law

By Medford personal injury lawyer Richard Grungo, who is barred and practices in the state of New Jersey with Grungo Colarulo.

At the end of 2017, the Trump Administration began the process of reducing and discouraging the levying of fines against nursing homes by the Center for Medicare and Medicaid Services (CMS).

The position taken by the administration was that these fines had caused nursing homes to take attention from caring for patients and focus instead on complying with regulations in order to avoid fines. Lobbyists argued that these regulations and penalties were reducing the quality of care for residents. The Trump Administration agreed and began the process of rolling back the penalties.

Penalties and fines were most often levied against nursing homes in situations where a patient was injured due to neglect or avoidable accidents, such as falls due to inadequate supervision. Or, where a patient had lost their life due to the negligence of the facility.

The use of fines and penalties for each incident was one of several ways that CMS could try and get a facility to comply with care regulations. CMS could also refuse to pay for newly admitted patients or impose penalties based on each day that a facility was in violation of a regulation.

Now, CMS has been directed to avoid imposing penalties when the incident was a “one-time mistake” — even if the mistake resulted in the death of a patient. If you have a loved one in a nursing facility, you have likely had concerns about the quality of care and one time or another. Learning about the roll-back of these regulations is undoubtedly not welcome news.

It is important to remember that there are other avenues for oversight. Most state health and human services agencies have ombudsmen that are responsible for responding to concerns of individuals or families of individuals in nursing homes.

The influence of simply raising a concern should not be forgotten. With these rollbacks, families will have to work harder as advocates for their loved ones to ensure that care needs are met and deficiencies are addressed.

“These kinds of rollbacks are not beneficial to the public,” said Richard Grungo, a partner with the law firm of Grungo Colarulo, which deals regularly with nursing home litigation. ” What these rollbacks do not eliminate, however, is your ability to try and hold a nursing home responsible for an injury or death suffered by a loved one. Nursing homes can still be sued for negligence and damages by injured parties and should not be allowed to avoid responsibility simply because one governmental agency has decided to reduce its demands regarding quality of care. You should never reduce your expectations for the care of your loved one.”

By personal injury and insurance bad faith lawyer Scott Glovsky, who is barred and practices in the state of California with the Law Offices of Scott Glovsky.

In 2017, California enacted a law that allows terminally-ill individuals to ask pharmaceutical companies to allow them to access experimental drugs that have not yet been approved for public consumption.

The idea behind the law is simple, the drug trial and approval process is long and arduous and many of the patients that may benefit from the drugs in question may die well before the drug is approved for the public. Therefore, it allows drug companies to provide access to experimental drugs, if the company so chooses, to terminally ill patients prior to Food and Drug Administration (the FDA) approval and without opening itself up to liability in the event the drug causes the patient to die earlier.

Much like legalization of marijuana, however, there are federal rules that govern access to experimental medications that cannot be trumped by state law and drug companies that allow access to experimental medications risk having their drugs denied approval if a patient outside of the regular clinical trial process has an adverse reaction or dies from the medication.

As development of these medications and conduct of drug trials is expensive, drug companies are loathe to risk drug approval for one desperate patient and often decline to allow access outside of the clinical trial.

President Trump has come out in support of a national “Right to Try” law that would allow drug companies to provide access to terminally ill patients without risking any ongoing clinical trial.

Versions of the law have been floated and one that passed the Senate last year prohibited the FDA from using patient outcomes from a “Right to Try” situation in determining whether to approve a drug, unless it was critical to determining a drug’s safety.

The drug approval process is stringent for a reason. As dangerous drugs sometimes end up with FDA approval, how many would be on the market without the oversight that is currently in place? But for people with no other options who are facing death, the possibility that their lives could even be extended for a little while overcomes any fear they may have about a drug’s lack of testing.

“Regardless of how much testing is required, sometimes drugs end up on the market that cause people injury and sometimes death. The testing conducted by the FDA is critical,” said Scott Glovsky, a Pasadena Dangerous Drug Lawyer. “However, terminally ill individuals that may benefit from a drug in testing should have the opportunity to access those medications, provided they understand all of the possible consequences. Even a small extension on life can be a huge benefit.”

By sex crimes attorney Sean P. Barrett, who is barred and practices in the state of Connecticut, with Billings & Barrett.

Big tech companies across the country did their best to stop an anti-trafficking bill that made its way to the House at the end of February.

The bill, which passed by a vote of 388-25, was a huge defeat for big tech companies in Washington and beyond. The bill, known as FOSTA, moved to the Senate and was passed with a 97-2 vote.

President Donald Trump then signed the bill into law earlier in April. FOSTA is short for Allow States and Victims to Fight Online Sex Trafficking Act. Big tech fought hard to slow the bill down before it was passed because it reduces the free speech protections that were once in place for the Internet.

The bill has been endorsed by the Internet Association, which is the representative for Google and Facebook. On the other side of the aisle the bill was deemed as ill-fated because it will hurt small businesses and force sex workers to move offline.

The new legislation puts forth an exception to Section 230 of the Communication Decency Act. This act protects operates of websites from liability when it comes to content generated by users. FOSTA now says that Section 230 no longer applies to any civil or criminal charges of sex trafficking or conduct that facilitates or promotes prostitution.

The changes to Section 230 will be retroactively applied to all websites that fall under the new bill. In fact, Craigslist already removed its personals section to avoid any legal recourse from the new legislation. Another website, known as Backpage, has been shut down and the founders were criminally charged just before FOSTA was signed into law.

“Freedom of speech has always been a hot topic and now that some protections to free speech online have been removed the conversation should really heat up,” Sean P. Barrett, of Billings & Barrett, said.

Opposition to the bill includes sex workers, who claim they will have trouble screening clients since they will be forced offline. They worry that this will make things unsafe for them in their profession. It will take some time, but the new bill should give a clear picture of how the sex industry will operate moving forward.

By drug crimes attorney John B. Fabriele, III, who is barred and practices in the state of New Jersey, with John B. Fabriele, LLC.

Legislators in both the New Jersey House and Senate have introduced bills that would legalize the recreational use of marijuana, a move that would make New Jersey the tenth state to allow citizens to possess and use the drug.

The bills, which are not identical, both seek to achieve the goal of allowing New Jersey citizens to legally possess small amounts of marijuana while also creating the framework for production and sale of the drug.

Differences in the bill include the number of authorized “dispensaries,” which is where the drug would be sold, whether individuals can legally grow the plant in their homes, and the tax rate assessed on sales.

“Ultimately, however, the bills align with the stated goal of New Jersey Governor Phil Murphy, that being the legalization of marijuana,” said John B. Fabriele, III, a New Jersey Drug Crimes Lawyer. “Regardless of the outcome, individuals need to remember that marijuana continues to be a Schedule I narcotic under Federal law, meaning that transportation of legally-obtained marijuana across state lines can result in Federal drug charges.”

The conflict between Federal and state laws related to marijuana continue to be a problem. The reason is the concept of “preemption”. Article IV, Clause II of the United States Constitution is what is commonly called the Supremacy Clause, and it says that the Constitution and the laws of the United States are the “Supreme law of the land,” and that any state law that conflicts with Federal law is without effect.

Marijuana is considered by the Federal government to be a Schedule I drug, making its use and possession illegal, and under the Supremacy clause, any state law to the contrary may be invalid.

Federal law enforcement has, by and large, allowed states to carry out this legalization without interference or attempts to override state legislation.

What they have not done, however, is change Federal law, so anyone who is in possession of marijuana in accordance with State law is in violation of Federal law. If you were to transport that marijuana across state lines, or enter a location governed by Federal law (like an airport), you would be subject to Federal prosecution.

If New Jersey moves forward with legalization of marijuana, individuals who intend to take advantage of the change need to be acutely aware of how, when and where they possess and use the drug, and know their rights in terms of use and possession.

Lack of knowledge about a law is never a defense, and as it stands right now marijuana use and possession is still illegal in New Jersey and the United States overall. If that changes in New Jersey, be sure you understand how it has changed before you put yourself in a situation where your lawyer must explain it to you.

By disability attorney Lawrence Disparti, who is barred and practices in the state of Florida, with the Disparti Law Group.

As the unfair stigma that so often followed people with disabilities begins to slowly fade, companies are recognizing that not only is this a new clientele, but that they have an opportunity to provide access to services that will allow individuals with disabilities to be much more involved in their own day-to-day responsibilities.

Voya Financial, the banking and investment firm that was once AIG, has begun focusing on these individuals by encouraging them to apply for other services such as SSI and SSDI based on their answers to certain questions.

In addition, Voya will provide access to databases that have information on myriad governmental programs and their standards for qualification.

“Changes like these are incredibly important,” said Lawrence Disparti, a Florida Disability Attorney with the Disparti Law Group. “Individuals that become disabled later in life or are born with a disability deserve every opportunity to live fulfilling, independent lives. Providing them with financial services geared to their needs, just like every other financial service, ensures the opportunity to do just that.”

One of the most important changes has been the passage of the ABLE Act. ABLE, which stands for “Achieving a Better Life Experience” is a change in the law as it relates to the ability of individuals with disabilities who receive needs-tested government assistance to accumulate assets.

The ABLE Act allows individuals to establish qualifying accounts that can accumulate balances more than many of the means-tested program limits with disqualifying these individuals for the services they need to continue living independently.

ABLE accounts have limits in terms of total accumulation amounts — an individual’s account cannot exceed $100,000.00. However, when combined with additional estate planning, such as Special Needs Trusts, individuals with disabilities can live independently and possibly in a self-supporting manner.

“The ability to accumulate assets and have regular access to those assets enables these individuals to live independently and achieve life goals,” said Disparti. “Giving them access to regular investment services and guidance will ensure that the assets that do accumulate grow and are available for the long-term.”

By property damage attorney Gary Burger, who is barred and practices in the state of Missouri, with Burger Law.

A Federal Court found that the US Army Corps of Engineers’ management of the Missouri River since 2004 caused flooding that damaged the properties of landowners along the river and that the management and resulting damage was effectively an unconstitutional taking of the property of those landowners.

So, what is a taking? “A Taking is a Constitutional claim that arises under the Fifth Amendment and requires showing that the actions of the government resulted in an individual being deprived of their property unjustly and without compensation,” said Gary Burger, a property damage attorney with Burger Law in St. Louis, MO.

Takings happen all the time, more commonly at the state level. One of the most common forms of “taking” is when a landowner is forced to sell or hand over property for a new highway”, said Burger. Those types of takings are allowed, provided that the landowner is fairly compensated and the request is reasonable.

However, as evidenced here, takings can occur even when the property taken is not taken for use by the government. It can also occur when a landowner’s use and enjoyment of the property is eliminated due to the actions of the government or its agency.

In this lawsuit, the plaintiffs claimed that the management style employed by the Corps of Engineers — which favored environmental protection over flood avoidance — resulted in the flooding of their properties that reduced or eliminated their ability to use and enjoy those properties.

The Agency argued that it was impossible to show that its actions were the cause of the flooding and that any connection between the steps taken by the agency and the flooding suffered by the plaintiffs was too remote, if it existed at all.

In this case, the court ruled in favor of the plaintiffs, finding that previous rulings supported the possibility that even remote actions could set off a chain of events that led to the taking in question. Here, the court found that the agency’s focus on encouraging environmental protection over flood avoidance led to the flooding of the properties in question and that such flooding was a reasonably foreseeable result of the agency’s steps.

Takings claims are incredibly complex and require a thorough analysis of the actions of the government and the damage claimed. If your property is subject to a partial or full takings action, you should have it reviewed by an attorney well-versed in these matters.

By employment law attorney Tom Spiggle, who is barred and practices in the state of Virginia, with The Spiggle Law Firm.

There is concern from some Democrats in Congress that a bill targeting sexual harassment in the workplace still had not passed. Democratic Senator Patty Murray (D-Wash.), who is the highest-ranked Democrat on the Health, Education, Labor and Pensions (HELP) Committee, noted earlier this month that Republican leaders have not yet acted.

On April 10, she asked the Republican chairman on the committee, Sen. Lamar Alexander (R-Tenn.), to hold a meeting on this issue as soon as possible. The HELP Committee oversees workplace issues, including sexual harassment.

“This is a major issue affecting employees in the workplace, and we should take the matter very seriously, said Tom Spiggle, Principal at The Spiggle Law Firm located in Washington, D.C. “As we have seen, these issues are pervasive and starting to come to light; too many workers who are just trying to work have had to deal with a hostile or offensive work environment without legal protections for far too long. A bill on this issue is long overdue.”

In March, female Senators, both Democrats and Republicans, signed a letter asking the Senate to take up this issue. The House already approved an earlier version. Senator Murray also reminded her colleagues in the Senate that anti-harassment policies still need to be addressed and updated at Capitol Hill, their place of work.

Democrats first asked for a hearing on this issue in January, responding to the #MeToo movement that has spread through many industries.

While the public sees the accusations against famous people when they are in the press; however, this issue exists in workplaces at all levels of pay and involves people who are not always famous.

That is why this bill is necessary, says Murray. She has asked for information from heads of the hospitality and retail industries, asking about whether any steps have been made to address the issue.

As important as this group believes the issue to be, leaders in the Senate have not yet acted. Although several bills have been introduced, some even with bipartisan support, none have advanced to the hearing stage.

One bill would address the Senate’s own processes for handling claims of sexual harassment; however, Majority Leader Mitch McConnell (R-Ky.) says that lawmakers should not pay for the settlements, and the bill has stalled.

By criminal defense attorney Thomas Soldan, who is barred and practices in the state of Virginia, with Price Benowitz LLP. Soldan has focused his practice on reckless driving, DUI/DWI, traffic, and personal injury litigation.

Insurance companies are now tracking how their insured are using their cell phones and will either penalize them or reward them based on their findings.

Using technology based on the phone’s accelerometer, which measures its forward motion, and gyroscope, which tracks its navigation, companies such as Allstate can discover whether the driver is moving, whether the phone is unlocked, and whether they were using an app. This information can be tracked only if the driver downloads the app and keeps the phone off airplane mode.

Allstate is considering whether this information on a driver’s phone usage should determine what their insurance rates should be. Arity, a subsidiary of Allstate, determined, based on an analysis of data of hundreds of thousands of Allstate customers and 160 million trips, that drivers who drive while using their phones are indeed more dangerous.

Using this research, they found that distracted drivers get in more accidents and those accidents are more severe. In addition, these drivers cost insurance companies up to 160 percent more than those drivers who are not distracted. Before this technology goes into effect it will need approval from state insurance offices.

Technology already exists to help prevent distracted driving. For instance, the Cellcontrol app begins working as soon as the driver sits in the driver’s seat. It uses a black box a person puts in the center of the car’s windshield and using Bluetooth, blocks the driver’s cell phone from working.

It splits the car’s seats into different areas and recognizes the driver’s area, while allowing phones to work in all other spaces, where passengers sit. In addition, it sends an immediate response if the blocked phone gets a call or a text, explaining why the call or text is not being answered.

“This new technology could be a great tool for insurance companies to promote safe driving,” said Thomas Soldan, a personal injury lawyer. “It could really help promote safe driving and help determine fault after an accident. Working with lawyer who is experienced with dealing with insurance companies is invaluable to protecting the rights of drivers.”

By divorce attorney Sean P. Barrett, who is barred and practices in the state of Connecticut, with Billings & Barrett.

Trampoline parks quickly became all the rage across the country. They are used by thousands of people on a weekly basis for corporate team building exercises, for after school fun, for birthday parties, and for get-togethers with family and friends.

These parks require that all guests who will be using the trampolines sign a waiver that removes the park from liability if a guest is to suffer an injury.

Even though these trampoline parks are fun for people of all ages, they can also be dangerous. When you mix experienced athletes with people who are simply out to have fun you are working with a bad combination.

Hundreds of people have suffered injuries and the numbers keep mounting at trampoline parks across New Jersey, New York, and Connecticut.

NBC Connecticut Troubleshooters obtained dozens of 911 calls from the tri-state area that were placed from trampoline parks requesting medical assistance. They ranged from as minor as a sprained ankle to as severe as a jumper landing on her neck after attempting a flip.

One of the most popular trampoline parks, Sky Zone, has multiple locations across the Northeast including Maryland, Virginia, and all the way down to Florida. They released the following statement in an email to NBC Connecticut:

“At Sky Zone, the safety of our guests is our top priority. We are committed to on-going evaluations to promote guest safety. As with any physical activity or sport, there are inherent risks. We take several measures to reduce these risks and educate our guests about safety in our parks.”

In a joint investigation between NBC Connecticut and a sister station in New York City, it was discovered that some 1,000 people had suffered injuries at trampoline parks since 2013.

The Connecticut Children’s Medical Center, located in Hartford, conducted a study on trampoline park injuries in 2016. The study found that there were 581 visits to emergency rooms in 2010. That number jumped by more than 1,000 percent when there were 6,932 emergency room visits in 2014.

“Even though there are inherent risks when visiting a trampoline park there still needs to be better education for those taking part in the jumping,” Sean P. Barrett, of Billings & Barrett, said. “Parents and guardians need to know full well the risks that jumpers are taking when visiting a trampoline park.”

For the most part, participants are required to watch safety videos prior to jumping. There are also written safety policies posted throughout the parks. Staff members are also required to make any participant not following the rules leave the area.

By employment law attorney Tom Spiggle, who is barred and practices in the state of Virginia, with The Spiggle Law Firm.

Arguments in a lawsuit filed by a D.C. neighborhood commissioner in her individual capacity against the D.C. Zoning Commission were heard by the D.C. Court of Appeals.

The suit, filed by Bertha Holliday, alleges that the development proposed by Vision McMillan Partners (VMP) is racially discriminatory because it segregates the housing for Housing and Urban Development (HUD) supported individuals from the non-HUD housing, and therefore should never have been approved.

Ms. Holliday, in making her case, claims that 90 percent of the individuals that receive housing assistance from HUD are African-American. VMP’s proposed plan shows the low-income housing units of its development being in one area, having their own entrance, common areas, elevators and ventilation units. The effect, she said, was to segregate African Americans from others.

“Race is a protected class under the United States Constitution, meaning that any attempt to discriminate based on an individual’s race may be found unconstitutional and unlawful,” said Tom Spiggle, an employment law attorney with The Spiggle Law Firm. “This lawsuit is against the D.C.  Zoning Commission, alleging that, in approving the proposed development, the Commission is allowing discrimination based on race.”

“Racial discrimination claims are very complex and require a very involved understanding of the Federal laws governing those claims,” said Mr. Spiggle. “Ms. Holliday’s claim, however, seems to satisfy many of the requirements of a prima facie claim, including the individuals being members of a protected class, the discriminatory result, and the fact that there are other alternatives to the layout of the development that do not require separation of low-income housing from non-low-income housing.”

In addition to being complex, each Federal Appeals Court Circuit has different standards for successful claims of discrimination. This means that a plaintiff in one of these actions must know the specific standard they must use to show for a prima facie case of racial discrimination. However, as a general rule, the complainant must show that he or she was the member of a protected class (race in this instance), that the law or rule in question had a discriminatory effect, and that discrimination caused injury to the complainant.

In the meantime, the development of the 25-acre tract being questioned by Ms. Holliday is on hold, and has been on hold since 2016, when the Appeals Court entered an indefinite stay on construction. At the very least, the site will not be developed until a decision regarding its discriminatory nature is reached.

By criminal defense attorney Charles E. Boyk, who is barred and practices in the state of Ohio, with Charles E. Boyk Law Offices, LLC.

The National Flood Insurance Program (NFIP) is the federal program that insures home and property owners who live in certain flood-prone areas. A federal program was necessary because private insurers were unwilling to insure the flood-prone areas for affordable premiums.

Unfortunately, the NFIP expired in 2017, and although the US House has passed legislation that would modernize the program, the Senate has not taken up the legislation, resulting in the passage of stop-gap continuation bills instead of a full-scale reassessment of the program.

“The NFIP’s coverage mandate is to provide insurance coverage to businesses and homeowners that live in a community that participates in the NFIP,” said Charles E. Boyk, an Ohio Insurance Attorney with Charles E. Boyk Law Offices, LLC. “The purpose in requiring communities to participate is to ensure that those communities are properly analyzing floodplains and taking the steps necessary to reduce exposure of homes and businesses to flooding.”

Flood insurance through NFIP is not available unless a community participates. Homeowners may or may not know that most standard home insurance policies do not cover flooding.

The Federal Emergency Management Agency (FEMA) administers the NFIP. Flood insurance purchased through this program provides coverage and payment regardless of whether there is a Presidential declaration of emergency.

“This is important,” said Boyk, “because there are thousands of individuals affected by flooding each year that never get national news coverage, let alone rise to the level of needing a disaster declaration.”

If your homeowner’s insurance claims to cover flooding, read the policy carefully and consult with your insurance agent. There may be limitations or requirements on or for payment of claims.

Additionally, flood insurance – even if purchased though the NFIP – will only cover the structure and land. The contents of your home need to be covered by a separate policy. Also, make note of your deductible and how much it is.

Other things to know:

1. Flood insurance through NFIP pays only to the policy limit. Many home insurance policies are “guaranteed replacement cost” policies, meaning they will pay more than the policy limit if it costs more than that to rebuild the home. Flood insurance does not have that option.
2. Flood insurance through NFIP is only available through an insurance agent.

If you are trying to file a claim on a policy, the insurance company may try to avoid paying the full amounts of coverage. Having competent legal representation can help smooth out the process, or at the very least provide a buffer between you and the insurance company.