Medical providers who render health services to an eligible injured person should file their claim with the insurance company that covers the car in which the injured was an occupant (either as passenger or driver) or, if the injured person was a pedestrian, with the car that struck them. If the injured does not know the vehicle that struck them, or if the vehicle was uninsured, he or she may file a claim with the insurer of a household family relative who had an automobile policy at the time of the accident. If there was no auto policy in the household, he or she should file a claim with the Motor Vehicle Accident Indemnification Corporation (MVAIC). Additional information on MVAIC can be obtained on its web site (www.mvaic.com) or by calling (646) 205-7800.
What is No-Fault Insurance?
In 1973, New York State enacted the Comprehensive Automobile Insurance Reparations Act which supplanted common-law tort actions for most victims of automobile accidents with a system of no-fault insurance. Under the no-fault system, prompt compensation for losses incurred by accident victims is to be made without regard to fault or negligence. In simpler terms, in New York, if you are injured in an automobile accident, your own insurance company reimburses you for your “basic economic loss” resulting from the accident, regardless of whether the accident was your fault or not. “Basic Economic Loss” includes up to $50,000.00 per person of the following combined items:
- Health service bills incurred
- Loss of earnings from work missed
- All other reasonable and necessary expenses incurred, up to twenty-five dollars per day for not more than one year from the date of the accident causing the injury
New York’s No-Fault system allows individuals injured in automobile accidents to get medical treatment and be reimbursed for their lost wages without having to fight insurance companies over who was at fault for the accident itself. Whether you know it or not, the right to payment of No-Fault benefits is part of your automobile insurance policy.
Professional Discipline for Defense/OPMC/OPD
Does a physician having an agreement or contract with a discount deal website such as Groupon, Living Social, etc., constitute professional misconduct according to the Office of Professional Medical Conduct?
Maybe. New York State Education Law Article 131-A Section 6531 states in part that a physician may have their license revoked, suspended, annulled, or be subject to other penalties if they “…directly or indirectly requested, received or participated in the transference, assignment, rebate, splitting, or refunding of a fee for, or has directly requested, received or profited by means of a credit or other valuable consideration as a commission, discount or gratuity, in connection with the furnishing of professional care or service…”. The agreements with the websites described above may or may not constitute professional misconduct pursuant to above referenced section depending upon the specific language and provisions of each agreement. Certain arrangements are permissible. Attorney Jordan Fensterman on behalf of certain physician clients worked closely with those in power in OPMC around 2010 to facilitate agreeable arrangements for physicians that would be permissible to enter in to with discount deal websites. The specifics of the allowable language discussed during those conversations helped shape the framework that went into place for how physicians can enter in to these arrangements.
If I am found guilty of committing professional misconduct, will this be publicized?
YES. If you are found guilty of any professional misconduct, information will appear in the National Practitioner Data Bank (doctors only), on your New York State Physician Profile (doctors only) and will be posted on the OPMC or OPD websites. The information may also be reported to other licensing/accrediting agencies, employers, and others. You are required to report findings of misconduct on your NYS Physician Profile (doctors only), and on your license registration renewals.
Does my malpractice insurance cover the legal fees I may incur during an OPMC or OPD investigation?
Your malpractice insurance carrier may cover some or all of your legal fees you may incur during an OPMC or OPD investigation. Coverage will depend on your individual policy and the nature of the allegations under investigation. Many malpractice insurance policies cover legal fees for administrative proceedings. Coverage is often $25,000 but may be up to $100,000 or more if you have purchased extra coverage.
I have been asked by OPMC or OPD to come in for an interview. In OPMC they informed me the interview would be with their investigator and their medical coordinator. Am I obligated to attend the interview?
NO, you are not required to go for an interview with an OPMC or OPD investigator. OPMC is required under the law to allow you the opportunity to be interviewed prior to moving forward with an investigation. In contrast, OPD is not required to offer the licensee an opportunity to interview. In a majority of circumstances, going to the interview is recommended as long as you are fully prepared in advance. However, prior to making this very important decision, consulting with an attorney knowledgeable in the OPMC or OPD process is highly recommended. One wrong statement during any interview can cause tremendous problems for a licensee.
I have been asked by OPMC or OPD to send them a patient chart, but they did not provide a signed consent form. Must I do so?
The short answer to this question is YES. OPMC and OPD are exempt from HIPAA regulations. You must provide OPMC and OPD with a specifically identified patient chart when requested. In fact, it is professional misconduct to refuse to provide a requested chart to OPMC or OPD. However, when OPMC requests a comprehensive review of your patient records, they must provide justification to demonstrate that the comprehensive review is reasonably related to a pending investigation. You may be able to avoid turning over records if the request is a general comprehensive review request.
In New York, what is an ‘on or about’ closing date?
It is typical in New York real estate contracts for the closing date to reflect an “on or about” closing date. This is the closing date in the contract, but if the parties should fail to close on that date, it is not a default under the contract. Many attorneys will state to their clients that it is interpreted by the Courts that the Purchaser must close within thirty (30) days of the date of date. That is not correct. If the ‘on or about’ date should pass, the Seller may send what is commonly referred to as a “Time of the Essence” Letter which must set a date and time certain for a closing within a reasonable period of time from the ‘on or about’ date. It is commonly interpreted by the Courts that thirty (30) days from the date of the “Time of the Essence” letter is reasonable, but shorter periods have been found to be reasonable as well.
What is a Mortgage Contingency Clause?
If you enter into a contract to purchase real property, the contract may be contingent upon your ability to obtain financing. This contingency is based on specific and mutually negotiated terms (i.e., the amount of the mortgage, the interest rate of the mortgage, the term of the mortgage and the amount of time necessary to obtain the mortgage). If you cannot obtain financing during this period, the contract will be terminated and the purchaser will generally receive back its down payment.
What is a Certificate of Occupancy?
A Certificate of Occupancy is issued by the Building Department of the municipality where the real property is located. It acknowledges that the structure was built in accordance with architectural plans filed with the Building Department and evidences that inspections were made by the Building Department to make sure that the structure was built in compliance with the plans. The issuance of the Certificate of Occupancy (commonly known as the “C.O.”) indicates that the building is in compliance with the building code and zoning ordinances.
How big a structure can I build on the real property I purchased?
The bulk and height of a structure to be built on real property is governed by the zoning laws of the municipality where the real property is located. The zoning laws impose various restrictions on height and square footage of the structure. These restrictions should be reviewed before purchasing the property.
How should I take title of real property in New York with a loved one?
If you are married, you will take title as tenants by the entirety, which gives the surviving partner on death, an undivided one-half interest in the real property by operation of law. If you are not married, the same result can occur if you take title as joint tenants with right of survivorship. This must be affirmatively stated in the deed (i.e., A & B as joint tenants with right of survivorship). If you are not married or do not affirmatively state the joint tenancy with right of survivorship, A & B would be purchasing the property as tenants in common. Each person will be taking title with an undivided one-half interest in the real property. If one of these people should die, his or her undivided half interest would be transferred to the survivor named in his or her will, or pursuant to the State’s intestate statute for individuals who die without a will. The surviving owner would not take the undivided half interest by operation of law.
Trusts & Estates
Do I have to pay a tax if I make a gift?
Gift tax is generally paid by the donor. At the federal level, there is an exemption from gift tax equal to the estate tax exemption (currently, $5,000,000). This exemption may be used against gifts made during life or applied against assets in your estate at death. There is currently no gift tax at the New York State level.
What is the current amount of the federal and New York State estate tax exemptions?
For 2011 and 2012, the federal estate tax exemption is $5,000,000 per person; however, the law is subject to change after 2012. This exemption amount is now also portable between spouses. The New York State estate tax exemption is $1,000,000 per person and will continue at that level indefinitely unless the law is changed.
What are some reasons for creating a Revocable Living Trust?
It may be advisable to create a Revocable Living Trust if you own real property in a state other than the state in which you reside. It is also advisable to create a Revocable Living Trust to avoid probate when you have distant or unknown heirs at law. Lastly, a Revocable Living Trust may be a preferable way to manage a person’s property during his or her life while he or she is incapacitated.
What is a Revocable Living Trust?
A Revocable Living Trust is a trust that a person creates during his or her lifetime to which he or she transfers his or her property. It is revocable because the creator of the trust can revoke it at any time during his or her lifetime and take back all of the property he or she transferred to it. At the death of the creator of the trust, the property in the trust will pass in accordance with the terms of the trust. If the creator of the trust transfers all of his or her property to a Revocable Living Trust during his or her lifetime, there should be no need to probate his or her Will on death.
What kinds of property are not controlled by my Will?
Non-probate assets such as joint bank accounts, life insurance proceeds, “in trust for” accounts, “pay on death” accounts, “transfer on death” brokerage accounts and any other assets with a designated beneficiary do not pass under your Will. Generally, these assets pass outside your Will to some designated beneficiary or to a survivor. Since these assets do not pass under your Will, they cannot be used to carry out any tax planning you may have incorporated into your Will or any dispositions you make in your Will.
White Collar Crime
Why should I have a lawyer represent me?
White collar crimes are very complex matters, involving complicated legal and factual issues. If you are the subject of a white collar criminal investigation, or have been charged with a white collar crime, it is critical that you immediately retain an experienced white collar criminal defense lawyer to protect your rights and your future. Innocent persons can end up in jail and their futures destroyed. Even if you intend to plead guilty, you should still seek the advice of experienced white collar criminal counsel to help minimize your sentence.
What should I do if contacted by law enforcement?
Law enforcement agents are very good at what they do. Their job is to get the evidence that they need to make a legally sufficient case. By the time an investigator goes out to speak to you, the investigator has already done a substantial amount of investigating and has a good idea whether you are a target of the criminal probe or not. Because what you say to an investigator can be used against you in a criminal prosecution, if approached, you should simply listen to what the investigator has to say without saying anything and take his/her card. You should then consult with an attorney, who can reach out to the investigator on your behalf and find out if you are a target of the investigation, or merely a witness. It is not unheard of for an individual to go from being a witness to being a target of the investigation for failure to obtain appropriate legal representation and going at it alone.
What penalties do persons accused of committing white collar crimes face?
Penalties can be quite severe, particularly in federal court. Federal penalties are based on federal sentencing guidelines which, while no longer mandatory but only advisory, must still be consulted by the sentencing judge. In white collar crimes, these sentencing guidelines are driven by the amount of the loss. The higher the loss, the more severe the potential sentence. In addition to jail, defendants may also be ordered to pay restitution, to forfeit illegal gains and be fined. Similarly, severe penalties are often imposed in state prosecutions.
Who prosecutes White Collar Crimes?
Both the federal and state governments vigorously investigate and prosecute White Collar Crimes. Because white collar crimes can often cross state and international borders, federal prosecutors are generally better suited to handle these cases. However, in New York, the State Attorney General and local District Attorneys, such as those based in Manhattan, Queens, Brooklyn and Westchester Counties, are also very active in prosecuting these cases.
What are White Collar Crimes?
White Collar Crimes are generally non-violent acts that involve some type of concealment, deception, misrepresentation or false statement, most often committed by professionals and other people in “white collar” industries, such as healthcare, banking, investment, accounting and insurance, as well as by public officials. Examples include Healthcare Fraud, Insurance Fraud, Bank Fraud, Tax Evasion, Securities Fraud, Ponzi Schemes, Credit Card Fraud, Embezzlement, Money Laundering, Mortgage Fraud, Computer/Internet Fraud and Bribery/Bribe Receiving.