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Second Circuit Upholds Use of Undisclosed Third Party Software to Provide Probable Cause in Search Warrant

Posted: July 15th, 2015

While the crimes themselves are despicable, child pornography prosecutions often feature cutting-edge forensic investigation techniques and challenges that are applicable to a wide range of white collar crimes.

On June 11, 2015, the United States Court of Appeals for the Second Circuit rejected a defendant’s challenge, and held that law enforcement may use third-party aggregating software in order to develop probable cause in support of a search warrant, and that the warrant application need not identify the software utilized.

In United States v. Thomas, 2015WL3619820, ___F.3d___(2015), the defendant pleaded guilty to the production of child pornography in violation of 18 U.S.C. § 2251(a). Key to the prosecution was child pornography retrieved from the defendant’s home computer. Law enforcement targeted the defendant after using software that traced child pornography traded on a peer to peer network to an internet protocol (“IP”) address utilized by a computer at his home address.

The software law enforcement utilized in this investigation was created by a “data fusion” company called TLO. TLO developed an entire software suite to help locate IP addresses used to distribute child pornography, called the Child Protection System (“CPS”) suite. TLO licenses CPS to law enforcement at no charge and trains officers in its use.

Using the CPS software, law enforcement found that child pornography files were being transmitted via an IP address utilized by a computer located at the defendant’s home address. A Homeland Security Investigations Special Agent presented a 22-page search warrant application to a magistrate judge seeking to search the defendant’s home and computers at the defendant’s home. The warrant application revealed in general terms the use of CPS software to isolate the IP address linked to the defendant, but it did not identify the CPS software by name, nor did it identify TLO as the software creator.

The defendant challenged the search warrant application. He alleged that the warrant application lacked probable cause because it relied upon third-party software, it failed to identify the software and its creator, and it failed to verify the reliability of the CPS software. The Second Circuit analyzed the challenge, examining whether the totality of circumstances test articulated in Illinois v. Gates, 462 U.S. 213 (1983), supported probable cause that child pornography would be found on a computer in the defendant’s residence.

The Court rejected the defendant’s challenges. First, it held that it was immaterial that TLO was a third-party company, and it noted that the CPS software merely aggregated publicly available information about IP addresses in an efficient manner. This efficiency merely sped up law enforcement’s abilities. Law enforcement could have filtered IP addresses manually, albeit much more slowly. More importantly, the Court noted, and the defendant conceded, that the search warrant application would only have been strengthened, not weakened, by the inclusion of the omitted information. Traditionally, in the context of a Franks hearing, search warrant applications diminish in credibility when omitted information is considered.

Rejecting the defendant’s analogy that the CPS software was similar to a drug sniffing dog, the Court held that the warrant application did not need to provide additional information about the reliability of the software. Unlike a drug sniffing dog, which could mistakenly offer a “false positive” that drugs are present, the CPS software merely compiled and summarized information in more usable form, in a readily verifiable manner. The Court likened the use of CPS software to a police officer witnessing the criminal transaction on closed circuit television.

The lessons learned from this case are twofold. First, we see that Homeland Security will lend its considerable resources to local law enforcement investigations; Second, law enforcement may use undisclosed outside help to compile public information to develop probable cause. While this case featured child pornography, the techniques used could equally apply to insider trading, embezzlement, and many other electronically facilitated crimes.

Persons facing investigation or prosecution in these types of case should seek the aid of experienced white collar counsel to quickly inventory and challenge evidence using more effective means than Mr. Thomas. The battles in these cases occur well before trial, and preparation is essential.

Center for Medicare & Medicaid Services (“CMS”) Announces Guidelines to Ease ICD-10 Implementation

Posted: July 15th, 2015

Tags: healthcare

Beginning October 1, 2015, physicians will be required to utilize ICD-10 for claims. ICD-10 will replace the 35-year old ICD-9 diagnostic system. According to Acting CMS Administrator Andy Slavitt, “ICD-10 will set the stage for better identification of illness and earlier signs of epidemics, such as Ebola or flu pandemics.”

The task of converting to ICD-10 has proven nothing less than gargantuan for medical practices, and spurred intense lobbying from the American Medical Association (“AMA”) and other physician interest groups. As a result, on July 6, 2015, the CMS and AMA jointly released an announcement detailing efforts CMS will implement to ease the ICD-10 transition for physicians.

CMS Education Efforts include:

Sending a letter in July to all Medicare fee-for-service providers encouraging ICD-10 readiness
Completing the final window of Medicare end-to-end testing for providers this July
Offering ongoing Medicare acknowledgement testing for providers through September 30^th
Providing additional in-person training through the “Road to 10” for small physician practices (CMS has a “Road to 10” website at http://www.roadto10.org/)
Hosting an MLN Connects National Provider Call on August 27^th .

CMS also promises to ease the transition with the following steps:

Creating an ICD-10 Ombudsman, who will answer questions and monitor any issues that arise with ICD-10 implementation
Medicare contractors will not deny claims billed under Part B solely on the specificity of the ICD-10 diagnosis code as long as the physician/practitioner has used a code from the right family
Advance payment of claims, if the Part B contractor is unable to process the claims within established time limits; these advance payments are conditional partial payments, requiring repayment, so long as conditions described in 42 C.F.R. Section 421.214 are met.

Strategies for physicians to ease the ICD-10 transition include:

Don’t expect another implementation delay, and budget now for the necessary investments to convert to ICD-10
Assess internal office capabilities now, to ensure all aspects have capability to code and bill using ICD-10; prepare all staff to “touch” the system for ICD-10 training, such as medical assistants who fill out lab forms requiring entry of a patient diagnosis code
Create a communication team that clearly defines who is responsible to keep in touch with software vendors, health plans, and clearinghouses, in order to ensure smooth transition
Master the codes that matter. Rather than try to learn all 155,000 codes, physicians should focus on the codes relevant to their specialty.

As always, a robust compliance plan goes a long way to avoid the hiccups inevitable in transitioning to a new coding system, as well as to prevent fraud and abuse issues moving forward. For specific advice or assistance addressing difficulties, providers are advised to seek experienced health care counsel.

5 Tips to Protect Your Trademark

Posted: July 15th, 2015

Tags: intellectual property

Photo courtesy of PICOGRAPHY. By Dave Meier

With the internet and social media, information and content moves so quickly that companies may lose control of their trademarks. A trademark is what distinguishes your product or services from the competition, but improper uses may cause the mark to become generic, and thus not protectable. To help avoid the same fate as “aspirin,” “escalator,” and “thermos” — all of which started out as trademarks but have become generic — here are some tips on how to protect your trademark before it becomes generic.

Use Notice Markings. Placing a TM marking after your trademark gives notice to others that you are claiming rights to the mark. It also helps distinguish the mark and draws it out of the context for the reader. If you have a registered the trademark with the U.S. Patent & Trademark Office, use the ® symbol.
Distinguish Your Mark. Make the trademark stand out from the surrounding text so that it is distinguishable. Marks should be CAPITALIZED, underlined, italicized, bolded, or placed in “quotation marks.” The goal is to create a distinct impression to consumers who see the mark in print or electronic media.
Use Your Mark Correctly. A trademark should be used as an adjective. This can be accomplished by adding the generic noun for the product or service after the mark. Further protection can be achieved by adding the word “brand” after the mark, and before the generic name. For example, “Kleenex® brand facial tissue,” “Xerox® brand photocopier,” and “FedEx® brand overnight courier service.”
Be Consistent. Do not change the spelling or abbreviate the mark. Also avoid modifying it into a plural. For example, use “buy Lego® bricks,” not “buy Legos.”
Register Your Trademark. Registration with the U.S. Patent & Trademark Office (USPTO) provides nationwide notice of your claim and creates a legal presumption of validity and ownership. The USPTO also bars registration of confusingly similar marks. Registration further allows you the ability to use the ® symbol.

In sum, proper trademark usage is extremely important. A company may be unknowingly using or allowing others to use its mark improperly, which will undercut the mark’s value and cause it to become generic. All of this can simply be avoided by properly using, protecting and policing the mark.

When is a Volunteer Intern Entitled to be Paid?

Posted: July 15th, 2015

By Christine Malafi

Last year, I discussed circumstances under which a volunteer may be considered an employee for the purposes of the Fair Labor Standard Act. As discussed previously, the Federal Fair Labor Standards Act (“FLSA”) requires both public and private entity employees to be paid minimum and overtime wages. The question of who qualifies as an “employee” under the FLSA is not as simple as you would expect. Last year, we discussed the 2014 opinion of the Second Circuit Court of Appeals, Brown v. New York City Department of Education, as to when a public volunteer may be considered to be an employee entitled to wages.

Earlier this month, in Glatt v. Fox Searchlight Pictures, Inc.,[1] the Second Circuit Court of Appeals provided some parameters as to when an intern must be a paid employee. The Court opined that the focus should be upon whom is receiving the primary benefit of the internship (the intern or the entity), and laid out seven factors to be weighed and considered in determining whether an intern must be paid as an employee:

The extent to which both the intern and employer clearly understand that there is, or is not, an expectation of compensation (any promise of compensation, express or implied, suggests that the intern is entitled to wages);
The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including clinical and other hands-on training;
The extent to which the internship is tied to the intern’s formal educational program by integrated coursework or the receipt of academic credit;
The extent to which the internship accommodates the intern’s academic commitments (i.e, following the academic calendar);
The extent to which the duration of the internship is limited to the period in which the intern will receive beneficial learning experiences;
The extent to which the intern’s work compliments, rather than displaces, the work of paid employees, while providing significant educational benefits to the intern; and
The extent to which both the intern and the employer understand that there is no entitlement to a paid job at the conclusion of the internship.

No one factor is primary to determining whether the intern must be paid under the law for his or her work. Every factor need not point in the same direction, and the courts may consider other relevant evidence (beyond the above seven factors) in determining who is the primary beneficiary of the relationship, and hence, whether wages to the intern are required.

The decision in Glatt serves as an important victory for employers, as private employers now have been given parameters under which to determine whether an intern must be paid under the FLSA.

[1] Nos. 13-4478-cv, 13-4481-cv (July 2, 2015).

McCormick quoted in LIBN article “Lawyers Are Taking to Tech”

Posted: July 13th, 2015

Lawyers are taking to tech By Joe Kellard, Long Island Business News

When discussing one of the most popular programs attorneys attend for continuing legal education, Mary Ann Aiello, dean of the Nassau Academy of Law, painted an image of a seasoned lawyer in court shuffling through hundreds of legal papers, while his younger counterpart pulls up the same documents with a quick search on his laptop or iPad.

Of the 160 programs the academy provides for attorneys to acquire the New York State-mandated credits they must earn every two years, courses on technology and social media have become the rage. While the academy, an arm of the Nassau County Bar Association, has noticed a need for more skill-based and practice management programs, Aiello said, increasingly more lawyers are asking for and attending tech and social media programs related to all areas of their profession, from criminal cases to electronic discovery to online office policies.

“A lot of attorneys feel that they don’t have the updated electronic skills that many young people have,” said Aiello, an attorney who organizes programs for the academy.

Even recent law school graduates are taking these programs, if only to keep up with the latest developments and their applications to law, Aiello said.

Patrick McCormick, a partner at Campolo, Middleton & McCormick in Ronkonkoma and an officer and CLE lecturer at the Suffolk Academy of Law – the educational branch of the Suffolk County Bar Association – also finds that a diverse cross-section of lawyers are taking many technology and social media programs. These technologies impact every facet of law, he said, from lawyers selecting juries to juries on break using Google to investigate the case.

“It used to be if we had a law suit, I would ask the other side to give me all the paperwork you have on it, and he’d ask the same of me and we’d move on,” said McCormick, who has practiced law for 28 years. “Now you have privacy issues: what to do with a person’s cell phone and text messages and the posts they put on Twitter and Instagram, and that area of law is developing almost every day. So there’s a need for it and lawyers are asking for it.”

Before they retain a client, more lawyers are asking what on their social network pages may come back to undercut or destroy their case. Aiello recalled a case when she was retained to represent a woman whose under-aged niece claimed she pushed her down a flight of stairs. Within a day of her fall, the girl took to social media and made accusations.

“The girl who made the accusation posted on her Facebook account: ‘I’ll show my aunt, that (expletive.) I told the police she pushed me down the stairs even though she was nowhere near me when I fell,’” Aiello recalled. “So attorneys have to be aware of and advise their clients of this, because, we’re really living in a fish bowl now.”

The state deems it essential that attorneys earn CLE credits to continue to practice law, to gain the necessary knowledge and skills to competently represent their clients and to comply with the New York State rules of professional conduct. While state rules do not mandate that attorneys have any level of technological knowledge, the New York State Bar Association declared in its recently revised guidelines that knowledge of how social media works should be a core skill for a state attorney.

“A lawyer cannot be competent absent a working knowledge of the benefits and risks associated with the use of social media,” the instructional guideline states.
Newly admitted attorneys are generally required to take at least 16 credits in each of the first two years of practice, after which they are mandated to take a minimum of 24 credits every two-year cycle. At least four credits must pertain to law and professionalism.

Omid Zareh, a chair of the Nassau County Bar Association’s ethics committee, recently presented a CLE program entitled “Avoiding Ethical Problems in the Internet Age,” which he said was well attended and sparked a lively, spirited discussion on acting ethically online.

“There’s been a tremendous amount of interest for these types of things,” said Zareh, who suggested the ubiquitous uses of smart phones are primarily driving this trend.

Among the issues raised at CLE programs that Zareh has hosted pertain to the appropriate professional use of Facebook and Twitter and representing oneself as a specialist, when there are specific guidelines about this.

“If you’re saying you’re a specialist without actually having gotten a specialty from a recognized entity, then you’re really just saying: I think I’m a specialist and I’m just going to tell you I am,” he said.

Another hot topic is third-party endorsements on LinkedIn, the professional networking site, and whether attorneys should leave or take down those that don’t pertain to what they do. The state bar’s other new or expanded guidelines posit that attorneys should take responsibility for the accuracy of third-party endorsements posted on their social networking profiles and to correct misleading or inaccurate information.

“A lawyer may not passively allow misleading endorsements as to her skills and expertise to remain on a profile that she controls, as that is tantamount to accepting the endorsement,” the report reads.

http://libn.com/2015/07/06/lawyers-are-taking-to-tech/

CMM Welcomes Marc Alessi

Posted: July 10th, 2015

Campolo, Middleton & McCormick is pleased to announce that Marc S. Alessi has joined the firm Of Counsel and will be a member of our corporate and real estate practice groups, assisting small to mid- sized companies and the entrepreneurs that run them.

Mr. Alessi has a history of public service on Long Island and in New York State, having served as a member of the New York State Legislature and as a Board Member of the Long Island Power Authority. He was elected to the New York State Assembly in 2005 and served for three terms, representing the First Assembly District, which included the Towns of Brookhaven, Riverhead, Southold, and Shelter Island.

He is also well known as an entrepreneur on Long Island, having helped to launch and finance a number of early stage companies across a diverse set of industries. Mr. Alessi himself has founded a number of companies in the biotechnology sector, the IT sector, and in construction and real estate.

He is a founding member of the Hampton’s Angel Network, and a member of the Long Island Angel Network, having previously served as their Executive Director and on their Board as well. Mr. Alessi helped to establish Accelerate Long Island, and now serves as Chairman and Founding CEO of one of their portfolio companies, SynchroPET.

Mr. Alessi is currently a member of the Board of Directors of the Peconic Bay Medical Center in Riverhead and the East End Arts Council. He also serves on the Board of Advisors for Nassau Suffolk Law Services, a not-for-profit that provides civil legal services to the poor.

“The CMM team is excited to have Marc working with us,” said managing partner, Joe Campolo. “As both a reputable attorney and a successful entrepreneur, his experience and knowledge will further strengthen and expand our ability to serve our clients.”

Marc is a resident of Shoreham, NY.

About Campolo Middleton & McCormick, LLP

CMM is Suffolk’s County’s premier full-service law firm, located in Ronkonkoma and Bridgehampton, with the expertise and experience to represent clients with every legal need they may face. We have an established record of results for our clients, who range from individuals to global companies, and approach each matter with a unique understanding of the issues and the highest level of integrity. Learn more at www.cmmllp.com.

Pharmaceuticals in our Waters

Posted: July 8th, 2015

Tags: environmental law, healthcare

Published in the Hauppauge Reporter

On May 28, 2015, the HIA-LI Environmental/Green Industries Committee presented a well attended program entitled “Pharmaceuticals in Our Waters”. The program was held at the Education Center of the Suffolk County Water Authority in Hauppauge and was followed by a tour of the lab facility where the Authority does its water testing.

The disposal of pharmaceuticals is a growing area of concern in our over-medicated society. According to Adrienne Esposito, Director of the Citizens Campaign for the Environment, nearly 4 billion prescriptions are filled in the US each year, of which about one third or 200,000 pounds are unused. Trace amounts of these drugs enter our surface and ground waters from various sources, including landfill leachate, animal feedlots, aquaculture, land application of organic materials, pharmaceutical manufacturing facilities, and deliberate flushing. Most ubiquitous of all, the pharmaceuticals pass through our bodies and are secreted, ending up in cesspools and sewage treatment plants, neither of which are equipped to filter or treat them. Studies relating to the impacts of these substances and of personal care products are still few and far between. However, according to Douglas Feldman, Chief of the Office of Water Resources of the Suffolk County Health Department, some of these compounds are known to mimic naturally occurring hormones and affect normal hormone activity. A limited number of studies have reported disruptions of the endocrine system in animals and the “feminization” of fish.

Scott J. Stoner, Melissa Treers and Bill Ottaway from the Albany office of the New York State Department of Environmental Conservation (DEC) gave an overview of current regulations applicable to pharmaceutical disposal. The DEC has focused its efforts on a public awareness program advising people not to flush their unused or expired medications. Instead, the public is urged to return them to collection events, where available, or mix them with something such as coffee grounds, cat litter or dirt, seal them in containers, and put them in the garbage. In addition, people can bring their unused medications and deposit them in drop boxes installed in police stations statewide or to municipal collection events. A new option for Long Island residents is to bring the drugs to local King Kullen pharmacies, which accept everything, except for controlled substances. (Use this link to find participating police and supermarket locations: http://www.citizenscampaign.org/campaigns/pharmaceutical-disposal/nassau-suffolk-locations.asp) According to Ms. Esposito, about half a million pills were collected in the first five months of the King Kullen program, and a recent grant will enable the store to continue it for the next three years.

Pharmacies and hospitals usually send back their unused or expired medications to reverse distributors. However, if the drugs have the characteristics of hazardous substances (e.g. warfarin, nicotine, alcohol, mercury, acids) and are classified as waste, then the State hazardous waste regulations apply to their disposal. Last year, the DEC created an audit program for pharmacies, allowing them 12 to 18 months to come into compliance and deferring inspections and enforcement. In addition, new hazardous waste regulations from the U.S. Environmental Protection Agency are expected to be issued in this month.

A separate effort is being made for the collection of unused medications from long-term care facilities, such as nursing homes. For a long time, the preferred method of disposal was flushing. In fact, it is still approved for controlled substances by the New York State Department of Health, Bureau of Narcotic Enforcement (BNE). This is because BNE imposes restrictions on the movement of narcotics, and nursing homes may not return them to the pharmacies that issued them or dispose of them as solid waste, but rather, are required to render them totally “unrecoverable and beyond reclamation”. In recent years, there has been an effort to curtail the practice of flushing. The Department of Justice, Drug Enforcement Administration (DEA) used to conduct bi-annual collection events for controlled substances, ie. narcotics. Unfortunately, these have recently been discontinued. The DEC has picked up where the DEA left off, organizing special collection events. The first such event on Long Island took place in February 2015, yielding 52 boxes of waste medications collected for proper disposal by DEC’s Region 1 environmental enforcement personnel. A more permanent solution is expected to come soon when BNE issues regulations implementing the October 2014 rules of the DEA. These rules expand disposal options for ultimate users, such as long term care facilities, by allowing them to participate in mail back programs or other methods for the return of unused drugs.

The Suffolk County Health Department, which collects water samples from public and private wells and from groundwater monitoring wells, currently analyzes for about 30 pharmaceuticals and personal care products. To date, 25 of these have been detected in very small concentrations (less than 1 microgram per liter), with the most detections being in private wells. Currently, there is no regulatory standard for these compounds, so the standard applied is the catch-all 50 parts per billion for unregulated contaminants, explained Amanda Comando, of the Suffolk County Water Authority (SCWA). The SCWA, which operates 550 wells, currently tests for 26 pharmaceutical compounds of concern and hopes to expand the list to 47 by the middle of this year.

In the tour of the lab facility that followed the presentations, participants were shown how water samples taken from SCWA’s 550 wells are analyzed for a variety of possible pollutants. Chlorine is used to treat bacteria and carbon filters to remove other types of contaminants in affected wells. The SCWA spends about $3.5 million on water treatment.

A lot of questions still remain unanswered. What are the cumulative impacts on animals, fish and humans of trace levels of pharmaceuticals in our surface waters and in drinking water? Should there be specific standards? What about compounds for which there is no current testing? How can the efforts of individual groups and municipalities be combined for greater efficiency and impact? What filters or treatment methods are being developed to purify the water for human use? Hopefully, some of these questions will be answered as more public attention is focused on this emerging health issue.

Pharmaceutical Disposal – A Work in Progress

Posted: July 8th, 2015

Published In: null

Tags: environmental law, healthcare

Printed in the Suffolk Lawyer

The disposal of pharmaceuticals is a growing area of concern in our over-medicated society. According to Citizens Campaign for the Environment, nearly 4 billion prescriptions are filled in the U.S. each year, of which about one third, or 200,000 pounds, are unused. Trace amounts of these drugs enter our surface and ground waters from various sources, including landfill leachate, animal feedlots, aquaculture, land application of organic materials, pharmaceutical manufacturing facilities, and deliberate flushing. Most ubiquitous of all, the pharmaceuticals pass through our bodies and are secreted, ending up in cesspools and sewage treatment plants, neither of which are equipped to filter or treat them. Studies relating to the impacts of these substances and of personal care products are still few and far between. However, according to Douglas Feldman, Chief of the Office of Water Resources of the Suffolk County Health Department, some of these compounds are known to mimic naturally occurring hormones and affect normal hormone activity. A limited number of studies have reported disruptions of the endocrine system in animals and the “feminization” of fish.

At this time, there are no mandatory regulations requiring any particular method of pharmaceutical disposal by members of the public. The New York State Department of Environmental Conservation (DEC) has focused its efforts on a public awareness program advising people not to flush their unused or expired medications. Instead, the public is urged to return them to collection events, where available, or mix them with something such as coffee grounds, cat litter or dirt, seal them in containers, and put them in the garbage. In fact, pursuant to New York’s Drug Management and Disposal Act of 2009, pharmacies, retail businesses that sell drugs, and veterinary offices are required to conspicuously display a poster to this effect. In addition, people can bring their unused medications and deposit them in drop boxes installed in police stations statewide or to municipal collection events. The current process for getting approval for a household pharmaceutical collection event is somewhat cumbersome. The DEC requires an applicant to fill out three forms identifying the location, date and time of the event, the law enforcement presence, a chain of custody from collection through destruction and pre-approval for destruction via a witnessed burn at a permitted medical solid waste combustion facility in New York State. The program requires the further approval of the New York State Department of Health, Bureau of Narcotic Enforcement (BNE) and notice to the U.S. Department of Justice Drug Enforcement Administration (DEA). After the event, the organizer must submit to DEC a chain of custody report and another form which reports the weight of pharmaceuticals collected. See 6 NYCRR 373-4 et seq. ; http://www.dec.ny.gov/chemical/68554.html. The DEC is considering new regulations to streamline this process.

A new option for Long Island residents is to bring the drugs to 11 local King Kullen pharmacies, which accept everything, except for narcotics (use this link to find participating police and supermarket locations: http://www.citizenscampaign.org/campaigns/pharmaceutical-disposal/nassau-suffolk-locations.asp). About half a million pills were collected in the first five months of the King Kullen program and sent to a hazardous waste incinerator in Texas. A recent grant will enable the store to continue the program for the next three years.

Pharmacies and hospitals usually send back their unused or expired medications to reverse distributors. However, if the drugs have the characteristics of hazardous substances (e.g. warfarin, nicotine, alcohol, mercury, acids) and are classified as waste, then the State hazardous waste regulations apply to their disposal (6 NYCRR Parts 364, 370-373). Last year, the DEC created an audit program for pharmacies, allowing them 12 to 18 months to come into compliance and deferring inspections and enforcement. See http://www.dec.ny.gov/docs/remediation_hudson_pdf/rcraaudits12182014.pdf. In addition, new hazardous waste regulations from the U.S. Environmental Protection Agency are expected to be issued in this month.

A separate effort is being made for the collection of unused medications from long-term care facilities, such as nursing homes. For a long time, the preferred method of disposal was flushing. In fact, it is still approved for controlled substances by BNE. This is because BNE imposes restrictions on the movement of narcotics, and nursing homes may not return them to the pharmacies that issued them or dispose of them as solid waste, but rather, are required to render them totally “unrecoverable and beyond reclamation” (10 NYCRR Part 80). In recent years, there has been an effort to curtail the practice of flushing. The DEA used to conduct national collection events for controlled substances, ie. narcotics. Unfortunately, these have recently been discontinued. The DEC has picked up where the DEA left off, organizing special collection events. The first such event on Long Island took place in February 2015, yielding 52 boxes of waste medications collected for proper disposal by DEC’s Region 1 environmental enforcement personnel. A more permanent solution is expected to come soon when BNE issues regulations implementing the October 2014 rules of the DEA. These rules expand disposal options for ultimate users, such as long term care facilities, by allowing them to participate in mail back programs or use collection receptacles by DEA approved pharmacies for the return of unused drugs.

The Suffolk County Department of Health Services (SCDHS), which collects water samples from public and private wells and from groundwater monitoring wells, currently analyzes for about 30 pharmaceuticals and personal care products. To date, 25 of these have been detected in very small concentrations (less than 1 microgram per liter), with the most detections being in private wells. At this time, there is no regulatory standard for these compounds, so the standard applied is the catch-all 50 parts per billion for unregulated contaminants. According to Amanda Comando of the Suffolk County Water Authority (SCWA), the SCWA, which operates 550 wells, currently tests for 26 pharmaceutical compounds of concern and hopes to expand the list to 47 by the middle of this year.

Several legislative initiatives in Suffolk County have begun to address the issue of waste pharmaceuticals. Resolution No. 181-2011 requires hospitals, nursing homes, and long term-care facilities to file a written plan with the SCDHS for the disposal of unused or expired medications in a safe manner. Resolution No. 762-2008 established a program which allows residents to deposit unused/expired medications County police precincts 24 hours a day, 7 days a week. A companion program uses a ¼% sales tax to support the collection of unused medications for the five East End towns.

A lot of questions still remain. What are the cumulative impacts on animals, fish and humans of trace levels of pharmaceuticals in our surface waters and in drinking water? Should there be specific standards? What about compounds for which there is no current testing? How can the efforts of individual groups and municipalities be combined for greater efficiency and impact? What is the proper balance between ensuring that narcotic drugs do not get into the wrong hands and convenient disposal alternatives that are also safe for the environment? What filters or treatment methods are being developed to purify the water for human use? Hopefully, some of these questions will be answered as more public attention is focused on this emerging health and environmental issue.

It’s Time to Stop Complaining and Get Back to Work. Who’s with Me?

Posted: July 8th, 2015

By: Joe Campolo, Esq. email

Published In: HIA-LI Reporter

Tags: management

Lately, when I attend local business meetings, I hear complaints about the economy, or trouble attracting high-paying customers, or a lack of skilled workers, or workers who are not pulling their weight, or taxes as reasons for that person’s business not doing well. It’s time for Long Island business leaders to realize that we – not the government or anyone else – are responsible for the future of work and life on Long Island. We must take action to cherish and protect the amazing ecosystem of resources available to the business community here on Long Island, instead of merely complaining and wishing for something to change – what my friend Rich Isaac calls “smoking the Hopeum Pipe.” As my grandmother would have said: “It’s time to spit out the pacifier and get back to work.”

My grandmother grew up during the depression. She raised my father on her own by working long days as a seamstress, where she was paid pennies for each garment she sewed. She didn’t watch the clock, instead she knew it was time to stop working when her fingers were raw and bleeding from being struck by the sewing needle. She never complained or blamed anyone else. Eventually she earned enough money to purchase a Brooklyn brownstone. Some people say that it’s more difficult today. I don’t think that my grandmother would agree – I don’t either.

It’s absolutely true that we have been through a terrible economic period and many industries are still trying to recover. We have also suffered from big storms and a long winter. And it’s also true that new industries and technologies have disrupted older industries. But that’s the story of Long Island and Long Island businesses. It was built by responding to challenges with new ideas. In fact, “Built on Long Island” should become a badge of honor and a goal, not an afterthought.

Long Island business leaders have access to better resources than almost anywhere else in the country. We have an educated, world-class workforce and access to dozens of universities, four-year colleges, community colleges and technical institutions. We have great natural resources. We enjoy both a sound and an ocean to provide year-round access to public beaches and beautiful views. We have the busiest commuter railroad in North America, multiple public and private airports and we are connected by bridge and tunnel to the center of commerce for most of the world. We have the ability to take our own ideas and monetize them with access to capital and other resources that other people only dream about. All we have to do, as Long Island business leaders, is accept responsibility and take action to grow our businesses and train our employees. Here are two starting points:

First, align yourself and your business with other growth-oriented business leaders. That means seeking out like-minded business leaders here on Long Island who have the same dreams and aspirations as we do for changing the cult of negativity into a positive force for business transformation. It might be difficult, you may need to stop doing business with the naysayers and complainers. My grandmother would have said, “Stop hanging around with those boys, they’re nothing but trouble” and she would have been correct. Instead look for business groups and organizations who have a vested interest in seeing all of their members become strong leaders. They are there, I promise, if you just look.

Second, keep in mind something that Napoleon Hill wrote in his book Think and Grow Rich, about how to accomplish any goal: “The starting point of all achievement is desire. Keep this constantly in mind. Weak desire brings weak results, just as a small fire makes a small amount of heat.” If you want to change the future for Long Island, you can’t stand by and be meek about it. We are the keys to Long Island’s future and it is time to stop complaining and get back to work, smarter and harder, to build our future.

Who’s with me?

Joe Campolo is a Long Island Business leader. He is managing partner of Campolo, Middleton & McCormick and Chairman of Protegrity Advisors, LLC. He is a proud former U.S. Marine and sits on the board of directors for HIA-LI, The Long Island Red Cross and other local non-profit organizations.