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CMM Prevails in Case to Preserve Medical License, Solidifying Reputation as a Go-To Firm for OPMC Matters

Posted: April 15th, 2017

After a lengthy and hard-fought case, the CMM healthcare team has prevailed in saving a client’s medical license.

New York State’s Office of Professional Medical Conduct (OPMC) suspended the physician’s license to practice medicine early last year following her convictions for felonies in Dutchess County in a prosecution brought by the Attorney General’s Medicaid Fraud Control Unit, as well as DWI. CMM immediately commenced the hearing process, which took place over ten appearances in Albany, finally culminating in November 2016.

In April, the Hearing Committee rendered its decision. The OPMC had sought full revocation of our client’s license, but the Hearing Committee sustained eight counts of misconduct and dismissed six others, including additional charges that the OPMC filed toward the end of the hearing to further delay the case. In its decision, the Hearing Committee noted that they “ultimately decided that mitigating circumstances exist here that warrant a lesser sanction” than revocation.

Once cleared by an evaluation to declare her fit to practice medicine, the physician will serve five years of probation under OPMC and undergo monitoring of her practice by another physician. The decision states, “The Hearing Committee believes that if provided with the opportunity to participate in – and complete – an intensive therapy program, the Respondent will be capable of providing safe and proper medical care to patients.”

The CMM team saved the career of a doctor who needed a second chance. Our attorneys provide aggressive defense not only for physicians, but any licensed professional (including nurses, chiropractors, massage therapists, and accountants) facing the possible loss of their license. This recent decision further bolsters CMM’s reputation as a go-to firm for this important work.

LIBN Executive Profile: Joe Campolo

Posted: April 5th, 2017

by Adina Genn

As managing partner of Campolo, Middleton & McCormick, headquartered in Ronkonkoma, Joseph N. Campolo brings to his work all of facets of his background, including his experience in law, business and as a U.S. Marine. He spoke about all of that, what he likes about business on the East End and more with LIBN.

What led you to open a law firm? It started out as just me 10 years ago, [now we have] 53 people. I had been with some of the larger Nassau County firms early in my career, and then in-house general counsel for a technology company and then president of that company. In November 2006, we sold the division I was president of. I was out of a job. I wasn’t sure what I was going to be doing and said, let me represent some clients while I figure out the next steps. And 10 years later, here we are.

Did you have a specific concentration? Ten years ago, I didn’t have clients. It was with my background in the tech space, mergers and acquisitions that I started representing a lot of tech firms that were doing a lot of private equity. My first partner was strong in litigation. I had to add talent to continue the base we had – it all grew organically.

How did you choose your locations? My whole career had been in Nassau County. Everything was pushing east – there was no commercial real estate in Nassau County. I saw a great growth opportunity … from Hauppauge to Montauk for attorneys with good law and litigation experience. I picked Ronkonkoma, and we’re expanding. I picked this building right at the entrance of MacArthur Airport because of the anticipated economic development looking to occur here and with the Ronkonkoma Hub, the economic development on Veterans Highway – a lot of companies are located around here and it’s very convenient to get to.

And with Bridgehampton? There’s so much activity going on in the Hamptons. We want to be where there is economic activity and money. There weren’t a lot of law firms out there. We saw it as a great opportunity to go east, when everyone is going west.

Does your military background play a role in your business today? People think if you have a military background, you’ll run your business like a boot camp. That’s not true at all – it’s the opposite of what I have implemented here. The basic principles include extensive training programs at every level – we take it seriously, whether it’s operations, management, business development, legal training. There’s very robust training that, to me, is very important. It’s important that everyone has to be on the same page and trained. Otherwise, there are fiefdoms battling things out. Instead, we have a cohesive team.

How does it help in mentoring new employees? I lead by example. I take my job and responsibilities very seriously. I work to be a role model for younger people in the firm and set an example. That comes from my Marine Corps training, setting and communicating goals to people in an organization. We have a retreat every year and set our goals. You have to involve everyone, keeping them in the loop. It breaks morale if people feel they are not involved. The military promotes that troops eat first, and management has to wait. It’s counter-intuitive to the way Wall Street works, where the crumbs trickle down. Our growth over the last 10 years has been shared with our employees in terms of generous bonuses and investing in the firm.

What else? I’m not afraid to delegate things out. We have professional administrators and accounting people managing the business of the firm. A law firm is like a professional sports team. The talent are the lawyers – they win the cases, get results, close transactions. You wouldn’t expect athletes to win the game and then mail out flyers. Our way has been critical to our growth.

Did the firm do anything special to mark its tenth anniversary? I just celebrated with a party for the entire staff. We would not have gotten here if the firm hadn’t been designed for growth. I invested heavily so that the structure would be there.

Are you planning to open additional offices? Right now we’re looking in Riverhead for office space. It’s the halfway spot between Ronkonkoma and Bridgehampton.

How else are you looking to grow? I’m open to anything. We are looking for smaller practices that are seeking to merge. I’m certainly open to speaking to anyone.

Who are your next hires? We have a summer associate program – we’re gearing up now for a handful of law students from the law schools here so they can explore areas of the firm, and [meet] judges and elected officials in the area. That’s where a lot of our attorneys are hired. In the last 10 years we had very little turnover. We have such a unique way of training, we want to get them into that system as quickly as possible.

Why is it a priority for your partners to serve on boards? A huge part of our philosophy is that we are very public-service oriented. We typically give hundreds of thousands of dollars to over 100 charitable organizations. For the most part the attorneys and partners serve on the boards there and are very important to us. Our philosophy is simple: It’s about karma. If you give, you shall receive. Long Island is the goose that lays the golden egg. Our clients are here for the most part on Long Island. By giving back to the Long Island community, and keeping rates reasonable, we’re doing our fair share to contributing to Long Island and keeping the goose healthy so that it keeps laying golden eggs.

Is this a good time to go to law school? To me being a lawyer and getting a law degree is the best thing you can do in life. I practiced law, ran a business, and now I’m doing both. It’s great. I see too many people go to law school who have no interest or passion in being a lawyer. When you’re a lawyer, you have to have a passion for practicing law. To practice law – it’s not easy. When things go well, clients take credit. When they go bad, they blame the lawyer. If you don’t have the passion to be a lawyer, I would strongly suggest not going down that path. It’s a very consuming career. If you have the passion, it’s a great time to be a lawyer.

Read it on LIBN: http://libn.com/2017/04/05/executive-profile-joseph-campolo/

March 2017 CMM Newsletter: Ethical Issues in Insurance Coverage, Medical Billing Updates, Golfer Liability and More

Posted: March 31st, 2017

Is It Time to Take the Keys?

Posted: March 29th, 2017

By: Martin Glass, Esq. email

Tags: elder law

We’ve all been behind someone on the road, wondering if the driver can even see over the steering wheel. But just because someone has gotten older (and shorter) does not necessarily mean that he or she no longer has the ability to drive. However, at some point, that time may come. It often comes when you begin to realize that your own aging mother or father is no longer safe to be behind the steering wheel.

According to the American Automobile Association (AAA) website (seniordriving.aaa.com), with the exception of drivers under 25, seniors are at a higher risk of having a serious collision per mile driven than any other age group. This is despite the fact that seniors drive fewer miles than their younger counterparts.

But how do you know that it’s time to have that talk? Many seniors feel that if you take their car you might as well send them “out to pasture.” We all know that it’s extremely difficult to get around Long Island without a car, especially if you’ve been doing it for 60, 70, or even 80 years.

But believe it or not, many seniors recognize that they’re getting older and have developed some physical limitations. Your parents may already be driving less after dark, during rush hour, in inclement weather, or have even started to avoid highways and tricky intersections altogether.

If you’re not sure about their driving ability, one thing you may want to do is to take a ride as a passenger with your mom or dad driving to assess their abilities. Another is to look to see if they’ve had tickets or citations in the past year or two. Collisions or near-misses are big red flags. Rear-end collisions, fender-benders (especially in parking lots) and side-swiping another car can be signs that their driving skills are diminishing.

How do you even start that kind of conversation? If you determine that it is no longer safe for your aging parent (or anyone else that you care about) to drive, you need to have a conversation with them. Even though it can be a very difficult conversation, the trick is not to make it a combative one.

AAA recommends the following:

Communicate openly and respectfully. Nobody wants to be called a dangerous driver, so avoid making generalizations about older drivers or jumping to conclusions about their skills or abilities behind the wheel. Be positive, be supportive and focus on ways to help keep them safely on the go.
Avoid an intervention. Keep the discussion between you and the older driver you want to assist. Inviting the whole family to the conversation will alienate and possibly anger the person you’re trying to help.
Make privacy a priority. Always ask for permission to speak with an older driver’s physician, friends or neighbors about the driver’s behavior behind the wheel.
Never make assumptions. Focus on the facts available to you, such as a medical condition or medication regimen that might make driving unsafe. Do not accuse an older driver of being unsafe or assume that driving should be stopped altogether. Focus the conversation on safe driving and working together.

Change is usually difficult, and on Long Island, this change can be a powder keg. So, if it’s at all possible, work together with your parent to create a safe driving plan before any problems actually occur. This could allow the transition from driver to passenger to be more gradual.

As noted, the senior often starts with self‑imposed restrictions on when or where they drive themselves. Next, they may want to begin increasing their comfort level with using other forms of transportation (buses, taxis, or other means of transportation provided by town or county) before they need to exclusively depend upon them. At some point, you and they may even decide that it is time to bring in some assistance into the senior’s home, such as some companion care, or change the older driver’s living situation entirely. The point is that this type of conversation is not a one-shot deal. It needs to be ongoing.

To discuss the legal needs of a senior you care about, please contact us.

Is Your Insurance Company Really on Your Side? Be Sure.

Posted: March 29th, 2017

By Christine Malafi

Liability insurance policies provide both indemnification and defense coverage to insureds when they are sued for injuries and/or damages. Insurance policies also contain various exclusions, or exceptions, from insurance coverage. After an insured notifies its insurance company of a lawsuit brought against it, the insurance company investigates the claim and the coverage provided to the insured under the terms of the applicable insurance policy. The insurance company then determines whether the suit is covered, not covered, or possibly covered under the terms of the policy.

If the lawsuit is covered by an insurance policy, and litigation defense coverage is provided for in the policy, the insurance company is obligated to protect its insured’s interests and rights. Under most insurance policies, the insurance company has the right to determine the defense strategy in the suit, as well the right to settle the lawsuit.

If it is determined that the suit is covered under the policy, the insurance company assigns defense counsel to represent the insured. If the insurance company determines that no coverage is provided under the terms of the policy, it will not provide defense coverage and the insured is left to hire its own attorney.

So, what happens when the insurance company determines that its insured is “possibly” covered? In this case, the insurance company will issue a reservation of rights letter, outlining the potential policy exclusions for the insured, and providing a defense under that reservation of rights to later disclaim coverage to the insured for the suit. The insurer will assign defense counsel of its choice. The assigned defense counsel is, in all likelihood, an attorney or firm that is on a list of firms which the insurance company regularly deals with, provides files for defense regularly, and with whom the insurance company has a long relationship.

Under normal circumstances, i.e. a full coverage under the policy, the insurer, insured, and defense counsel all have the same interests and goals–the full and complete defense and indemnification of the insured in the lawsuit. However, in the case of a defense being provided under a reservation of rights, there is an implicit conflict of interest. The insured rightfully wants the insurance company to defend it throughout the lawsuit and to pay any and all settlements or judgments in connection with the lawsuit. However, the insurance company will be reviewing all facts as they are gathered in the lawsuit and constantly analyzing whether a disclaimer of coverage under one of the policy’s exclusions can assist the insurer in avoiding payments under the policy for indemnification or future defense costs.

So, where does that leave the assigned defense counsel? The assigned defense counsel is in the position of reporting to the insurer, and is dependent upon the insurer paying all legal bills. The assigned defense counsel is not, however, the attorney for the insurance company. The assigned defense counsel’s client is the insured, and all duties of loyalty are owed to that insured. It is a difficult position to be in as an attorney. Although many insureds don’t realize it, it is an even more difficult position for the insured to be in. The assigned defense counsel must do what is right for the insured, but is reporting to and billing the insurance company.

Fortunately, most insurance companies and assigned defense counsels understand this precarious position. If handled correctly, the insurance company must assign two separate claim representatives to oversee the two matters—the defense of the insured on the one hand and the insurance coverage issues on the other hand—and those two claims representatives will not communicate with each other regarding the defense, nor will their supervisors. The defense counsel will report to the claims representative handling the defense of the insured only and the claims representative on the insurance coverage issues will never see those reports or the defense file.

Because of this inherent conflict, there is a risk to the insured. The courts, therefore, hold that an insured is entitled to retain its own independent defense counsel to represent it in the defense of the litigation, at the full cost and expense of the insurance company. Therefore, it is in the insured’s power to insist on its own independent attorney to defend the matter. By insisting on your own attorney to defend you, you can rest assured knowing that your own attorney is doing everything possible to protect your rights so that you can reap the full benefits of the indemnification coverage for which you paid.

At Campolo, Middleton & McCormick, LLP, not only do we have the experience to defend you, but we also have the experience to work with you to make sure that your insurance company lives up to its full obligations under the insurance policy for which you have paid premiums.

When in Doubt, Yell “Fore!”

Posted: March 29th, 2017

Published In: The Suffolk Lawyer

Tags: negligence

It is officially spring and that means that golf season is here. For golfers, there are few things better than their first time back on a golf course after the snow melts and the weather gets warm.

The last thing you are thinking about as you are breathing in the fresh spring air and teeing up for the first time this season is “what is my liability if this tee shot ends up hitting someone?”

Nevertheless, while it is something seldom thought about, every golfer should be aware of their liability as they head out to the golf course. The best piece of advice I could give to New York golfers while preparing for the 2017 golf season is: when in doubt, yell “fore!” Although yelling “fore!” will in no way improve your score, it could save you from an unwanted lawsuit.

You have probably heard shouts of “fore!” during a round of golf, but most golfers do not realize that yelling “fore!” has legal implications and can shield a golfer from liability. While not every bad shot you hit requires you to give warning to your fellow golfers, which is commonly done by shouting “fore!”, you must give warning if you hit a shot and someone is in the intended line of flight of your golf ball.

For example, if the golf course is crowded and you have a fast-playing foursome right behind you, you might be tempted to tee off, even if the foursome in front of you might still be in range. If you choose to tee off and your shot might hit the golfer in front of you, you are required to give that golfer warning (yell “fore!”), so that she can get out of the way of your golf ball. Keep in mind, though, that if the golfer in front of you is so close that a reasonable golfer would find your actions reckless and negligent by teeing off prematurely, you could still be held liable if the golfer is injured, regardless of how many times you yell “fore!”

However, there are also situations where warnings are not required because even if you shouted “fore!” after your shot it would not prevent an injury. For example, if you hit a bad shot that slices so far to the left that it seems to defy the laws of science and soars over three fairways, you are not legally required to give warning (although you should still yell “fore” to be courteous to your fellow golfers). In that scenario, if someone is unfortunate enough to be hit by your science-defying golf ball, you will not be responsible for any injuries sustained, whether you yelled out a warning or not. The thought behind it is that golf is a sport and, like most sports, there is an assumption of risk that a golfer takes when he or she steps out on to the golf course. All golfers are aware that no matter the skill of a player, every golfer is prone to hit bad shots, and as such, golfers need to be cognizant of their surroundings while on the course.

In the same vein, in New York a golfer is not generally liable to individuals or property located entirely outside the boundaries of a golf course that are hit by a stray ball or a poor shot. So if you hit a ball that bounces off a tree in the wrong direction, or misses the fairway completely and hits a nearby house, the windshield of a car on a roadway, or maybe even a person relaxing in their backyard, you are not required to give a warning.

So while you are out on the golf course this season, remember that even though you only have to warn your fellow golfers if they will actually benefit from your warning, it does not hurt to yell out “fore!” when you hit your ball in an unintended location. Also, be sure to always read and familiarize yourself with the individual golf course’s rules, because while you might not end up legally liable, you could be kicked off the course for violating the course rules. Above all, remember to have fun and enjoy yourself on the golf course and, in the words of the fictional late-great Chubbs, “it’s all in the hips.”

Roadmap to a Valuable Teaming Agreement, Part 2

Posted: March 29th, 2017

Tags: corporate

The focus of this article is the enforce-ability of Teaming Agreements.

To recap, teaming arrangements (memorialized in a Teaming Agreement) are organized so that one company is the prime contractor and one or more other companies are subcontractors. The prime contractor generally interfaces with the government. The prime contractor agrees that if awarded the government contract, it will use the subcontractor’s goods or services. Conversely, the subcontractor agrees that it will provide the goods and services at the cost proposed in the bid.

Consider a situation in which your company has teamed with another company to bid on a government contract. Together, you have an attractive bid. Your team is ultimately awarded the contract. Now, pursuant to your Teaming Agreement, you must negotiate a subcontract with your team member. But negotiations are falling apart, as your team member demands greater rights than you initially agreed. You seek to enforce your team member’s obligations and file a lawsuit. However, the judge rules that your Teaming Agreement is unenforceable because it is an agreement to agree in the future. The team member backs out of the contract and you lose the award.

You ask yourself, what could have been done to avoid the judge’s ruling?

Generally, Teaming Agreements are found to be unenforceable when the terms of the contract are ambiguous, contain indefinite terms, or otherwise are agreements to agree in the future.

Your Teaming Agreement should be as detailed as possible, containing definite terms and carefully outlining the obligations of each party. It should also contain a clear statement of work, which defines the responsibilities of each party, and a clear statement of subcontract pricing.

The agreement should obligate the prime contractor to subcontract with the team member, not merely enter into good faith negotiations, and cannot provide that negotiations will take place in the future. For example, in Trianco, LLC v. International Business Machines Corp., 347 Fed. Appx. 808, 2009 WL 3182920 (3^rd Cir. 2009), interpreting New York law, the Court found that a provision calling for negotiations in the future was unenforceable. Moreover, avoid provisions that allow the agreement to be terminated after a set amount of time of good faith negotiations. The agreement should be terminable by the prime contractor only if the municipal entity terminates the prime contract.

To the extent possible, the parties should provide in the Teaming Agreement that if there is a dispute as to the terms of the subcontract, that corresponding term from the prime contract would flow down to the subcontract. Attaching a form of the subcontract to the Teaming Agreement as an exhibit could lend support to its enforce-ability.

The Teaming Agreement should also be amended from time to time as more definite terms come into focus, such as the scope of work and pricing.

An exclusivity clause in the Teaming Agreement supports the enforce-ability of the contract because such a provision demonstrates that the team members are committed to one another in the bid. The agreement is less likely to be considered enforceable when a team member is able to jump from one team to another.

If you have any questions regarding Teaming Agreements or if you are contemplating a teaming arrangement, please do not hesitate to contact us.

Providers, Take Note: Cigna Increases Its Recovery Efforts

Posted: March 29th, 2017

Tags: healthcare

Long Island medical providers have learned that Cigna is once again striving to “recover” payments made to them. Cigna’s investigation focuses primarily on out-of-network providers, since it believes that its contract language with self-funded ERISA plans entitles it to recover payments made for out-of-network services.

Cigna employs a classic flanking maneuver to box in the targeted providers. It begins by sending letters to its members who have received services at out-of-network providers. The letter asks about services provided, the dates such services were provided, and whether the member paid any co-pay or co-insurance payment to the provider.

Cigna’s target is providers who waive a member’s co-payment or co-insurance deductible. Typically, out-of-network coverage pays providers a percentage of a provider’s usual and customary charges, or a multiple of the Medicare fee schedule for services. Eighty percent reimbursement for a provider’s usual and customary charges has been a common coverage offered in the past. Under such a plan, Cigna (or any other insurer offering out-of-network coverage) would pay the medical provider eighty percent of the amount billed (presuming service is billed at the usual and customary rate). The plan member remains responsible for the other twenty percent of the provider’s charge. This remainder is the co-insurance responsibility.

Many providers argue that since they are not contracted with Cigna (or other plans), they do not have any obligation to charge the member anything else. Cigna claims that in such a scenario a provider has misrepresented her usual and customary rate (since the provider is not attempting to collect a member responsibility), and thus Cigna is not responsible for all or a portion of the claim payment. In seeking recovery of the overpayments, Cigna may offset future payments to the out-of-network provider until the balance is paid.

This scenario played out last year in a Texas case that offered hope to afflicted medical providers. In Connecticut General Life Insurance Company v. Humble Surgical Hospital, LLC, CA No. 4:13-cv-03291 (S.D. Tex. June 1, 2016), Cigna sued Humble Surgical Hospital, LLC, a physician-owned hospital (“Humble”), to recover alleged overpayments made to Humble due to fraudulent billing practices in violation of both ERISA and state common law. Humble counterclaimed against Cigna for underpayment of claims.

At trial, Cigna relied in part on its interpretation of the standard exclusionary provision included in self-funded ERISA plans it administered that “specifically excluded” from payment “charges which [the participant is] not obligated to pay or for which [the participant is] not billed or for which [the participant] would have been billed except that they were covered under this plan.”

However, the court ruled that Cigna’s practices violated ERISA because it abused its discretion in electing to reject reimbursement for such claims, and that its practices amounted to adverse benefit determinations that did not follow ERISA’s rules. Further, Cigna’s practices interpreted the boilerplate exclusionary language in a different way than most members understood.

Ultimately, the court rejected Cigna’s claims and granted judgment in favor of Humble on its counterclaims for $13 million. The damages covered underpaid claims and ERISA penalties.

In the case, Humble had an irrevocable assignment of benefits from each member whose claims fell under the lawsuit. This factor was critical in the court’s decision. Providers need to analyze their practices to ensure they obtain a valid assignment of benefits form from patients upon intake, and they need to carefully review their practices to collect patient responsibility payments. Whether a New York court will agree with the Texas court’s Humble reasoning is untested, but providers should undertake a thorough billing, collection, and compliance review to mitigate the risk of insurer overpayment recovery efforts later.

Malafi quoted in Newsday Q&A column “Unauthorized Overtime: If They Worked It, You Must Pay It, Expert Says”

Posted: March 21st, 2017

by Carrie Mason-Draffen (carrie.mason-draffen@newsday.com)

DEAR CARRIE: I read with great interest your recent column that talked about the “suffer-to-work” concept and how hourly employees have to be paid for all hours worked, even if the extra time was unnecessary and unapproved. The idea doesn’t seem fair. What if your company handbook states that management has to approve extra hours ahead of time, yet an employee works overtime without that approval? And when those unapproved hours result in overtime pay because the employee winds up working more than 40 hours a week, it can be detrimental to a small business. If the work isn’t time sensitive and can be stopped at 4 p.m. and picked up the next day, it seems like the employee is calling the shots on extra hours. Are there any exceptions to this labor law?

—Suffering Employer

DEAR SUFFERING: Great question. For an answer, I turned to a lawyer who represents employers.

If an employer does not want an employee to work beyond normal working hours, the employer must take steps to prevent the employee from working, said Christine Malafi, a partner at Campolo, Middleton & McCormick in Ronkonkoma.

But if the hourly employee works, the employer has to pay, she said.

“This remains true even when the employer has not requested the overtime, or where the employee fails to report the overtime immediately,” she said.

And it is easy to prove employer liability, she said.

“To establish an employer’s liability under the Fair Labor Standards Act for unpaid overtime, all that need be shown is an employee’s email, text, etc. related to employment during his or her off hours,” Malafi said.

What can you do to avoid the unauthorized work?

“To protect against this, employers should have written, clear policies outlining overtime rules and should not provide employees who are not authorized to work after hours with access to work emails, etc., from outside the office,” she said.

Read it on the Newsday website.