If I include an arbitration clause in my patient agreements to resolve patient disputes or claims, is it enforceable? In 2012, the U.S. Supreme Court rendered its decision in Marmet Health Care Ctr., Inc. v. Brown, which involved a West Virginia prohibition on nursing home admission agreement arbitration clauses. The response from the Court was blunt: when the state law prohibits the arbitration of a particular type of claim, the analysis is straightforward; the conflicting rule is displaced by the Federal Arbitration Act. The Act states that agreements to arbitrate “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” The Marmet decision appears as though it strikes down all prohibitions against predispute arbitration agreements, not simply those limited to personal injury or wrongful death in the nursing home context. Thus far, New York State courts have agreed. However, arbitration agreements must also pass muster under New York contract law. In Stewart v. Contemporary Dental Implant Ctr., Inc., a New York court addressed an arbitration agreement within an informed consent form signed by a patient prior to receiving dental care. The thrust of the opinion is that predispute binding arbitration agreements within a medical consent form will be valid so long as: (1) the circumstances of their signing are generally reasonable; (2) they are not a requirement for obtaining emergency medical care; and (3) they contain a clear notice that the signee is waiving his/her right to a trial by jury. While it is not clear that all mandatory arbitration clauses in the medical field will be honored, it appears that, so long as the agreement is reasonable, for non-emergency care, and clearly notes its impact on a signatory’s right to a trial by jury, medical service providers should be protected. Before adopting a mandatory arbitration clause, each practice should check with their malpractice insurance carrier to ensure that the adoption of arbitration will not negatively impact coverage of a claim. Also, the practice should have a thorough discussion with their attorney as to the merits of arbitration vs. court proceedings in the context of a medical malpractice claim. Consider that even though the practice may legally do so, the practice may not be better off in arbitration. Attorneys may well diff er in judgment on this decision. Download the Reprint from The September 2014 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.

"You have to learn the rules of the game. And then you have to play better than anyone else.” — Albert Einstein This article highlights some of the recent amendments to the Rules of the Commercial Division of the Supreme Court, as well as new rules that were adopted and put into effect earlier this year. These recent amendments include: Increased monetary thresholds for principal claims to be heard in the Commercial Division Expanded requirements relating to settlement disclosure Staggered court appearances with assigned time slots for argument on motions New guidelines intended to streamline discovery of electronically stored information from nonparties Limitations on the number and scope of interrogatories. These rule changes are the result of Administrative Orders of the Chief Administrative Judge of the Courts. The powers of the chief administrative judge are conferred by the New York State Constitution. Under Article VI, Section 30, the Legislature may delegate to the chief administrator rule-making powers with respect to the practice and procedure of the courts. Monetary Thresholds The monetary bar in the Eighth Judicial District, which includes Buffalo, was doubled effective Sept. 2, from $50,000 to $100,000. The $50,000 threshold in the Seventh Judicial District, which was increased a couple years ago from $25,000, will not change. In Albany and Onondaga County, the monetary threshold is now $50,000, up from $25,000. These changes follow the increased threshold by the New York County (Manhattan) Commercial Division in February 2014 from $150,000 to $500,000. Consultation Prior to Conferences Under an amendment to Rule 8(a) of the Commercial Division Rules, “counsel for all parties” must consult about “any voluntary and informal exchange of information that the parties agree would help aid early settlement of the case,” prior to a preliminary or compliance conference. This requirement is in addition to the preexisting duties on counsel to consult about: Resolution of the case Discovery and other issues to be discussed at the conference The use of alternative dispute resolution to resolve some or all of the issues in the litigation. Staggered Court Appearances A new rule, which went into effect on September 2, 2014, is Rule 34 of section 202.70(g) of the Uniform Rules, which is intended to “streamline the litigation process in the Commercial Division” by assigning a time slot to each court appearance for oral argument on a motion. Rule 34 provides that “[t]he length of the time slot allotted to each matter is solely in the discretion of the court.” The new rule places the responsibility of notifying all other parties - by email - about when the matter is scheduled to be heard on each attorney “who receives notification of an appearance on a specific date and time.” The rule also requires an exchange of email addresses by counsel. Specifically, Rule 34(c) provides that “All parties are directed to exchange email addresses with each other at the commencement of the case and to keep those e-mail addresses current, in order to facilitate notification by the person(s) receiving the court notification.” Guidelines for e-Discovery from Nonparties Another new rule provides guidance to litigants in the area of collecting electronically stored information from nonparties in discovery. Practitioners seeking or responding to a demand for ESI from nonparties should refer to the guidelines, which encourage early assessment and discussion of the potential costs and burdens imposed with respect to preservation, retrieval and production – in light of the nature of the litigation and the amount in controversy. Limits on Interrogatories The Commercial Division Rules now include specific limitations on interrogatories. A recent administrative order, with an effective date of June 2, limits the number of interrogatories to 25, including subparts, unless a preliminary conference order specifies another limit. This numerical limitation brings the Commercial Division Rule consistent with Federal Rules of Civil Procedure. In addition to limiting the number of interrogatories, the administrative order also limits the scope of interrogatories to certain specified categories of requests. Absent a court order, interrogatories are now limited to: name of witnesses with knowledge of material information, computation of each category of damage alleged, and the existence, custodian, location and general description of necessary documents and other physical evidence. Practitioners should note that under the new rule, “at the conclusion of other discovery, and at least 30 days prior to the discovery cut-off date,” unless prohibited by court order, a party may serve contention interrogatories, to elicit factual bases or support for allegations contained in a pleading. Proposed Limitations on Depositions The chief administrator is also considering adoption of an amendment that would limit the number and duration of depositions to ten per side and seven hours, respectively. The public comment period for the proposed rule closed in August. If adopted, the numerical limit and durational limit would make New York’s Commercial Division rules consistent with Federal Rules of Civil Procedure 30(d)(1) and 30(a)(2)(A) 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.

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.

On July 14, the EEOC issued a 60-page “enforcement guidance” on pregnancy discrimination and related issues in the workplace, giving employers insight on how the EEOC will handle pregnancy-related complaints going forward. The guidance, issued after a 3 to 2 vote along commission partisan line, is intended to clarify a number of federal laws that employers and courts have interpreted in various ways, including the Pregnancy Discrimination Act and the Americans with Disabilities Act, both of which apply to employers with 15 or more employees. This is the first time in more than 30 years that the EEOC has updated its pregnancy discrimination guidelines, and is doing so because of the significant increase in pregnancy-related complaints over the last decade. The timing is interesting, as the guidance was issued just weeks after the U.S. Supreme Court agreed to hear Young vs. United Parcel Service, Inc., a case brought by a pregnant UPS worker that is expected to face some of these issues head on. In fact, the dissenting EEOC commissioners issued public statements questioning the majorities’ decision to issue the guidance without first making it available for public comment and questioned the timing given the pending court case. The EEOC’s guidance reinforces the PDA mandates that discrimination based on pregnancy, childbirth or related medical conditions is a prohibited form of sex discrimination. In addition, the PDA requires that women affected by pregnancy, childbirth or related medical conditions be treated the same as other persons not so affected but similar in their ability to do work. The guidance takes the position that even though pregnancy itself is not a disability under the ADA, all pregnant workers are entitled to a reasonable accommodation under the ADA. Specifically, “an employer is obligated to treat a pregnant employee temporarily unable to perform the functions of her job the same as it treats other employees similarly unable to perform their jobs, whether by providing modified tasks, alternative assignments, leave, or fringe benefits.” Other accommodations employers may be required to offer pregnant employees include modified work schedules (i.e., more frequent breaks or later arrival times due to pregnancy-related fatigue or morning sickness), purchasing or modifying equipment or devices (i.e., providing a pregnant employee a stool so she can sit when working in a position that ordinarily would require her to stand), or altering how a job function is performed (i.e., allowing a pregnant woman suffering from pregnancy-related carpel tunnel syndrome to dictate notes and have assistants input the data rather than requiring the pregnant employee to use a keyboard). The EEOC’s guidance also addresses how employers need to apply light duty policies under the PDA. An employer violates the PDA if it denies pregnant women light duty while providing light duty to other employees who are similarly unable to perform their jobs. As such, if an employer has a light duty policy that covers employees injured on the job, then it must also cover pregnant employees similarly unable to perform their work. This is the exact issue before the Supreme Court in Young, where the Fourth Circuit Court of Appeals held that the PDA does not require exactly the type of accommodations contained in the new EEOC guidance. The guidance spells out that the fact that the EEOC will broadly interpret how and when the ADA applies to pregnant workers, and what reasonable accommodations in the workplace will be required. The guidance provides “best practices” for employers to avoid unlawful discrimination against pregnant workers. Included are prohibitions on discrimination based on a woman’s intentions to become pregnant or seeking fertility treatments, on past pregnancy and potential pregnancy (i.e., fertility issues or reproductive risk). In addition, lactation, a much disputed matter in the courts, is now considered a medical condition. Citing the Affordable Care Act and the PDA, the EEOC guidance also calls for employers to provide prescription contraceptives to employees on the same basis as prescriptions drugs, devices and services that are used to prevent the occurrence of medical conditions other than pregnancy. The EEOC did, however, acknowledge in an official Q&A for employers the recent Hobby Lobby Supreme Court decision, which granted an exception to employers on religious grounds: “EEOC’s enforcement guidelines explains Title VII’s prohibition of pregnancy discrimination; it does not address whether certain employers might be exempt from Title VII’s requirements under the [Religious Freedom Restoration Act] or under the Constitution’s First Amendment.” It is important to note, under the guidance, a pregnant worker is not protected if the woman’s condition was neither revealed nor obvious, but an employer is liable for decisions motivated on a past pregnancy or on stereotypes or assumptions about a pregnant woman’s ability to work. While the EEOC guidance is not law, employers can be sure that the EEOC will apply the principals as it conducts investigations. As such, employers should review and, if appropriate, revise policies concerning discrimination, light duty, leave and benefits. Employers should continue to make employment decisions based on qualifications and not on any pregnancy or pregnancy-related conditions. Indeed, before taking any adverse action against a pregnant employee, employers should make sure they have good documentation of non-discriminatory reasons for the decision. It remains to be seen what the Young decision’s affect, if any, will have on the EEOC’s guidance, and employers should pay careful attention to the outcome of the pending case. 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.

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.

Some business disputes prove to be so intractable, or cause or threaten such severe economic injury, that they require legal action. In many instances, a lawsuit is the continuation, in a different forum, of an existing business dispute that the parties could not resolve by compromise. Although less than 5 percent of all civil lawsuits are decided by a trial, there is no guarantee that a client will be able to force its adversary to settle on favorable terms by merely commencing a lawsuit. Therefore, a client electing business litigation should plan to go all the way to trial, and have a clear understanding of the risks and rewards of doing so. The best lawyers counsel their clients on the high transaction costs inherent in resolving business disputes through litigation. At the same time, the client must understand that her litigation expenses constitute an investment made with the expectation that she will receive a reasonable return on that investment in the form of damages. In the absence of a contract or statute providing that the prevailing party shall recover its attorneys’ fees from the losing party, the client has to bear her own legal expenses. Consider this hypothetical with a fairly common fact pattern: The client sells its customer specialized metal fabricating equipment for $3.5 million; the customer has paid $2.5 million by the time the equipment is delivered; however, upon delivery, the customer claims that the equipment does not work properly, refuses to pay the contract balance, and demands that the client refund the $2.5 million already paid; the client insists that the equipment meets contract specifications and that the customer is operating the equipment improperly; and efforts to resolve the impasse by negotiations are unsuccessful, because neither side is willing to compromise its position. In this scenario, the client will never get its $1 million unless it sues for it. However, even if the client prevails at trial and is awarded $1 million in damages (and along the way defeats the customer’s inevitable counterclaims for $2.5 million and other damages), the client will not “net” $1 million after factoring in the cost of litigation. Therefore, before suing the customer, the client must analyze whether the anticipated return on its investment in a lawsuit will justify the expected cost of litigation. Once sued, the customer must do a mirror-image analysis: how much would it cost us to settle now; how much will it cost us to defend this lawsuit; and if we spend that money, by how much might we reduce our exposure to damages? These are not easy analyses. Not all facts are known at the outset of a case. Litigation procedures can be complicated and confusing. If they haven’t been through business litigation before, even sophisticated business people sometimes feel that the lawyers are speaking a foreign language when explaining legal strategies and developments in the case. The lawyer’s preparation of a written litigation plan with the foreseeable legal expenses estimated on a task-by-task basis can go a long way to help a client understand what is going on in her lawsuit, and why. It also helps when the client has an understanding of the fundamentals of civil litigation: it is an adversarial process; a party must disclose all relevant evidence to the adverse party; all relief must be formally requested from a court through trial, or by written application (motion); a party must prove its entitlement to any requested relief, and the adverse party can and will oppose that request; and a court will hear both sides’ arguments and review both sides’ evidence before making a decision. A major generator of legal expense and client angst in a business case is the discovery process. “Discovery” is the evidence gathering stage of a lawsuit, which includes both “paper discovery” and pretrial examinations of witnesses. In paper discovery, the parties serve each other with notices requesting documents and information relevant to the claims and defenses asserted in the lawsuit. In a business case, thousands, and perhaps tens of thousands, of pages are disclosed, and the parties also are often required to provide written responses to detailed written questions (interrogatories). A client will need to devote substantial resources and employee time to prepare documents for disclosure and responses to interrogatories, and to analyze the documents and information disclosed by the adverse party. Moreover, a client will often balk at disclosing documents or information requested by the adverse party due to the expense or burden involved, or because the requests seek confidential information. Although lawyers are required to make good faith efforts to resolve any discovery disputes before requesting court intervention, those disputes are often decided by the court by a motion to compel (made by the party seeking discovery), or by a motion for a protective order (made by the party opposing discovery). In most cases, once all paper discovery is completed, the parties conduct examinations before trial of the other side’s witnesses, and, as necessary, of non-party witnesses, under oath and recorded by a court stenographer. Of course, parties are free to settle their dispute at any time during a lawsuit, and many business cases settle as legal expenses rise and the relative merits of the parties’ positions come into focus. Certainly by the end of discovery, both sides are fully aware of the strengths and weaknesses of their respective cases, and are, theoretically, ready for trial. Cooler heads often prevail at this point, as the parties face the reality that if they do not voluntarily settle their dispute, they will lose control of the decision-making process and their respective fates will be decided by third parties with no stake in, and no experience with, the dispute: a judge or jury. However, a client may well make the business decision to incur the additional (and high) cost of a trial with the informed belief that the potential benefits outweigh the risks, and that those risks are preferable to the certainty of an unfavorable settlement. 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.

Kate Karl has been named one of the 2014 “Top Women in Law” by The Daily Record. The Top Women in Law award recognizes the outstanding accomplishments of women attorneys who are making notable contributions to the legal profession, while inspiring a positive change in the community. Kate is chair of Underberg & Kessler’s Real Estate and Banking Practice Groups, and counsels business owners, developers and financial institutions on a broad range of legal issues. She is an active member of the Board of Trustees of The Landmark Society of Western New York, Inc., and a long-term Board and Executive Committee member of the Rochester Downtown Development Corporation. 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.

Most commercial disputes are settled without getting the lawyers involved, but some disputes prove to be so intractable that they require legal action. Because lawsuits are often time consuming and expensive, businesses and their lawyers have used alternative forms of dispute resolution, commonly referred to as “ADR.” One form of ADR is mediation. In mediation, a neutral party (the mediator) works with the opposing parties to try to reach a settlement. The mediator’s skill and the parties’ willingness to negotiate in good faith are critical to a productive mediation. Generally speaking, there are three ways a Western New York business can find itself in mediation: the business is a party to a contract which requires that some or all disputes be submitted to mediation; the business is a party to a lawsuit in the United States District Court for the Western District of New York where essentially all civil cases (with limited exceptions) are referred automatically to mediation; or during the course of a lawsuit the opposing parties agree to mediate all or part of their dispute, either privately or through a program in the New York State Supreme Court. Preparation is the key to “winning” a mediation. First, the client and their lawyer must prepare their mediation presentation, articulating the legal and factual strengths of the client’s position and the fairness of the outcome proposed. This presentation is usually detailed in a mediation memorandum submitted to the mediator (and sometimes, by agreement, to the opposing party) in advance of the mediation. The client and their lawyer should also be prepared to expand upon the issues addressed in the mediation memorandum through oral advocacy at the mediation session. Second, the client and their lawyer must make a realistic assessment of the strengths and weaknesses of the client’s case, notwithstanding the “best case” arguments made through the mediation memorandum and their oral advocacy. Third, the client should insist that the lawyer provide a well-reasoned estimate of the future cost of litigation. The first task will help convince the mediator of the merits of the client’s position, and give her sound reasons why the opposing party should be the one who compromises their position. The second and third tasks put the client in a position to decide whether to accept an offered compromise in light of the known risks, costs and benefits. Most mediations follow a standard protocol. The parties, their lawyers and the mediator meet at the offices of the mediator or one of the lawyers. The mediator conducts a joint introductory session in which he explains his role and the applicable rules of engagement, and the lawyers make opening statements summarizing their clients’ positions. The mediation then usually evolves into a kind of “shuttle diplomacy”, in which each side meets separately with the mediator, and the mediator shuttles between the parties, evaluating their positions and looking for opportunities for compromise. A skilled mediator will, as appropriate, show empathy for a party’s convictions on the legal and equitable merits, but also play devil’s advocate, challenging those convictions (often after being prompted to do so by the opposing party’s arguments). Although mediations are nonbinding and a party may reject any proposed resolution, the mediation dynamic can lead to compromises that the parties were unwilling to make on their own. For example, the District Court’s ADR program has a settlement rate of over 70%. All settlements are formally confirmed in writing before the parties leave the mediation. Even if the parties do not settle in the mediation, each side comes away with the benefit of a neutral party’s pragmatic assessment of its case. Download the Reprint from Buffalo Business First As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

The development of the natural gas resources in the Marcellus Shale formation across the southern tier of New York and Pennsylvania has taken off within the last few years. While leasing and exploration in New York has continued, well permitting and development has been on hold subject to an executive moratorium while New York state’s Department of Environmental Conservation (DEC) conducted a Supplemental Generic Environmental Statement (SGEIS) under the State Environmental Quality Review Act. The DEC finally issued the draft SGEIS on July 1. The Marcellus Shale formation is a black shale formation deep underground in the southern tier and extending down through Pennsylvania, Ohio and West Virginia. The Marcellus is estimated to hold between 168 and 516 trillion cubic feet of natural gas. By comparison, New York residents use about 1.1 trillion cubic feet per year. However, due to the depth and nature of the formation, horizontal drilling and hydraulic-fracturing techniques are required to access the gas trapped in the shale. Basically, hydraulic fracturing or “fracking” involves the placement of a well within the gas-bearing zone, pumping a pressurized fluid of water and chemicals into the rock, causing a fracture and fission, withdrawing the fluid and allowing the proppant (sand or beads) to remain to prop open the shale fractures so that the natural gas can be extracted. Some estimates suggest that the impact could be as many as 30,000 new jobs and $1.4 billion in annual economic impact. A recent Penn State study of shale gas development in that state has identified the “Marcellus multiplier,” in that for every $1 that gas producers spend, there is $1.90 in total economic impact. Although fracking is far from a new technique, the explosive growth of Marcellus Shale gas development has caused federal and state agencies to take a cautious approach. Critics of gas development have cited potential environmental issues such as air pollution, land-use development, water pollution and traffic matters. In Pennsylvania, residents have raised concern about the potential presence of industrial chemicals in groundwater, along with migration of methane gas around well casings. Overall, there have been relatively few incidents in Pennsylvania, however the high profile nature of the issue has caused the DEC and other environmental agencies to closely scrutinize the practice. Aside from the DEC’s review, the U.S. Environmental Protection Agency is currently conducting an extensive study on hydraulic fracturing. The DEC’s revised SGEIS report is the result of substantial re-analysis of a draft SGEIS issued in December 2009. The latest draft is in excess of 900 pages and represents the DEC’s consideration of 13,000 public comments, industry and consultant input and the DEC’s visits to Pennsylvania sites where incidents have occurred. The new report is significant in a variety of ways. First, the SGEIS reverses key elements of the 2009 report that would have allowed hydraulic fracturing within: the New York City and Syracuse watersheds; primary acquifers; and public forests, wildlife areas and parklands. The new report prohibits these activities. The DEC’s website now contains a map of prohibited drilling areas reflecting these locations. The DEC has indicated that if adopted, the recommendations would protect sensitive areas across the state, while still allowing access to 85 percent of the Marcellus Shale in New York. Second, permits will be allowed on private land subject to stringent regulation and permitting by the DEC. The new restrictions now include the following key provisions: well-water protection — no permits will be issued for sites within 500 feet of a private water well or spring and no permits will be allowed within 2,000 feet of a public drinking water supply well or reservoir subject to review of historical data; well casings — the DEC will generally require a third cemented well casing around each well to prevent the migration of gas; spill control — flowback water will need to be maintained in tanks with secondary containment; stormwater control — new permit processes will regulate storm control measures to prevent runoff; and water withdrawals — a special permit will now be required for large volume withdrawals to protect water bodies. The DEC is also creating a High-Volume Hydraulic Fracturing Advisory Panel to provide further recommendations and oversight of the practice. In addition, the DEC will require approved plans for disposing of flowback water and brine, including a tracking process to monitor disposal of the fluid. The agency will also require water treatment facilities to undergo review and approval prior to accepting waste fluid for treatment. Further, the DEC’s SGEIS has identified 322 chemicals proposed for use in the state along with health hazard information for each. As part of each drilling permit, DEC will require drilling companies to fully disclose and publicly identify products and additives used in the hydraulic fracturing process. The SGEIS also provides that the DEC will notify local governments of each permit application that it receives. The permit applicant must also certify that the proposed activity is consistent with local zoning and land use laws and, if not, the DEC will require an additional level of review prior to issuance of a permit. In another departure from the 2009 SGEIS, the DEC has indicated that the prior report did not adequately consider the socioeconomic and community impacts from hydraulic fracturing. These include both positive and negative impacts from the activity, impacts to local roads and traffic, and visual and noise impacts. As a result, the DEC has engaged independent consultants that are analyzing these potential impacts for consideration in the final report. The SGEIS will be subject to a 60-day comment period starting this month. The DEC will not issue any drilling permits until the public comments are reviewed and the final SGEIS has been issued. The DEC has assessed the Pennsylvania experience, problems and issues and attempted to create a comprehensive permitting process that allows hydraulic fracturing. However, it remains to be determined whether the proper balance has been struck to permit natural gas development while protecting the state’s environment. Initially, the oil and gas industry is concerned about the SGEIS report due to the extent of the areas where drilling is prohibited and the scope of the permitting requirements. Conversely, a variety of environmental groups have argued that there should be a blanket ban on drilling and that the proposed restrictions do not go far enough. Moreover, the DEC’s delay in issuing well permits to prepare another SGEIS has likely tempered the positive economic impact to New York as drilling companies have shifted resources to other states. 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.

I am a 55 year-old board certified psychiatrist with a full practice. How does the New York State Secure Ammunition and Firearms Enforcement (SAFE) Act effect my practice? The mental health provisions of the SAFE Act, which went into effect on March 16, 2013, require that any patient deemed to be unfit to own a weapon be reported to the State. The changes apply to physicians, psychologists, registered nurses, and/or licensed clinical social workers providing mental health care, regardless of setting. A mental health provider is to use professional judgment in determining if a patient is a threat to themselves or others. The website for the New York State Office of Mental Health recently posted an “Introduction for Mental Health Providers” to assist in applying the new rules. Mental Hygiene Law Section 9.46 now requires a “mental health professional” to report a person who “is likely to engage in conduct that would result in serious harm to self or others” to the County Director of Community Service (DCS) or designee as soon as practicable. If DCS concludes that the individual is likely to engage in such conduct, it must submit an online form to the NYS Division of Criminal Justice Services (DCJS). DCJS then checks for firearm applications, permits or assault weapon registrations. DCJS and/or the State Police notify the appropriate county firearms licensing official, who must suspend or revoke the license. The official also informs local law enforcement, who are charged with removing the guns. The statute now requires mental health professionals to report to the county DCS when, in their “reasonable professional judgment,” a current mental health patient meets the “serious harm to self or others” standard. This is the same standard as “likelihood to result in serious harm” as defined in MHL Section 9.01 and means threats of, or attempts at, suicide/serious bodily harm to self, or homicidal/violent behavior towards others. This standard is necessary to justify the need for immediate intervention, which includes mental health arrest and transport to a psychiatric hospital for involuntary examination. Once the reporting conditions are met, the mental health professional must report to the local DCS, or designee, information necessary for DCS/designee to determine if the concerns are substantiated. If so, DCS/designee must file the standard Section 9.46 form with DCJS, which collects demographic information without medical information/diagnosis. This information is available to a limited number of DCJS and State Police staff who are responsible for matching the individual with pending or active firearms licenses or assault weapons registrations. However, reporting a patient is not required when, in the provider’s reasonable professional judgment, doing so would endanger the provider or a potential victim. In addition, a mental health professional is not criminally or civilly liable if he or she uses “reasonable professional judgment” and acts in “good faith” when deciding to report. Download the Reprint from The April 2013 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.

We are considering the possibility of group medical visits to better serve the needs of our patients. What are some of the legal issues we should consider? Group medical visits, sometimes also called shared medical appointments, are gaining in popularity among both physicians and patients. In a group setting, over a 90-minute to two-hour period, the physician performs a series of one-on-one patient encounters, to manage the health of each patient and educate and advise the group of patients. Sometimes offered as a cooperative health clinic to patients with a single disease focus (e.g., diabetes, high blood pressure or high cholesterol), and sometimes offered on a drop-in basis to patients with multiple diagnoses, these programs have been found to provide patients with increased access to their physician, improve the quality of their care through enhanced education and support, make patients more active participants in their care and offer patients peer support. From the practice perspective, this model can improve physician and staff productivity, decrease costs and reduce patient scheduling congestion. The first legal issue to consider is patient confidentiality and privacy. Each patient wishing to participate in a shared medical appointment must sign a HIPAA compliant release and waiver acknowledging that their protected health information will be shared with other participants in the group visit. The patient should also pledge confidentiality as to the protected health information of other participants, agreeing not to share any protected health information of other patients outside the group setting. The patient should also acknowledge that while each patient in the group visit has signed a similar confidentiality pledge, neither the physician nor the physician group can guarantee the confidentiality of protected health information received by the other group members. Finally, where the shared health information may include HIV or mental health status, there are special New York State rules to follow for a valid waiver and release agreement. From a patient care and risk management perspective, the physician should document the visit in each participating patient’s medical record in the same manner as an individual visit. Vital signs should be recorded, patient evaluation, counseling and education noted, and each medical decision and advice to the specific patient documented. The chart notes should reflect all individual medical examinations and services provided to the patient, as well as the services provided to the group as a whole. The chart details will serve the physician well for purposes of back-up of the billing to a third-party payor or in the event of a malpractice claim. The physician should be mindful that in the group setting the other patients may be witnesses in the event of any malpractice claim by a group participant. To the extent practice staff assist the group, their activities should be within the scope of their respective licenses (nurse, nurse practitioner or physician assistant). Next, the physician will need to carefully consider the coding and billing of the shared medical appointment to thirdparty payors. The American Academy of Family Physicians web site provides guidance on these matters. Since no official payment or coding rules have been published by Medicare, the AAFP asked CMS for guidance. The response from CMS was, “…under existing CPT codes and Medicare rules, a physician could furnish a medically necessary face-to-face E/M visit (CPT code 99213 or similar code depending on level of complexity) to a patient that is observed by other patients. From a payment perspective, there is no prohibition on group members observing while a physician provides a service to another beneficiary.” The reply letter went on to state that any activities of the group (including group counseling activities) should not impact the level of code reported for the individual patient. It is important to note that medical insurance company coverage and payment rules may very well differ from this Medicare guidance. The physician should seek written advice from each insurance plan in which they are a participating provider to confirm that shared medical appointments are covered services and as to how to properly code and bill a medically necessary, physician-patient encounter conducted as a group medical visit. Group visits should be voluntary and not mandatory, even where the physician believes the patient would benefit from the group. Traditional office visits should be available for patients who refuse the group, or decide to leave the group. Moreover, the shared medical appointments should not completely replace individual visits, and when necessary or desirable to the patient, individual medical appointments should remain available. Finally, the physician should receive written confirmation from his or her malpractice insurance carrier that full coverage will be available in the event of a HIPAA compliance claim or malpractice claim arising in the context of a group medical visit. Download the Reprint from The September/October 2013 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.