Happy New Year BAR ASSOCIATION. St. Petersburg. December 2012/January Paraclete - The Magazine For The Legal Professional

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1 St. Petersburg December 2012/January BAR ASSOCIATION Paraclete - The Magazine For The Legal Professional In this issue: Want to be Happy? Just Give Up By Kristina Feher Judge-Elect Profile: Kim Campbell By John V. Tucker The Tide Rolls Out: Appeals Court Rules Against Bama in Suit Against Painter of Famous Football Scenes By David Roy Ellis Medicare Advocacy Issue: Hospital Observation Status By Linda Chamberlain and Shannon Martin Judge-Elect Profile: Cathy McKyton By Summer Goldman Happy New Year

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3 ST. PETERSBURG Paraclete: The Spirit of Truth December 2012/January 2013 BAR ASSOCIATION Contents Features 8 Want to be Happy? Just Give Up By Kristina Feher 10 Judge-Elect Profile: Kim Campbell By John V. Tucker 12 The Tide Rolls Out: Appeals Court Rules Against Bama in Suit Against Painter of Famous Football Scenes By David Roy Ellis 14 Medicare Advocacy Issue: Hospital Observation Status By Linda Chamberlain and Shannon Martin 20 Judge-Elect Profile: Cathy McKyton By Summer Goldman Around the Bar 11 Clerk s Corner 13 Bar and Court News St. Petersburg Bar Association 2880 First Avenue North St. Petersburg, FL Phone: Fax: Lawyer Referral Service: The mission of the St. Petersburg Bar Association is to serve the legal community, to strengthen the noble calling of the practice of law, and to foster excellence in the profession. Executive Director D. C. Chip Collins Editor Jowita Wysocka Holiday Party 18 Court of Canakaris 21 PFAWL 29 Pro Bono Week Proclamation Paraclete Advertising JoAnn Knight In Every Issue Design & Production President s Message 6 From the Editor 21 Young Lawyers Corner 22 Stetson Review 24 St. Petersburg Bar Foundation 26 Community Law Program 28 What s Up and Who s New 30 Classifieds ERRATA The St. Petersburg Bar Association Editorial Board and the St. Petersburg Bar Foundation express their apologies to Robert P. Byelick, for the misspelling of his name on the cover of the November 2012 Paraclete. Editorial Policy: The Paraclete is published for the members of the St. Petersburg Bar Association. The magazine is published 10 times per year and welcomes submissions for publication. Publishing and editorial decisions are based on the editors judgment of the quality of the writing, the timeliness of the article, and the potential interest to the readers of the magazine. From time to time the Paraclete may publish articles dealing with controversial issues. The views expressed in the Paraclete are those of the authors and not necessarily those of the editors, executive committee or officers of the St. Petersburg Bar Association. No endorsement of those views should be inferred unless specifically identified as the official policy of the St. Petersburg Bar Association. Advertising copy is reviewed, but publication herein does not imply endorsement of any product, service or opinion advertised. Advertising rate cards are available upon request by calling and November be downloaded at St. Petersburg Bar Association. Paraclete December 2012/January

4 President's Message: It s Halftime! By Timothy A. Miller Although the calendar is turning soon as we celebrate the start of a new year, our St. Pete Bar Association has just reached the halfway point through our bar year which began on July 1. We have exciting plans in the coming months for more events to serve our members and our community. Yet I am quite proud to pause and look back on the efforts of our association through the first half of this year, knowing of both the work and the ingenuity of so many bar members in presenting our programs. Consider the following partial review of SPBA sponsored activities this fall. Our Judicial Candidates Forum introduced every candidate for the bench in our Circuit and featured comments from Florida Supreme Court Justice Peggy Quince. We presented professionalism seminars and panels at three separate events this fall. Florida Bar President Gwynne Young addressed our membership in the midst of the judicial merit retention challenges, and we later presented a forum on Florida s Judicial Merit Retention with panels discussing varying viewpoints. We mixed with students and professors at Stetson University College of Law, and we returned there to co-host our 13th annual Bench and Bar Conference at Stetson featuring a long list of our judiciary, an eye-opening panel discussion on the legal minefield of social media, and inspiring comments by Florida Supreme Court Justice R. Fred Lewis. Former St. Pete Mayor and current USF Vice President of Development Rick Baker shared with our membership a look back and some views forward about our city. Our sections and committees sponsored multiple seminars including presenters such as the County Property Appraiser, our Clerk of Court and his staff which was sold out and encored. We also maintained the tradition of combining and co-hosting many of our programs with the Clearwater Bar Association. As an officer of our bar association I find it so rewarding to witness how inclusive Chief Judge Thomas McGrady is with our association and how concerned he is to hear our views. The same is true with new Dean Chris Pietruszkiewicz at Stetson and his enthusiasm for our partnership. In the approaching second half of our year we have planned many more projects and programs. SPBA joins and supports the St. Pete Bar Foundation s Heroes Among Us celebration on January 5 which honors two new heroes and one rising star. Our popular Judicial Reception will cap off a day in which the Second District Court of Appeal hears oral arguments at the St. Petersburg Courthouse and participates in an afternoon seminar with our association. As part of our April membership luncheon, you will have a unique opportunity to focus on your listening skills in an interactive forum led by renowned presenters visiting us from Cambridge, Massachusetts. More details will follow on this intriguing presentation. You are welcome to attend any Section meetings or programs whether you are a section member or not. Check the newly revised SPBA website for those announcements. There is an extensive calendar of upcoming events during the next six months. A closing thought. I once questioned the term Heroes on the SPBF event, and my friend Camille Iurillo convinced me the intent is to celebrate unsung heroes examples of unassuming, hard-working lawyers quietly making a difference, beyond their jobs, and expecting no spotlight. With that definition, the term and the recognition are highly appropriate, and the recipients are quite deserving. And this year s recipients are wonderful examples of the good works selflessly done in our community (and in others) by local lawyers, for which we should all be proud. Thank you Bob Byelick, Gail Moulds and Brittany Maxey for sharing your talents and time as inspiring examples to us all. And also congratulations to all of you who contributed to our bar association s first half and who are preparing more events for our members. I am inspired by your leadership and contributions, and I say thank you from all of us. J December 2012/January 2013 MEMBER APPRECIATION RAFFLE WINNER Miguel Roura Sponsored by 4 St. Petersburg Bar Association

5 KENNETH C. DEACON, JR. Mediation - Arbitration Certified Circuit Court Mediator Board Certified Civil Trial Lawyer- Florida Bar Board of Certifications AV - Rated (for over thirty years) Past Governor - The Florida Bar Past President -St. Petersburg Bar Association 2008 Recipient of the Barney Award for Ethics, Professionalism and Legal Experience Elected as Florida Super Lawyer ( ) Ken Deacon has over forty years civil trial experience and has tried, as lead counsel, well over 100 major civil jury trials to their conclusion. Ken has represented both plaintiffs and defendants. 100 Second Avenue South Suite 902 St. Petersburg, FL Phone: Toll Free: Paraclete December 2012/January

6 From the Editor: PIP Reform Passes while Texting and Driving Ban Fails; Highlights From the 2012 Florida Legislative Session Not to be outdone by last year s bans on bath salts and baggy pants, the Florida Legislature had another prolific session by passing a number of bills that were controversial and widely-criticized. The most notorious of these among the legal community was HB 119, which severely reduces benefits under the state s previous 40-year-old nofault personal injury protection law (PIP). Despite assurances by the Governor and other proponents of the legislation, drivers have yet to see any reductions in the PIP portion of their auto insurance premiums. In fact, State Farm recently proposed increasing the PIP portion of its insurance by 22 percent, although it later recanted and is now willing to settle for a mere 7.9 percent increase. 1 The following is a summary of Florida s noteworthy legislative successes and failures in 2012: 2 PIP Reform (HB Passed): Reduces no-fault coverage from $10,000 to $2,500 unless seen by a physician within 14 days of the accident and diagnosed with an emergency medical condition. Texting While Driving Ban (SB 416 Failed): Would have punished texting while driving as a secondary offense to speeding or causing an accident. Despite support from over 70% of Florida residents, 3 this bill was rejected again this year. Flashing Headlights (HB 1223 Passed): Allows drivers to flash headlights at oncoming motorists. Auto Racing (SB 266 Failed): Would have established auto racing as the state s official sport. Autonomous Cars (SB 1768/HB 1207 Passed): Requires a study on driverless car safety. Animal Shelters (SB 818 Failed): Would have required animal control agencies and shelters to keep a registry of rescue groups willing to accept animals that would otherwise be euthanized. Zoo Animals (HB 1117 Passed): Allows zoos and aquariums to lease stateowned land to research exotic animals. Pit Bull Ban Reversal (HB Failed): Would have removed the ban on breed-specific dogs considered to be dangerous. Animal Dye Ban Reversal ( Passed): Reverses the ban on dyeing animals using artificial colors (this is a particularly popular practice on chicks and rabbits at Easter, after which most of these animals are simply discarded). Food Stamps (SB Failed): Would have prohibited recipients to buy junk food with food stamps and to use them at casinos. Gaming (HB Failed): Would have allowed up to three large casinos in South Florida. Trail Ads (SB 268/HB 181 Passed): Allows paid advertising on state nature trails. Foreign Law (SB 1360/HB 1209 Failed): Would have prohibited the use of religious or foreign law in a legal decision or contract. Quicker Foreclosures (SB 1890/HB 213 Failed): Would have hastened the foreclosure process. Online Notices (SB 230/HB 149 Failed): Would have required foreclosure notices to be posted online rather than published in newspapers. Employee Tips (SB 2106 Failed): Would have reduced wages to employees By Jowita L. Wysocka whose tip earnings amounted to minimum wage. E-Verify (SB 1638/HB 1315 Failed): Would have required employers to prove that their workers are not illegal immigrants. On behalf of the Paraclete Editorial Committee, warmest wishes for a restful and healthy holiday season with abundant prosperity and joy in the coming year. Also, please contact me at PerenichLaw.com if you would like to join our committee or simply contribute an article. New members and submissions are always welcome. Wesołych Swiąt! Jowita is an attorney at PERENICH The Law Firm in St. Petersburg and Clearwater, where she concentrates primarily on injury, trial, and bankruptcy law. She is also the founder and director of Florida Lawyers for the Arts, Inc., a non-profit that provides legal resources to artists and arts organizations in a variety of areas, including copyright, trademark, contracts, employment, and litigation. 1. Politics in Polk, State Farm Request Would Increase No Fault Auto Insurance Rates (Oct. 9, 2012), theledger.com/article/ / POLITICS/ St. Petersburg Times, Winners and Losers: Some Bills That Passed, Failed in the 2012 Legislative Session (March 11, 2012), politics/gubernatorial/winners-andlosers-some-bills-that-passed-failed-inthe-2012-legislative/ Huffpost Miami, Florida s 2012 Legislative Session: Texting Ban, Abortion Bill, School Prayer, Foreign Law, and Pitbull Ban (March 12, 2012), huffingtonpost.com/2012/03/12/ floridas-2012-legislative_n_ html. 6 St. Petersburg Bar Association

7 Paraclete December 2012/January

8 Want to be Happy? Just Give Up By Kristina Feher As a young lawyer, we have those moments: Why am I doing this? Was this the right career choice for me? Am I really cut out for this? As lawyers, we hold onto lots of things. Our clients confide in us. Our friends want to run something by us. Our parents neighbor s cousin s friend just has a quick question. All that weight eventually weighs us down. We want to be perfect. We need to be perfect in order to get the job, get the respect, get the corner office. Brené Brown, a research professor at the University of Houston Graduate College of Social Work, believes that [p]erfection is the belief that if we live perfect, look perfect, and act perfect, we can minimize or avoid the pain of blame, judgment, and shame. Sometimes, what we do not realize is that we need to give up in order to be happy. What would happen if we gave up believing we needed to be perfect? What would happen if we gave up believing what other people thought of us? We need to give up trying to be perfect. We also need to give up more in order to be happy Give up your need to impress. We all would love to drive Bentleys, lunch at the Tampa Club, and have dinner at Bern s before returning home to our mansion on Snell Isle. While those may come after some years of practice, right now young lawyers, we need to focus. Focus on who you are flaws, strengths, and all. When we give up worrying if people will like us or not because of the car we drive or what zip code we live in, people will appreciate who we really are. Otherwise, we just invite people who don t know the real us or falsely judge us into our lives. Give up worrying and needing to impress and be genuine and genuinely happy. Give up the habit of blaming. It is always easier to eat crow while it s warm. No one really believes you are perfect. Bosses expect mistakes and all of us have made them. As easy as it is to blame someone else for your mistake, you discredit your own reputation by doing so. So even though the legal assistant didn t calendar the meeting that you scheduled, don t point the finger. Take a deep breath, take responsibility for the mistake, and see what you can do to rectify the situation now. Give up blaming and find a solution to be the kind of employee your boss wants. Give up feeling entitled. Yes, you do have a law degree. However, that does not entitle you to treat the janitor or the judicial assistant like a lesser being. No one owes you anything. Employers do not owe you a duty of loyalty to keep you in your current position if you act like you are entitled to your position. Give up that feeling and be thankful for what you have, for how good you have it, and for how positive your life is. When you are thankful, you will be happy. Give up your resistance to change. As we age, we dislike change more and more. We eat in the same restaurants because people get to know us and the waiter knows our usual order. We live in the same place because we can t bear to move (and find a new place, and look at the new place, and rent a truck, and.). Why do we fear change? Perhaps we are afraid of the unknown. But change is good. When we give up resisting change, we can make important changes in our life that will make us happy. Opening yourself to change could lead you to a new restaurant that becomes your new favorite, a new home with the kitchen you ve always wanted, or even your dream job. Be open to change. In order to be happy, we do need to give up. We need to give up everything weighing us down. We need to give up needing to impress, so that we can make sure to invite genuine people into our lives. We need to give up blaming in order to be able to find solutions. We need to give up feeling entitled so we can be happy and thankful. We need to give up resistance to change so we can be ready for the open door. Giving up isn t always a bad thing, especially when it allows us to be happy. Kristina Feher is the managing member of Feher Law, and her practice areas include bankruptcy, divorce, small business matters, and immigration. Kristina can be reached at or com. 8 St. Petersburg Bar Association

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10 Judge-Elect Profile: Kim Campbell By John V. Tucker Kim Campbell grew up in Johnson City, Tennessee. Her parents George and Bonnie Campbell still live there. As they enter their 50th year of marriage, they are most certainly proud of their daughter as she takes the bench as a newly elected Sixth Circuit Judge. When they watched Kim leave Tennessee to go to Stetson University in 1998, they knew she would become the first person in the family to receive an advanced college degree, but they may not have anticipated where her studies would lead their daughter. Kim received her undergraduate degree from Milligan College. At Stetson, she got both her law degree and an MBA. After almost three years as an Assistant State Attorney, she went into private practice with the Law Offices of Thomas J. Donnelly, where she practiced family law, civil, and criminal defense. She also served as a guardian ad litem from 2003 to Her years in private practice were culminated in being elected President of the Clearwater Bar Association in Along the way to the bench, she married Ryan Buckley, a sergeant with the Pinellas County Sheriff s Office. Their son, Parker, is five years old, and Judge Campbell includes soccer mom on her resume. They have several pets, including four cats Muffin, a 19 year old Manx; Ling, a 12 year old Snowshoe Siamese; Frizito, one year old black cat; and Oreo, a 9 month black and white. Nemo, a dwarf hamster, rounds out the family. Judge Campbell is a fighter. She will proudly tell you that she is a three-year breast cancer survivor, and one of her hobbies is martial arts. She has a black belt in Choi Kwon Do, and served as an instructor in women s self defense seminars. She has received many awards for service. While at Stetson, Kim received the Raphael Steinhardt Award for character, leadership, and service to the community, and the William F. Blews Pro Bono Service Award. In 2003, she received the Sheriff s Community Service Award. She was also the recipient of the Clearwater Bar Association President s Award several times. Her service as a guardian ad litem helped her see the difference a judge can make in someone s life. It led her to take the next step in her legal career. As she prepared for her new role as a judge, she spent considerable time shadowing other judges. She was impressed by how the members of the bench look at cases in comparison to the attorneys that practice before them. Unlike the attorneys, judges do not come into the courtroom knowing the back story of the parties, and they rely heavily on the written record. The time spent observing from the bench led her to realize that some lawyers set themselves apart. She will freely tell you that an attorney can stand out by a) being prepared you owe it to your client, b) citing to the law to support the relief they are seeking, and c) being civil there is no place for personal attacks in the courtroom. Judge Campbell s starting assignment will be in the Family Division in New Port Richey. John Tucker is a Past-President of the St. Petersburg Bar Association. His practice includes ERISA benefits and insurance claims and litigation. He can be reached at 10 St. Petersburg Bar Association

11 Clerk s Corner From the Office of Ken Burke, Clerk of the Circuit Court, Pinellas County, Florida Probate E-Filing Announcement We are pleased to announce that our office has received approval from the Florida Courts Technology Commission to end our pilot e-filing project and begin receiving e-filings from all Probate attorneys. Effective immediately, attorneys may begin e-filing Guardianship and Estate pleadings through the statewide e-filing portal. There is no need to follow up your e-filing with the paper documents except for: wills, bonds, original death certificates and Pre-need Guardianships. These particular documents will still be needed in original format, however to expedite the processing of your case, you may scan and submit the images of these documents initially with your e-filing. We are very excited about this big news as it provides the Clerk s office with the opportunity to move forward towards the goal of a paperless office and provides the attorneys the ability to e-file without having to follow up with the originals. If you have any questions, please me at We look forward to assisting you with any e-filing training that may be needed. Paraclete December 2012/January

12 The Tide Rolls Out: Appeals Court Rules Against Bama in Suit Against Painter of Famous Football Scenes This past summer, before the college football season began, the U.S. Court of Appeals for the Eleventh Circuit in Atlanta ruled in favor of an artist who painted famous historical scenes of the University of Alabama s Crimson Tide football team. The University sued the painter, Daniel Moore, for trademark infringement, unfair competition, and breach of contract for depicting its renowned crimson and white uniforms in his paintings without permission. Univ. of Alabama Board of Trustees v. New Life Art, Inc. (11th Cir. 2012). For over thirty years, since 1979, Moore has painted famous scenes from Alabama s storied football history and sold them to the team s rabid fans. His paintings feature realistic portrayals of the Crimson Tide s uniforms, including helmets, jerseys, and crimson and white colors. Moore s popular paintings have also been reproduced as prints and calendars, and on mugs, t-shirts, and other articles. For a dozen years, Moore painted historical Alabama football scenes without any kind of formal or informal relationship with the University. After 1991, he signed a dozen licensing agreements with the University to produce and market specific items, which often included Alabama trademarks on the border or packaging, or came with a certificate or stamp saying they were officially licensed products. He did not pay royalties for any of these items, nor did the University ask him to do so. During that time, the University issued Moore press credentials so he could have access to the team and obtain material for his work. However, in 2002, the University told Moore that he would need to license all of his Alabama-related products because they featured the University s trademarks. In particular, the University said that Moore needed permission to portray the University s uniforms, including the jersey and helmet designs and the crimson and white colors. Moore contended that he did not need permission because the uniforms were being used to realistically portray historical events. The parties could not resolve the matter, and in March 2005, the University sued Moore in federal court for breach of contract, trademark infringement, and unfair competition. The University claimed that Moore s unlicensed paintings, prints, calendars and other items infringed the University s trademarks because his depiction of the University s football uniforms with the crimson and white colors created a likelihood of confusion on the part of buyers that the University sponsored or endorsed his artwork and products. The University argued that its uniforms are strong trademarks, worthy of protection against use without its permission. The district court found that Moore s depiction of the uniforms in paintings and prints was protected by the First Amendment and also was a fair use, and that there was little likelihood of confusion By David Roy Ellis among consumers. However, it also ruled that, although the University s trademark rights were weak, Moore s depiction of the uniforms on mugs, calendars and other mundane products was likely to cause customer confusion. On appeal, the Circuit Court concluded that Moore s First Amendment interests in artistic expression so clearly outweighed whatever consumer confusion might exist that there was no trademark infringement with respect to the paintings, prints, and calendars. The court said that Moore did not violate the University s trademark rights because the uniforms in his artworks are artistically relevant to the underlying works. It also said that Moore never explicitly misled consumers as to the source of the items, and his interests in artistic expression outweighed any risk of confusion as to the endorsement. The court therefore concluded that Moore may continue to sell his paintings, prints, and calendars without the University s permission. As to mugs and other mundane products, the court remanded the case to the lower court because there were some disputed issues of fact remaining in the case. David R. Ellis is a Largo attorney practicing trademarks, copyrights, patents, trade secrets, and intellectual property law; computer and cyberspace law; business, entertainment and arts law; and franchise, licensing and contract law. A graduate of M.I.T. and Harvard Law School, he is a registered patent attorney and Board Certified in Intellectual Property Law by the Florida Bar. He is the author of the book, A Computer Law Primer, and has taught Intellectual Property and Computer Law as an Adjunct Professor at the law schools of the University of Florida and Stetson University. For more information, see www. davidellislaw.com 12 St. Petersburg Bar Association

13 Bar and Court News December 2012/January 2013 ASSOCIATION OF LEGAL ADMINISTRATORS - SUNCOAST CHAPTER: The Suncoast Chapter of the ALA meets on the second Wednesday of each month. For more information please contact Erica Hetherington at bgrplaw.com or visit the ALA website at for more information. The next meetings are: Date/Time: Tuesday, January 8, :00 p.m. Date/Time: Tuesday, February 12, :00 p.m. Speaker: Stuart J. Freeman, Esq. Speaker: Hamden H. Baskin, III, Esq. Program: Location: To Be Announced Antonio s Pasta Grille 2755 Ulmerton Rd. Clearwater Program: Location: Ethical Considerations in Accepting Gifts Antonio s Pasta Grille 2755 Ulmerton Rd. Clearwater PINELLAS ASSOCIATION OF CRIMINAL DEFENSE LAWYERS: The PACDL monthly meetings are held the second Wednesday of each month. Locations vary, but are frequently at the Criminal Justice Center from 12:00 to 1:30 p.m. Lunch is typically provided. For more information on PACDL please contact Reid Hart for the location or more information at or All attorneys are welcome to attend. PINELLAS COUNTY CHAPTER OF THE FLORIDA ASSOCIATION FOR WOMEN LAWYERS: PFAWL meets on the 1st Tuesday of each month at 6:00 p.m. at different locations each month. There is no RSVP requirement. For more information contact Marcelana Anthony at Date/Time: Program: Location: Tuesday, January 8, :00 p.m. Monthly Social No RSVP required Island Way Grill 20 Island Way Clearwater Beach, FL Date/Time: Program: Location: Tuesday, February 5, :00 p.m. Monthly Social No RSVP required Downtown Hilton 333 1st St. S. St. Petersburg, FL PINELLAS COUNTY CHAPTER OF THE PARALEGAL ASSOCIATION OF FLORIDA: Monthly meetings for the Pinellas County Chapter of PAF, Inc. are on the second Tuesday of each month. Paralegals, student paralegals, non-members and attorneys are always welcome. For further information or to make reservations, please contact Crystal Siegel: brasfieldlaw.net or Chrystal Lunsford. For more information on the local chapter contact Chrystal Lunsford at or visit the Paralegal Association of Florida website at The next meetings are: Date/Time: Wednesday, January 9, :45 a.m. 1:00 p.m. Speaker: Dwayne Sloan, PPCM Networking Program: e-filing and e-service Location: The Centre Club 123 S. Westshore Blvd. Tampa, FL Date/Time: Wednesday, February 13, :45 a.m. 1:00 p.m. Program: Annual Meeting Demonstration of Suncoast Chapter Website Location: Feather Sound Country Club 2201 Feather Sound Dr. Clearwater, FL ST. PETERSBURG ASSOCIATION OF LEGAL SUPPORT SPECIALISTS SPALSS is in the process of restructuring. Currrently there are no meeting dates on their calendar at this time. All legal support staff and attorneys are welcome. For more information contact Interim President, Roslyn Anderson at or Susan Batchelder at Paraclete December 2012/January

14 Medicare Advocacy Issue: Hospital Observation Status We have received a number of calls over the past year or so from families and attorneys about an issue with Medicare s coverage of hospitalization. Typically, the patient and/ or responsible party did not understand that the patient was in the hospital under observation, which means he/she was not admitted though may have been there multiple nights. Observation v. Admission A doctor must write an order to admit the patient to the hospital in order to become an inpatient. A patient may be considered an outpatient even after having spent the night (or several) at the hospital receiving various services, labs, and tests. Admission criteria relates to the intensity of service (IS) needed and the severity of your illness (SI). Neither Medicare statutes nor regulations define observation status. The Medicare policy manual explains observation status as: a well-defined set of specific, clinically appropriate services, which include ongoing short term treatment, assessment, and reassessment, that are furnished while a decision is being made regarding whether patients will require further treatment as By Linda Chamberlain and Shannon Martin hospital inpatients or if they are able to be discharged from the hospital. Most commercial insurers limit this to 24 hours and Medicare guidelines mention hours, but some patients have been held under observation for several days. There are several medical necessity screening tools that Medicare and its contractors use to determine if a hospital admission is medically necessary. While the order is written by the physician, the hospital may do a utilization review and change the decision. Proprietary decision tools such as McKesson s Interqual criteria are used by most hospitals, which provide a decision tree to determine whether hospital admission criteria are met. Medicare s Recovery Audit Contractor (RAC) reviews hospitalizations of Medicare beneficiaries, and if it finds what it believes to be improper payments to hospitals under Part A, it recoups the payment from the hospital, which cannot re-bill under Part B. This is an issue not just for the patient, but an increasingly difficult one for hospitals and one which they acknowledge is causing much confusion. According to a 2012 study by the American Case Management Association: 71% have added staff specifically to determine medical necessity on admission status, 79% report that patients are spending more time in observation, and 67% report that patients in observation status do not know that their status will result in extra expenses for them. Why does this matter to the patient? Medicare Part A covers inpatient services and comes with certain deductibles (in 2012, $1156 for total stay of days 1-60), whereas Medicare Part B covers outpatient services which may mean clients pay individually (typically with 20% copay after meeting the annual deductible) for various tests and services. While each service cannot carry a copay higher than the Part A copay, in total they could reach much higher. The other major concern is coverage of any inpatient rehabilitation needed after a hospitalization. Medicare will only pay for inpatient Skilled Nursing Services if the patient has been a hospital inpatient for at least 3 days in a row, which includes the day of admission, but not the day of discharge. Observation services DO NOT currently meet the 3-day inpatient criteria, so if a patient or family member did not understand the situation outlined 14 St. Petersburg Bar Association

15 above, it could mean unexpected out-ofpocket costs in the thousands. Many of the cases we have heard about and that have contacted the Center for Medicare Advocacy have been around this issue, and most patients are claiming notification issues (not being notified/presented with information about the status in order to understand the financial ramifications prior to being presented with a bill). Notification and Advocacy Efforts The first step for Medicare recipients (and responsible parties) is to be aware of this issue and ask about status when hospitalized. If a patient has not met Medicare s requirement for inpatient rehabilitation, planning can be done for alternatives and families can review costs and benefits in the decision process. For example, a patient may be able to be admitted to a hospital rehabilitation program or home health rehabilitation if appropriate. When the issue arises after the fact, patients should seek a review and may need to file an appeal (information on Medicare appeals: gov/publications/pubs/pdf/ pdf). Under the Medicare Act, when a determination is made that a service was not medically necessary and that Medicare will not pay for it, payment will nevertheless be made if the beneficiary did not know, and could not reasonably be expected to know, that payment would not be made. It is important for patients and their families to put together information on the chain of events and lack of notification or understanding if making an appeal. The Center for Medicare Advocacy (and co-counsel National Senior Citizens Law Center) filed suit on November 3, 2011 on behalf of seven individual plaintiffs from Connecticut, Massachusetts, and Texas who represent a nationwide class of people harmed by the illegal observation status policy and practice. (Bagnall v. Sebelius No. 3:11-cv-01703, D. Conn) There is also pending legislation in relation to the 3-day qualifying hospital stay criteria (Bipartisan legislation pending in Congress H.R in the House and S. 818 in the Senate, the Improving Access to Medicare Coverage Act of 2011 would count all time in the hospital toward meeting the three-day qualifying hospital stay). There is plenty of evidence indicating the increasing prevalence of this issue. With the potential financial impacts, it is important to increase awareness about this topic and guide clients to resources when needed. About the authors: Linda Chamberlain, J.D., CMC is President of Aging Wisely, LLC and a Board Certified Elder Lawyer and Shannon Martin, M.S.W., CMC is Director of Communications for Aging Wisely, LLC. Aging Wisely is a geriatric and disability care management and patient advocacy organization, helping clients, families and professionals since Aging Wisely offers a wide array of advocacy and care coordination services, as well as care consultations. Contact Aging Wisely at for more information about how they can help. Visit for more Medicare information and news. Paraclete December 2012/January

16 St. Petersburg Bar Association 2012 HOLIDAY PARTY December 6, 2012 Mirror Lake Lyceum THANK YOU to our Sponsors! PRESENTING SPONSOR SILVER BELL SPONSOR Michael J. Kohl Mediations JINGLE BELL SPONSORS Buckley Law Group, P.A. Hill Ward Henderson Lawyer Resource Alliance Trenam Kemker WestlawNext

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18 Court of Canakaris Awards Raleigh Lee Greene accepting the John C. Lenderman Award Christin Collins Brennan accepting the Canakaris Young Lawyer of the Year Award Judge David Seth Walker accepting the Canakaris Award for Judicial Excellence in Family Law Judge Marion Fleming, accepting the Canakaris Award for Judicial Excellence in Family Law. 18 St. Petersburg Bar Association

19 Sixth Circuit Judicial Investitures Friday, February 1, 2013 ~ 4:00 p.m. Pinellas County Criminal Justice Center th St. N., Courtroom 1 Clearwater, FL Circuit Court Judge William H. Burgess, III and Circuit Court Judge Thomas M. Ramsberger Friday, February 8, 2013 ~ 4:00 p.m. Pinellas County Criminal Justice Center th St. N., Courtroom 1 Clearwater, FL Circuit Court Judge Kimberly A. Campbell and County Court Judge Cathy McKyton Paraclete December 2012/January

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