Articles Posted in Miscellaneous

For those around the country who don’t know, Florida has just lost it’s 3rd or 4th commissioner of education in less than 3 years under Governor Rick Scott. The latest to resign held the same position in Indiana and was recruited by Scott for his right-wing bona fides, in particular, believing in the notion that taxpayer dollars should be paid to private entrepreneurs to build and run Charter Schools. Not surprisingly, the guru of the concept is none other than Jeb Bush. To the Jeb Bushes of the world, conservatism is just another word for funneling taxpayer money to private individuals. Florida now has private prisons. It’s a huge industry … but it needs bodies to make money. Not only will these folks be resisting efforts to decriminalize marijuana, they’ll be pushing for stiffer prison sentences for other offenses. Bodies = $$$$$$.

Read the article reproduced below, written by Fred Grimm, South Florida’s top watchdog reporter, to get a flavor for the scam.

Fred Grimm: Tony and Tina Bennett’s school for conflicts

By Fred Grimm
fgrimm@MiamiHerald.com

Tony Bennett slunk away from his job as Florida commissioner of education, leaving us with an ever-deepening distrust of a school-reform movement dominated by for-profit education conglomerates and big-money political donors.

He left after just seven months on the job, muttering that he had been undone by “malicious and unfounded” news stories coming out of Indiana.

He wasn’t. He was undone by a grade-fixing scandal of his own making back when he was Indiana superintendent of education (until unhappy voters tossed him out of office in November). He lost his job in Florida because, in his previous incarnation, he manipulated the statewide grading formula to fabricate an A rating for a K-10 charter school in which two-thirds of the high school classes flunked algebra, while 30 percent failed English.

“It is absurd that anyone would believe that I would change the grade of a school based on a political donor or based on trying to hide a school from accountability,” Bennett told reporters. But Bennett and his staffers left an email record last September indicating he did just that.

The education chief hanged himself with his own words and those of his staffers, who spent nine frantic days finagling the state grading formula, searching for a fix for that unacceptable C scored by Christel House Academy. Looking, as one of his staffers put it so succinctly, for that magic “loophole.” For obvious reasons. The charter school was the namesake of founder Christel DeHaan, who also happened to have donated $2.8 million to the Indiana Republican Party and, more importantly, $130,000 to the superintendent’s own political campaigns.

Bennett, an apostle of Jeb Bush’s corporate-financed school reform movement and rigid common-core testing standards, had gone around the state citing Christel House as an example of the superiority of charter schools over funky, conventional public schools. Unhappily, as Bennett’s chief accountability officer (something of a misnomer) noted, Christel’s 10th-graders had registered “terrible” scores on their statewide algebra test. Only 33 percent passed. He reacted like a high school football coach whose star player had flunked math. Something had to be done.

Ultimately, Bennett and his staffers simply erased the lowly ninth- and 10th-grade results altogether and reconfigured the results for Christel DeHaan’s school using only elementary and middle school scores. It worked swimmingly — until last week, when The Associated Press unearthed those self-incriminating emails. (Nor did it help that the Indianapolis Star reported that in 2011 the superintendent of Indianapolis’ public schools had begged Bennett to grant a similar waiver for a couple of inner-city public schools. No dice. Bennett had ignored the super’s pleas and dished out failing grades to the two no-account schools.)

By Thursday, Bennett was gone. Ousted in Florida because of his shenanigans in Indiana. The grade-fixing scandal had stripped him of the moral clout necessary to force yet another high-stakes testing regime onto Florida public schools and to peddle the notion that charter schools are the big fix for Florida’s education woes.

But Florida citizens had another reason to doubt Bennett’s objectivity when it comes to charter schools. The Indianapolis Star reported last week that his wife, Tina Bennett, was hired in June by Fort Lauderdale-based Charter Schools USA. It was another of those sweet, moneyed coincidences in Bennett public service. In 2011, he had awarded this very same company nice fat contracts to take over two failing high schools and a middle school in Indianapolis. (One of those schools, T.C. Howe High School, happened to be one of those two schools that had requested but were refused the same kind of waiver granted Christel House last September. Such a small world.) And Charter Schools USA has become one of the big players in the Florida rush to charters.
Continue reading

In our experience of representing individuals with practically every type of injury, we have learned that few injuries are more common — second to back pain — painful, and debilitating than rotator cuff tears.

The rotator cuff is made up of 4 tendons that cover the top of the humerus. A rotator cuff injury involves a tear to one or more of these tendons. Tears can be full or partial thickness.

Tears can be acute, when a sudden force (blunt or overstrain) is applied to the shoulder, or chronic, which is deterioration over a long period of time. Common symptoms of acute tears include a tearing sensation, sudden pain, and sudden weakness. The symptoms of chronic tearing include gradual progression of shoulder pain and weakness, and difficulty sleeping on the affected side.

Rotator cuff tears are diagnosed clinically, by the orthopedist through examination, and by MRI. The best type of MRI to accurately diagnose the presence of a rotator cuff tear is the MRI arthrogram.
Continue reading

Our previous blog addressed the procedure for satisfying Medicaid’s lien from money received in Florida personal injury cases from liable third parties.The present blog will focus on satisfying Medicare’s lien from third party proceeds. The leading case on the issue is Hadden v. United States, 661 F.3d 298 (6th Cir. 2011).

Medicare and Medicaid are federal programs that provide medical insurance to various classes of individuals. Medicare is for qualified elderly and disabled persons, see 42 U.S.C., §§1395 et.seq., Medicaid is for individuals who cannot afford to pay their own medical costs. See 42 U.S.C. §§1396 et seq. Both programs aim to make themselves only secondary payers as to medical expenses for which some other entity (e.g., a tortfeasor) bears responsibility. Medicare — 42 U.S.C. § 1395y(b)(2), Medicaid — 42 U.S.C. §§ 1396a(a)(25)(A), (B), (H). Hence, the need for personal injury lawyers to know each programs’ lien laws.

In Hadden, Medicare paid more than $80,000 for medical care on behalf of Hadden for injuries he sustained in an accident. Hadden subsequently settled a personal injury claim with a tortfeasor for $125,000. After subtracting a portion of the attorneys’ fees that Hadden himself had paid to obtain the settlement, see 42 C.F.R. § 411.37, Medicare determined that Hadden owed it $62,338.07. Hadden argued that the case settled for 10% of its actual value, therefore, Medicare’s recovery should be limited to a proportional 10% of its outlay, or slightly more than $8,000. The 6th Circuit disagreed.

42 U.S.C. §1395y(b)(2)(B)(ii) provides:

A primary plan, and an entity that receives payment from a primary plan, shall reimburse the appropriate Trust Fund for any payment made by the Secretary under this subchapter with respect to an item or service if it is demonstrated that such primary plan has or had a responsibility to make payment with respect to such item or service. A primary plan’s responsibility for such payment may be demonstrated by a judgment, a payment conditioned upon the recipient’s compromise, waiver, or release (whether or not there is a determination or admission of liability) of payment for items or services included in a claim against the primary plan or the primary plan’s insured, or by other means.

The Court interpreted the word “responsibility” to mean the amount the recipient claimed was due from the tortfeasor, rather than a compromised amount he or she receives from the tortfeasor. In other words, the beneficiary’s obligation to reimburse Medicare is “defined by the scope of his own claim against the third party.” In the Court’s view, “a beneficiary cannot tell a third party that it is responsible for all of his medical expenses, on the one hand, and later tell Medicare that the same party was responsible for only 10% of them, on the other.”
Continue reading

Not infrequently, Medicaid will step up and cover the medical expenses of persons severely injured in accidents before other sources do so. This is commendable. However, where the Medicaid recipient is subsequently compensated by a third party for damages sustained in the accident, Florida Statute 409.910 says that Medicaid must be reimbursed from the proceeds.

How the statutory formula is applied has been the subject of appeals both in Florida and in other states (other states have similar statutory provisions). The many opinions have created some confusion. This blog attempts to clarify the law in Florida.

First, a basic understanding of the Medicaid system is in order. A good explanation comes by way of EMA ex rel. Plyler v. Cansler, 674 F. 3d 290 – Court of Appeals, 4th Circuit 2012.

The Medicaid program, launched in 1965 with the enactment of Title XIX of the Social Security Act, as added, 79 Stat. 343, 42 U.S.C. §§ 1396-1396v, is a cooperative program by which the federal government pays a percentage of the costs a state incurs for medical care for individuals who cannot afford to pay their own medical costs. [Arkansas Dept. of Health and Human Servs.] v. Ahlborn, 547 U.S. at 275, 126 S.Ct. 1752. Although states are not required to provide Medicaid assistance, all 50 states currently do. Id. In exchange for receiving federal financial support for state-run Medicaid programs, states must comply with federal Medicaid laws, including statutory third-party liability requirements, 42 U.S.C. §§ 1396a(a)(25)(A), (B), (H); 1396k, and anti-lien provisions, id. §§ 1396a(a)(18), 1396p.

States providing Medicaid assistance must comply with several provisions concerning third-party liability. For instance, states are required to “take all reasonable measures to ascertain the legal liability of third parties … to pay for care and services available under the [State’s Medicaid] plan.” 42 U.S.C. § 1396a(a)(25)(A). In addition to this identification requirement, the state agency administering the Medicaid program … must seek reimbursement for medical assistance to the extent of such legal liability. Id. § 1396a(a)(25)(B). In order to secure its reimbursement from liable third parties, the state must,

Continue reading

The elements of defamation are that the Defendant published a false statement, that the statement was communicated to a third party, and that the Plaintiff suffered damages as a result of the publication. Axelrod v. Califano, 357 So.2d 1048 (Fla. 1st DCA 1978).

In some instances, a qualified privilege exists in the communication. For the communication to be privileged, it “must be made by a person having a duty or interest in the subject matter, to another having a corresponding duty or interest.” Axelrod at 1051. The nature of the duty or interest may be public, personal or private, either legal, judicial, political, moral, or social. It need not be one having the force of a legal obligation; it may be one of imperfect obligation. The interest may arise out of the relationship or status of the parties. Leonard v. Wilson, 150 Fla. 503, 8 So.2d 12 (1942). It is called a qualified or conditional privilege, because the libelous statement must be made in good faith, that is, with a good motive, and not for the purpose of harming the subject of the defamation. Drennen v. Washington Electric Corp., 328 So.2d 52, 55 (Fla. 1st DCA 1976).
Continue reading

There are numerous procedural, substantive, and even attitudinal differences in the way civil cases are handled between State and Federal Courts. The differences can determine the outcome of a case.

In many instances, the line is sharp over which court system has jurisdiction, leaving little to no choice over which system will get the case. In others, however, legal maneuvering can dictate where a case will land. It is important, therefore, for lawyers to fully understand the factors that determine the outcome.

Given the significance of the outcome, parties to legal proceedings have always tussled over the jurisdiction issue, spawning a plethora of statutes and case law. Ironically, the many statutes and opinions on the subject have to a degree created more confusion than clarity.
Continue reading

Obviously, medical records are important for many reasons. They do not come without a price.

Florida Statute Section 456.057 is titled “Ownership and Control of Patient Records; Report or Copies of Records to be Furnished,” and it defines the owner of medical records as the health care practitioner who generates a medical record after essentially performing an examination of a patient. The owners sell copies of their records to those who request them.

The cost of copies is controlled by 456.057 and Rule 64B8-10.003 of the Florida Administrative Code. A plain reading of Rule 64B8-10.003 makes it clear that the cost of medical records is determined by the status of the person making the request.
Continue reading