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CMM Closes Multimillion Dollar Financing Transaction for Major Construction & Architectural Hardware Distributor

Posted: January 17th, 2017

Campolo, Middleton & McCormick, LLP announced that it has closed a multimillion-dollar construction financing transaction and working capital line of credit between its client, a major construction and architectural hardware distributor, and the client’s lender, a large institution in the secondary lending market. The transaction moved swiftly from the execution of a letter of intent in the fall of 2016 through due diligence and to closing just before the new year. In addition to the usual financing documents for such transactions, the deal was complicated by the transfer of mortgages on several separate parcels of real estate that secure the new loan and the removal of security interests held by a prior lender. Other complicating factors included negotiating loan capacity for retainage and materials delivered but not installed. The terms of the transaction were not disclosed publicly.

Headed by Joe Campolo, attorney Don Rassiger assisted to close the deal at a breakneck pace. The client shared that “Don was great. He understands the construction supply business and was very available. We could not have gotten it across the finish line without him.”

Unlike those at other Long Island firms, CMM’s Construction attorneys possess firsthand knowledge of the construction client’s perspective, having worked in the industry themselves. CMM’s Construction practice group is comprised of seasoned professionals who understand the challenges faced by the players on all sides of the construction table and are well-equipped to assist clients in achieving successful outcomes in a cost-effective and timely manner. CMM works with clients to navigate through the obstacles and challenges that they face throughout the lifecycle of each construction project, offering guidance on planning and development, financing, bid processes and procedures, contract drafting and negotiation, claims and insurance matters, surety/bonding issues, environmental issues, labor relations, risk management and mitigation, change orders and delay/impact claims, and litigation.

Middleton Named to Judicial Screening Committee of Suffolk County Bar Association

Posted: January 3rd, 2017

Campolo, Middleton & McCormick, LLP, Suffolk County’s premier law firm, is pleased to announce that founding partner and trial attorney Scott D. Middleton, Esq. has been appointed to the Judicial Screening Committee of the Suffolk County Bar Association. The Committee is tasked with investigating the background, experience, and other qualifications of candidates seeking to run for judicial office in Suffolk County to ensure that potential nominees are qualified to serve on the bench.

Middleton chairs the Municipal Liability and Personal Injury groups at CMM. He handles all types of litigation, representing individuals and defending large and small businesses and municipalities in a wide array of matters including transportation, personal injury, premises liability, labor law (construction accidents and employment issues), civil rights, wrongful death, road design, and general litigation.

A graduate of Stony Brook University and Brooklyn Law School, Middleton serves on the Stony Brook University Intercollegiate Athletic Board and the Brookhaven Industrial Development Agency (IDA). Middleton also holds an AV-Preeminent rating from Martindale-Hubbell, the highest possible rating from the most recognized and trusted legal directory and resource for nearly 150 years, which recognizes attorneys for both ethical standards and legal ability. He has also served his community through roles as Mayor, Justice, Attorney and Prosecutor for the Village of Lake Grove.

About CMM
Located in both the heart of Long Island and on the East End, Campolo, Middleton & McCormick, LLP is Suffolk County’s premier law firm. Over the past generation, CMM attorneys have played a central role in the most critical legal issues and transactions affecting Long Island. The firm has earned the prestigious HIA-LI Business Achievement Award and LIBN Corporate Citizenship Award, a spot on the U.S. News & World Report list of Best Law Firms, and the coveted title of Best Law Firm on Long Island. Learn more at www.cmmllp.com.

About the Suffolk County Bar Association
The Suffolk County Bar Association is a private organization representing the lawyers of Suffolk County and is one of the largest voluntary bar associations in New York State. For over a century, the SCBA has assisted the community through charitable services, pro bono representation, scholarship programs, and legal education. Learn more at www.scba.org.

December 2016 CMM Newsletter: Updates on Commercial Leases, HIPAA & More

Posted: December 25th, 2016

Roadmap to a Valuable Teaming Agreement

Posted: December 20th, 2016

Tags: corporate

Recently, a client inquired about forming a joint venture with another company to bid on government solicitations. While joint ventures are one vehicle, there is another option that is often less expensive and less risky: a teaming arrangement, which is memorialized in a Teaming Agreement.

Generally, teaming arrangements 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 in the Teaming Agreement 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.

When entering into a teaming arrangement, it is vital that the Teaming Agreement cover important aspects of the parties’ relationship. Here, a look at some of the most critical:

Purpose. Generally, a teaming arrangement should be limited to a specific government solicitation and the Teaming Agreement should expressly address that the parties are “teaming” for that limited purpose.

Responsibilities. The Agreement should address the division of responsibilities between the parties in the preparation of the bid. Generally, the parties are responsible for their own costs, but nonetheless this should be addressed in the Teaming Agreement. The obligations of the parties should not be assignable as the companies are teaming because of the specific goods and services that each company provides.

Defining the relationship. The Teaming Agreement should clarify that the parties are independent contractors and their relationship should not be construed to be a joint venture, partnership, or any other affiliation. Likewise, the teaming relationship should be exclusive for the particular solicitation. Neither party should have the right to participate in another “team” or independently bid on the solicitation during the term of the Teaming Agreement or after its termination.

Termination. The Agreement should define the situations in which the Teaming Agreement will terminate, such as if the contract is awarded to the team, if the contract is awarded to another contractor, the government’s cancellation of the solicitation, or if the government determines that one of the parties is ineligible.

Limitation of liability and indemnification. The Teaming Agreement should contain indemnification for personal injury and damage to property as well as infringement of third-party intellectual property rights. Additionally, claims of lost revenues, lost profits, and other indirect damages may be excluded by a limitation of liability clause. However, in the event that a prime contractor does not award the subcontract, the subcontractor should be protected by adding that failure to award the subcontract would be an exception to the limitation of liability for lost profits.

Subcontract negotiations. The Teaming Agreement may also address the subcontract negotiations, including the amount of time the parties have to execute the subcontract.

Dispute resolution. Dispute resolution procedures should be addressed in detail, including whether the parties will mediate, arbitrate, or be subject to the jurisdiction of a particular court.

Confidentiality. Of particular importance is the protection of confidential and proprietary information. When teaming, the parties may share sensitive information regarding their pricing structure, goods, and services. The Teaming Agreement may contain a mutual confidentiality provision or the parties may enter into a separate Confidentiality and Non-Disclosure Agreement, in which case those confidentiality obligations should be referenced in the Teaming Agreement.

Intellectual property. The Teaming Agreement should address inventions, discoveries, and improvements conceived during the term of the teaming relationship. Typically, if inventions are developed by one party, that party will retain the rights to the invention; if developed jointly, the parties will have joint ownership.

Access to premises. If either party will be performing work at the other party’s premises during the teaming arrangement, the Teaming Agreement should set forth the specific rules governing that party’s access to the premises, and also provide for indemnification for personal injury or property loss.

Poorly drafted Teaming Agreements often are scrutinized in court for enforce-ability. As with all contracts, agreements to agree in the future are generally unenforceable. Therefore, the provisions of the Teaming Agreement cannot be vague or indefinite. The topic of enforce-ability of Teaming Agreements deserves its own separate treatment and will be discussed in a future article.

If you have any questions regarding a teaming arrangement or Teaming Agreements, please contact us.

Commercial Tenant “had a meaningful choice to walk away”: Court Rejects Unconscionability Arguments Regarding Late Charges and Electricity Charges

Posted: December 20th, 2016

Published In: The Suffolk Lawyer

By Patrick McCormick

In 2010, the First Department, in dismissing a claim by commercial tenants that electric charges were unconscionable, held that the plaintiffs had failed to establish “a lack of meaningful choice, and noted that the commercial tenants were free to not rent from the defendant and go elsewhere.”[i]

Thus, when I represented a commercial landlord in a non-payment proceeding against a law firm tenant earlier this year, it was unclear where a court within the Second Department – in this case, the First District Court in Nassau County – would fall on the issues of a five percent late charge and electric charges to which the tenant objected.[ii] The landlord’s rent demand sought $2,531.70 including a five percent late charge plus electric charges of $993.52, as well as taxes and attorneys’ fees for an unrelated proceeding.

Turning first to the late charge, the tenant argued that the charge was “illegal” in that it was usurious and “does not in any way even remotely apply to damages actually sustained and is an unconscionable penalty.” In response, we argued on behalf of the landlord that the late fees were not usurious, as the fees existed in connection with a commercial lease, not a loan or forbearance, nor were they unconscionable, as they were negotiated by sophisticated business people specifically for a commercial lease.

Regarding the electric charges, the tenant argued that because it occupied only a small part of the commercial premises, the sum of $993.52, which was a fixed amount set forth in the lease, was “disproportionate” to their actual electricity consumption. The parties disagreed over whether the landlord was obligated to furnish an accounting of the actual electric usage and bills; the landlord pointed out that the tenant had paid the monthly electric charge – which the landlord did not dispute was not based on actual usage – for over a decade.

The tenant commenced an action in Nassau County Supreme Court seeking reimbursement of the “excess” electricity payments and a return of funds withheld from a security deposit as determined by a prior summary proceeding in District Court. The tenant argued that the Supreme Court had jurisdiction over the entire dispute (even that piece pending in District Court) as the tenant was seeking a declaratory judgment and equitable relief, for which the District Court lacks jurisdiction. Upon Landlord’s motion, the Supreme Court dismissed the Complaint. The Supreme Court found that “[t]o the extent plaintiff claims that the electric charge is exorbitant, it is what he agreed to, and nothing more…The fact that a landlord may make a profit on the payments for electricity, is no defense to a tenant.”[iii] The Court reached a similar conclusion regarding the late fee, noting that “[a]side from the fact that it constitutes a negotiated provision of a commercial lease between sophisticated parties, there [is] nothing exorbitant about such a provision calling for a 5% late fee.”[iv]

Ultimately, the District Court disagreed with the jurisdictional issue: “[T]his court can determine all issues in an expeditious manner,” wrote Judge Fairgrieve. “The purpose of summary proceedings is to quickly resolve cases.” The District Court then granted summary judgment to our client.

Citing the First Department’s Accurate Copy, the Court noted that a sophisticated party such as the law firm tenant in this case “had a meaningful choice to walk away and rent elsewhere.” Accurate Copy had rejected an unconscionability claim on the grounds of the plaintiffs’ failure to allege and prove a lack of meaningful choice, as well as claims that electric charges were illegal on the basis that the plaintiffs did not allege failure by the landlord to enforce a lease’s electric charge provisions in conformance with their terms. The Accurate Copy court declined to upset the commercial leases at issue in that case for the “purpose of alleviating a hard or oppressive bargain.” Looking to this First Department case, this District Court within the Second Department agreed.

[i] Accurate Copy Service of America, Inc. v. Fisk Bldg., 72 A.D.3d 456, 899 N.Y.S.2d 157 (1^st Dep’t 2010) (quotation from Old Country Road Realty, LP v. Zisholtz & Zisholtz, LLP, 53 Misc.3d 1203(A), 2016 WL 5396005).

[ii] Zisholtz, supra.

[iii] Zisholtz & Zisholtz, LLP, v. Old Country Road Realty, L.P., Nassau County Index No. 602616-16 (Murphy, J.), entered September 13, 2016.

[iv] Id.

Shifting the Costs of Discovery

Posted: December 20th, 2016

Published In: The Suffolk Lawyer

Clients embroiled in litigation are often very concerned with the overwhelming costs of discovery, especially when document production can involve sorting through thousands upon thousands of emails and other electronically stored documents to respond to the opposing party’s requests. Generally speaking, litigants are responsible for their own discovery costs in litigation. However, certain circumstances call for the shifting of those costs. A recent decision out of the Commercial Division in Monroe County discussed the various factors courts will evaluate in determining whether to shift discovery costs to the party requesting the discovery.

Wade v. McConville, 53 Misc.3d 1216(A) (Sup. Monroe 2016) (J. Rosenbaum) dealt with legal malpractice claims in connection with Defendants’ representation of Plaintiff regarding a commercial transaction. After the case was commenced, the parties exchanged significant discovery, including electronically stored information (“ESI”). In connection with their production, Defendants produced their complete file regarding their representation of Plaintiff. Following that production, Plaintiff requested that Defendants produce their “Case Management System Entries” as well as other electronic calendar entries, appointments, and other related entries. After investigating the cost associated with having to produce this additional ESI, Defendants made a motion for a protective order conditioning the production of further ESI on Plaintiff’s payment of all costs associated with the production.

In its decision, the Court noted that, with the increasing prevalence of ESI, courts have been divided in determining when, if at all, to shift costs for discovery. Despite the general rule that the producing party must typically bear its own costs in responding to discovery requests, the Court cited to a decision in Nassau County where it was determined that the requesting party should bear the entire cost for retrieving and producing discovery that includes ESI. Lipco Elec. Corp. v. ASG Consulting Corp., 4 Misc.3d 1019(A)(Sup. Nassau 2004). Notwithstanding the Lipco decision, many courts in New York follow the standard articulated in Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309 (S.D.N.Y. 2003), a federal case holding that the producing party is initially responsible for the costs of searching, retrieving, and producing ESI unless the producing party can establish that a shift of the cost burden onto the requesting party is warranted. To do so, the Court will evaluate: (1) the extent the request is tailored to discover relevant information; (2) the availability of the information from other sources; (3) the cost of production compared to the amount in controversy; (4) the cost of production compared to the party’s resources; (5) the relative ability of each party to control costs; (6) the importance of the issues in the litigation; and (7) the relative benefits to the parties obtaining the information. Id.

In this case, the Court noted that despite Defendants’ claim that the production of the additional ESI would cost them $9,000, they did not provide a copy of the estimate/invoice or an affidavit from Defendants or an e-discovery vendor to substantiate this claim. Defendants also failed to analyze the Zubulake factors at all in requesting to shift costs to Plaintiff. Given that the Court had already determined that the information sought by Plaintiff was relevant, Defendants had provided no support to obtain a protective order. As such, the motion was denied.

Although Defendants in this case made a fairly poor attempt to shift the costs involved with the further production of ESI, the Court did provide some important findings as to what it would be looking for to support such a cost shift. In particular, had Defendants actually provided a copy of the proposal indicating the costs involved with the ESI production and/or an affidavit from Defendants themselves or the electronic discovery vendor who estimated the costs, Defendants may have had a chance in this case. The Court also noted it was important for Defendants to have analyzed the applicability of the Zubulake factors to the production of ESI, which they completely failed to do. While the law regarding cost-shifting is continuing to evolve, it is important to be aware of how this very important tool can be utilized in litigation, either in your favor or to protect against it being used against you.

Hospital Patients Are Entitled to Admission Status Information

Posted: December 20th, 2016

By: Martin Glass, Esq. email

Tags: elder law, healthcare

Last year, President Obama signed the Notice of Observation Treatment and Implication for Care Eligibility Act (better known as the “NOTICE Act”). The NOTICE Act became effective on August 6, 2016. It may not seem like a big deal, but the Act requires hospitals to inform patients whether the patients have been admitted to the hospital on “inpatient” status versus “observation” status.

When a doctor admits a patient to a hospital, the patient and patient’s family members normally assume that the patient has been “admitted” to the hospital as an inpatient. This is usually true whether the patient is in the Emergency Room or has been moved to a regular bed. The patient is probably being taken care of by doctors and nurses, usually receiving medication, and even staying overnight for one or more nights. However, without the patient knowing it, the doctor may have ordered the hospital to keep the patient in the hospital for observation instead of ordering full inpatient status for the patient.

This might not make much of a difference for younger patients who are on private health insurance, as the insurance will pay for the hospital stay and any subsequent medical needs. But the difference between observation and inpatient admission status greatly affects senior patients that receive Medicare benefits. Observation status does not trigger Medicare’s comprehensive hospitalization coverage, so the patient may be required to pay physician and drug co‑pays that Medicare would otherwise cover for a hospital inpatient.

The biggest problem with the senior being kept on observation status is that Medicare will now not pay for any physical rehabilitation costs after observation hospitalization. If you have been fully admitted and have stayed through two consecutive midnights, Medicare will pay for the hospital expenses and up to 100 days in an inpatient physical rehabilitation facility. However, if the hospital transfers the patient to the physical rehabilitation facility after an observation admission to the hospital, Medicare will not pay the full hospitalization cost or any of the room and board charges for the inpatient physical rehabilitation services.

Patients and their families should be aware of the Medicare rule and the new NOTICE Act to make sure that any hospitalization follows the Medicare standards. It is critical (not to mention potentially extremely expensive) that the patient or the patient’s family determine the hospitalization status immediately and challenge an observational placement. If a patient or the patient’s family waits too long to object to the hospitalization status, the very small time windows for objections and appeals may close and the patient may be stuck with an expensive hospital and/or rehabilitation facility bill.

If you or a family member has any questions about the new law or the objections and appeals process, please contact us.

JP Morgan Pays $264 Million to Resolve “Princelings” FCPA Investigation

Posted: December 20th, 2016

Tags: international, white collar

Last month, JP Morgan entered into a landmark settlement agreement in which it agreed to pay $264.4 million to the DOJ, SEC, and Federal Reserve to resolve Foreign Corrupt Practices Act (“FCPA”) offenses for providing jobs to the relatives of Chinese government officials to secure the underwriting of Chinese state-owned companies’ initial public offerings (“IPO”). While this is not the first time an American company has settled an FCPA case on similar facts, the JP Morgan investigation trumps all others in terms of its scope and the audacity of the alleged bribery scheme. The bank’s so-called “Sons and Daughters” program allegedly tracked and prioritized individual hires based the potential deals their family members could refer to the bank, while the candidates were underqualified for the positions or performed ancillary work once they joined the bank.

According to the DOJ, the quid pro quo relationship of the program was “nothing more than bribery by another name.” The bank was also chastised for the compliance failures that permitted the program to continue unabated for many years. But perhaps most significantly, the JP Morgan settlement is the latest in a series of enforcement actions that has seen the U.S. government expand the definition of “anything of value” under the law.

Congress enacted the FCPA in 1977 in the wake of the Watergate investigation and in response to reports of widespread bribery of foreign officials by U.S. companies. The FCPA prohibits U.S. persons, companies, and issuers from, among other things, bribing or attempting to bribe a foreign official in order to secure an improper business advantage. In basic terms, the elements of an FCPA bribery charge include (1) offering, paying, or authorizing, (2) “anything of value,” (3) directly or indirectly, (4) to a foreign official, (5) to improperly gain a business advantage.

For decades, the FCPA laid relatively dormant. In recent years, however, the DOJ and SEC have dramatically stepped up enforcement of the Act. For instance, since 2008, the top ten FCPA enforcement actions have cost those ten companies a total of $4.8 billion in fines and disgorgement. During the FCPA’s renaissance, the government has actively sought to extend the jurisdictional reach of the Act, as well as expand the definition of the five elements of a bribery charge. The evolving definition and interpretation of each element, let alone all five, is beyond the scope of this article.

Since the JP Morgan investigation was first disclosed in 2013, one of the most interesting developments has been the evolving meaning of “anything of value” in relation to U.S. companies hiring the children of influential foreign officials, or “princelings” as they are referred to in China. For years, it has been standard practice for western banks to hire relatives or close friends of senior Chinese officials in order to build up “guanxi” (meaning “networks” or “connections”).

As you might expect, the government’s theory is that the job or internship constitutes something of value under the FCPA and that it is being offered to improperly gain a business advantage. The interesting question becomes, however, does network-building or even blatant nepotism rise to the level of an FCPA violation? The answer appears to be “yes.”

What constitutes something of value is not always easy to answer. Sometimes the answer is very clear. The proverbial suitcase full of unmarked bills delivered in a dark alley to a foreign minister in exchange for a lucrative government contract is a clear violation. Cash is certainly something of “value.” But what if the thing of value is not promised or delivered directly “to” the official? For instance, in SEC v. Schering-Plough Corp., No. 04-CV-00945 (D.D.C. June 16, 2004), the Commission argued that gifts given to a third-party charity were intended to influence the charity’s founder, a senior Polish official. The charity was legitimate and the donation never went into the personal coffers of the official, but the government staked a clear position as to what it considers to be something of “value” for the purposes of the FCPA.

Returning to the recent princeling cases, can a job (even an unpaid internship) offered to a relative of a foreign official inure to the benefit of the official himself? If the job is lucrative, then arguably the salary received by the relative is a savings to the official, but that assumes some level of financial dependence. One could also argue that there is an intrinsic or prestige value associated with working at a reputable financial services firm, but it is very hard to gauge such benefits.

Hiring a family member of a government official is not necessarily a violation of the FCPA’s anti-bribery provisions. But if a company does so with the intent to induce the official to do something in their official capacity, such as award a contract or approve a deal, that hire would potentially cross the line.

In prosecuting this recent line of princeling cases, the DOJ and SEC are sending a very clear signal that they are continuing to seek ways to expand the reach and scope of the FCPA. The princeling investigations to date have been settled, so there is no case law to help companies determine the left and right bounds when it comes to hiring the relatives of foreign officials. The U.S. government’s public statements on these cases, however, are certainly instructive.

First, companies that might hire a relative of a foreign official should not change their hiring standards. Although certainly not dispositive, it will be much easier to allege improper motive if the hire in question is not even remotely qualified for the position. Jobs at the world’s leading investment banks, for instance, are highly coveted and competitive even among the best credentialed graduates. Of course, “princelings” by definition tend to have greater access to prestigious educational opportunities and may nevertheless be qualified. Second, ensure that you follow the same hiring process for all applicants, regardless of their familial connections. Third, ensure your business units and human resources department are well trained and resourced to identify potentially problematic candidates and ensure that any hiring is done in accordance with your company’s anti-corruption policy. Of course, when in doubt, consult with an FCPA expert.

The princeling investigations have not been limited to financial services firms operating in Asia. In August 2015, BNY Mellon agreed to pay the SEC $14.8 million to settle FCPA charges in connection with providing student internships to family members of foreign officials affiliated with a Middle Eastern sovereign wealth fund. Earlier in 2016, Qualcomm paid the SEC $7.5 million to settle FCPA charges for hiring relatives of Chinese government officials to increase sales. You can bet that the government has its eye on hiring practices at U.S. companies and issuers operating in different industries and in other corners of the world. Stay tuned.

Disclosure of Protected Health Information: It’s Not All About HIPAA

Posted: December 19th, 2016

Published In: The Suffolk Lawyer

Tags: healthcare

Anyone who’s had a doctor’s appointment in the past 20 years is familiar with the Health Insurance Portability and Accountability Act (known affectionately—or not—as HIPAA). Undoubtedly, if your business collects and shares protected health information, you and HIPAA are old friends. However, many healthcare providers don’t realize that HIPAA isn’t the only game in town. It’s also critical to analyze all of your statements to consumers together and ensure that your disclosures are not deceptive under the Federal Trade Commission (FTC) Act.

As a refresher, the HIPAA Privacy Rule empowers patients and consumers with certain rights with respect to their health information (for example, the right to access, copy, and inspect their information and obtain an accounting of certain disclosures). The Privacy Rule also requires certain parties, including covered entities (such as healthcare providers or insurance companies) and their business associates (an organization or individual that helps covered entities carry out their healthcare functions), to take steps to protect the privacy and security of an individual’s health information.

Before a covered entity or business associate can disclose protected health information for any commercial activity other than treatment, payment, and other uses and disclosures as set forth in the Privacy Rule, a valid HIPAA authorization, signed by the patient, is required. In today’s global and tech-driven environment, consumers are more aware than ever of their rights under HIPAA and the importance of keeping their private information private. But that doesn’t mean that covered entities and business associates can hide behind heightened public awareness and present patients with authorizations so confusing they may as well be in hieroglyphics. The purpose of a HIPAA authorization is not only to authorize the release of information, but also to give consumers an understanding of and control over their protected information. The document must indicate, plainly and clearly, who is doing the sending and receiving of information, what information is covered, how long the authorization is valid, and the reason the authorization is needed in the first place. When it comes to HIPAA authorizations, the more specific, the better.

Once you’ve drafted a HIPAA-compliant authorization based upon these guidelines, it’s important to consider the FTC Act before you hit print. The Act empowers the FTC to prevent unfair methods of competition and deceptive acts or practices in or affecting commerce. People often think of the FTC Act in terms of retail advertising or signs in brick-and-mortar stores, but it applies to the protection of health information as well. Just as retailers cannot mislead consumers about prices and products, healthcare providers and related entities must actively ensure that they are not misleading patients about where their personal information is going.

Covered entities and business associates are cautioned to go beyond the HIPAA authorization and consider all of their disclosures to consumers in context. Does the authorization refer to the disclosure of protected health information to an insurance company, while a page of a new patient packet says the information is going to the referring physician?

Another recommended practice is to put all key information up front. Be mindful that consumers may view your disclosures on devices including cell phones and iPads. A patient shouldn’t have to scroll through 25 paragraphs on a small screen or navigate through five windows to find out where you’re proposing to send their health information.

Covered entities and business associates should also conduct a review of their marketing materials to be sure that certain disclosures aren’t being confusingly conveyed more prominently than others. Font choices, colors, images, and size all matter.

When it comes to advising consumers about disclosure of their protected health information, being crystal clear should always be the game plan.