Monday, October 30, 2017

Key Issues in Business Succession and Estate Planning

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Wednesday, August 9, 2017

New PA and NP Privileges in Idaho Hospitals

Megan J. HopferHistorically, privileges to admit patients to Idaho hospitals and healthcare facilities were reserved only to physicians, thus creating a limitation for physician assistants and nurse practitioners who were not permitted to admit their patients when necessary for their care.  This limitation has become outdated and burdensome due to the expanding roles of physician assistants and nurse practitioners in health care in Idaho. The licensure of these midlevel practitioners allows them to perform services traditionally performed by physicians, and in some rural areas of the state they are the main source of access to health care for Idaho residents, yet the limitation has negatively impacted their ability to provide comprehensive care to their patients.
In July 2017, the Idaho legislature responded to these issues by enacting a law which allows these mid level practitioners to admit patients. Idaho Code § 39-1396 stipulates that a hospital or healthcare facility may give admitting privileges to doctors, advanced practice nurses, or physician assistants under the following conditions: 1) those privileges are recommended by the facility’s medical staff; 2) those privileges have met with approval by the facility’s governing body; and 3) those privileges fall under the admitting practitioner’s scope of practice.
The new law, however, is not a broad grant of unchecked power to physicians and mid level practitioners. The law requires the hospital or facility to specify in its bylaws the process by which its governing body and medical staff oversee those practitioners granted admitting privileges. The law further clarifies that such oversight must include, but is not limited to, credentialing and competency review.  In addition, Idaho law still requires that a member of the medical staff have responsibility for the overall care of a patient while in the hospital and hospital licensing regulations require that hospital bylaws specify that every patient be under the care of a physician licensed by the Idaho State Board of Medicine.
Mid level practitioners and health care facilities should take into special consideration subpart 1(a) of the new law, which requires that the medical staff of the facility recommend admitting privileges. The law gives much power to the medical staff to control or curtail the expansion of clinicians with admitting privileges. The question arises, will the medical staff withhold recommendation of these midlevel practitioners (perhaps in an effort to defend its territory)?  Time will tell whether this problem will surface in Idaho hospitals. 
In response to the new law, Idaho hospitals and healthcare facilities should review and update their bylaws to identify which types of clinicians are eligible for admitting privileges and specify processes for physician oversight in compliance with state law and other applicable regulations.
Megan J. Hopfer at 9:38 AM No Comments | Post a Comment
Health Care Law
Friday, August 4, 2017

The Statute of Frauds: Get it in Writing

Lance J. SchusterA man's word is his bond.  Or so the saying goes.  However, the law requires that some contracts be made in writing, and signed by the party to be charged, so as to avoid fraud, confusion, and disagreement over the terms of the contract.  An agreement covered by the Statute of Frauds that is not in writing is invalid.           

The Statute of Frauds requires a written contract in the following instances:           

1.  The purchase and sale of real property, or an interest therein.  An agreement to buy 40 acres from your neighbor is not enforceable unless it is in writing and signed by your neighbor.

2.  A lease of real property for longer than one year.  Do you have an agreement to lease farm ground for more than one year?  If it is not in writing then your lease is not valid.  (This does not affect a year-to-year lease that is renewed annually.)

3.  A promise to answer for the debt of another.  Any promise to pay or guaranty someone else's debt must be in writing.

4.  A promise made by a person or entity engaged in the business of lending money to lend money in the amount of $50,000 or more.  Self explanatory.

5.  An agreement made upon consideration of marriage.  "I will marry you if you give me your horse."  Better get that contract in writing.

6.  An agreement that by its terms is not to be performed within a year from the making therof.  Your neighbor promise to sell you his 1967 Mustang in four years when you get out of the Army?  Better get it in writing.           

The Statute of Frauds prevents frauds and perjuries.  The lesson to be learned is that when a man insists that his word is as good as his bond - get his bond in writing.
Lance J. Schuster at 2:46 PM No Comments | Post a Comment
Friday, July 7, 2017

The Value of Knowing What an Acre of Land is

Lance J. SchusterThe Public Land Survey System is a survey method developed for platting and selling land in the United States.  It is grid system that enables land to be identified based upon its location in relation to a starting point. 

The Boise meridian, located approximately 19 miles from Boise, between the Snake River and the Boise River, governs all land surveys in the State of Idaho.           

From the Boise Meridian the entire State of Idaho has been surveyed into Townships that are approximately 36 square miles in size, or six miles on each side.  In turn, each square mile, or section as they are known, is surveyed into quarter sections that are 1/4 mile on each size.           

Each section consists of 640 acres.  An acre of land is equivelant to 43,560 square feet, or 160 square rods.  A rod is an old English measure of distance equal to 16.5 feet.            

It is said that an acre has its origins in the typical area that could be plowed in one day with a yoke of oxen pulling a wodden plow.  Originally an acre was understood to be a parcel of land 66 feet by 660 feet.  Today, as a unit of measure, an acre has no prescribed shape; any area that is is 43,560 square feet is an acre.           

Unless located in a subdivision, a legal description for a parcel of real property will typically reference the section, township and range of a parcel of real property.  A legal description may be as simple as a description of a section or a portion of a section.  A surveyor may also describe property using a "metes and bounds" description.  Such a description will describe the boundaries of a parcel of real property using features of the geography, along with directions and distances.               

In the end, we use surveys and metes and bounds descriptions to describe the location of land.  Knowing the location of land is imperative under the law.
Lance J. Schuster at 2:42 PM No Comments | Post a Comment
Monday, June 26, 2017

Beard St. Clair Gaffney voted Best Law Firm

We are honored to be named Best Law Firm in the Post Register's annual reader's choice awards. We enjoy serving our clients with aggressive and creative legal solutions. Thank you for your votes!

Best Law Firm 2017
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Tuesday, June 6, 2017

Does Ransomware make you WannaCry?

On May 12, 2017, a worldwide ransomware attack assaulted businesses and government entities in 150 countries, including Britain’s national health system, FedEx, Spain’s Telefónica, and the Russian Interior Ministry.  The virus dubbed “WannaCry” was designed to access servers through vulnerabilities in Microsoft Windows software.   Many users’ systems were infected by opening a seemingly harmless email.  This virus was different from others in that it had the ability to spread throughout computer systems without any type of user interaction. 

The main targets of the virus were users of Microsoft Windows who had not implemented a patch distributed by Microsoft in March and users still operating on the Windows XP platform since their systems were the most vulnerable.  The attack was slowed after a researcher identified a “kill switch” for the virus. The kill switch couldn’t help devices the virus already infected, but it bought time to patch systems that hadn’t yet been hit. However, most computer security experts do not believe it has been halted completely, and there is at least one new strain of the ransomware that is unaffected by the kill switch, which has been slowly spreading.

So far, Britain’s national health system has been the most impacted health care organization worldwide. Because of the virus, many British hospitals were forced to cancel critical surgeries and divert patients to other hospitals when they could not access patients’ medical records.  Although the attack has not been reported to be as prevalent on the U.S. healthcare systems, the U.S. Department of Health and Human Services (HHS) issued a report urging healthcare organizations to be cautious in their cybersecurity practices. 

Taking that advice, there are several lessons we can learn from the WannaCry attack.  We suggest the following best practices to protect yourself from ransomeware attacks through email:

    1. Ensure that your computer and antivirus software are up to date.  Be sure to regularly check for patches and updates to your operating system and install the patches and updates as they become available.  The same goes for your antivirus software.

    2. Regularly backup your data and test to see if the backups can be restored.  Restorable backups can mean the difference between significant business disruption and simply restoring the data.

    3. Only open email messages from people you know and messages you are expecting to receive.

    4. Never click on links in emails if you weren’t expecting them.  

    5. Conduct regular security awareness training to remind your staff of the importance of good email hygiene. Phishing attacks with software downloads or links and attachments to malware are often the first sign that a ransomware event is looming.

    6. Before your practice has been attacked by ransomware, review and update your security incident response plan as well as your disaster recovery plans.

    7. Never Pay Ransom. Payment of ransom by one provider emboldens attackers and proliferates the attacks, placing other healthcare providers at risk.

If you were attacked, or know someone who was attacked, it is important to be aware of the HHS guidance on ransomeware.  HHS advises that when electronic protected health information (ePHI) is encrypted as the result of a ransomware attack, a breach has occurred because the ePHI encrypted by the ransomware was acquired (since unauthorized individuals have taken possession or control of the information). Unless the organization can demonstrate that there is a low probability that the PHI has been compromised based on the factors set forth in the Breach Notification Rule, a breach is presumed to have occurred and notification is required.

Keep in mind that policies and procedures implemented prior to a ransomware infiltration will dramatically affect the outcome of a ransomware attack.  As they say, an ounce of prevention is worth a pound of cure.

For questions, please contact:

Megan Hopfer | Attorney
2105 Coronado St | Idaho Falls, ID 83404

(208) 523-5171 |

This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice nor do they necessarily reflect the views of Beard St. Clair Gaffney PA or any of its attorneys other than the author. This news update is not intended to create an attorney-client relationship between you and Beard St. Clair Gaffney PA. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.

Megan J. Hopfer at 12:21 PM No Comments | Post a Comment
Health Care Law
Friday, June 2, 2017

The Federal Meat Inspection Act

Lance J. SchusterI have a small pasture in front of my home.  It is maybe an acre and a half in size.  I irrigate it with sprinklers, and I put two or three cows on it.  Late in the Fall I like to take one cow to the butcher, and the rest to the sale.
The Federal Meat Inspection Act ("FMIA") is federal law that ensures that meat and meat products are slaughtered and processed under sanitary conditions.  The law was enacted in part in 1907 as a response to Upton Sinclair's novel The Jungel, an exposé of the Chicago meat packing industry.  The FMIA requires the inspection of livestock before slaughter, and an inspection of every carcass following slaughter.  In addition, the U.S. Department of Agriculture conducts ongoing monitoring and inspection  of slaughtering and inspection facilities.  Meat processing facilities and slaughter houses are required to comply with standards established by the USDA for the sanitary processing of meat.
The FMIA further has requirements for labeling and marking meats and prohibits labeling that is false or misleading.           
Nothwithstanding the requirements of the FMIA, there is an exception for the slaughtering by any person of animals of his or her own raising where the meat and meat products are to be used exclusively for use by him or by members of his household and and nonpaying guests and employees.  The same exception applies for a person or company that does custom slaughtering for the owners of cattle, sheep, wine or goats delivered by the owner for slaughter, provided the custom operator plainly marks all such meats "Not for Sale," and the establishment conducting the custom operation is maintained and operated in a sanitary manner.
Congress passed the FMIA to assure that meat and meat products sold in our grocery stores are safe and properly marked, labeld and packaged.  Notwithstanding, it is legal to raise and have custom butchered your own beef.
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Monday, May 22, 2017

Employment Law Workshop

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Monday, May 22, 2017

Kent Gauchay Named Clark County Magistrate Judge

Congratulations to attorney Kent W. Gauchay for being selected as the next Clark County Magistrate Judge. 
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Friday, May 5, 2017

Recharging the East Snake Plain Aquifer

Lance J. SchusterThe Eastern Snake River Plain Aquifer extends from St. Anthony to Twin Falls and King Hill.  It is 170 miles long, and as wide as 60 miles.  The aquifer is made of mostly broken basalts.  Like a giant sponge, this broken basalt holds water.  As deep as 4,000 feet, water flows most easily in the upper few hundred feet.  If you could squeeze all of the water out of the Aquifer you would have as much as a billion acre feet of water, which is enough to cover the entire Plain with 140 feet of water.
Unfortunately, the water in the Eastern Snake River Plain Aquifer has been declining.  Much of the decline in the Aquifer has been attributed to farmers in Eastern Idaho that pump groundwater for irrigation purposes.
Several years ago surface water irrigation districts in the lower Snake River Plain made a delivery call on upper Snake River Plain groundwater users, most of which had later priority dates.  (Idaho law: First in time is first in right)  In an effort to avoid an order from the Idaho Department of Water Resources that would have shut off some groundwater users entirely, the groundwater users in Eastern Idaho collectively agreed to voluntarily reduce their consumption of groundwater.  Groundwater users also agreed to monitor ground water levels and to put flow meters on groundwater pumps.           
Groundwater users additionally agreed to work with the State of Idaho in an effort to recharge the Aquifer with as much as 250,000 acre feet of water annually.  Several recharge projects have begun.  Some canal companies are now receiving revenue for doing recharge during the off season.  The goal of the agreement between groundwater users and surface water users is to gradually increase groundwater levels throughout the Aquifer.
The settlement agreement between the surface water coalition and the groundwater coalition is a legally binding contract.  Working together on recharge projects  surface water users and groundwater users hope to protect and sustain one of Idaho's greatest treasures - its water!
Lance J. Schuster at 2:26 PM No Comments | Post a Comment