Ten attorneys from Underberg & Kessler LLP have been selected by their peers for inclusion in Best Lawyers in America® 2016, and one attorney was named Rochester “Lawyer of the Year” in her area of practice. Jim Coniglio, Pat Cusato, Steve Gersz, Ron Hull, Kate Karl, Paul Keneally, Anna Lynch, Paul Nunes, Margaret Somerset and George Van Nest are included in the 2016 edition under the following specialties: Jim Coniglio-- Municipal Law Pat Cusato -- Real Estate Law Steve Gersz -- Closely Held Companies and Family Businesses Law, Corporate Law Ron Hull -- Environmental Law, Litigation – Environmental Kate Karl -- Commercial Finance Law, Real Estate Law Paul Keneally -- Commercial Litigation, Litigation – Labor & Employment Anna Lynch -- Corporate Law, Elder Law, Health Care Law Paul Nunes -- Mass Tort Litigation/Class Actions–Plaintiffs, Mass Tort Litigation/Class Actions–Defendants, Personal Injury Litigation–Plaintiffs, Personal Injury Litigation–Defendants Margaret Somerset -- Medical Malpractice Law–Defendants George Van Nest -- Environmental Law Additionally, Margaret Somerset was named “Lawyer of the Year” for Medical Malpractice Law – Defendants.  Only one area lawyer in each specialty receives this honor. Best Lawyers® conducted its annual peer-review survey in which 55,000 attorneys cast more than 6.7 million votes on the legal abilities of other lawyers in their practice areas. Lawyers are neither required nor allowed to pay a fee to be listed, and are included solely based on the results of the peer review. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Eleven attorneys from Underberg & Kessler LLP have been selected by their peers for inclusion in the 2015 Best Lawyers in America®, and two attorneys were named Rochester “Lawyer of the Year” in their area of practice. Jim Coniglio, Pat Cusato, Steve Gersz, Ron Hull, Kate Karl, Paul Keneally, Robert Koegel, Anna Lynch, Paul Nunes, Margaret Somerset and George Van Nest are included in the 2015 edition under the following specialties: Jim Coniglio – Municipal Law Pat Cusato – Real Estate Law Steve Gersz – Closely Held Companies and Family Businesses Law, Corporate Law Ron Hull – Environmental Law, Litigation – Environmental Kate Karl – Commercial Finance Law, Real Estate Law Paul Keneally – Commercial Litigation, Litigation – Labor & Employment Robert Koegel – Litigation – Land Use and Zoning Anna Lynch – Corporate Law, Elder Law, Health Care Law Paul Nunes – Mass Tort Litigation/Class Actions–Defendants, Mass Tort Litigation/Class Actions–Plaintiffs, Personal Injury Litigation–Defendants, Personal Injury Litigation–Plaintiffs Margaret Somerset – Medical Malpractice Law–Defendants George Van Nest – Environmental Law Additionally, Ron Hull (Environmental Law) and Robert Koegel (Litigation – Land Use and Zoning) were named “Lawyer of the Year” for their respective specialties.  Only one area lawyer in each specialty receives this honor. Best Lawyers® conducted its annual peer-review survey in which 52,000 attorneys cast more than 5.5 million votes on the legal abilities of other lawyers in their practice areas. Lawyers are neither required nor allowed to pay a fee to be listed, and are included solely based on the results of the peer review. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

I am a general practice physician suffering symptoms of depression. Will I be able to continue practicing medicine if I seek mental health treatment? Yes, if you are able to practice with reasonable skill and safety and are not “impaired” due to your condition. New York State law prohibits physicians from practicing medicine if impaired by drugs, alcohol, physical disability, or mental disability. However, a problem or illness does not necessarily equate to impairment which would require notification to the state Health Department’s Office of Professional Medical Conduct (OPMC). The vast majority of physicians in New York State are devoted, competent professionals committed to maintaining and advancing their patients’ health. Despite this drive to help others, or perhaps because of it, providing the best possible health care and treatment to patients is often extremely demanding and stressful. Work-related burnout (e.g., emotional exhaustion, loss of enthusiasm, disenchantment, decreased sense of accomplishment) is significantly more prevalent among physicians than other workers. The state’s prohibition of the practice of medicine by impaired doctors is a safeguard to maintain the quality of patient care. OPMC disciplines hundreds of physicians each year for misconduct in response to complaints from patients, health care colleagues, and institutions. Physicians are required to report to OPMC when there is reasonable evidence of professional misconduct by a physician or physician assistant. Professional misconduct under the New York State Education Law includes practicing the profession while impaired by alcohol, drugs, or physical or mental disability. Impairment constituting medical misconduct is defined by The Federation of State Medical Boards as the inability “to practice medicine with reasonable skill and safety by reason of mental illness, physical illness or condition…or habitual or excessive use or abuse of drugs defined in law as controlled substances, alcohol, or other substances that impair ability.” The most important step for a physician who is suffering from depression, or any other mental health condition, is to seek professional help. The diagnosis of a psychiatric condition does not necessarily result in impairment to a physician’s ability to practice medicine. However, more difficult or severe conditions may impede a doctor’s ability to recognize the need for treatment. The Physician Health Program (PHP) for the New York State Committee for Physician Health is a division of the Medical Society of the State of New York and provides “non-disciplinary, confidential assistance to physicians, residents, medical students, and physician’s assistants experiencing problems from stress and difficult adjustment, emotional, substance abuse and other psychiatric disorders, including psychiatric problems that may arise as a result of medical illness.” Contacting the PHP is confidential and remains confidential so long as the physician continues in any recommended treatment. If the physician becomes non-compliant with the treatment recommendation, the PHP may be required by law to contact OPMC. (See page 18. More information can be found at www.mssny.org/cph/ and at www.cphny.org.) A physician may also wish to seek advice from a health care attorney whose practice includes defending providers who have been charged with professional misconduct. The goal is to obtain good treatment outcomes which allow the physician to return to practice safe, high-quality medicine. Download the Reprint from The December 2015 Edition of 'The Bulletin' by MCMS As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

I have patients who are requesting medical marijuana. What are the legal issues surrounding prescribing it? The New York Compassionate Care Act was enacted last year and has just become effective. The State has licensed five companies to grow and distribute medical marijuana products through 20 dispensaries. The State law has also established the framework for patients to be certified as medical marijuana patients. A physician who wishes to issue certifications for patients to receive medical marijuana must be qualified to treat patients suffering from cachexia or wasting syndrome, severe or chronic pain, severe nausea, seizures or severe or persistent muscle spasms arising from cancer, HIV infection or AIDS, ALS, Parkinson’s disease, MS, spinal cord injury with spasticity, inflammatory bowel disease, neuropathy or Huntington’s disease. The qualified physician must take a four-hour CME course regarding the use of medical marijuana and then register with the New York Department of Health. More detailed information and links to the course and registration information may be found at www.health.ny.gov/regulations/medical_marijuana/practitioner. In order for a physician to issue a patient certification for medical marijuana, the physician must be caring for a patient with a qualifying medical condition. In this regard, “caring for” means that the physician has completed a full assessment of the patient’s medical history and current medical condition. The physician must also consult the prescription drug monitoring program (I-STOP) to review the patient’s history of controlled substance use. If the physician believes the patient will benefit from the use of medical marijuana, he or she may certify the patient for the program. Notwithstanding the fact that New York joins over 20 other states in legalizing medical marijuana use, marijuana remains a Schedule I substance under Federal law. However, under a Department of Justice Memorandum issued in 2013, the current Administration has taken the position that the Federal government will not interfere with a properly structured state medical marijuana program. The New York State Legislature followed those Federal structural guidelines in crafting our Compassionate Care Act. Physicians should remain watchful for changes in this Federal enforcement position that may arise in the future. As with any new program, the physician may want to obtain confirmation from their current employer that issuance of patient certifications for medical marijuana is not prohibited by the employer’s policies, and receive confirmation that these activities will be covered under the physician’s malpractice liability insurance policy. Download the Reprint from the Feb/March 2016 Edition of 'The Bulletin' by MCMS As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

What are recent legislative and other developments affecting the practice environment? Medical professionals may want to take note of three recent changes that affect the practice environment. Two stem from new legislation regarding telehealth services and opioid prescriptions. The third pertains to new technology applications which have legal implications. New York’s new Telehealth Law and proposed legislation for payment parity. New York’s new telehealth coverage law, which went into effect on January 1, 2016, provides for innovation in care delivery methods. Under the amended law, telehealth services are eligible for reimbursement under New York Medicaid. Telehealth is broadly defined as the use of electronic information and communication by providers, for delivery of health care services including but not limited to diagnosis, treatment, care management and education. Under the new law, commercial health insurers are required to cover telehealth; insurers are barred from excluding from coverage services which are “otherwise covered under a policy that provides comprehensive coverage for hospital, medical or surgical care because the service is delivered via telehealth…” The Department of Health is expected to issue telehealth regulations in the coming months. The law gives patients the choice of receiving services inperson or by telehealth technologies. However, the statute does not, in its current form, include a payment parity provision, which would require insurers to “reimburse the telehealth provider for covered [telehealth] services on the same basis and at the same rates as [in-person services].” Recently, in response to decisions by certain insurers to pay providers for telehealth services at a rate significantly lower than reimbursement rates for in-person services, a new bill was introduced to ensure commercial health plans will pay the same rate for telehealth services as for in-person services. Bill SB 7953 was introduced on May 31, 2016. It seeks to extend payment parity for telehealth services to NY Medicaid, as well as to private health insurers. New Opioid Legislation - State and Federal. In June, Governor Cuomo signed a new law to address the heroin and opioid addiction crisis. The new law is intended to increase access to treatment, limit over-prescription and expand community addiction prevention strategies. The legislation reduces prescription limits for opioids from 30 days to 7 days, mandates that physicians and opioid prescribers complete ongoing education (three hours of education every three years on addiction, pain management, and palliative care), and requires hospital medical staff to provide discharge planning services to connect patients with treatment options to better combat substance abuse disorders. The new law also authorized trained professionals to administer overdose-reversal medication such as naloxone in emergency situations, without putting their professional credentialing at risk. Congress, in response to record numbers of U.S. deaths from drug overdoses in the last couple years, has passed the Comprehensive Addiction and Recovery Act of 2016 (CARA). The legislation, which is seen as a significant step forward in addressing addiction as a health problem, authorizes $181 million a year in spending for a new program to reduce opioid overdose and support education and training to reverse addiction trends. Overdose death rates have been the subject of national attention in recent years. The Department of Health & Human Services Secretary has reported that each day, an average 129 Americans die from opioid overdoses. As of the time of this writing, President Obama is expected to sign the bill. Patient-Facing Smartphone Apps. Earlier this year, two New York City health systems launched mobile apps for patients. In June, Mount Sinai Health System launched MountSinaiNY, an umbrella app with features that allow patients to pay bills online, search physicians and facility locations, schedule appointments, access medical records and exchange secure messages with providers. In January 2016, New York-Presbyterian (NYP) launched a mobile app for patients. The app is designed to improve patients’ access to services from the convenience of their smartphones. NYP is working on a telehealth platform that will feature remote patient monitoring. According to a recent Pew Research Center study, 68% of Americans own a smartphone (up from 35% four years ago). Although umbrella apps may work well for large systems with thousands of affiliated physicians, different patient groups have different mobile needs. Indeed, few, if any, all-in-one apps are likely to meet patient expectations. As physician groups incorporate practice management software and utilize new tools to optimize revenue cycles and streamline billing, more providers are discussing specific mobile health apps with their patients. These new apps, which include tracking and reminder or ‘nudging’ functions, may be relevant in the context of chronic care or routine care (either for diet, exercise, or improved selfmanagement). Notwithstanding possible data privacy concerns, providers are also investing in simplified apps to improve the patient experience as it relates to bill payment, requesting appointments or adding medication reminders. Download the Reprint from 'The Bulletin' by MCMS As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

If you own a vacation home in your name individually or will acquire one by purchase or inheritance in the future, it is important to consider the ownership option that works best for you.  While there are many ways to own a vacation property, there are numerous benefits of owning a vacation home in the name of a limited liability company (LLC), some of which are set forth below: Liability Protection The relatively small up-front cost of forming an LLC (along with an annual registration requirement and fee) in order to achieve permanent and unlimited liability protection is difficult to match. Further, such protection is important for vacation homes that may be rented or used by others while your client is not present. Privacy In most states, including New York, the names and addresses of the individual owners of an LLC are not made public. This is one reason that most New York City luxury condominium units or homes in the Hamptons are owned by an LLC and not in the name of individual owners. Ease of Ownership Transfer Once the deed to the vacation home is listed in the name of the LLC, the deed does not need to change again until the property is sold to a third party. As long as the vacation home is owned by the LLC, ownership can be transferred confidentially by the assignment of LLC membership interests from a parent to trusts, estates, children, etc., without changing the deed in the name of the LLC and without dealing with the associated filings and fees. Ancillary Probate Avoidance The ownership of an LLC membership interest is an intangible asset for probate purposes upon an LLC member’s death, meaning that if the LLC owns a vacation home in a state in which the decedent LLC member was not a resident, ancillary probate proceedings will not have to be commenced in the state where the vacation home is situated. Income Tax Return Most LLCs that own a vacation home do not require any type of federal or state income tax return, so when there is no rental activity the LLC member simply deducts the associated real estate taxes on his or her individual income tax return as if he or she owned the property directly. When it comes time for you to purchase a vacation home, you should meet with your attorney to implement the form of ownership that works best for you. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

A new Senate bill proposes removing the restriction on married co-workers’ ability to take time off to care for newborn or adopted children, parents, or military family members under the FMLA.  The FMLA provides job protected, unpaid leave for employees for certain purposes, such as the birth or adoption of a child, or to care for a sick family member. Employees may take up to 12 weeks of leave during a one-year period.  Currently however, there is statutory language that only allows spouses to take a total of 12 combined weeks of leave.   The new bill would allow each parent to take 12 weeks of  leave, regardless of whether their spouse works for the same employer.  As always, if you have any questions about FMLA, or any other employment issues, consult with your employment lawyer. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

There has been a lot of talk in our area lately about “ban the box,” or not allowing employers to ask applicants at the initial application stage whether or not they have been convicted of a crime.  In fact, municipalities across the country are passing ban the box laws. The idea behind ban the box is to allow potential employers to get to know an applicant first, and decide whether they are employee material before asking about their criminal conviction status. Ban the box laws do not mean that you must hire an applicant with a criminal conviction, nor do they mean that you may not do criminal background checks.  The laws simply require that employers put off asking about criminal convictions until later in the hiring process.   Employers may still use criminal convictions as a means of excluding applicants in certain situations, such as positions in law enforcement and where required by licensing authorities or state or federal law. However, it must be noted that the law, both in New York and federally, prohibits employers from taking adverse action based on a person’s conviction record unless the conviction is directly related to their job duties.  In determining such a relationship, New York employers must consider the following factors:   the specific job duties; the bearing of the criminal offense on the ability to perform the duties; the time that has elapsed since the criminal offense; the applicant’s age at the time of the criminal offense; the seriousness of the offense; the public policies favoring employment of ex-convicts; rehabilitation and good conduct; and the legitimate interest of the employer in protecting property and the safety and welfare of the general public. Employers should take a close look at their open position and determine whether it is even necessary to perform a background check at all.  Also, employers must be reminded that they are required to comply with the Fair Credit Reporting Act when using a third party to conduct background checks. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

In New York and most other states, employment is presumptively at-will, meaning both employer and employee are free to terminate the employment relationship at any time, for any reason.  As with many legal precepts, the employment at-will doctrine has many exceptions, and we have written often in this blog about protected-category discrimination as the most common employment at-will exception.  Another at-will employment exception is the employment agreement, which many executives have leverage to demand as their careers mature. Indeed, negotiating a "cause" clause trumping the employment at-will doctrine is the primary reason executives demand employment agreements.  Some typical examples of "cause" as defined in employment agreements are: 1.   Failure to perform assigned employment duties (executives will often seek to require that such failure be willful, material and/or continued after an opportunity to cure). 2    Fraud, embezzlement or theft (employers relying on such a provision often involve law enforcement for verification of evidence). 3.   Criminal conviction (executives will often seek to limit this provision to felonies). 4.   Misconduct or negligence in the performance of job duties (executives will often seek to require that the misconduct or negligence be gross). For all of the above, executives may seek the right to an appearance before the board of directors, if any, to argue his/her case (with or without counsel), and a majority or super-majority board vote to approve the for-cause termination.  On the employer side, it may seek a provision that the executive be suspended with or without pay during the time it takes for any board involvement. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Alina Nadir has joined the Rochester office of Underberg & Kessler LLP. Ms. Nadir is an associate in the firm’s Labor & Employment and Litigation Practice Groups, and will focus her practice in the areas of general employment litigation and advice. Prior to joining the firm, Ms. Nadir was an associate Brown & Hutchinson LLP. Ms. Nadir earned her B.A. from Syracuse University, and her J.D. from Northeastern University School of Law. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Medical care advancements and new insurance options continue to make the news. With new technological improvements such as electronic medical records that can be accessed from most medical sites, and the use of telemedicine, you may be concerned about the confidentiality of your medical record. There are federal and New York State laws that continue to protect the confidentiality of your medical information, even in these times of electronic records. So, who has access to your medical records? As a patient, you may see your own medical records in most cases. New York State law gives patients access to their records with some restrictions on what may be obtained. There are also rules for what fees may be charged for copies of your records. For more details see “Do I have the Right to see my Medical Records” at the New York State Health Department’s website - www.health.ny.gov. Others with access to your records include your medical providers, your health care agent appointed through a health care proxy, if you do not have capacity to make medical decisions as determined by your physician, and anyone else you authorize to see the records. The New York State Health Department may have access in the ordinary course of ensuring that your health care providers are in compliance with applicable quality of care standards or for auditing purposes. Your medical insurance company may have access when it requires information necessary for payments to be made for services rendered to you. If you would like more information regarding who has access to your medical records see “Access to patient information” at www.health.ny.gov. Both New York State and federal laws require health care providers to take precautions to protect the confidentiality of their patients’ medical records. Under federal laws, health care providers must obtain your written authorization to use or disclose your medical information unless it is for treatment, payment, health care operations or otherwise permitted by law. Health care providers must limit the use and disclosure of their patients’ health information to the “minimum necessary”. This means that providers must ensure that reasonable efforts are made to request, use and disclose only the minimum amount of health information necessary. This does not apply to disclosures to: you, other treating health care providers, disclosures made according to your authorizations, or other disclosures required by law. Federal health care security rules also require health providers to protect the confidentiality of your paper charts and electronic records. Providers must take precautions to protect the security of the information, such as having policies and procedures that allow only authorized persons to access your electronic record. The Federal security rules that establish standards for confidentiality and availability of your health information are enforced through the Department of Health and Human Services and the Office of Civil Rights. For more information about the federal privacy and security rules visit www.hhs.gov. In this ever-changing world of technology, continuous and reasonable security measures must be taken by your health care provider to safeguard all of your health information. Download the Reprint from Monroe County Medical Society As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Crystalline silica is a mineral found in many building materials such as sand, stone, concrete, brick and mortar. Tiny particles of silica can be released into the air during construction and manufacturing activities. If workers are exposed to respirable silica it can cause silicosis, other respiratory diseases like obstructive pulmonary disease, kidney disease and sometimes fatal lung disease. The U.S. Department of Labor Occupational Safety and Health Administration (OSHA) estimates that 2.3 million people are exposed to silica in the workplace. OSHA issued a final regulation limiting worker’s exposure to crystalline silica on March 24, 2016, which becomes effective on June 23, 2016. Although OSHA had put in place permissible exposure limits on silica in the 1970s, based on recent research the agency determined that the standards were not adequately protective. The new rule establishes two distinct standards, namely: for the construction industry which becomes effective on June 23, 2017, and for the general and maritime industry that requires compliance by June 23, 2018. The new rule reduces the permissible exposure limit (PEL) from 250 to 50 micrograms per cubic meter of air averaged over an eight-hour period for both types of workplaces. OSHA has determined that a significant risk remains at the new PEL, but believes that the PEL of 50mg/ m3 is the lowest level that can be reasonably attained through work practices and engineering controls. Aside from this significant reduction in exposure limits, there are additional requirements with the rule including: requiring employers to use engineering controls (e.g., water or ventilation) to limit exposure to the PEL; providing respirators when engineering controls cannot adequately limit exposure; limiting worker access to high exposure areas; developing a written exposure control plan; and providing medical exams to monitor highly exposed workers and providing them information about their lung health. OSHA estimates that about 670,000 workplaces will be affected by the new rule. The affected jobs covered by the rule are quite extensive, including: construction, glass manufacturing, concrete products, foundaries, paintings and coatings, read-mix concrete, cut stone and stone products, abrasive blasting in construction, maritime and general industry, and oil and gas operations. In the case of the construction rule, OSHA has developed a table of standard practice which, if followed, will relieve the need for measuring workers’ exposure to silica. Basically OSHA has determined that if specific dust control measures are followed, such as using water to reduce dust, employers are not required to measure exposure. Construction employers would be well serviced to analyze OSHA’s Table 1 and determine the specific practices that can be implemented. As with all new regulations, there are conflicting estimates of the costs and benefits. OSHA estimates that the new silica rule will save 600 lives annually and prevent 900 new cases of silicosis per year once implemented, providing benefits of $7.7 billion annually. OSHA believes that the annual cost will be slightly more than $1 billion annually, with an average workplace cost of $1,524. Employers with less than 20 employees are estimated to cost less, at about $560 per employer. In sharp contrast, industry groups are opposed to the significantly reduced standards imposed by the rule. Among others, the National Association of Manufacturers has stated that the rule significantly understates the costs and impact that the rule will have on manufacturers and is not feasible. Industry is very concerned about the cost of implementation and lack of flexibility. The National Federation of Independent Business has estimated that the rule will cost the economy $7.2 billion a year and about 27,000 jobs over 10 years. Industry groups have asserted that the agency failed to seek and respond to business input and concerns. Although OSHA has referenced the number of days of public hearings and volume of comments, as with recent regulatory enactments from the Obama administration, one wonders the true extent to which business concerns were heard and actually addressed for in the process. Having been adopted in 1971, it is fair to say that the prior crystalline silica rule merited review and updating. However, prior to implementation, it is hard to predict whether the significant reductions in exposure limits and additional business workplace and engineering requirements can be fully absorbed without business disruption and losses. Download the Reprint from The Daily Record As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.