DEDICATED TO LEGAL EXCELLENCE SINCE 1908 website: www.scba.org

SUFFOLK LAWYERTH

E

THE OFFICIAL PUBLICATION OF THE SUFFOLK COUNTY BAR ASSOCIATION

_________________By A. Craig Purcell

The New York State Legislaturerecently passed an act amending theGeneral Obligations Law as it pertains tothe parties to the settlement of tortclaims. The bill, which was signed intolaw on November 13, 2013 by GovernorCuomo, eliminates certain health careinsurance company liens, reimburse-

ments and subrogation claims.The legislation, long supported by the

New York State Bar Association, adds anew subdivision four to GOL 5-101 andamends Section 5-335. The present leg-islation is intended to protect all partiesto the settlement of a tort claim fromliens asserted by health insurance com-panies which were organized and existunder federal ERISA law. Oddly, it cov-

ers only settlements,and not judgments.

The legislation wasprompted by the con-tinued insistence byERISA plans thatthey have the right toassert liens or rightsof subrogation forreimbursement ofmedical expensesthey have paid injured parties who thengo on to successfully prosecute bodilyinjury claims. In 2009 the legislatureenacted the current General ObligationsLaw Sections 5-101 and 5-335 in order toprotect injured parties from such claims.However, ERISA plans have continued toassert their right to reimbursement, andfederal courts in other states that havesimilar legislation continued to rule thatstates cannot trump the federal legisla-tion under which ERISA plans were setup (see, e.g., Rice v. Panchal, 65 F.3d637, 644-45 (7th Cir. 1995), Arana v.Ochsner Health Plan, 338 F.3d 433 (5th

Cir. 2003), Levine v. United HealthcareCorp., 402 F.3d 156 (3d Cir. 2005). (Seearticle in the November, 2013, SuffolkLawyer, by Paul Devlin, Esq. with

BAR EVENTS

New Law Limits Liens of Insurance CompaniesFormed Under Federal ERISA

PhotobyBarry

Smolow

itz

SCBAmember Raymond B. Lang, a foreclosure volunteer has been involved in the pro-gram since its inception and is very valuable to the association. More photos on page 15.

SCBA Offers Pro Bono Refresher

INSIDE…JANUARY 2014

FOCUS ON

COMMERCIAL LITIGATION

Computer Fraud and Abuse Act ...... 6

Valuing a Closely Held Business ... 8

Irreparable Harm.. .......................... 8

Law Office Failure .......................... 9

Demand Futility Analysis................ 6

______________________________

Legal Ethics and Social Media........ 3

Meet your SCBA Colleague............ 3

SCBA photo album .................. 14-15

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Legal Articles

American Perspectives .................. 17

Bench Briefs .................................... 4

Consumer Bankruptcy................... 12

Court Notes ..................................... 5

Education....................................... 10

Health and Hospital....................... 11

Landlord Tenant ............................ 12

Pro Bono.......................................... 5

Real Estate..................................... 13

Tax ................................................. 21

Trusts and Estates (Cooper) .......... 10

Trusts and Estates (Harper) ............21

Vehicle and Traffic ........................ 17

Views from the Bench..................... 4

Who’s Your Expert ........................ 16

______________________________

Among Us ....................................... 7

Calendar: Academy ....................... 24

Calendar: SCBA .............................. 2

Judicial Swearing-In and RobingCeremonyMonday, Jan, 13, 9 a.m.Touro Law Center, 225 East View Drive, CentralIslipThe annual judicial ceremony of newly appointed andreelected justices and judges hosted by the SCBA. Allare welcome. Refreshments served.

Meet, Greet and MingleThursday, Jan. 23, 6 p.m.Polish Hall, RiverheadPlease join your colleagues for the first evening in a seriesof complementary opportunities to meet, greet, mingle andnetwork. Reservations are a must and can be made byclicking on the link, http://www.scba.org/post/mgm1.pdf.

Cohalan Cares for KidsThursday, Feb. 6, at 6 p.m.Bar CenterThird annual Cohalan Cares for Kids hosted by SCBA incooperation with the Suffolk County Matrimonial Bar,the Long Island Hispanic Bar Association, the SuffolkCounty Women’s Bar and Enright Court Reporting. Thefundraiser will benefit the Cohalan Children’s Center andwill include a night of wine and cheese. $50 pp.

A. Craig Purcell

FOCUS ONCOMMERCIALLITIGATION

SPECIAL EDITION

(Continued on page 20)

Vol. 29 No. 4January 2014

The staff at the SCBA worked very hard to make the annual holiday party aperfect occasion. They include from left, Joy Ferrari, Nicolette Ghiglieri,Tina O’Connor, Jane LaCova, Edith Dixon and Laura Latman.

Behind the Headlines: Immunizations, Religion and SchoolsBy: Candace J. Gomez, Esq.

Immunizations are currently headline news because of the recent rise in the number of measles cases. By early Feb-ruary, the New York State Department of Health (DOH) had confirmed three cases of measles in the state, which prompted the New York State Educa-tion Department (SED) and DOH to issue a joint memo dated February 9, 2015 reminding schools to adhere to state public health laws requiring stu-dent vaccinations.

What laws, regulations and policies apply to school vaccinations?

New York Public Health Law (PHL) §2164 requires parents to vaccinate their children against serious diseases includ-ing, but not limited to, measles, polio, chicken pox and whooping cough. New York Education Law § 914 requires schools to comply with PHL §2164. In addition, Department of Health Reg-ulation 10 NYCRR, Section 66-1.3(d) sets forth the immunization documents that each principal must receive from parents before admitting a child into school. Most school districts have also adopted policies that reinforce the above-mentioned laws and regulations.

Must every student be vaccinated or do exemptions exist?

The state’s vaccination requirements prohibit schools from admitting stu-dents who have not been immunized or allowing them to attend for more than 14 days unless: (1) the child has medical reasons that would cause the immunization to be detrimental to the student’s health and a physician licensed to practice medicine in this

Candace J. Gomez

534 Broadhollow Road, Suite 210Melville, New York 11747

Phone: 631.694.2300 Fax: 631.694.2309

www.lambbarnosky.com

state has certified that the immuniza-tion may be detrimental to the child’s health; or (2) the child’s parents hold genuine and sincere religious beliefs which are contrary to vaccination prac-tices. There is a third exemption which is seldom mentioned because it is rare, but a student may also qualify for an exemption if, in the case of varicella, either a health care provider documents that the child has already had varicella or there is evidence that the child has

immunity to varicella. For the remain-der of this article, we will focus on the second exemption which is also the most common and hotly contested ex-emption – the religious exemption.

Who decides if a parent’s religious beliefs are “genuine and sincere” and how can someone possibly make that decision?

The building principal is responsible for reviewing each request for a reli-gious exemption. SED has recom-mended the following procedure for principals evaluating parental requests for religious exemptions: (1) issue a Request for Religious Exemption to Immunization Form (the “Form”) to parents (SED has created a sample form that may be used by districts); (2) parent returns the signed and nota-rized Form to the school; (3) the build-ing principal reviews the Form and if the principal still has questions, the principal may ask for additional infor-mation and/or supporting documents such as: a letter from an authorized representative of the church, temple, or religious institution attended by the parent; literature from the church, tem-ple or religious institution explaining doctrine/beliefs that prohibit immu-nizations; other writings or sources __________________

1A school principal may extend this

period to 30 days on a case-by-case ba-sis when a student has transferred from another state or country and can show a good faith effort to get the necessary certificate or other evidence of immu-nization.

March 2015

LAMB&BARNOSKY,LLPTRUST. PERSONAL ATTENTION. RESULTS.

Attorney Advertising: Prior Results Do Not Guarantee A Similar Outcome.

(continued)

which the parent relied upon when formulating religious beliefs against immunizations; a copy of any previ-ous statements that the parent gave to healthcare providers or school district officials explaining the religious basis for refusing immunizations; disclosure of whether the parent or other children have been immunized; (4) the parent or principal may request a meeting to provide/obtain further information about the parent’s religious beliefs; (5) the parent must be informed in writing by the building principal regarding the approval or denial of the exemption request and, if the request is denied, the letter must include the specific rea-sons for denial; and (6) if a request for a religious exemption is denied, a par-ent may appeal the denial to the Com-missioner of Education within thirty (30) days of the decision.

If a parent appeals to the Commis-sioner of Education, how does the Commissioner decide who wins?

The school wins in most circumstanc-es where a parent appeals to the Com-missioner based on a denied religious exemption because the parent has the burden of proof. Although it may be difficult for a principal to determine whether a parent’s religious belief is sincere and genuine, if the principal follows the proper procedures and does not make an arbitrary and capri-cious decision, then the Commission-er will usually defer to the principal’s judgment.

However, let’s look at a circumstance where a school lost a Commission-er’s appeal to get a better idea of what not to do. In Appeal of B.O-G on behalf of her son J.G., Decision No. 16,294 (August 29, 2011), the parent informed the assistant principal that she refused to vaccinate her son on re-ligious grounds because she believed

that certain vaccines contained abort-ed fetal tissue which conflicted with her Catholic beliefs. The assistant principal instructed the parent to complete the Form, which the parent did, and on the Form she stated, “It is my sincere religious be-lief that Gods [sic] commandment, ‘Thou shalt not kill’ includes the abort-ing of human fetuses.” Id.

The principal issued a written denial to the parent on the same day that he received the Form stating, “Although some vaccines must be produced in human cell [sic], these cell lines were produced over 40 years ago. The Catholic Church has no formal doc-trine that would exempt Catholics from vaccination. I have included a copy of the statement of the Vatican’s Pontifical Academy with respect to this issue.” Id.

Before making his determination, the principal did not request any addition-al information from the parent. The Commissioner stated that, “While school officials are not required to simply accept a statement of religious belief without some explanation, they should not simply reject a statement without further examination.” Id.

The principal’s failure to request ad-ditional information before making his determination did not help the school’s case.

However, another element that ap-peared to be very dispositive was the school district’s failure to submit an answer to the parent’s petition. In-stead of submitting an answer, the school’s attorney sent a letter stating that the school declined to answer the petition and would rely on the princi-pal’s statement on the denial form. In response, the Commissioner deemed

all of the factual allegations in the par-ent’s petition to be true, he found that the parent met her burden of proving that her opposition to vaccinations was based on sincerely held religious beliefs, and he found that the princi-pal’s determination was arbitrary and capricious. Id. If there is one lesson that school attorneys can learn from this appeal, it would be to answer the petition.

Is there a recent case that school attorneys should review concerning vaccinations?

In a recent case decided on January 7, 2015, Phillips v. City of New York, the Second Circuit upheld the consti-tutionality of New York’s mandatory vaccination requirement for public school students. No. 14--2156--CV, 2015 WL 74112. In Phillips, the parents argued that the state’s vacci-nation requirement violated their sub-stantive due process rights, the Free Exercise Clause of the First Amend-ment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment. Nevertheless, the Second Circuit affirmed the district court’s order upholding vaccinations.

NOTE: Candace J. Gomez is an at-torney with the law firm of Lamb & Barnosky, LLP in Melville. She prac-tices in the areas of education law and civil litigation. Ms. Gomez is a mem-ber of the Suffolk County Bar Associ-ation and also serves as a member of the New York State Bar Association’s President’s Committee on Access to Justice. Ms. Gomez is also the Nassau County President of the Long Island Hispanic Bar Association. Follow her at http://nyedulaw.com and https://twitter.com@nyedulaw.

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