Legal

fall-2019-marijuana

Passing the Smell Test – How Does it Work When it Comes to Medical Marijuana

Other than the fact that all marijuana is a Schedule 1 drug under the Controlled Substances Act, and illegal at the federal level, there is nothing simple and straight forward about the law on marijuana use in Pennsylvania (or in any part of the country) right now.  From law enforcement to business owners, there is […]

Other than the fact that all marijuana is a Schedule 1 drug under the Controlled Substances Act, and illegal at the federal level, there is nothing simple and straight forward about the law on marijuana use in Pennsylvania (or in any part of the country) right now.  From law enforcement to business owners, there is a struggle to understand what is legal as courts and agencies are hard-pressed to keep up with the legalization of marijuana and the conflict between state and federal laws.

On April 6, 2016, Pennsylvania passed the Medical Marijuana Act (the “Act”) which legalized the use or possession of medical marijuana in the Commonwealth.  By February 15, 2018, medical marijuana was available for distribution at Pennsylvania dispensaries for patients who meet certain requirements.  Specifically, the patient has to have one of seventeen enumerated “serious medical conditions,” receive certification from a practitioner to acquire the marijuana from an approved dispensary in Pennsylvania and be in possession of a valid identification card issued by the Pennsylvania Department of Health at any time they are in possession of medical marijuana.  The patient must also be under the ongoing care of the practitioner who issued the certification during any in-person visit to the dispensary.  There is no reciprocity between the states, meaning that a patient must have a Pennsylvania certification to get medical marijuana from a Pennsylvania dispensary.

The Act confirms that medical marijuana may only be dispensed as a pill, oil, topical form (including gel, creams or ointments), vaporization or nebulization, tincture or liquid.  Smoking marijuana is not permitted by the Act.  Likewise, marijuana in edible forms, such as brownies, is illegal unless it is done to aid ingestion by the patient – the medical marijuana cardholder.    Despite these clear designations and protections under the Act for the legalized use of medical marijuana in Pennsylvania, the rest of the state’s legislation remains unchanged.

Recently in the case of Commonwealth v. Barr, the Honorable Maria L. Dantos of the Lehigh County Court of Common Pleas granted the Defendant’s motion to suppress evidence that claimed the  search of a vehicle by the police was improper since it was based upon the smell of burnt and raw marijuana through the open window of the vehicle and a passenger in the vehicle possessed a medical marijuana card.  In his defense, the Defendant produced an expert who testified that the odor of ingesting medical marijuana with a vaping pen was the same as the odor of smoking regular marijuana from an unlawful source.  The arresting officer admitted she was not aware that the odor was the same.  In rendering the decision, Judge Dantos highlighted that this search and subsequent arrest of the Defendant for possession of marijuana (amongst other charges) demonstrated the “clear disconnect between the medical community and the law enforcement community” with regard to the legalization of medical marijuana and found that the smell of marijuana alone does not provide law enforcement with probable cause to conduct a search.

This decision raises many questions for business owners and their interactions with their employees.  For instance, what happens when an employer encounters an employee who smells of marijuana but shows no evidence of any other impairment?  Will the smell of marijuana be enough to create the reasonable suspicion needed to demand a drug test?  Will the smell of marijuana potentially place an employer on notice of a possible disability?  Does the employer have to give the employee the opportunity to provide a legitimate medical reason for smelling of marijuana before it can take any employment action?  How do the answers to these questions change when the employee is in a safety-sensitive position?  There is little, if any, guidance from the courts on these scenarios; however, applying the reasoning in the Barr case, the smell test, alone, is likely not enough for an employer to take adverse employment action against its employee.

As these types of decisions continue to be made, the legal landscape surrounding marijuana use in Pennsylvania will only evolve.  Where do we go next?

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fall-2019-business-divorce

Business Divorces in Pennsylvania

This year is the 40th anniversary of the release of the Oscar-winning movie Kramer vs. Kramer.  Kramer vs. Kramer which starred Dustin Hoffman and Meryl Streep was one of the first movies to depict the turmoil that ensues when the dissolution of a marriage and the battle for custody of a child makes its way […]

This year is the 40th anniversary of the release of the Oscar-winning movie Kramer vs. Kramer.  Kramer vs. Kramer which starred Dustin Hoffman and Meryl Streep was one of the first movies to depict the turmoil that ensues when the dissolution of a marriage and the battle for custody of a child makes its way into the courtroom.  By now these custody fights are ingrained in our pop culture and can be witnessed on an almost daily basis on television.  There is another type of divorce that can be just as emotional and bitterly fought as the custody fight in Kramer vs. Kramer: that is the business divorce.

Business divorces involve the break-up of a small closely-held business.  Although these cases are at times referred to colloquially as “business divorces” they are more appropriately referred to as shareholder (or member in an LLC) oppression suits or minority shareholder (member) freeze-out cases.  These cases arise because unlike publicly traded corporations, the ability of minority shareholders to sell their shares of a small business is extremely limited.  As such, Pennsylvania law has established procedures to protect minority shareholders which are balanced against a natural reluctance to interfere in the operations of businesses.

Pennsylvania Courts define shareholder oppression as conduct that substantially defeats the reasonable expectations of a minority shareholder.  A freeze-out happens when a minority shareholder is removed from office, or his power or compensation is substantially diminished.  The majority shareholder or member’s conduct is measured against the business judgment rule.  The question that courts require to be answered is whether the majority shareholder had a rationale belief that he was acting in the best interest of the company.  If the majority shareholder is acting in accordance with the business judgment rule, then the owner has nothing to worry about.  If she is not, then the consequences may be significantly more severe than those suffered by Dustin Hoffman in Kramer vs. Kramer.

In Kramer vs. Kramer, Dustin Hoffman’s character ended up in court because he was spending too much time at work and not enough time with his family.  Just like in marital divorce cases, there are certain behaviors that will almost assuredly land a majority owner in court.  The most frequent misbehavior is failing to provide the minority with financial information about the business.  It is remarkable how frequently majority members take the position that it is their company, and the books are not the minority owner’s business.  Not only is that attitude shortsighted, but it is also completely contrary to Pennsylvania law.  Minority owners have a statutory right to see necessary financial information so long as the request for information is legitimate.  If the minority owner offers a legitimate reason to review the records, a court will compel the inspection of the financial records.

Other behaviors that can lead to a finding of minority oppression include:

  • Failing to observe corporate formalities. Refusing to have corporate meetings or not adopting necessary resolutions will be perceived as denying necessary information to the minority shareholder.
  • Terminating the employment of a minority owner. Since most owners of a closely held business also work for the business there is nothing that will get a minority shareholder to a courthouse quicker than the majority owner firing a minority owner.
  • Paying the majority owner excessive compensation or the corollary, paying the minority owner an inadequate salary.
  • Failing to award dividends or distributions. If the business is profitable, minority shareholders have a reasonable expectation that they will reap the benefits.  If too much money is tied to the salary of the majority member, it will engender the type of ill-will that leads to litigation.
  • Diverting corporate assets for the majority’s personal benefit. Just because you are the majority owner does not allow you to use the company credit card for the first-class vacation to Europe.
  • Usurping corporate opportunities. Courts frown when majority owners get involved in competing businesses in their personal capacity, which should have been brought to the corporation for the benefit of the corporation and all of its shareholders to enjoy.

Just like in custody cases where courts have broad authority to fashion an award, courts have a number of tools at their disposal to remedy shareholder oppression.  The most significant and detrimental tool for the majority owner to be aware of is that the court can award both compensatory and potentially punitive damages to the oppressed shareholder.  Courts can also appoint a receiver to run the business on a temporary basis while the parties are litigating their dispute.  Courts can always order the dissolution of a business if the owners are not able to work with each other.  Dissolution is most appropriate when the shares of the company are equally owned, and the owners can no longer run the business together.

The key to avoiding a business divorce is the same as avoiding a marital divorce: communication.  The majority owner has a fiduciary duty both to the corporation and to the minority owners.  Keeping all of the owners informed about day to day decisions will go a long way to keeping the business and its owners away from the turmoil that Dustin Hoffman and Meryl Streep’s characters endured.

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fall-2019-young-couple

Boy Meets Girl

Once upon a time, “family” meant Husband and Wife, two or so children, a dog, a picket fence, a single income, ’til death do us part, and so many other Rockwellian clichés.  Our society, enamored with that ideal, sculpted our society around the “nuclear” family of the 1950s (1550s?).  Everything around us operates under and […]

Once upon a time, “family” meant Husband and Wife, two or so children, a dog, a picket fence, a single income, ’til death do us part, and so many other Rockwellian clichés.  Our society, enamored with that ideal, sculpted our society around the “nuclear” family of the 1950s (1550s?).  Everything around us operates under and in favor of this construct, and there’s only one small problem: These types of families are, at this point, in the minority.

It would be disingenuous for me even to attempt to describe the “typical” family of the twenty-first century, for the simple reason that it doesn’t exist.  Family can only be defined by its makeup, and its makeup defies such restrictive boundaries as a definition.

It causes a problem for the courts, who have, traditionally, been heavily involved in the family, from the issuance of a marriage license to the end of probate, and, to be certain, every step in between.  Courts prefer the “typical” situation: Boy Meets Girl, Boy marries Girl.  Boy and Girl are fruitful and multiply.  Boy and Girl acquire wealth and assets.  Boy and Girl disagree, divorce, distribute their marital estate, and reveal the worst of themselves in a fight over where the kids sleep.  Boy and Girl die, and bitter kids fight over their stuff.

This isn’t really “typical” anymore.

Today it can be Boy meets Boy, Boy marries Boy, Boys start a family using alternative reproductive technology.  The law of Boy-Meets-Girl says that only one can be Dad because the fundamental rights of the anonymous biological donor (and possibly the uninterested surrogate mother) cannot be compromised by something as droll as an intact family unit.  And it seems like so much to do over nothing when these two fathers just want to enjoy their newborn child together.  But when Boy disagrees with Boy, one of them runs the risk of being fully excluded.

Today it can be a grandfather who lived up to that erstwhile family ideal: worked hard, met Girl, raised a family, and—by no fault on his part—watched as that family destroyed itself at the expense of their own children.  Now, septuagenarian Grandad must (re-)assume the role of Dad, Mom, and Power of Attorney instead of enjoying his golden years…so long as he can convince a court that he is a better option than his deadbeat kids.

Today it can be Boy meets Girl, Girl meets another Boy, Girl has a baby, and 10 years later Boy and Girl and Boy are left to determine if “Dad” means the one who raised, loved, and supported the child, or the one who shares a 99.999% probability of biological parenthood.

It can be Boy meets Girl, but Boy and Girl see no worth in the institution of marriage and can have the kids, and the dog and the picket fence, and everything is just fine until they part ways and realize there are no protections for their mutual property rights.

Today it can be Boy Meets Girl, Boy rapes Girl, Girl forced to tolerate as Boy exercises custody anyway.

The law that was written is the Law of Boy-Meets-Girl.  As that law slowly adapts to meet the needs of an ever-changing nucleus, most of the above situations require creativity, common sense, and the pure gall necessary to ask for something that Boy-Meets-Girl failed to contemplate.

“Family” can no longer be limited to the Boy-Meets-Girl standard.  We have a few useful touchstones that allow us to work within the confines of Boy-Meets-Girl: lofty, esoteric phrases like “the best interests of the child” and “fundamental rights of a parent.” For the increasing list of situations that can’t be pigeonholed into Boy-Meets-Girl, however, we must innovate.  In order to make family-inclusive, we must continue to expand the law to accommodate every family, regardless of their makeup.   Knowing that there’s no limit to what constitutes a Family, we must never limit ourselves.

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fall-2019-is-your-estate-plan-vigilant

Is Your Estate Plan Digitally Vigilant?

Given the prominence of our use of computers, the cloud, and online technology in our professional financial, and personal lives, it is indisputable that a good estate plan—including your Will, Power of Attorney, and any applicable trusts—must clearly address your wishes as to your intended beneficiaries of your digital assets and the person or persons […]

Given the prominence of our use of computers, the cloud, and online technology in our professional financial, and personal lives, it is indisputable that a good estate plan—including your Will, Power of Attorney, and any applicable trusts—must clearly address your wishes as to your intended beneficiaries of your digital assets and the person or persons you wish to control and gain access to these assets upon your incapacity or death. But there is more that you need to know.

What are “Digital Assets? These assets can include the following, to name only a few: 1. Emails. 2. Files stored on the hard drive of your computer or other drives, including, for example, your saved passwords to banking and investment accounts. 3. Photographs, documents, music, and videos stored in the cloud or posted to social media sites. 4. Blogs written by you. 5. Cryptocurrency. 6. Popular digital storefronts such as eBay© pages, and valuable web domains.

The State of the Law in Pennsylvania Regarding Access to Digital Assets is… “None Yet”. As of the writing of this article, all but 7 states have passed legislation that, at a minimum, confers power on personal representatives of estates (executors or administrators) to access and manage the digital assets of the deceased. Many of those states’ laws also confer similar powers on those appointed as agents under Power of Attorney and as legally appointed guardians. In 2015, the Uniform Law Commission developed a Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA) for consideration and possible adoption by the legislature of each state. Despite prior bills introduced in the Pennsylvania legislature, Pennsylvania has yet to enact any form of RUFADAA, although legislation currently awaits action by the Pennsylvania Senate.

Compounding the hazards of the absence of current state law regarding digital access, a common continuing practice of certain social media sites and email accounts such as Gmail is to rely on their stated “terms of service” and “privacy policy” language to dictate what will happen to those accounts or assets at the death of the account holder. Google, for example, has an “active account manager” designation (https://myaccount.google.com/Inactive) that is useful only if one arranges his or her digital affairs before death. Facebook provides for your appointment of a “Legal Contact.” Without proper powers and directives in your estate planning documents, those persons you appoint to administer your assets during your incapacity or after your death might find themselves “locked out” of your accounts and barred from protecting and directing your valuable digital information and other digital assets.

How to Protect Your Digital Assets in the Absence of State Law. Because Pennsylvania has not yet adopted the RUFADAA or any similar access to digital asset law, it is important that you do the following:

  1. Clearly include appropriate authorization in your Power of Attorney, Will, and any trust you create that will empower your Agent, Executor, and Trustee to gain access to and manage your digital assets. Be as specific as possible as to your wishes and the consent and directions you intend those fiduciaries to have.
  2. Provide clear and detailed direction in your Will and any trusts as to who will receive or inherit these digital assets upon your death. In addition, specifically identify in those documents any digital accounts, such as social media accounts, or other private or confidential information or files that you wish to be deleted upon your death.
  3. Prepare — and update as necessary — as a separate, private document a complete inventory of your digital assets, online accounts, and their corresponding passwords. Keep a copy of the inventory with your secured personal documents and provide an up to date copy to your Estate Planning Attorney for your confidential file. (Many of my most technologically vigilant clients, for example) provide me with a sealed envelope containing this updated information on January 1 of each year.) Consider storing such passwords through corresponding websites or applications (for instance, the stored password options associated with your online bank or brokerage accounts). If you use a password management application, be sure to include that information in your inventory.

An experienced and adept Estate Planning Attorney will work with you to plan effectively for the proper disposition and management of these valuable—and too often overlooked— assets.

An Allentown native, Judith A. Harris, Esquire, LL.M (Taxation) is an Equity Member of the law firm of Norris McLaughlin, P.A., a full service business law firm (including Immigration Law, and a member of the MeritasTM Law Firms Worldwide network) with offices in Allentown, PA, Pennsburg, PA, Bridgewater, NJ, and New York City, and Co-Chair of the Firm’s Estate, Trust and Individual Tax Practice Group.

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summer-2019-dangers-of-paying-employees-improperly

MAYDAY, MAYDAY, ITS PAYDAY: The Dangers of Paying Employees Improperly

Much like the iceberg that sunk the Titanic, improperly classifying and paying employees has sunk its fair share of employers.  It seems like each week, or at least each month, employers are faced with a new law, regulation, or case interpretation which impacts the manner in which they have to pay employees. By way of […]

Much like the iceberg that sunk the Titanic, improperly classifying and paying employees has sunk its fair share of employers.  It seems like each week, or at least each month, employers are faced with a new law, regulation, or case interpretation which impacts the manner in which they have to pay employees.

By way of example, recently, the Pennsylvania Supreme Court heard argument in the matter of Chevalier v. Gen. Nutrition Centers, Inc., which pertains to an employer’s use of what is referred to as the “fluctuating workweek” and the potential significant difference between the federal and the Commonwealth’s interpretation of the law.  The federal Fair Labor Standards Act (FLSA) permits an employer to use the fluctuating workweek to pay an employee a fixed weekly salary for all hours worked, so long as the employer also pays an overtime premium equal to one-half of the employee’s regular hourly rate for hours worked in excess of forty (40) per week.  All states must adhere to the requirements of the FLSA.  States, however, are also permitted to implement their own wage and hour laws, and employers must follow whichever law is more beneficial to the employee.

In this regard, Pennsylvania has implemented the Pennsylvania Minimum Wage Act (PMWA), which mirrors the FLSA in most regards; however, it does include differing language as it pertains to the fluctuating workweek.  The PMWA is more “employee-friendly” because it requires employers to pay 1 and  imes the regular rate to employees for overtime worked rather than merely adding the “one-half” to such an amount as required by the FLSA.  As such, under the PMWA, an employer would be required to pay an employee more for the overtime hours worked than if the FLSA language applied. The foregoing is significant because employers are required to follow the law that is more beneficial to the employee, not the employer.  Depending on how the Pennsylvania Supreme Court rules, it may have a significant impact on an employer who uses a “fluctuating workweek” and may result in claims by employees for unpaid wages.

The fluctuating workweek is just one example of the potential pitfalls employers face when dealing with properly paying employees.  Given that it is summer, two other potential issues arise more often:  the use of independent contractors and unpaid interns.  Employers love using independent contractors because they do not have to pay overtime or payroll taxes.  Employers also love using unpaid interns because they are, well, unpaid.  In order for a worker to be classified as an independent contractor or an unpaid intern, however, they must meet specifically defined tests.  If they do not meet such tests, they have to be paid at least minimum wage and overtime for all hours worked over forty in a workweek.

So, who is an “independent contractor”?  As a general matter, for someone to be an independent contractor, the company cannot control the manner or means by which the individual performs the work.  By way of example, a company should not inform the worker how to do the work, what hours to do the work, or provide the tools to complete the job.  The company also should not provide the worker with any benefits that are provided to a regular employee, such as vacation time, health insurance, or a pension plan.  The worker should be free to work for other entities and should not spend the entirety of a workweek working for one company.  Further, the worker should have some potential liability with regard to the work being performed.  For example, if the company is not paid for work performed by the end client, the worker also does not get paid.

The foregoing is not an exhaustive list of factors which would be considered, but merely examples of what a court, or the Department of Labor, would review when determining if a company misclassified an employee as an independent contractor.  If such a determination is made, the company would be subjected to significant penalties and potential damages including attorneys’ fees and a twenty-five percent additional payment on the money due to a worker for unpaid wages.

Similarly, if a company misclassifies an employee as an unpaid intern, it could expose the company to similar damages and penalties.  In order to determine if an intern can be “unpaid,” a company should determine who is the primary beneficiary of the work being performed.  If the company is the “primary beneficiary,” then the internship must be paid.  If, on the other hand, the student is the “primary beneficiary,” then the internship may be unpaid.

In order to determine the “primary beneficiary”, a company can look to certain factors which include the following:  the intern clearly understands that there is no expectation of compensation; the internship provides training that would be similar to that which would be given in an educational environment; the internship is tied to the intern’s formal education program; the internship’s duration is limited; the intern’s work complements the work of paid employees; and the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

Improper use of the fluctuating workweek, independent contractors, and unpaid interns are merely a few ways in which wage and hour issues can sink an employer.  It is imperative that an employer remains aware of all the changes and updates to the laws and regulations and properly pays its employees.  If an employer fails to do so, it will end up hitting an iceberg without a lifeboat.

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summer-2019-sex-trafficking

The Ugly Truth Sex Trafficking is Happening Here

The trafficking of humans for sexual exploitation sounds terrifyingly exotic; the plot in a Hollywood movie like Taken where beautiful women are abducted and sold to the highest bidder in an auction attended by the ultra-rich. In reality sex trafficking arrests are increasing in places like Allentown, Bethlehem, Easton, South Whitehall, Lower Macungie, Palmer and […]

The trafficking of humans for sexual exploitation sounds terrifyingly exotic; the plot in a Hollywood movie like Taken where beautiful women are abducted and sold to the highest bidder in an auction attended by the ultra-rich. In reality sex trafficking arrests are increasing in places like Allentown, Bethlehem, Easton, South Whitehall, Lower Macungie, Palmer and Bethlehem Townships. The victims are mostly young women from those same communities.

Today, sex trafficking takes place in your hometown. It happens at fake massage businesses, strip clubs, truck stops, hotels, and motels. It is made easy by online “escort” services and websites like skipthegames.com that allow the explicit advertisement of any and all sexual acts. One can browse through hundreds of “profiles,” many including X-rated images, each of which includes a list of the sexual acts the “escort” is willing to perform. So far these websites have been able to avoid the fate of backpage.com which served the same purpose until April 2018 when the Federal Government indicted several people connected to the site for facilitating prostitution.

This sex trafficking is brutal and humiliating. The victims are often children and young adults. The Hollywood imagery of Julia Roberts in Pretty Woman could not be less accurate. The overwhelming majority of women (and yes men also) being sold for sex have no choice in the matter. There is no “hooker with a heart of gold” story when a man pays $80 to have sex with a drug addicted teen in a motel room off Airport Road.

The truth is that most of these women are controlled by men; pimps or traffickers, who manipulate, exploit, control, extort, beat, and rape them. The pattern seen repeatedly in this business is a young woman, typically vulnerable, alone, and unsophisticated. Often overconfident in her ability to control the situation or the man who will exploit her. The pimp starts out as caring, protective, even charming. The promise of easy money, access to drugs, physical protection, and someone to take care of her is enticing to one unfamiliar with exploitation and violence. Often the victim is plied with drugs to the point of addiction. Opioids have become the favorite drug, especially fentanyl, because of how quickly the addiction is set and how long and torturously painful withdrawal can be. The need for the drug drives the women to acts they never would have previously considered. Refusal leads to withholding of the next fix and the pain of withdrawal. Physical assault and rape are constant threats against any woman who fails to follow the rules set down by her trafficker. Often degrading photos and videos of the women are used as a means extortion, with threats to release the images to family or more publicly on social media.

A woman trying to break free from this cycle fears the drug withdrawal, perhaps as much as she fears the rapes and beatings. Many who are in the control of a trafficker are also in fear of law enforcement due to their own criminal acts. The shame and humiliation threatened by the release of the videos and pictures often means returning to family is a fraught option they cannot face. Few believe they can escape safely.

While the ugliness of sex trafficking remains somewhat hidden, the damage it does affects the entire community. Illegal drug use and violence often accompany trafficking. The broken lives of the victims and their families cause a devasting ripple effect across generations. This is not just occurring in exotic locations. It is happening is Fogelsville, Hanover Township, Lehighton, Reading, and every local community.

The response is also occurring throughout our area. Local police and prosecutors work together, often with the Department of Homeland Security, to identify traffickers and prosecute them. Some high-profile cases have increased community awareness. A non-profit group Valley Against Sex Trafficking (VAST) has been working to end sexual exploitation and empower survivors of sex trafficking. Increased community awareness is part of the plan to eliminate human trafficking. One part of the solution is to shed light on the issue instead of allowing it to remain hidden or ignored. Resources are available locally and nationwide at www.thevast.org; 484.560.6836 and 1.888.373.7888.

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summer-2019-telemedicine

Telemedicine: Its Legal Challenges

The advent of internet-enabled technologies and the expansion of telecommunication services has made a new form of medicine possible, appropriately branded telemedicine. The simple definition of telemedicine is the use of electronic communications and software to provide clinical services to patients without an in-person visit. At this point, many of you have probably heard of […]

The advent of internet-enabled technologies and the expansion of telecommunication services has made a new form of medicine possible, appropriately branded telemedicine. The simple definition of telemedicine is the use of electronic communications and software to provide clinical services to patients without an in-person visit. At this point, many of you have probably heard of telemedicine. In fact, the idea is certainly not new. As far back as the 1950s hospital systems and medical centers attempted to share information and images via the phone. One of the first reported successes of this foray occurred in this state when two Pennsylvania health centers transmitted radiologic images over the phone.

Unlike telehealth, which is a broad term referring to any health services conducted with the aid of internet technologies, telemedicine specifically entails replacing the traditional doctor’s visit with a secure online interaction. There are two primary forms of telemedicine technologies, “synchronous” and “asynchronous.” “Synchronous” technology allows real-time communication between the patient at the “originating site” and the practitioner at the “distant site.” “Asynchronous” technology, also known as “store and forward,” refers to the transmission of medical information from the “originating site” to the “distant site” that the practitioner then reviews at a later time. Policymakers and physicians alike strongly prefer “synchronous” technology as having a live, interactive conference is much less likely to impact the quality of care.  Many of the existing insurance carriers that offer reimbursement for telemedicine services strictly prohibit “asynchronous” technology.

The popularization of telemedicine arose from its theorized diverse applications, especially its use for providing specialty care for remote patients who have previously lacked the availability and means to seek such care. Other applications include “follow-up” visits, remote chronic disease management, remote post-hospitalization care, preventative care support, school-based telehealth, and assisted living center support. “Follow-up” visits are often missed or rescheduled. Telemedicine eliminates this inefficiency and increases the convenience for the patient and provider. Utilizing telemedicine for chronic disease management decreases cost and allows patients to maintain better control over their health. Readmissions due to a lack of proficient post-hospitalization care can be significantly reduced by employing telemedicine to assess and advise patients whether to return to the hospital. Mental health and addiction treatment can benefit patients by ensuring they receive the immediate care and support they require. By instituting telemedicine in school systems, children can receive immediate diagnoses from practitioners without ever having to leave school. This diagnostic triaging can determine the severity of the child’s condition and thereby reduce the unnecessary and costly process of parent pickups and immediate emergency center care. Parents can be provided with instructions and reassurances all in a convenient, streamlined manner. Assisted living centers now have an avenue for less urgent issues that arise at night or on the weekend that forego hospitalization. On-call practitioners can now provide immediate care. With a multitude of applications and availability of technology telemedicine should be widely available; however, two hurdles, regulation and reimbursement, continue to block the way.

Though the idea is old, the adoption and practice of telemedicine are still in its infancy. Not only did the concept of telemedicine have to wait for the production of expensive and complex equipment capable of reliably connecting doctors to their patients, but it also had to wait for the adaptation of the legal and regulatory framework to support it. Much like the adoption of universal electronic medical records, the process to implement widespread access to telemedicine has been arduous. Even in this modern technological age, long after the necessary equipment and network infrastructure have been developed, legislatures have been slow to pass bills that specifically outline the regulations on telemedicine and the limitations on insurance carriers reimbursing practitioners.

The regulatory environment for telemedicine presents various key issues that state medical boards and legislatures have worked to define and resolve. Chiefly among those issues, online prescribing, physician-patient relationship, cross-state licensing, and patient consent for treatment have posed strenuous challenges. Online prescribing of medications via telemedicine, especially that of scheduled drugs, typically requires an initial in-person physical exam. How the physician-patient relationship is established for telemedicine differs from state to state. Some states require the first “new-patient” visit to be in person with subsequent “follow-up” visits allowed to be conducted through telemedicine. Other states allow the physician-patient relationship to be established entirely through telemedicine interaction. Each state has its own laws regarding patient consent for treatment, and some states do not require it at all. Traditionally, written consent is required, and some states maintain this requirement for telemedicine care. Other states have adopted the written consent to an interactive online form that ensures patients read and check each pertinent line item. Lastly, cross-state licensing, which allows practitioners to provide telemedicine care to a patient in a neighboring state in which the practitioner is not licensed, requires the cooperation of state medical boards to form working models. These models include reciprocity, licensure by endorsement, and mutual recognition. Reciprocity is the simplest model allowing practitioners to utilize their existing license in another state. Licensure by endorsement involves state boards granting licenses to practitioners who hold valid licenses in states with similar standards. Some endorsement states require the practitioner to attain additional qualifications. Mutual recognition involves the organization of a multi-state pact that forms a legal agreement to accept the policy and processes of each participant-state with efforts made to promote the “harmonization of standards.” Each of these issues has required significant consideration by policymakers to ensure that the quality of patient care does not decline as a result of telemedicine.

State-mandated reimbursement programs are vital to the survival of telemedicine. In each state, both private payer reimbursement and Medicaid & Medicare reimbursement require legislation. Private carriers almost universally exclude “asynchronous” telemedicine. They also have stringent requirements regarding the technological platforms utilized for the “appointment.” Third-party platforms, such as Skype are not permitted. Only platforms that are specifically designed for telemedicine are allowed. This ensures patient privacy and prevents connectivity-related issues. Reimbursement levels are also controlled by the state with most requiring the same level of reimbursement for telemedicine as for in-person visits. Medicaid has the same reimbursement protocols as Medicare for telemedicine. The only variation is that Medicaid offers lower reimbursement levels for certain types of care. Forty-eight states provide Medicaid reimbursement for “synchronous” telemedicine, the exceptions being Massachusetts and Rhode Island. The factors for telemedicine reimbursement that both private payers and Medicaid consider are the medical specialty type, the type of service provided, the “originating site,” and the “distant site.” The framework for telemedicine reimbursement undergoes consistent changes that adapt as the availability of care expands.

The General Assembly of Pennsylvania heard House Bill No. 15, which outlined the regulations for Pennsylvania telemedicine, in the 2019 session on March 5th. The bill includes guidelines for state licensure boards on how to regulate telemedicine. It discusses explicitly patient privacy and data security standards, which must comply with the Health Insurance Portability and Accountability Act of 1996 and the Health Information Technology for Economic and Clinical Health Act. Under the same section, the bill also considers model policies for the appropriate use of telemedicine technologies. Pennsylvania mandates that telemedicine care complies with the current health care regulations such as the establishment of the patient-provider relationship, consent for treatment, appropriate examinations, and maintaining electronic medical records. “Out-of-State health care providers” are only permitted to offer telemedicine care through a federally operated facility or in certain emergency cases. Lastly, the bill discusses the framework for reimbursement for both private payers and Medicaid. Currently, both Highmark and Independence Blue Cross offer coverage for telemedicine care in Pennsylvania; furthermore, Medicaid & Medicare reimbursement is supported outside of metropolitan statistical areas. All in all, general access to telemedicine care in Pennsylvania is expanding. As the need for medical services in multi-state remote areas grows, so too will telemedicine. With the expansion of telemedicine nationwide, we will continue to see an increased necessity for legal guidance to ensure the quality of patient care.

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Is My Employee’s Work Injury Legit? Red Flags A Claim May Be Bogus

Pennsylvania employees reported 174,216 work injuries in 2017.  This is an increase of more than 15,000 on-the-job injuries reported in 2016 when Pennsylvania employers and insurers paid out a whopping 3.1 BILLION to cover lost wages and medical treatment.    As this figure illustrates, the costs associated with employee injuries can be staggering and while […]

Pennsylvania employees reported 174,216 work injuries in 2017.  This is an increase of more than 15,000 on-the-job injuries reported in 2016 when Pennsylvania employers and insurers paid out a whopping 3.1 BILLION to cover lost wages and medical treatment.    As this figure illustrates, the costs associated with employee injuries can be staggering and while workers’ compensation is an unavoidable cost of doing business, how many injuries are not legitimate? How many accidents are phony or staged turning a pre-existing condition into a work-related liability?  It’s impossible to gauge the number of bogus claims or what impact they have on premiums, but business owners are not helpless.  Companies can take simple measures when conducting injury investigations to effectively uncover and stamp out bogus claims improving their bottom line.

It should be a no-brainer that all claims, no matter how big or small, must be investigated but many companies surprisingly have no formal procedure in place or their “investigation” is limited to completing a report which contains only basic information.   After all, isn’t it the responsibility of the claims professional to conduct the investigation? Yes and no.  While the insurer should do its own investigation, the devil is in the details and the most critical information can only come from the employer.  An excellent starting point, whether you’re a mom and pop shop or huge conglomerate, is to promptly gather all essential information and look for any red flags.   

Here’s a checklist to jumpstart the investigation.

  • New or recent hire.
  • Injury is reported while employee is working through a temporary agency.
  • Delay in reporting injury.
  • Injury allegedly happens on a Friday but is not reported until the following week.
  • Injury occurs prior to news of a layoff, strike or plant closure.
  • Injury reported after employee was fired or laid off.
  • Employee is disgruntled (i.e., denied vacation, demoted or passed over for a promotion, poor performance review, job dissatisfaction, conflict with co-worker(s)).
  • Recent discipline and termination imminent. 
  • Spike in absenteeism.
  • Injury coincides with change in personal circumstances (i.e., illness of spouse, pregnancy of employee/spouse, end of seasonal work or project, spouse relocation, separation/divorce, childcare issues, enrollment in college).
  • Injury reported before a planned retirement or vacation. 
  • Employee regularly uses FMLA leave or has history of STD or LTD claims. 
  • Employee has a history of work-related and/or personal injury claims.
  • Employee is self-employed on the side with no workers’ comp coverage. 
  • Rumors that accident outside of work.
  • Employee account of accident/injury does not make sense or has varied.
  • CCTV does not corroborate accident/injury.
  • Body part(s) allegedly hurt changes.        
  • Incident is unwitnessed or witnessed only by friend or relative.
  • Witness statements are contrary to employee account.     
  • Employee is uncooperative with investigation (i.e., refuses to sign Medical Authorization or limits to post-injury records, refuses to provide Statement, does not return calls).      
  • Refuses offers of modified work.
  • Insists treating with “own doctor” instead of panel provider.
  • Shows up at work utilizing “props” when not prescribed (i.e., back/neck/knee brace, arm sling, crutches/cane). 
  • Quickly hires attorney and asks about settlement. 

Employers must promptly relay any red flags to their claims professional since we are under a 21-day deadline from the employee’s first missed day of work to make a compensability determination or risk penalties.  This is only 15 business days.  Naturally, the presence of one or more red flags does not necessarily mean a claim is not legitimate and the totality of the circumstances must always be considered but identifying red flags early on has proven to be an effective way of weeding out bogus claims.        

Amy has been representing employers, insurers and third-party administrators in workers’ compensation matters for over 23 years.  If you have any questions or would like more information, Amy can be reached at aandrews@zatorlaw.com or 610-841-5863.

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2019-the-I-dos

The (I) Dos and Do Not’s of Pennsylvania Wedding Law

There are few periods of a romantic relationship as hectic as wedding planning. From the time she (or he) says yes, until you finally say, “I do,” you and your significant other will contractually commit to anything from a venue to an ice sculpture, and everything in between. Wedding planning is meant to be a […]

There are few periods of a romantic relationship as hectic as wedding planning. From the time she (or he) says yes, until you finally say, “I do,” you and your significant other will contractually commit to anything from a venue to an ice sculpture, and everything in between. Wedding planning is meant to be a time when lifelong dreams are made into realities and knowing what to look for in your wedding agreements can help those best-laid plans from turning into nightmare fuel.

While your significant other may beg to differ, there is nothing particularly special about the contracts you sign leading up to your wedding: to be enforceable they must comply with Pennsylvania contract law.  What does make the wedding contract unique what surrounds it – the pressure to get the perfect venue, the must-have photographer, or that florist you’ve been following on Pinterest for five years – and wedding vendors/venues can use this emotion to their advantage to get you to agree to terms you wouldn’t under any other circumstances.

Following these simple principles of contract law can help you know when to say “I do” or “I don’t”:

  1. Don’t get stuck with an Adhesion Contract – An Adhesion Contract is one that you sign without the value of a bargain, and often under duress. What does that mean? If a vendor or a venue says, you have to sign the contract as its written, take-it-or-leave-it, without giving you the ability to negotiate terms that are clearly written to benefit them; it may be an adhesion contract. This, combined with the first-come-first-served pressure of wedding planning, those one-sided contract provisions may be unenforceable.
  1. Gone with the windfall – For more than a century in Pennsylvania, it has been the law that a contract cannot be worth more cancelled than if completed. What does this mean for your wedding contracts? By way of example, a venue cannot arbitrarily charge you a penalty for cancelling your wedding just to deter you from cancelling.  In Pennsylvania, if you cancel your wedding, the wedding venue would only be entitled to the profit they could have reasonably expected to make on your event.
  1. Not so Non-Refundable Deposits – A rose by any other name may still smell as sweet, but a penalty by any other name is just as unenforceable. “Non-refundable deposits” are a great example of terms found in adhesion contracts, and are often penalties masquerading as damages clauses. Few wedding vendors/venues will let you book the date without putting money down, but just because you put money down doesn’t mean you can’t get it back.  If that “non-refundable” deposit isn’t reasonably calculated to anticipate the vender’s damages, it could be an unenforceable provision, and you may be able to get it back.
  1. If they don’t mitigate, you can litigate. Regardless of whether it’s written into your wedding contracts or not, if you cancel on a vendor/venue, they have a duty to take reasonable steps to “mitigate” their damages. This often means that they have to make some attempt to rebook the date.  Unlike damage provisions, the pressure is on you to show that they haven’t attempted to mitigate their damages.  The concept of mitigation works to protect you in several ways: first, if they rebook the date and make the same amount of profit, you could be off the hook, and second, if they rebook the date but make less profit than they would have if you had not cancelled, it could reduce what you owe.
  1. Know what you’re worth. While the language of a contract can be confusing, it’s important to read it through and understand what you’re obligations are. In Pennsylvania, contracts are limited to the words on the page. Just because you talked about using the venue’s in-house catering service, does not necessarily mean your contract obligates you to do it, or that the venue can reasonably expect the same when determining its damages.

It’s easy to get lost the sea of legal jargon that makes up the typical wedding contract, and that’s why it’s important to consult an attorney to help you navigate the storm. Often an ounce of prevention is worth a pound of cure, and a relatively small amount of money spent having an attorney review your wedding contracts prior to signing could save you thousands on the back end.

After all, who wants to bargain for the cancellation provision in your wedding contracts in front of your fiancé? Have a lawyer do it for you!

 

An attorney with Gross McGinley, Nicholas Sandercock provides counsel to individuals and businesses in litigation matters. Since planning his own wedding in Lehigh County, Nick has worked with individuals and wedding industry professionals to ensure they understand the contracts they are signing and any obligations and risks they may be assuming. Nick also counsels couples who feel a vendor or venue may not have fulfilled their obligations or is attempting to keep deposits/fees to which they are not entitled.

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2019-blended-families

Legal Considerations for Blended Families

Once you have navigated the highs and lows of wedding planning, you can begin your life as a married couple. In the last decade or so, there has been an uptick in blended families.  Some of this is due to traditional second marriages, but some are because individuals are choosing to have children without feeling […]

Once you have navigated the highs and lows of wedding planning, you can begin your life as a married couple. In the last decade or so, there has been an uptick in blended families.  Some of this is due to traditional second marriages, but some are because individuals are choosing to have children without feeling the need to get married. Whatever the reason, with this increase in blended families, the legal implications should be addressed.

What is a blended family? There is no legal definition of blended family, but the term has come to describe when two parties with children of their own marry and create a new family unit. With the creation of this new family unit, come additional considerations for all involved, for example:

Is there is custody order for the children?

While you may have married and created your new family unit, you cannot forget that the children involved have other parents as well. If there is a custody order, the child may very well have to travel back and forth for periods of custody. As a new step-parent, you may be responsible for some of this transportation, and with it, interaction with your spouse’s ex. It is in the best interest of all involved that all the adults develop some relationship with one another, which can be easier said than done. Remember, you not only will be sharing custodial time with another household, if you are doing it right, but you will also be at extracurricular and sporting events for the children as well.  Life is complicated. If you find yourself entering into a blended family, it is highly advisable to establish a formal custody agreement, so all the parties know their roles going into it. However, it is important to keep in mind that if you are a step-parent, there will be times you need to take a back seat and let the parents make the major decisions.

Finally, if there is a custody order in place, and the child at issue lives in your household, you will be precluded from relocating. As a new step-parent of a three-year child, it is important to know that you and your new spouse cannot move out of the county with the child (without the other parent’s permission or the court’s permission) for the next 15 years. That is quite the commitment.

Is there a child support order?

With or without a formal custody order, there may be a child support order. This means additional income is either coming in or going out of your new household unit. Developing a family budget is always important, but it becomes especially important in blended families. Each family may choose to treat child support coming in differently, and it is important to have those discussions in advance. It is just as important to address child support obligations your new family unit must pay out.

 

What about estate planning?

Finally, how does this all impact estate planning? A step-parent is not a legal next of kin for a step-child. Accordingly, it is very important to meet with an estate planning attorney to review your options and prepare all the necessary estate planning documents for your new blended family.

Attorney Kellie Rahl-Heffner of Gross McGinley, LLP provides counseling to families facing domestic issues including separation, divorce, child custody, and child support. Krahl-heffner@grossmcginley.com

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