Elder Law: Great Programs Bring In The New Year

By Debra Dandar

As we begin a new year, we would like to update you on our final meetings of 2014 and our first meeting of 2015, as well as keep you informed about the exciting speakers we have lined up until the summer break.  

Our November luncheon speaker was Diane Daniels, owner of Senior Advocates for Medicare & Medicaid, LLC, who addressed issues concerning Medicare coverage. We had a good turnout, including financial advisors and non-elder law attorneys. We all walked away with a deep appreciation for Diane’s expertise and learned tips regarding the intricacies of Medicare coverage.  

Our December 12 speaker was Laura Penley, district long-term care ombudsman, who provided us with an overview of nursing home residents’ rights and armed us with knowledge and resources to carry out zealous advocacy on behalf of our clients.

On February 5, Travis Finchum, a co-trustee of Guardian Pooled Trust, will instruct us on SSI rules and lesser-known Medicaid programs such as QMB, SLMB, QI1, and Medically Needy.  Travis also will answer questions regarding special-needs trusts. 

On March 13, April Hill and Javier Centonzio will give us an insider’s overview of the VA health care system, as well as VA Pension and Aid and Attendance, service-connected compensation, and other VA benefits. April Hill, of Hill Law Group, is a frequent lecturer on these topics, and Javier Centonzio, also of Hill Law Group, is a former clerk for the Federal Court of Appeals for Veterans’ Claims.

On April 23, Tae Kelley Bronner, a renowned expert on the subject of homestead, will be the speaker for a joint luncheon between our section and the Real Property, Probate & Trust Law Section and provide us with a review of the relevant law regarding the constitutional homestead exemption from claims of creditors and the impact of trusts on the availability of that exemption.

Each luncheon qualifies for one hour of CLE credit and provides the opportunity to visit and network with elder law attorneys and other professionals. Networking begins at 11:30 a.m., with luncheons beginning at noon. All luncheons are held in the Chester H. Ferguson Law Center.

So please join us at our meetings, and as always, if you have suggestions or ideas or would like to submit an article for publication in the Hillsborough County Bar Lawyer magazine, please contact Elizabeth P. Allen ― eallen@gibblaw.com or (813) 877-9222 ― or Debra L. Dandar ― Debra.Dandar@TampaBayElderLawCenter.com  or (813) 282-3390.  

We look forward to seeing you and wish each of you a very happy, healthy, and successful 2015!

Nominations Sought For Thirteenth Circuit Pro Bono Awards

"Go into the world and do well. But more importantly, go into the world and do good." - Minor Myers

Good work is always a reward in itself. But at the 2015 Thirteenth Judicial Circuit Pro Bono Awards, attorneys will also receive recognition for their time and dedication to pro bono work in Hillsborough County.

Do you know someone who has lent a legal hand to help those in need? The Thirteenth Judicial Circuit Pro Bono Committee and Bay Area Legal Services Volunteer Lawyers Program are seeking nominations for the Thirteenth Judicial Circuit Pro Bono Awards, which will be presented April 23 at the Chester H. Ferguson Law Center.

Nominees are being sought in the following categories:
- Outstanding Pro Bono Service by a Lawyer
- Outstanding Pro Bono Service by a Young Lawyer (36 years or younger)
- Outstanding Pro Bono Service by a Paralegal
- Outstanding Pro Bono Service by a Law Firm
- Outstanding Pro Bono Service by an Organization
- Jimmy Kynes Pro Bono Service Award

For more information or to nominate someone, please review the nomination form.

Please submit your nomination form(s) by February 17 to Rachel May Zysk at RZysk@SuarezLawFirm.com.

Diversity Committee: Tampa Hispanic Bar Association Grows In Community

By Luis E Viera

Though we have many wonderful voluntary Bar associations, few are as unique as the Tampa Hispanic Bar Association (THBA), and few are as uniquely Tampa.

In 2006, a group of attorneys, including THBA founding President Luis "Tony" Cabassa, met at the old Valencia Gardens Restaurant on West Kennedy Boulevard to found the THBA, which would grow to more than 100 active dues-paying members. For me, three facts make the THBA unique.

First is the THBA’s community involvement. The THBA’s monthly Spanish Family Forms Clinic, presently led by board member Karla Faviola Gonzalez-Acosta, assists Spanish-speaking individuals, free of charge, with family law form packets. For these efforts, the THBA was awarded our Circuit’s Pro Bono Service Award (2011) and the Florida Supreme Court’s Statewide Voluntary Bar Association Pro Bono Award (2013). Also, there is the THBA Court Interpreter Program for pro-se litigants, which provides free court-certified interpreters, and the annual college scholarship program.

Second is our diverse leadership. There is Immediate Past President Victoria Cruz-Garcia, whose father served in the Puerto Rican 65th Infantry Regiment in the Korean War; President Miriam Velez-Valkenburg, a former Drug Enforcement Agent in intelligence and litigator; and President-Elect Vivian Cortes Hodz, a family lawyer who is the first person in her family to attend college. Board member Jenay Eunice Iurato’s work in combating human trafficking is exemplary; Secretary Andres Oliveros is a Marine and Iraq War veteran; and board member Lourdes Bernal-Dixon and Treasurer Doris Del Castillo are proud daughters of Cuban exiles. Board member Rene Hernandez came to the United States at the age of 16 on the Cuban Mariel Boatlift and is now corporate counsel at Florida Travelers, and board members Steve Barbas, Hernando Bernal, and Rick Fueyo are proud Jesuit High School graduates who never forget the Jesuit Catholic principles they learned.

Third are the THBA’s organizational values. This is an organization that our ancestors, who struggled as immigrant “strangers in a strange land,” can be proud of. The THBA honors the struggles of our families who came from all over the world to not only the United States, but Tampa, as Latinos and became proud Americans. Tampa’s heritage uniquely reflects the American value of pluralism through a rich Latino influence. From the Spanish immigrants who toiled in the Ybor City cigar factories and the Cubans who made West Tampa their homes to the heroism of Lt. Baldomero Lopez and great names like Mayor and Gov. Bob  Martinez, Judge Virginia Covington, and “Mr. Latino” himself, Judge E.J. Salcines, Tampa is a city of Latino achievement and history. Tampa stands as a symbol of the American Dream for Latino Americans, and the THBA builds on this legacy by paying tribute to our families’ history. The stories we were told by our parents of their struggles, day after day at our kitchen and family tables, define the THBA’s DNA.   

As Latino Americans in Tampa, our families’ stories may have different beginnings, but all have the same conclusion: with us being proud Americans, here in Tampa. These stories form important bricks in what songwriter Abel Meeropol called “the house I live in,” or the house of the United States. And in our community, the THBA plays an important part in the house we all live in, Tampa. I am proud to be a member and hope you can join in support.

Criminal Law: Discovery Of The “Informant Witness”

By Matt Luka

A jailhouse informant testifying to a defendant's purported confession is often the most powerful evidence in a criminal trial. After all, how can we expect a jury to ignore the defendant's own words? Such witnesses can be difficult to cross-examine, particularly without a sufficient opportunity to prepare. 

According to the Innocence Project, of the exonerees released from death row, 45.9 percent were convicted, in part, due to false informant testimony. In re Amend. to Fla. R. Crim. P. 3.220, 140 So. 3d 538, 540 n.3 (Fla. 2014). Further studies have shown that informant perjury was a factor in nearly 50 percent of wrongful murder convictions. Id.

In response to that troubling reality, the Supreme Court of Florida recently amended Florida Rule of Criminal Procedure 3.220 to include more detailed disclosure requirements for informant witnesses. Id. at 539. The amendment adds as a new subset of Category A witnesses: informant witnesses, whether in custody or not, who offer testimony concerning the statements of a defendant about the issues for which the defendant is being tried. Id. at 540 (Appendix). This amendment encompasses not just "jailhouse informants" but any informant who testifies about a defendant's statement.  

In addition to the identity and address of the informant witness, the state must disclose whether it has “any material or information that has been provided by an informant witness,” which includes: (i) the substance of any statement allegedly made by the defendant that the informant witness may testify about; (ii) a summary of the informant witness's criminal record of the; (iii) the time and place the defendant's alleged statement was made; (iv) whether the informant witness has received, or expects to receive, anything in exchange for his or her testimony; (v) the informant witness's prior history of cooperation, in return for any benefit, as known to the prosecutor. Id. at 539. 

The amendment is not intended to limit in any manner the discovery obligations otherwise provided for under Rule 3.220. Id. at 539. Because informant witnesses are Category A witnesses, Rule 3.220(h)(A) permits a deposition of the witness without leave of court. However, the Rule 3.220(g) confidential informant privilege still applies. This could create conflict between the two sections of the rule depending on how the state uses the informant. 

One question that may arise is whether the state has an obligation to identify an informant witness if the witness is not expected to testify at trial but provided information that led to the discovery of other evidence such a probable cause for a search warrant. Typically, an informant who only provides supporting information, such as probable cause for a warrant, does not need to be disclosed absent a showing by the defendant of an exemption to the confidential informant privilege. See State v. Powell, 140 So. 3d 1126, 1131 (Fla. 5th DCA 2014). However, the Second District Court of Appeal recently held that the state's discovery obligation for Category A witnesses is not limited to witnesses and evidentiary materials that it intends to present at trial. State v. Fernandez, 141 So. 3d 1211, 1222 (Fla. 2d DCA 2014). Although the "informant witness" amendment is limited to witnesses "who offer testimony," an accuser who makes a formal statement to government officers, even if out-of-court, also offers testimony. See Crawford v. Washington, 541 U.S. 36, 51 (2004). The answer to this question may lie in Florida's adherence to the purpose and spirit of the discovery rules to avoid surprise and trial by ambush. Scipio v. State, 928 So. 2d 1138, 1144–45 (Fla. 2006) (citations omitted).

Corporate Counsel Section: Eleventh Circuit to Revisit Interns’ FLSA Status

By Deborah C. Brown

Companies offering internships have recently been confronted with whether unpaid interns are “employees” entitled to minimum wage and overtime under the Fair Labor Standards Act (FLSA). 29 U.S.C. § 201, et seq. The FLSA does not clearly define employee status, but the U.S. Department of Labor (DOL) excludes interns from coverage when certain criteria are met. Those criteria are: (i) The internship, even though including actual operation of the employer’s facilities, is similar to training in an education environment; (ii) the internship experience is for the intern’s benefit; (iii) the intern does not displace regular employees but works under existing staff’s direct supervision; (iv) the employer providing training derives no immediate advantage of the intern’s activities, and on occasions its operations may actually be impeded; (v) the intern is not necessarily entitled to a job at the internship’s conclusion; and (vi) the employer and intern understand the intern is not entitled to wages for the internship. Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act (April 2010). 

These factors’ significance is subject to debate. The Eleventh Circuit describes these factors as “a body of experience and informed judgment to which courts and litigants may properly resort for guidance.” Kaplan v. Code Blue Billing & Coding, Inc., 504 F. Appx 831, 835 (2013), cert. denied, 134 S. Ct. 618 (2013). They have been relied upon when disposing of intern claims. Demayo v. Palms West Hosp., Ltd. P'ship, 918 F. Supp. 2d 1287 (S.D. Fla. 2013); Schumann v. Collier Anesthesia, P.A., 2014 WL 2158505 (M.D. Fla. May 23, 2014). But other circuits have been less deferential to the DOL. Solis v. Laurelbrook Sanitarium & School, 642 F.3d 518 (6th Cir. 2011) (rejecting DOL factors in favor of “primary benefit” analysis). Thus, the level of DOL deference, how much weight each factor receives, and whether all factors must be met are unclear among federal appellate courts. 

That issue is now before the Eleventh Circuit on appeal in Schumann, which involves a suit by interns in a clinical training program supervised by Collier Anesthesia but part of Wolford College’s nurse anesthesia master’s degree program. Schumann’s significance stems from use of the DOL factors without it being necessary to resolve each in the defendants’ favor. Rather, by using the factors to determine whether the economic realities supported finding an employment relationship, a defense summary judgment was granted even though only three factors were conclusively established for the defendants. 

Private companies using unpaid interns should examine the academic nature of their intern activities, the onsite supervisor’s role, whether academic credit/other benefits are given to interns, and how to best create a qualifying mutually beneficial relationship. Greater risk exists in programs without educational institution support to formulate the academic components. But governmental/nonprofit internships have been unaffected because they operate under an FLSA exclusion for volunteers. 29 U.S.C. § 203(e)(4); Hill v. Watson, Feb. 4, 2014 WL 440371, n.1 (N.D. Ill. 2014); WH Op. Ltr. FLSA2008-14 (Dec. 18, 2008). With proper structure and oversight, private internships can remain viable, too. 

Collaborative Law: The Big Picture - Applying The Collaborative Process To The Medical Industry

By Jon Wax

If patient safety was managed like airline passenger safety – with a collaborative process led by an outcomes-oriented oversight agency – thousands of lives and millions of dollars could be saved.

Look at the numbers: Air travel has become the safest mode of transportation in America – after decades of oversight by the FAA and the NTSB. In 2013, according to the latest estimates from the NTSB, there were only two fatalities out of nearly 9 million U.S. commercial airline flights. Contrast this with the medical industry. A 2013 study reported in the Journal of Patient Safety revealed more than 200,000 deaths are associated with preventable harm in hospitals annually. That is the equivalent of three commercial planes crashing every day with no survivors.

Why doesn’t the medical industry have a better record? The simple answer is the lack of a centralized system to investigate, solve, and improve these outcomes.

Imagine a world where doctors, patients, and families freely discuss medical "events" and work together to reduce the incidence of medical errors, which in turn would reduce medical malpractice premiums and, ultimately, the cost of health care. This is possible, but not within the archaic, inefficient, and adversarial system that prevails in our country today.

Chesley Sullenberger, the U.S. Airways pilot whose 2009 emergency splash-landing of an A320 saved the lives of 155 passengers, has become a crusader in the cause of saving patients’ lives by reducing medical errors and accidents. His approach highlights a major medical industry deficiency: Information about medical accidents and errors is not pooled and mined to identify systemic issues. 

Sullenberger envisions making American hospitals safer by “applying all the things we’ve learned for decades in aviation and making them transferrable to medicine.” He advocates forming a medical accident investigation board to oversee a formal “lessons-learned” process where the findings are widely disseminated but locally actionable. The board would also enforce a doctor’s “checklist manifesto” similar to the ones pilots use. 

Information related to medical errors and accidents must be shared. The FAA and NTSB require complete access to crash sites, evidence, records, survivors, and anything else they deem necessary to understand causes, effects, and solutions. All parties must be forthcoming. Only when the investigation is complete, and remedies are made to mitigate future occurrences, can the parties pursue civil action. 

In medicine, civil hostilities will remain a critical impediment unless there are changes to the method of settling these disputes. Enter the collaborative process, which would enable a medical investigation board to uphold fairness and civility in dispute resolution. The collaborative process differs from traditional mediation by contractually prohibiting lawyers and other professional intermediaries from representing parties if the process breaks down. This is an inducement for the entire professional team to make the process work.

We should encourage non-adversarial collaboration to achieve common good: reduced medical errors resulting in lives saved; elimination of defensive medicine; and reduced settlement amounts, litigation, and malpractice premiums.

The collaborative process can improve the medical malpractice field. Imagine the positive effect on other civil practice fields. Please consider how the collaborative process can improve outcomes for your clients and your practice. 

Community Services Committee: Make A Difference Day - Adopt A Veteran Was A Huge Success

By Lisa A. Esposito

When Lara LaVoie and I agreed to chair the Community Services Committee (CSC) two years ago, we did it to make a difference. We wanted to have a positive impact in our neighborhoods, to help change the negative perception many people have about our legal community. Thanks to our members’ generosity, we are doing just that: making a difference!

For example, the CSC just chaired Make a Difference Day, Adopt a Veteran, and it was a huge success! For the second year, we adopted every veteran on the James A. Haley Veterans’ Hospital’s hardship list. In fact, the list almost doubled from last year, but the CSC was undaunted. We got to work, ensuring every veteran was adopted. 

For those who are unaware of this amazing project, these veteran heroes sadly have no family and live in small group homes, as they can no longer take care of themselves. They have limited funds, so with the help of generous volunteers, gifts are assembled for delivery to each of them. In fact, many of you said that reading these soldiers’ wish lists brought tears to your eyes. We agree. Their wishes are simple ― a shirt, some socks, perhaps a puzzle ― but their needs are great. 

It wasn’t just purchasing gifts that allowed us to make a difference; it was the time we spent with them. The hours we spent meeting these soldiers and hearing their stories left its mark, not only on them but on us, too.  

More than 50 volunteers got up super early on a Saturday, all to make a difference, and it was definitely worth it. (In our defense, Lara and I did bring some tasty doughnuts). Lawyers and paralegals came; Gators, Bulls, and Noles came; parents brought their children ― all to honor our American heroes. 

I personally had the honor of meeting two veterans, one was in WWII, and the other was in both Vietnam and Korea. Andy refueled ships during WWII. Can you imagine? He lost his wife and only son but still has a positive outlook. Andy was almost 90 but still feisty and quick with a retort. He got a deck of cards in his care package and informed me he would be playing poker later, even hinting it may be the lose-an-article-of-clothing type of poker. I didn’t press it. I moved on. Walter was career Navy, did 20 years. While in the Navy, he traveled to many locations but loved Spain the most, at least what he could disclose as some things were still classified. 

The soldiers we spent time with smiled that day, delighted to have someone to reminisce with, and we got to learn about their experiences and history. In reality, we thought we gave to them, but we walked away realizing that we got much more.