Thursday, March 16, 2017

Do you know how to handle a HIPAA breach?

In the ever-growing world of electronic health records, cloud-based storage, and IT hacks, it is of the utmost importance to know how to handle a breach of protected health information (PHI).

Individuals, organizations, and agencies that meet the definition of a covered entity under HIPAA must comply with requirements to protect the privacy and security of health information. Health plans, such as health insurance companies or government programs such as Medicare and Medicaid qualify as covered entities.  Health care providers, such as doctors, clinics, dentists, chiropractors, and pharmacists also qualify as covered entities if they electronically submit claims or other information to carry out financial or administrative activities related to health care.

For any breach affecting more than 500 individuals, a covered entity, such as a doctor’s office, must investigate and report the breach without unreasonable delay and in no case later than 60 calendar days after discovery of the breach. If it fails to do so, it may be subject to HIPAA fines. The Office for Civil Rights just settled its first case of the year against Presence Health, one of the largest integrated health systems in Illinois, for ‘unreasonable delay’ in reporting a HIPAA breach. The report was 45 days late. The fine was $475,000.

The HIPAA Breach Notification Rule requires that covered entities notify individuals and, if the breach involves more than 500 persons, report breaches to HHS and local media without unreasonable delay and in no event later than 60 calendar days after discovery of the breach. A separate HIPAA violation occurs for each day the covered entity fails to report the breach beyond the deadline.

We can learn a valuable lesson from Presence Health’s blunder: covered entities must take the reporting deadlines seriously. For notification to affected individuals, the breach must be reported without unreasonable delay and in no case later than 60 calendar days after discovery of the breach. If the breach involves 500 or more individuals, the covered entity must notify HHS at the time it notifies affected individuals. If the breach involves fewer than 500 individuals, the covered entity may wait to notify HHS until no later than 60 days after the end of the calendar year. If the breach involves more than 500 residents in one state, the covered entity must notify local media at the time it notifies affected individuals.  One important clarification for covered entities: the 60-day time period begins to run from the time that any member of the covered entity’s workforce (other than the person committing the breach) knew or by exercising reasonable diligence should have known that the breach occurred.

In addition, while we’re on the topic, please allow us to remind you about a few best practices to avoid HIPPA blunders:

      1.   Update Your PoliciesCovered entities should adopt, implement, revise, and update your policies and procedures providing for the timely and adequate notification of a breach to HHS, individuals and the media. To avoid internal miscommunication, covered entities should ensure that such policies and procedures explicitly define employee roles and responsibilities with respect who 1) completes risk assessments of potential breaches, 2) receives and acts upon reports related to potential breaches, 3) prepares and sends notifications to individuals, HHS and the media without unreasonable delays and within the Rule’s prescribed timeframes, and 4) updates policies and procedures on an at-least annual basis.

      2. Train Your Employees. Make it a priority to provide annual and ongoing training based on your updated policies and procedures. It is best to provide training to all current and new workforce members on an at-least annual basis. Such trainings should be comprehensive and include information about what constitutes a breach, the importance of quickly reporting and acting upon reports of potential breaches, and identify the key people to whom such reports should be made.

      3. Incentivize Employee Compliance. Impose sanctions on workforce members (e.g., retrain, compensation/bonus impact and/or termination) that fail to adhere to HIPAA-related policies and procedures to ensure that employees are properly incentivized to comply. Accordingly, be sure that you do not merely have policies and procedures in place, but that you impose sanctions on staff members who fail to comply.

      4. Prepare and Practice Your Game Plan. Once you learn of a breach, the clock starts ticking so it’s best to be ready to spring into action as quickly as possible. The notification process requires multiple tasks, such as investigating the breach, analyzing any changes to the regulatory requirements, tracking down affected individuals’ names and addresses, communicating and coordinating with the relevant decision-makers, setting up call centers to answer data subjects’ questions, and preparing and mailing notifications.  Therefore, best practices are to have an incident response plan ready; a battle plan if you will. Put in place, and  practice as much as possible, your coordination and communication strategies related to the discovery and reporting of breaches. Such exercises are an important way for you to ensure that you have defined timetables, coordinated team members, and an overall awareness of compliance requirements.


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 1:23 PM No Comments | Post a Comment
Health Care Law
Friday, March 3, 2017

Be Sure to Know Your Rights to Water Your Stock

The water right rule in Idaho, both before and since the adoption of the Idaho Constitution, is that the first in time is the first in right. 

The constitutional method of appropriation generally requires an actual diversion of water in order to obtain a water right.  However, no diversion from a natural watercourse or diversion device is needed to establish a valid appropriative water right for stock watering.           

For example, a stock watering right may have been established in watercourses on federal lands simply by applying the water to the beneficial use of watering cattle.  Even if a cattleman did not understand, or intend to create a water right, a water right might be established simply by watering livestock in the springs, creeks and rivers on the range that cattle use for forage. 

While many cattleman in Idaho may presume to have stock watering rights, it is important to establish and protect those rights with the Idaho Department of Water Resources. 

The federal government has attempted to claim stockwater rights on federal lands even though it does not own or graze cattle on those lands.  Idaho Courts have denied those attempts. 

In addition, the Idaho legislature is currently considering a bill which would prohibit the federal government from obtaining stock watering rights in the springs, streams and rivers on federal land unless the federal land owner owns livestock and puts the water to beneficial use. 

If an agency of the federal government does obtain a stock watering right, that water right could not be utilized for any purpose other than the watering of livestock. 

Know the law of the land.

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Friday, March 3, 2017

Join us for March Madness Fun

BSG March Madness
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Thursday, February 9, 2017

Business Seminar for Healthcare Professionals

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Friday, February 3, 2017

Overtime Pay and Minimum Wage

On December 8, 2016, two dairy workers in southern Washington state sued their employer for overtime pay. The class action lawsuit is challenging a long-time part of federal labor laws that exempts agricultural employees from overtime pay requirements.

This suit is the latest in a line of cases across the country. Agricultural workers are using the courts to break down laws that treat them differently from employees in other industries. Farmworkers have sued for the right to unionize, the right to workers’ compensation, and the right to a minimum wage.

Groups advocating for change claim that the law needs to change to account for industrialized large-scale farm operations of the modern era.

Idaho follows federal law with regard to overtime pay. Most employees have a right to “time-and-a-half” for hours worked in excess of forty per week. All employees employed in agriculture are exempt from this requirement. The exemption applies to any employee engaged in growing and harvesting crops, raising livestock, dairying, etc.

However, the exemption does not apply to employees who merely work on agricultural products, if such work is performed off the farm and by employees not employed by the farmer (e.g. produce or meat processing operations).

Idaho’s laws regarding minimum wage similarly mirror federal law. Employers in Idaho do not need to pay minimum wage to their immediate family members or employees principally engaged in the range production of livestock. Also exempt are harvest laborers traditionally paid on a piece-rate basis, as long as they do not live on site at the farm and only worked in agriculture for thirteen weeks or less the previous year. Harvest laborers under age sixteen are also exempt if they are employed on the same farm as a parent or guardian and are paid at the same rate as the adults.

The agricultural industry in the U.S. has changed dramatically in the last eighty years.  The law will continue to change with it.

Lance J. Schuster at 2:02 PM No Comments | Post a Comment
Friday, January 6, 2017

Budgets and Operating Loans

Famers and ranchers are businessmen.  Just like any other business, farmers and ranchers need a budget.  A budget forces a farmer to set in writing expectations for expenses and income.  A good budget will show the relationship between expenses and anticipated income, and assist in making decisions.  For example, if your budget shows that you can't make your loan payment, then maybe you should put a hold on that new tractor.

A budget will also make you more money.  It will assist you in setting goals, and determining whether those goals are realistic or not.  A budget should forecast income based on current commodity prices, and forecast commodity prices.

A good budget should also be realistic. Farming and ranching are incredibly unpredictable.  A single hail storm can change a farmers fortunes.  A realistic budget will help you adapt to challenges on the farm.

An important tool in making a budget work is an operating loan.  Typically farmers and ranchers incur most of their expenses on the front end.  Farmers pay for seed, fertilizer, and fuel just to put a crop in the ground.  All of this takes money.  However, a farmer isn't paid until he sells his crop.  An operating loan can bridge the gap between expenses early in the season, and income at the end of the season.  Many banks offer famers and ranchers operating loans, and charge interest on the money borrowed.

A wise farmer or rancher will create a budget, and only draw on their operating loan as is necessary to pay for budgeted expenses. 

Lance J. Schuster at 12:56 PM No Comments | Post a Comment
Monday, November 7, 2016

Frequently Asked Questions About Probate

Joseph D. FairbankWhat is probate?

Probate is the court-authorized process for proving a will or distributing an intestate estate. When a person dies, they usually leave assets behind that are officially titled in their name. The most common examples of this are real estate, financial accounts, and vehicles. For example, if you own a house when you die and your spouse or children try to sell the property, they won’t be able to do so without your signature. Proving that you are deceased won’t waive this requirement—someone has to be authorized to sign the deed on your behalf to convey ownership of the house. This is the most important thing the probate process does: it authorizes someone to sign in your name, pay your debts, and distribute your property to your loved ones. The person authorized to settle your estate, your Personal Representative, is required to follow your directions in your will, if you have one.

Don’t I want to avoid probate?

In some states, the probate process is long, complicated, and very expensive. But Idaho follows the Uniform Probate Code, which has greatly simplified the process and reduced the time and cost of probating a typical estate. However, there are still factors that can motivate you to do planning to avoid probate. One such factor is concerns about privacy. If you go through probate, then your will must be filed with the court, and will become public record. The laws of probate also require a full inventory of your assets, but the inventory doesn’t always need to be filed with the court. If you don’t want your will (and possibly a list of your assets) to be available to the public, then you will want to plan ahead to avoid probate.

Another factor is ownership of real property in other states. If you own real property in more than one state when you die, your estate will need to be probated in every state in which you own property, multiplying the cost of probate. This can make things especially difficult (and expensive) where the property is located in a state with complicated probate laws, such as California or Illinois. If you own real property in more than one state, consider putting the property into a trust to eliminate the need for multiple probates.

Who should be my Personal Representative?

If you have a will, it will designate a person as your Personal Representative. You should choose someone responsible, whom you trust to follow your wishes in your will and treat your beneficiaries fairly. If you anticipate disagreements about division of your property, you should consider your Personal Representative’s relationships with the other beneficiaries and their ability to deal with that kind of pressure. Your Personal Representative does not need to be a beneficiary of your estate, though they certainly can be. You can even select a professional Personal Representative to handle the estate. A professional is paid for their time, but under certain circumstances their added experience and impartiality can make a big difference in making the division of your estate run smoothly.

If you don’t have a will designating a Personal Representative, then any related party may apply to be the Personal Representative. Competing applicants are measured based on their degree of relationship to the deceased. Spouses are given preference, then children or parents.

Do I have to go through probate more than once?

The general rule is that each person’s estate must be probated once, but there are exceptions. Some estates don’t have to be probated at all, such as where all assets of the estate are held in a trust, or where the estate is small enough to be handled by affidavit or summary administration (see below). Sometimes a probate can be effectively postponed, such as when one spouse of a married couple passes away and the entire estate goes to the surviving spouse. In this case, there’s typically no need for probate during the surviving spouse’s lifetime unless the surviving spouse takes some action requiring probate, such as a sale of real estate. Often the couple’s heirs can simply do a joint probate after the second death.

A second or third probate will also be necessary where the deceased person owned real estate in more than one state (see above).

Are there any shortcuts to probate?

If your estate is small enough, the estate can be essentially probated by summary administration. There’s also an abbreviated procedure where the spouse is the only beneficiary of the estate. Whether one of these shortcuts applies to your probate depends on the specific assets and liabilities of the estate. Talk to a probate attorney to see what approach best applies to your circumstances.

How can I keep my loved ones from fighting?

We’ve all heard stories of families that fell apart over who gets to keep Dad’s favorite hat, Grandma’s wedding band, or the mountain cabin. It’s difficult to make rational decisions about ownership of property during the emotional weeks following the death of a loved one, especially when the property holds high sentimental value to everyone involved. The emotionally charged nature of this process is unavoidable, but there are ways to plan or work around the worst of it.

The most important thing is to be clear in your will or other estate plan documents what your wishes are. If you clearly say your brother should inherit your best saddle, then your other beneficiaries will probably respect your wishes. Most wills provide for a separate “personal property memorandum” that allows you to keep a list of items and who should inherit them. Avoid vague devises like “my piano to whoever plays the best,” which can invite competition and resentment. And don’t be afraid to talk to your children and other beneficiaries about what you’ve decided. If they’re going to be surprised or disappointed, it’s better for them to hear it from you.

After a person’s death, during the probate process, there are ways a Personal Representative can deal fairly with multiple interested beneficiaries. Some groups of beneficiaries gather and take turns picking single items from the estate, following a fairly determined order or drawing names from a hat. Other families hold an auction with fake money. If you are a Personal Representative dealing with fighting family members, talk with your probate attorney about ways to settle things fairly.

What records do I need to keep?

If you are planning for your own probate, you should keep a record of your major accounts and property in a safe place. It’s also a good idea to keep a list of important usernames and passwords for online accounts, as well as combinations to any safes. Many Personal Representatives have been frustrated by a will locked in a safe, or important papers stuck in a safety deposit box. Plan for your Personal Representative to be able to access your important documents.

If you are a Personal Representative of an estate, you need to keep track of the deceased person’s assets from the date of death until the assets are distributed to the beneficiaries. Account for money spent on the funeral, taxes, final medical expenses, and miscellaneous bills. You will eventually need to provide the beneficiaries with a final accounting that shows what assets the deceased owned at death, expenses paid, and the division of remaining assets among the beneficiaries according to the will or laws of intestacy. Nothing frustrates a lawsuit against a Personal Representative better than clear, thorough recordkeeping. 

Do Personal Representatives get paid for their time?

The Personal Representative is entitled to “reasonable compensation” for his or her services. What constitutes reasonable compensation depends on the Personal Representative’s professional background. Most Personal Representatives have no training or experience in this type of work, and their time is compensated at a nominal hourly rate, around $10 per hour. If he or she is a CPA or attorney, or if he or she is a professional Personal Representative, then compensation will be higher. This compensation is considered an administrative expense of the estate and will be paid out of the entire estate, before dividing assets between the beneficiaries.

If you are serving as a Personal Representative, be cautious not to overpay yourself or pay for an unreasonable amount of time. Beneficiaries have been known to sue the Personal Representative for taking unreasonable compensation.

Do I really need a probate attorney?

Yes. If your loved one died and you are serving as Personal Representative, call a probate attorney today. It’s better to take control of the situation early rather than waiting until after family members have begun taking matters into their own hands. While it is possible to handle an estate without an attorney, it is very easy to make mistakes that open you to liability later or cause problems within the family. The cost of a probate attorney usually amounts to a very small percentage of the estate and makes the process go far more quickly and smoothly.

It’s also a good idea to get an estate planning attorney to help you prepare your own will or trust. See my article, What Happens If I Die Without a Will?

Joseph D. Fairbank at 9:34 AM No Comments | Post a Comment
Estate Planning
Friday, November 4, 2016

The Election and Immigration

This November farmers and ranchers will have the opportunity to vote for the next President of the United States. Donald Trump has vowed to build a "big beautiful wall" at the border and to deport millions of illegal immigrants. Hillary Clinton has promised to introduce comprehensive immigration reform with a pathway to citizenship for illegal immigrants.

Many farmers and ranchers argue that Trump's plan to deport millions of illegal immigrants jeopardizes their livelihood. According to the National Council of Farmer Cooperatives agriculture in the United States faces a "critical shortage" of workers every year. U.S. citizens are largely unwilling to accept rigorous and phyically demanding jobs on the farm. In addition, H-2A guestworker programs are cumbersome and slow. The NCFC supports legislative reform that "includes both a program to provide access to legal workforce into the future and an adjustment for current experienced, unauthorized agricultural workers."

The American Farm Bureau Federation also recognizes the farm labor shortage and advocates for the new work visa program and allowing current illegal agricultural workers "the ability to stay in the U.S. and continue to work in the agricultural sector."

In November, 2014 President Obama attempted to address the immigration problems with a series of executive actions. Lawsuits were filed by a number of states challenging implementation of the executive actions. A U.S. District Judge blocked implementation of the executive actions on procedural grounds. The Fifth Circuit Court of Appeals upheld the injunction. On June 23, 2016, the U.S. Supreme Court issued a 4-4 decision which left in place the injunction and denied implementation of the President's executive actions.

The issues of immigration will be largely decided in our next election with the selection of our next President of the United States and Congress. Your vote counts, and will help determine the future of agriculture.

Lance J. Schuster at 9:50 AM No Comments | Post a Comment
Monday, October 10, 2016

CMS Prohibits Arbitration Provisions in LTC Admission Agreements

Jared AllenCenters for Medicare & Medicaid Services (CMS) seeks to provide basic protections to residents of long-term care (LTC) facilities in signing an agreement for the arbitration of disputes between residents and LTC facilites. On September 28, 2016, as part of a massive overhaul of consumer protections applicable to LTC facilities, CMS issued a rule prohibiting LTC facilities that accept Medicare or Medicaid from requiring potential residents to enter arbitration agreements as a condition of admission.

The rule places clear restrictions on arbitration agreements entered between LTC facilities and residents after November 28, 2016, the effective date of the rule. Restrictions and/or requirements include the following:

  • Arbitration agreements cannot be entered into prior to the existence of a dispute;
  • Arbitration agreements must be separate agreements in which residents make “an affirmative choice to either accept or reject binding arbitration for disputes between the resident and the facility[;]”
  • The LTC must provide an explanation of the agreement including, at a minimum, that the resident is waiving the resident’s right to judicial relief for any potential cause of action covered by the agreement;
  • The agreement must be voluntary;
  • The agreement must provide for the selection of a neutral arbitrator and a venue convenient to both parties;
  • The agreement must not be contained within another agreement relating to other issues; and
  • Guardians or other representatives entering agreements on behalf of a resident must be permitted to do so under state law and must not have a financial interest in the LTC facility.

Opponents of the new rule have suggested CMS lacks the statutory authority to restrict the use of arbitration, but in addressing those concerns CMS has concluded that the Federal Arbitration Act (FAA) does not limit its ability to regulate how arbitration agreements are reached as a condition of participation in the federal payment programs. Because CMS acknowledges the FAA applies to already existing arbitration agreements, the new rule has no application to such agreements between LTC facilities and current residents. The final rule provides: “[T]he rule we are issuing does not affect already-existing arbitration clauses, but prohibits Medicare-and Medicaid-participating LTC facilities from using them in the future, as a condition of participating in these programs. While we share the same public policy concerns about already-existing arbitration agreements, we are only addressing agreements reached after the effective date of this rule.”

Jared Allen at 4:35 PM No Comments | Post a Comment
Monday, September 26, 2016

What Happens If I Die Without a Will?

Most people don’t really think about making a will until they reach retirement age, and even then, many put it off until it’s too late. But if you were to die without a will, have you ever thought about what would happen to your assets? Who would take care of your minor children? How necessary is a will, anyway?

If you die without a will, you’re said to have died intestate. Without a legally binding will to tell the world what you want done with your property, we have to guess. But a court can’t simply take statements from your family and friends about what they think you would have written in a will if you had one, based on your values and priorities. Instead, we have a set of laws that apply the same values and priorities to anyone who dies without a will. These are the laws of intestacy.

What happens to my property?

For example, suppose you have a girlfriend you love like a wife and a best friend you love like a brother, but you have a bad relationship with your family. If you wrote a will, you’d probably leave most of your property to your girlfriend and a special gift or two to your best friend. If you die without a will, however, the laws of intestacy decide where your property goes, and the laws of intestacy assume you want to give your property to your blood relatives. In Idaho, all your property would go to your parents. If your parents were not living, then your property would go to your parents’ other children (your siblings).

Think about the blended family, with the couple who each want to leave their property to their separate children. Under the Idaho laws of intestacy, the spouse would inherit one half of the dead spouse’s separate property and all of the “community property” (everything acquired or earned during the marriage except gifts or inheritance). What if a parent in this couple wanted to treat all of the children as his or her own? Without a will (and without legally adopting the children), the property would go only to the parent’s spouse and own biological children.

Or what about a couple who are living together but not married? Idaho doesn’t recognize common law marriages after 1995. So if someone in one of these types of relationships dies without a will, their partner can’t inherit. The law sees them as unmarried, so all the property would go to blood relatives. In fact, if a couple is married, it doesn’t matter how close they are. Even if the couple has separated, the spouse would take all of the community property and half of the dead spouse’s separate property without a will. If there are no children or living parents, then the spouse would take the entire estate.

Many people want (or need) to treat different children differently. Whether wealthy or poor, close or estranged, gifted or disabled, the laws of intestacy give each of your children the same equal share of your property. And that’s only if they’re your biological or legally adopted child. Even if you raised the child, without that legal relationship, the child will inherit nothing.

If you make a will, however, you can decide exactly who gets your assets when you die. You could leave everything to your neighbor and disinherit your entire family if you so choose. That’s the beauty of the will—it lets you keep control of your assets even after your death. 

What happens to my children?

If only one of the children’s parents dies, then the surviving parent continues to care for them. But if all parents are dead or otherwise disqualified as parents, it gets more complicated. The court can appoint legal guardians for children whose parents have died, but the process can be long, expensive, and messy. There could be many people angling for guardianship of your children when you die. Idaho law permits any family member or any “person interested in the welfare of the minor” to apply to the court for appointment as guardian. If a child is fourteen or older, then even the child may appoint someone to act as guardian.

Once the applications have been made, the court has to choose the guardian that would be in the best interests of the children. As you might guess, arguing over which applicant is best for the children can be complicated and emotional. Meanwhile, the court might have to appoint a temporary guardian, and choosing that guardian can take time. And the court may very well appoint a guardian ad litem for the children to work with the attorney hired to represent the children’s interests in court.

This is usually not what the parents would want for their children. If you make a will, you can designate a guardian for your children in the event of your death. As long as the person(s) you designate accept the appointment as guardian, and as long as they are not unfit to care for children, then the court will follow the will. Even if someone else could prove they would be a better guardian, the court will follow your wishes as expressed in your will.

Don’t wait to make your will. Talk to an estate planning attorney today about taking control of your assets and providing for your children. 

Joseph D. Fairbank at 8:38 AM No Comments | Post a Comment
Estate Planning