DEDICATED TO LEGAL EXCELLENCE SINCE 1908 website: www.scba.org SUFFOLK LAWYER THE THE OFFICIAL PUBLICATION OF THE SUFFOLK COUNTY BAR ASSOCIATION New Law Limits Liens of Insurance Companies Vol. 29 No. 4 Changes to Emergency Medical Treatment in Schools By: Candace J. Gomez, Esq. Governor Cuomo recently signed legislation that expands access to emergency medication for students and school personnel. One new law, which goes into effect on March 5, 2015, allows school employees to administer epinephrine auto-injec- tors (“epi-pens”) to students or staff without prescriptions in emergency situations. The other new law, which goes into effect on July 1, 2015, al- lows students diagnosed with asthma, allergies or diabetes to self-admin- ister prescribed medical treatments. Emergency Administration of Epi-Pens Public Health Law §3000-c(1)(a) has been expanded to include school dis- tricts, boards of cooperative educa- tional services, county vocational ed- ucation and extension boards, charter schools, and non-public elementary and secondary schools (collectively “schools”) or any person employed by those schools among the list of entities authorized to possess and use epi-pens. The Education Law was also amended to include a new Section 921 that al- lows schools to provide and maintain epi-pens on-site in each instructional school facility. The legislation will allow epi-pens to be administered by trained school employees regardless of whether the person receiving the epi-pen has a prescription or a previ- ous history of severe allergic reactions. Any person employed by a school who has successfully completed a training course approved by the Commissioner of Health may administer an epi-pen Candace J. Gomez TRUST, PERSONAL ATTENTION AND RESULTS. ® 534 Broadhollow Road, Suite 210 Melville, New York 11747 Phone: 631.694.2300 Fax: 631.694.2309 www.lambbarnosky.com in an emergency situation. There is no requirement that school employ- ees must complete the course, and the training requirement does not apply to licensed or certified health care prac- titioners, such as school nurses, act- ing within the scope of their practice. Trained employees who administer epi-pens in emergency situations will be insulated from potential liability so long as the epi-pen was not adminis- tered in a grossly negligent manner. Student Self-Administered Medication Education Law § 916 has been amend- ed to permit students who suffer from asthma or other respiratory diseases, al- lergies or diabetes to carry and self-ad- minister medications such as inhalers, epi-pens and insulin while in school or at school functions if they have autho- rization from a physician or health care provider and written parental consent. The physician’s or health care provid- er’s authorization must confirm the following: (a) that the student is diag- nosed with a condition for which the rescue medication has been prescribed; (b) that the student has demonstrated that he or she can effectively self-ad- minister the prescribed medication; (c) the name of the prescribed rescue medication; (d) the dose; (e) the times when the medication is to be taken; (f) the circumstances that may war- rant the use of the medication; and (g) the length of time for which the med- ication is prescribed. A record of the physician or health care provider’s authorization and a record of written parental consent must be maintained in the student’s cumulative health re- cord. In addition, upon the written re- quest of a parent or person in parental relation, the school must allow a stu- dent to maintain extra medication in the school building under the custody of a licensed nurse, nurse practitioner, physician assistant or physician. December 2014 Attorney Advertising: Prior Results Do Not Guarantee A Similar Outcome.
Transcript
DEDICATED TO LEGAL EXCELLENCE SINCE 1908 website: www.scba.org
SUFFOLK LAWYERTH
E
THE OFFICIAL PUBLICATION OF THE SUFFOLK COUNTY BAR ASSOCIATION
_________________By A. Craig Purcell
The New York State Legislaturerecently passed an act amending theGeneral Obligations Law as it pertains tothe parties to the settlement of tortclaims. The bill, which was signed intolaw on November 13, 2013 by GovernorCuomo, eliminates certain health careinsurance company liens, reimburse-
ments and subrogation claims.The legislation, long supported by the
New York State Bar Association, adds anew subdivision four to GOL 5-101 andamends Section 5-335. The present leg-islation is intended to protect all partiesto the settlement of a tort claim fromliens asserted by health insurance com-panies which were organized and existunder federal ERISA law. Oddly, it cov-
ers only settlements,and not judgments.
The legislation wasprompted by the con-tinued insistence byERISA plans thatthey have the right toassert liens or rightsof subrogation forreimbursement ofmedical expensesthey have paid injured parties who thengo on to successfully prosecute bodilyinjury claims. In 2009 the legislatureenacted the current General ObligationsLaw Sections 5-101 and 5-335 in order toprotect injured parties from such claims.However, ERISA plans have continued toassert their right to reimbursement, andfederal courts in other states that havesimilar legislation continued to rule thatstates cannot trump the federal legisla-tion under which ERISA plans were setup (see, e.g., Rice v. Panchal, 65 F.3d637, 644-45 (7th Cir. 1995), Arana v.Ochsner Health Plan, 338 F.3d 433 (5th
Cir. 2003), Levine v. United HealthcareCorp., 402 F.3d 156 (3d Cir. 2005). (Seearticle in the November, 2013, SuffolkLawyer, by Paul Devlin, Esq. with
BAR EVENTS
New Law Limits Liens of Insurance CompaniesFormed Under Federal ERISA
PhotobyBarry
Smolow
itz
SCBAmember Raymond B. Lang, a foreclosure volunteer has been involved in the pro-gram since its inception and is very valuable to the association. More photos on page 15.
Among Us ....................................... 7
Calendar: Academy ....................... 24
Calendar: SCBA .............................. 2
Judicial Swearing-In and RobingCeremonyMonday, Jan, 13, 9 a.m.Touro Law Center, 225 East View Drive, CentralIslipThe annual judicial ceremony of newly appointed andreelected justices and judges hosted by the SCBA. Allare welcome. Refreshments served.
Meet, Greet and MingleThursday, Jan. 23, 6 p.m.Polish Hall, RiverheadPlease join your colleagues for the first evening in a seriesof complementary opportunities to meet, greet, mingle andnetwork. Reservations are a must and can be made byclicking on the link, http://www.scba.org/post/mgm1.pdf.
Cohalan Cares for KidsThursday, Feb. 6, at 6 p.m.Bar CenterThird annual Cohalan Cares for Kids hosted by SCBA incooperation with the Suffolk County Matrimonial Bar,the Long Island Hispanic Bar Association, the SuffolkCounty Women’s Bar and Enright Court Reporting. Thefundraiser will benefit the Cohalan Children’s Center andwill include a night of wine and cheese. $50 pp.
A. Craig Purcell
FOCUS ONCOMMERCIALLITIGATION
SPECIAL EDITION
(Continued on page 20)
Vol. 29 No. 4January 2014
The staff at the SCBA worked very hard to make the annual holiday party aperfect occasion. They include from left, Joy Ferrari, Nicolette Ghiglieri,Tina O’Connor, Jane LaCova, Edith Dixon and Laura Latman.
September, 2014
NY Court of Appeals Rejects Local Cyberbullying Law
The New York Court of Appeals recently struck down an Albany County local law that result-ed in a 15-year-old high school student being criminally prosecuted for cyberbullying fellow classmates on Facebook. People v. Marquan M., 2014 N.Y. Slip Op. 04881 (2014). Al-though the court concluded that the local law was “overbroad and facially invalid under the Free Speech Clause of the First Amendment”, the court also recognized that “the government unquestionably has a compelling interest in protecting children from harmful publications or materials”. Id. at *8. While, on its face, the court’s opinion may be viewed as a setback to lawmakers’ endeavors to stop child cyberbul-lying, the court’s opinion also appears to send subtle instructions to lawmakers regarding how to draft more narrowly focused child cyberbul-lying laws that may be upheld by the Court of Appeals in the future.
People v. Marquan M. is a particularly egregious case of cyberbullying and the Court of Appeals had no doubt that the “defendant’s Facebook communications were repulsive and harmful to the subject of his rants, and potentially cre-ated a risk of physical or emotional injury…” Id. Defendant Marquan M. used Facebook to anonymously post photographs of high-school classmates and other adolescents with detailed descriptions of their alleged sexual practices and sexual partners. Id. at *4. Following a police investigation which revealed that the defendant was the author of the posts, the defendant was charged and pleaded guilty to violating the local law’s prohibition on cyberbullying. Pursuant to the local law, the following acts were prohibited:
any act of communicating or causing a communication to be sent by me-chanical or electronic means, including posting statements on the internet or through a computer or email network, disseminating embarrassing or sexual-ly explicit photographs; disseminating private, personal, false or sexual infor-mation, or sending hate mail, with no legitimate private, personal, or public purpose, with the intent to harass, an-noy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise infl ict signifi cant emotional harm on another person “. Id. at *3.
Candace J. Gomez
534 Broadhollow Road, Suite 210Melville, New York 11747
Phone: 631.7694.2300Fax: 631.694.2309
www.lambbarnosky.com
Notably, this law was enacted in 2010 in re-sponse to what local lawmakers deemed to be a shortcoming in New York State’s Digni-ty for All Students Act (“DASA”), which prior to its amendments in 2012, did not originally apppear to encompass cyberbullying, especial-ly cyberbullying that occurred off school prem-ises. N.Y. Education Law §§10, et seq. While local lawmakers may have been motivated by a desire to protect children, the law also tar-geted what the Court of Appeals deemed to be constitutionally protected modes of expres-sion by adults and corporate entities. Id. at *6.
Although the County admitted that the text was too broad and asked the Court of Appeals to sever the offending portions and uphold the remaining portions of the law, the Court of Ap-peals declined the opportunity to sever the por-tion of the local law that applied to adults and
corporate entities, fi nding that it was “not a per-missible use of judicial authority” to employ the severance doctrine in this circumstance. Id. at *7
.
The silver-lining for lawmakers, educators and school attorneys who seek stronger measures against cyberbullies that target children, is that the majority’s opinion and Justice Smith’s dis-senting opinion are two-fold. On the one hand, they have made it fairly clear where Albany County legislators went wrong in drafting this local law and, on the other hand, the Court of Appeals has seemingly drawn a map for other local legislatures to follow in order to draft cy-berbullying laws that can pass the court’s strict scrutiny test. It remains to be seen whether an-other legislative body is willing to test the judi-cial waters by drafting a criminal law that is nar-rowly focused on the areas that the Court of Ap-peals seems to fi nd the most compelling, name-ly, three types of electronic communications sent with the intent to infl ict emotional harm on a child: (1) sexually explicit photographs; (2) private or personal sexual information; and (3) false sexual information with no legitimate pub-lic, personal or private purpose. Id. at *7-8.
It will be interesting to follow whether the Mar-quan M. case motivates lawmakers to draft cy-berbullying laws that have a better chance of passing judicial muster. Likewise, another rel-evant case worth following is the United States Supreme Court case of Elonis v. United States, 134 S.Ct. 2819 (2014), in which the Court will grapple with the issue of the free speech rights of those who make threats or deliver violent rants on social media websites.
NOTE: Candace J. Gomez, is an attorney with the law fi rm of Lamb & Barnosky, LLP in Mel-ville. She practices in the areas of education law and civil litigation. Ms. Gomez is a member of the Suffolk County Bar Association and also serves as a member of the New York State Bar Association President’s Committee on Access to Justice. Ms. Gomez is also the Nassau County President of the Long Island Hispanic Bar As-sociation. Follow her at http://nyedulaw.com/ and https://twitter.com/@nyedulaw
Attorney Advertising: Prior Results Do Not Guarantee A Similar Outcome.
Changes to Emergency Medical Treatment in SchoolsBy: Candace J. Gomez, Esq.
Governor Cuomo recently signed legislation that expands access to emergency medication for students and school personnel. One new law, which goes into effect on March 5, 2015, allows school employees to administer epinephrine auto-injec-tors (“epi-pens”) to students or staff without prescriptions in emergency situations. The other new law, which goes into effect on July 1, 2015, al-lows students diagnosed with asthma, allergies or diabetes to self-admin-ister prescribed medical treatments.
Emergency Administrationof Epi-Pens
Public Health Law §3000-c(1)(a) has been expanded to include school dis-tricts, boards of cooperative educa-tional services, county vocational ed-ucation and extension boards, charter schools, and non-public elementary and secondary schools (collectively “schools”) or any person employed by those schools among the list of entities authorized to possess and use epi-pens.
The Education Law was also amended to include a new Section 921 that al-lows schools to provide and maintain epi-pens on-site in each instructional school facility. The legislation will allow epi-pens to be administered by trained school employees regardless of whether the person receiving the epi-pen has a prescription or a previ-ous history of severe allergic reactions.
Any person employed by a school who has successfully completed a training course approved by the Commissioner of Health may administer an epi-pen
Candace J. Gomez
TrusT, Personal aTTenTionand resulTs.®
534 Broadhollow Road, Suite 210Melville, New York 11747
Phone: 631.694.2300 Fax: 631.694.2309
www.lambbarnosky.com
in an emergency situation. There is no requirement that school employ-ees must complete the course, and the training requirement does not apply to licensed or certified health care prac-titioners, such as school nurses, act-ing within the scope of their practice. Trained employees who administer
epi-pens in emergency situations will be insulated from potential liability so long as the epi-pen was not adminis-tered in a grossly negligent manner.
Student Self-AdministeredMedication
Education Law § 916 has been amend-ed to permit students who suffer from asthma or other respiratory diseases, al-lergies or diabetes to carry and self-ad-minister medications such as inhalers, epi-pens and insulin while in school or at school functions if they have autho-rization from a physician or health care provider and written parental consent.
The physician’s or health care provid-er’s authorization must confirm the following: (a) that the student is diag-nosed with a condition for which the rescue medication has been prescribed; (b) that the student has demonstrated that he or she can effectively self-ad-minister the prescribed medication; (c) the name of the prescribed rescue medication; (d) the dose; (e) the times when the medication is to be taken; (f) the circumstances that may war-rant the use of the medication; and (g) the length of time for which the med-ication is prescribed. A record of the physician or health care provider’s authorization and a record of written parental consent must be maintained in the student’s cumulative health re-cord. In addition, upon the written re-quest of a parent or person in parental relation, the school must allow a stu-dent to maintain extra medication in the school building under the custody of a licensed nurse, nurse practitioner, physician assistant or physician.
December 2014
Attorney Advertising: Prior Results Do Not Guarantee A Similar Outcome.
(continued)
Schools are authorized, but not obli-gated, to have licensed registered pro-fessional nurses, nurse practitioners, physician assistants and physicians train unlicensed school personnel on how to inject prescribed glucagon to students in emergency situations where an appropriately licensed health professional is not available and the parent has given written consent.
This law specifies that, as long as schools and school employees attempt to reasonably and in good faith com-ply, they will be protected against legal or financial liability as a result of any harm or injury sustained by a student or other person as a result of self-administering medication.
Schools should modify any existing policies regarding administration of medication to reflect the new legisla-tion.
NOTE: Candace J. Gomez, is an at-torney with the law firm of Lamb & Barnosky, LLP in Melville. She prac-tices in the areas of education law and civil litigation. Ms. Gomez is a member of the Suffolk County Bar As-sociation and also serves as a member of the New York State Bar Association President’s Committee on Access to Justice. Ms. Gomez is also the Nas-sau County President of the Long Island Hispanic Bar Association. Follow her at http://nyedulaw.com/ and https://twitter.com/@nyedulaw
