August Deborah FitzGerald presents the Stephen R. Booher Award to Honorable Jeffrey E. Streitfeld. Also in this issue:

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1 August 2013 Deborah FitzGerald presents the Stephen R. Booher Award to Honorable Jeffrey E. Streitfeld Also in this issue: Florida New P.I.P. Insurance Law SMART Act Update Latest Supreme Court Decisions SERVING THE CITIZENS AND LEGAL COMMUNITY OF BROWARD COUNTY SINCE 1925

2 DEBTOR & CREDITOR RIGHTS Corporate Financial Restructuring Bankruptcy and Insolvency Commercial Loan Restructuring and Foreclosure Litigation Rice Pugatch Robinson & Schiller, P.A. Rice Pugatch Robinson & Schiller, P.A. provides its clients with a sophisticated commercial legal practice by offering practical litigation and transactional solutions to the complicated legal problems encountered in today s marketplace. The firm offers its clients representation in matters of creditor rights, bankruptcy, insolvency, business reorganizations, commercial litigation, real estate, commercial transactions, as well as trusts, estates and guardianships N.E. Third Avenue, Suite 1800, Ft. Lauderdale, FL The hiring of a lawyer is an important decision that should not be based solely upon advertisement. Before you decide, ask us to send you free written information about our qualifications and experience. Broward County Bar Association Recognizes 100% Membership Club **For firms with 6 attorneys or more** Gray Robinson, P.A. Colodny, Fass, Talenfeld, Karlinsky, Abate & Webb Brinkley Morgan Wicker, Smith, O Hara, McCoy and Ford, P.A. Billing, Cochran, Lyles, Mauro & Ramsey, P.A. Fowler White Boggs, P.A. Fowler, White, Burnett, P.A. McIntosh, Sawran & Cartaya, P.A. Chimpoulis, Hunter & Lynn, P.A. Cole, Scott, and Kissane Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A. Goldstein Law Group Panza, Maurer, & Maynard, P.A. Walton, Lantaff, Schroeder & Carson, LLP Doumar,Allsworth,Laystrom, Voigt, Wachs, Adair, & Bosack, LLP Ferencik, Libanoff, Brandt, Bustamante, & Goldstein, P.A. Haliczer, Pettis & Schwamm, P.A. Keller Landsberg Rogers, Morris & Ziegler, LLP Green, Murphy & Murphy, P.A. Bunnell & Woulfe, P.A. Law Offices of Sheldon J. Schlesinger, P.A. Cooney Trybus Kwavnick Peets, PLC Phillips Cantor Shalek & Rubin, P.A. Kelley Uustal MacLean & Ema Gladstone & Weissman, P.A. Berman, Kean & Riguera, P.A. Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC Catri, Holton, Kessler & Kessler P.A. Moody, Jones, Ingino & Morehead, P.A. Broad & Cassel Fazio, DiSalvo, Cannon, Abers, Podrecca, Fazio & Carroll 2 August 2013 Broward County Bar Association Barrister

3 CRIMINAL DEFENSE, DUI, TRAFFIC All Federal And State Courts 150+ YEARS COMBINED EXPERIENCE MUSCA LAW Attorney John Musca Selected Super Lawyers 2012 Mutual Referrals? S. ANDREWS AVE. SUITE 11 FT LAUDERDALE, FL Broward County Bar Association Barrister August

4 inside this issue Staff Box PUBLISHER Broward County Bar Association PUBLICATIONS & PUBLICITY COMMITTEE Edwina V. Kessler, Chairperson BOARD OF DIRECTORS LIAISON Laura Varela EXECUTIVE EDITOR Braulio Rosa LAYOUT AND PRINTING Park Row Printing MEDIA MANAGER Bonnie Ross CONTRIBUTING WRITERS Nancy Little Hoffman Russel Lazega Mark Popolizio BILLING INQUIRIES Ext Letter from the President Alan S. Fishman Young Lawyers Section Letter from the President Marissa J. Pullano Florida New P.I.P. Law By Russel Lazega, Attorney and Author SMART Act Update Mark Popolizio, Esquire BCBA Board Annual Meeting Pictures Latest Supreme Court Decisions Nancy Little Hoffman Calendar of Events 9 17 The Barrister is published monthly by the Broward County Bar Association. All editorial, advertising and photos may be submitted for consideration through to: braulio@browardbar.org We make every effort to ensure the accuracy of the information published, but cannot be held responsible for any consequences arising from omissions or errors. Opinions expressed by our writers and advertisers are not necessarily opinions shared by the BCBA or the Barrister. ON THE COVER: Deborah Fitzgerald, BCBA President July 2012 June 2013, presents the Stephen R. Booher Award to the Honorable Jeffrey E. Streitfeld. For information on upcoming events, please check out: AUGUST 2013 Deborah FitzGerald presents the Booher Award to Honorable Jeffrey E. Streitfeld. SERVING THE CITIZENS AND LEGAL COMMUNITY OF BROWARD COUNTY SINCE August 2013 Broward County Bar Association Barrister

5 BCBA Officers Alan S. Fishman - President John G. Jordan - President Elect Robin S. Moselle - Treasurer Charles A. Morehead, III - Secretary Deborah FitzGerald - Past President Braulio Rosa - Acting Executive Director BOARD OF DIRECTORS NORTHEAST Michael Kean Thomas Oates Jerome R. Siegel NORTHWEST Gary Landau WEST Donald E. Fucik Gary M. Singer Russell M. Thompson CENTRAL Michael A. Fischler Jeffrey Harris Jose Izquierdo Edwina V. Kessler Jay Kim Michael Leader Steve Lubell SOUTHWEST Kenneth P. Hasssett SOUTHEAST Anita Paoli Jeffrey Solomon Laura Varela JUDICIAL REPRESENTATIVE The Honorable Jeffrey R. Levenson ACTING EXECUTIVE DIRECTOR Braulio Rosa Broward County Bar Association 1051 SE 3rd Avenue Fort Lauderdale, FL letter from the president It is 10:00 AM and you just got back to your office from motion calendar. You have an important client meeting in the afternoon and an evidentiary hearing tomorrow. Your daughter has a soccer game at 7:00 PM. Or you promised your mother that you would stop by for a visit this evening. You open up your schedule and see a noon lunch meeting of your practice section at your voluntary bar association. You would really like to go to the lunch meeting and know that your daughter or mother is looking forward to your being there to watch Alan S. Fishman or see them, but you feel guilty about the billable hours you will lose and the work not done if you are not in the office. Too many times we let the guilt win out, only to find it replaced by the guilt of not attending the meeting or disappointing our family. Our work ethic and training as attorneys is that our first responsibility is to complete the problems our clients have given us to solve and to maximize our income in order to best support our family. A friend who is a wonderful therapist has told me several times when I have allowed work to overshadow my life outside the office that we should imagine ourselves at our own funeral. Four people will speak: a family member, a friend, a colleague, and a respected member of the community. What is it that they will say about us that will make us feel we have had a fulfilling and meaningful life? Here are two options: 1. The family member will say that we always provided well for our families. The friend will say that whenever he had a legal issue, he knew we would be there to take care of it. The colleague will say that we devoted our lives to our clients who waited in line for our successful services. The community member will say we had a wonderful reputation as an attorney. or 2. The family member will say that that we were always there for them when it mattered despite our busy schedule. The friend will say that he always knew he could count on us to lend an ear or a hand. The colleague will say that our clients and fellow attorneys respected us for our hard work and perspective. The community member will say that we were respected professionals and family members. To make the second option the path of our lives, it takes a determined effort to balance and prioritize all of the different demands on our time. It may mean bringing work home to do after the kids are asleep or asking a colleague to cover a calendar call. Yet, every time we go to one of those lunches, we enjoy the camaraderie with our colleagues and come back to work refreshed. Similarly, the day after the game or the visit with the family member, we feel good about how it felt to spend time with them. The work will get done and the quality of our lives will be at its best. Broward County Bar Association Barrister August

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7 BCBA Young Lawyers Section OFFICERS Marissa Pullano - President Liza Smoker - President Elect Tobi Lebowitz - Treasurer Jeffrey M. Wank - Secretary Meghan Clary - Past President BOARD OF DIRECTORS Jamie D. Alman Lauren M. Alperstein Todd L. Baker Patrick V. Douglas Eric S. Rosen Sara M. Sandler Jonathan H. Stief Lindsay M. Timari Anthony H. Quackenbush Cherie Smith Valbrun Kelly M. Vogt Stacy R. Weissman JUDICIAL REPRESENTATIVES The Honorable Stacy Ross The Honorable Cynthia Imperato Florida Bar Board of Governors 17th Judicial Circuit Walter G. Skip Campbell Lorna E. Brown-Burton Jay Cohen Adam Glenn Rabinowitz Diana Santa Maria Broward County Bar Association 1051 SE 3rd Avenue Fort Lauderdale, FL letter from the young lawyers president Marissa J. Pullano, President The month of August is always one of my favorite months even though the hottest days of the year often fall in August. A quick google search of August also reveals that August was a favorite of Roman Emperor Augustus Caesar from which the month derives its name. Many of the most important events in Caesar s life and his greatest triumphs occurred in August, including his conquest of Egypt. Setting that historical fact aside, August is the start of the Young Lawyers calendar of events and we have quite a few events (triumphs, if you will) that will require you to mark your calendar as soon on possible. On Thursday, August 15, 2013, the Young Lawyers Section will continue our outreach to the Juvenile Diversion Record Expunction Workshop which assists youths who have successfully completed a diversion program within the last six (6) months, expunge their record. The Workshop is held on a quarterly basis at the Urban League in Fort Lauderdale (located at 560 NW 27th Avenue, Fort Lauderdale, Florida 33311) from 5:30 pm 8 pm. The Record Expunction Workshop is part of the Broward Diversion Coalition led by Assistant State Attorney Maria Schneider which offers an array of services to non-violent, first-time misdemeanor offenders in an effort to better outcomes for at-risk youth. If you are interested in volunteering with the Workshop, please contact marissa.pullano@brinkleymorgan.com by August 10, All training to participate is done at the Workshop upon arrival, and participation is a wonderful way to give pro bono assistance back to our community. On Thursday, August 22, 2013, we will kick off our first monthly luncheon with a judicial panel discussing the topic Common Mistakes by Lawyers which will be held at the Tower Club. Judges Tim Bailey of the Family Division and William Haury of the Civil Division have committed to join our judicial panel. Please mark your calendars for this luncheon. We will also be hosting our annual happy hour with Emerge Broward and Ghost Light Society in August. This event usually takes place at the Broward Center for the Performing Arts but this year due to construction at the Broward Center, we are in the process of securing a new venue. The event will be free to members of YLS, Emerge Broward and Ghost Light Society. Please check the YLS website ( for the final date for this happy hour. Please also mark your calendar for October 19, 2013 when YLS will host our 26th Annual Golf Tournament benefitting HANDY (Helping Abused Neglected Disadvantaged Youth). The tournament will take place at Jacaranda Golf Club in Plantation and we are thrilled to be working with HANDY to exceed our previous fundraising efforts, to benefit at risk youth in our Broward County community. YLS Secretary and Golf Tournament chair, Jeff Wank, has already begun his hard work and has secured Warren Henry Infiniti as a hole-in-one sponsor. You will not want to miss this incredible event. Please mark your calendars today and stay tuned for YLS s and check our website for updates about this event. If you have any questions about sponsorship opportunities or participating in this year s event, please do not hesitate to contact Jeff Wank at jwank@cftlaw.com. Finally, a very special thank you to Judge Ari Porth who invited the Young Lawyers Section Board of Directors and fifteen (15) members of the Young Lawyers Section to attend a breakfast with the newest members of the Broward County Judiciary, Judges Bailey, Rosenthal, Rothschild, Scherer, Watson, Pole, McHugh and Levine on Friday, August 2, Thank you to Judge Porth and the newest members of the judiciary for their hospitality. If anyone has any questions about joining YLS or to learn more information about YLS and our events, please feel free to call me at or me at marissa. pullano@brinkleymorgan.com. You can also find a calendar of our events on the Broward County Bar Association web site at As always, it is an honor to serve the community and our profession this year as the YLS President. I look forward to seeing you at our August programs and events. Broward County Bar Association Barrister August

8 Congratulations to the those attorneys in the 17th Circuit who are celebrating 50 years of service in The Florida Bar Karl William Adler W. George Allen George E. Bunnell Larry C. Fedro Robert James Fogan Alcee Lamar Hastings Taylor Mattis Estella May Moriarty James O. Resta Murphy Jr. Joseph John Navarra Franklin Anthony Orlando Carl Schuster Lawrence Oliver Turner Jr. Plantation Preserve GOLF COURSE & CLUB S O U T H F L O R I D A S F I N E S T G O L F F A C I L I T Y Corporate & Charity Golf Tournaments Available Monday Ladies League Host Site of Second Stage PGA Tour Q-School GPS-Equipped Golf Carts Pristine Course Conditions Plush Sea Dwarf Paspalam Fairways and Greens Friday Lunch Buffet 11-2 Sunday Breakfast Buffet 9-1:30 FOR TEE TIMES: ~New w Membership Year Y begins October 1st~ *7 Day advance Tee Time Reservations *Green Fee exemption ($22 cart fee) *12X Member/Guest Play Pass *Full use of Member Only Practice Facilities *Optional Member Amentities Available *Unlimited Range Ball Program Available *Full Year Rates begin as low as $2600 Join today and get September Free Call P l a n t a t i o n P r e s e r v e G o l f C o u r s e & C l u b W e s t B r o w a r d B o u l e v a r d P l a n t a t i o n, F l o r i d a w w w. P l a n t a t i o n P r e s e r v e. o r g Call for your Member for a Day Trial Experience 2 6 t h A n n u a l C h a r i t y G o l f T o u r n a m e n t Win! Shotgun Start 4 person scramble 8 a.m., Saturday, October 19, 2013 unlimited beverages prizes putting contest Jacaranda Golf Club, Plantation, Florida raffles silent action continental breakfast awards luncheon Happy Hour: Thursday, Oc tober 17, 2013 from 5:30 7:30 p.m. American Social on Las Olas Visit for more information or Jeffrey M. Wank, Esq. at jwank@cftlaw.com or All Proceeds donated to HANDY (Helping Abused Neglected Disadvantaged Youth) 8 August 2013 Broward County Bar Association Barrister

9 The ink has barely dried on Florida s new P.I.P. insurance law and already reports are coming in from state insurance regulators that consumers shouldn t get their hopes up about seeing any savings on their car insurance at least not any time soon. The official word from Tallahassee: Let s re-evaluate the situation in maybe... perhaps. So What Happened? Where did the Savings and Legislative Fixes Go? The short answer is we are in a state of legal limbo on the new P.I.P. Law both with regard to its implementation and its savings. On one side, the statute was never given any teeth to enforce rate reductions so most insurance companies simply did not take them or requested less of a rate increase then previously sought. On the other hand, many of the new cost-saving provisions of the new bill have been challenged in the courts (with challengers successfully obtaining an injunction from a circuit court in Tallahassee) leading to a response by insurers that savings haven t happened yet because the law hasn t really been able to fully take effect. So Do We Have a New P.I.P. Law or Don t We? Well, yes... sort of. The decision of the circuit court is on appeal and most insurers have simply continued to apply the new statute until the appellate court says different. Moreover, the circuit case only declared parts of the law unconstitutional, focusing its analysis on the provisions of the statute capping P.I.P. benefits at ¼ their prior amount for many non-emergency cases and the language excluding certain classes of treatments and treatment providers, namely acupuncture and massage. The rationale in a nutshell was that P.I.P. coverage had become so restrictive and cumbersome that it no longer provided a fair exchange for the right to sue in tort. The result was a state of confusion with some insurers implementing the changes and others taking a wait and see approach. How Did This Mess Happen? First, we need to take a trip back to early 2012 and the state legislative session to get an understanding of where our promised fix for P.I.P. went dreadfully awry. Florida New P.I.P. Insurance Law Will it be Premiums or Coverage that Drops Like a Rock? By Russel Lazega, Attorney and Author It was March Politics were hot and heavy. The legislative session was waning to an end. Governor Rick Scott (accompanied by Chief Financial Officer Jeff Atwater) were weighing in heavy on the Senate floor trying to push their sweeping car insurance bill through its final vote. Deals were being cut; Budget items still lingered on the bartering table. And most-importantly, the great, pink elephant of legislative redistricting (the once-every-decade redrawing of state legislator s district boundaries) was still very present and trumpeting in the corner of the room. In fact party leadership was quick to remind any wayward political cog that his district could easily end up looking like an upside down Chinese Yen character if he stepped off the company line. The battle was on. What Was Lost in the Push to Win the Battle? Perhaps the biggest problem was that in the rush to proclaim victory in passing a bill few stopped to look at what was actually in the bill or whether it would actually produce savings and whether it would even survive constitutional challenge. Let s look at what we got. No Promise of Rate Reduction. Maybe it s better to say that we should look at what we didn t get. Glaringly absent from this law is any requirement that insurers actually lower your premiums. Repeat no one actually required that rates go down! There is little more than a suggestion that insurers roll back rates by 10 (and later 25) percent, or send an excuse note to the insurance commissioner explaining why they didn t make the cut. That s it. Naturally, you guessed it most insurers quickly pulled out their post-it pads and penned their excuses for why they weren t ready to lower rates. We ll cut rates by raising them less, was the answer for most insurance companies. So What Did We Trade for Maybe Less of More Premium Hikes? Consumer and Plaintiff groups say it s just less coverage for more money. Insurers say this was needed reform that will slow the skyrocketing rise in auto insurance premiums and reduce fraud. Here are the law s key provisions: P.I.P. coverage drops from $10,000 to $2,500 for certain claims where there was not an emergency medical condition. Certain services such as massage and acupuncture are no longer covered. Treatment must be sought within 14 days of an accident or no coverage will be extended. Reimbursement caps applied for hospitals and most medical providers. Insurers are given an additional 60 days (up to 90 total days) to pay certain claims that are under investigation. Insurers may now force consumers to sue for information needed to verify if a claim was processed correctly (such as payment registers). Injuries not noted in the emergency room or primary treating physician s records might no longer be covered. So if the emergency room fails to document a complaint or a problem later develops, you may not be covered. Insurers may now require injured persons making a claim to submit to the insurance company for an Examination Under Oath (essentially a deposition) conducted by the insurance company s lawyers or investigators before any payment will be made. Fail to cooperate and you risk losing your benefits. Conclusion: So What s Next Now That the Rock Has Dropped? At least one dramatic proposal was floated during the last legislative session and seems poised to return again: namely, to eliminate P.I.P. and replace it with a mandatory, fault-based, bodily injury coverage system. That fix, proponents say, will eventually get costs under control leaving insurers finally able to bring about those rate cuts we ve been promised... yeah, maybe then. Russel Lazega is an attorney and author of several of Florida s most widely distributed legal textbooks on Florida Insurance Law: West s Florida P.I.P. Practice Series and West s Florida Insurance Law & Practice. Mr. Lazega represents Hospitals, medical providers, accident victims, insurance policyholders and condominium associations and is based in Dania Beach, Tallahassee, North Miami, Orlando and Tampa, Florida. Contact: Lazegalaw.com Broward County Bar Association Barrister August

10 Bridging the divide Upchurch Watson White & Max M e d i a t i o n G r o u p Serving Broward County, and all of Florida and Alabama, since 1996 (800) Photo of Tree Tops Park in Davie from The South Florida Sun Sentinel The Broward County Bar Association thanks its Annual Sponsors The Arias Law Group Bob Coury Boss Certified Realtime Reporting Broad & Cassel Attorneys at Law Connections for Business Crowe Paradis Ellsley Sobol Attorneys at Law Fiske and Company Florida Power and Light Lexis Nexis Pankauski Law Firm PLLC Sabadell Bank Swamp City Productions Bench & Bar Convention October 18, 2013 Broward County Convention Center Fort Lauderdale HOLD THE DATE! Over 750 participants expected A day filled with CLE Seminars Legal Vendors Breakfast, Lunch, & Cocktail Reception Keynote Speaker Florida Supreme Court Justice Barbara J. Pariente Keynote Breakfast Speaker The Honorable Renee Goldenberg of the 17th Judicial Circuit will present Top Ten Societal Shifts that Affect Legal Ethics and Professionalism. For information about sponsorship or an exhibition table at the Broward County Bar Association s 2013 Bench & Bar Convention, contact at your earliest convenience: Robin Moselle, Convention Co-Chairperson (954) Charles Morehead III, Convention Co-Chairperson (954) Braulio Rosa, Acting Executive Director (954) August 2013 Broward County Bar Association Barrister

11 In a major development on the SMART Act front, the Centers for Medicare & Medicaid Services (CMS) has announced that it will release proposed regulations this fall regarding its implementation of key SMART Act provisions. 1 Specifically, the forthcoming proposals will focus on establishing regulations pertaining to (i) Section 111 civil monetary penalties and (ii) the new expedited conditional payment demand process created under the SMART Act. This article provides a general overview of CMS announcements and how they relate to SMART Act implementation as follows: Section 111 Civil Monetary Penalties The SMART Act modifies Section 111 s penalty provision by adding a discretionary element regarding the penalty s application and amount. 2 Further, the new law requires CMS to solicit proposals from the public to establish the formal Section 111 penalty provisions. 3 To implement these provisions, CMS has now announced that it will release an Advance Notice of Proposed Rulemaking (CMS-AN- PRM-6061) sometime in September A copy of this notice can be obtained here. This announcement indicates that the forthcoming ANPRM will solicit proposed criteria and practices for which Civil Monetary Penalties (CMP s) will and will not be imposed under the Medicare, Medicaid and SCHIP Extension Act of 2007 (MMSEA). On a technical point, it is noted that the above description does not make any reference to the ANPRM seeking input on establishing safe harbors for applicable plans that make good faith efforts to identify a [Medicare] beneficiary as specifically required under the SMART Act. 4 It is unclear if CMS, despite this omission, intends to include the safe harbor provision as part of the upcoming ANPRM process. Regardless, given the importance of this provision to many industry stakeholders, it is expected that the public will press CMS on this point to ensure that the safe harbor is in fact covered as part of the AN- PRM process. Expedited Conditional Payment Demand Process The SMART Act creates a new expedited conditional payment demand process whereby parties may obtain CMS final conditional payment figure prior to a settlement, judgment, award, or other payment. 5 As part of this process, claimants or applicable plans (with the consent of the claimant) will be SMART Act Update CMS to Release Proposed SMART Act Regulations this Fall By: Mark Popolizio, Esquire required to use CMS new Medicare Secondary Payer Recovery Portal (MSPRC Portal). CMS must update the portal within specified timeframes and the information it posts must meet certain specificity requirements. To implement these provisions, CMS has announced that it will release an Interim Final Rule (CMS-6054-IFC) sometime in October A copy of this notice can be obtained here. This announcement contains a very general description which simply indicates that the forthcoming interim final rule will address the process for parties to access beneficiary specific Medicare Secondary Payer information from the new conditional payment portal. It is noted that this description does not reference anything in relation to the SMART Act s appeals process. Specifically, the SMART Act extends formal appeal rights to primary payers and other parties to challenge conditional payment determinations. CMS is required to promulgate regulations establishing a right of appeal and appeals process. It is unclear if the forthcoming interim rule will also address this aspect, or if CMS will address this through a separate process. Going Forward With these new CMS announcements, several important SMART Act components now move to the all important rule making phase. As part of this process, the industry will have the opportunity to provide its input and comments on the Section 111 penalty and the new expedited conditional payment process. It will be necessary to closely monitor CMS and the Federal Register over the next few months for CMS formal release of its proposed regulations. Close attention should also be paid to the exact comment submission process outlined therein (including submission deadline dates) to ensure that comments are properly submitted and received by CMS. ISO Crowe Paradis will continue to closely monitor these events and provide timely updates as warranted. 1 SMART Act is the acronym referring to the Strengthening Medicare and Repaying Taxpayers Act. By way of brief background, the SMART Act was introduced into the United States House of Representatives as H.R in March 2011, and in the Senate as S.1718 in October In mid December 2012, the SMART Act was then merged with H.R. 1845, a bill directing Medicare to study the benefits of in home administration of intravenous immune globulin. The SMART Act became Title II of H.R (Sections ). On December 19, 2012, the House passed H.R by a vote of 406 to 3; the Senate passed the bill on the Unanimous Consent Calendar the following day. President Obama then signed H.R into law on January 10, As referenced, the SMART Act adds a discretionary element to Section 111 s penalty in terms of application and amount. Specifically, the SMART Act strikes the shall be subject language as contained in the original statute and replaces it with may be subject to a civil penalty of up to $1,000 for each day of noncompliance with respect to each claimant. See, SMART Act, Section Under the SMART Act, the Secretary of HHS is required to solicit proposed regulations regarding Section 111 civil money penalties within 60 days of the SMART Act s enactment (which was technically March 10, 2013), to include a 60 day public comment period. After considering the submitted proposals, the Secretary, in consultation with the Attorney General, shall publish in the Federal Register proposed specified practices for which sanctions will and will not be imposed, to include a 60 day comment period. After then considering any received comments, the Secretary is to issue a final rule establishing the Section 111 penalty provisions. As part of this process, the new law requires that the regulations contain a specific safe harbor provision precluding the imposition of the Section 111 penalty in situations where the applicable plan makes good faith efforts to identify a [Medicare] beneficiary. See, SMART Act, Section See, n In general, the claimant or applicable plan may request CMS final conditional payment figure (referred to as a statement of reimbursement ) by notifying CMS at any time beginning 120 days before the reasonably expected date of a settlement, judgment, award, or other payment that a payment is reasonably expected and the date of such payment. CMS will then have 65 days to post its conditional payment demand (subject to possible limited time extensions). The SMART Act also sets forth a dispute process whereby an individual (or authorized representative) may challenge any discrepancies with respect to the provided statement of reimbursement. See, SMART Act, Section The text of the SMART Act states that CMS must promulgate final regulations to carry out this clause not later than 9 months after the date of the enactment of this clause. This would technically mean that the final regulations would be due on or before October 10, 2013 (nine months from when President Obama signed the bill into law on January 10, 2013). See, SMART Act, Section 201. Mark Popolizio, Esquire is Vice President of MSP Compliance and Policy for ISO Crowe Paradis. Mark is a nationally recognized authority in MSP compliance. He has authored numerous articles on MSP issues including MMSEA Section 111, MSAs and conditional payments. Mark is a regularly featured presenter at national seminars and other industry events. Prior to dedicating his practice to MSP compliance in 2006, Mark practiced workers compensation and liability insurance defense for ten years representing carriers, employers, third party administrators and self insureds. Mark is based out of Miami, Florida and can be reached at mpopolizio@cpscmsa.com or (786) Broward County Bar Association Barrister August

12 Coral Springs Office Space First Month Rent FREE University Drive across from The Walk. Two professionally decorated window offices (11x14 and 10x14) with available workstations. Shared reception area, kitchen and conference room. Will rent individually. Starting at $850/month. Contact Mark Abzug, Esq. (954) THANK YOU Phelan Hallinan, PLC For Placing Your Legal Notices with Us in BAY COUNTY, Florida And Saving Your Clients Money! PANAMA CITY AREA & BEACHES WEEKLY BAY COUNTY BULLET / legalads@baybullet.com We can help! We ve been using them for years! Get the forms completed without aggravation! Stay in compliance with court requirements! Visit or call us at RAINY DAY DISABILITY RESOURCES, INC. is a Florida non-profit whose mission is to improve the lives of disabled individuals by providing proactive and innovative funding options along with education and specialized resources. 12 August 2013 Broward County Bar Association Barrister

13 Thank you to the following attorneys who accepted a Pro Bono case from Broward Lawyers Care* January - March 2013 Jeffrey Solomon June 2013 Broward Lawyers Care congratulates Jeffrey Solomon, Esq. as the June 2013, Attorney of the Month! Jeffrey Solomon has contributed countless hours over the past couple of years, teaching, advising and mentoring staff attorneys at Legal Aid Service of Broward County (LAS) and Coast to Coast Legal Aid of South Florida (CCLA). His expertise as a behind-the-scenes mentor to these attorneys has helped them to navigate the complicated and everchanging bankruptcy laws and court system. The foreclosure crisis has resulted in an overwhelming increase in clients seeking legal counsel about the options associated with bankruptcy filings to save their homes. Because of Mr. Solomon s willingness to share his expertise, the LAS and CCLA staff attorneys are able to provide specialized legal services to clients in crisis with issues like mortgage foreclosure, tax liens, IRS issues and other complex matters. Jeffrey Solomon is a sole practitioner in Hollywood, Florida. He is the former Section Chair of the Broward County Bar Association Bankruptcy Section and is a member of the Bankruptcy Bar Association for the Southern District of Florida and the National Association of Consumer Bankruptcy Attorneys. He has lectured and published articles on the new bankruptcy laws. Thank you, Jeffrey Solomon, for your devotion to Justice for All! Because of your contributions, we have helped numerous clients who otherwise might not have received legal representation. Jamie Aleman David Bazerman Theresa Bennett Brion Blackwelder David Boyer Yvonne Brown-Wright Michael Cabrera Lisa Callahan Meghan Clary Elizabeth Daugherty Pilar De Jesus Stephanie Ducheine-Welsh Zachariah Evangelista Ben I. Farbstein Larry Fedro Samantha Fitzgerald Nathaniel Flinchbaugh Dexter F. George Jill R. Ginsberg Jennifer Gomez Seril Grossfeld Andrea Gundersen Ronald Hansen Yvette Harrell Diana Hedrick Michael Hoffman Jorge E. Hurtado Ahiza H. Johnson Matthew Karp Theodore C. Kaufman Carol Kendall Patricia Keyes Paul Kim Tobi Lebowitz Mary Lewis Angela Lipscomb Edward Lohrer Grace Manne Reed B. McClosky James McDonald Amy McGrotty Dauna McPherson Joanne McShane Stephen B. Moss Patrick Murphy Robert Murphy John Page Blaise Picchi Karol Pierce Marissa Pullano Dawn Rapoport Eric Rosen Richard Sachs Robert Sader Sara Sandler Stephanie Schneider Paula Schwartz Janet Shepherd Sherri Simpson Jon Stief Ronald Surin Mario Theodore Russell M. Thompson Chad Van Horn Kelly Vogt Jeannette Watkin Melissa S. Zelniker-Presser John Zullo *Includes Mission United Pro Bono Veterans Project, Tracey McPharlin Pro Bono Dependency Project and Advice & Counsel Hotline. Broward County Bar Association Barrister August

14 BCBA BOARD OF DIRECTORS Executive Committee Alan Fishman President John Jordan President Elect Robin Moselle Office of the Treasurer NORTHEAST Thomas D. Oates Michael I. Kean Jerome R. Siegel Donald E. Fucik Gary Landau Jose Izquierdo Steve Lubell CENTRAL Edwina V. Kessler Jeffrey Solomon Michael A. Fischler SOUTHWEST Michael Leader Jay Kim SOUTHEAST Anita Paoli WEST CENTRAL Russell M. Thompson Jeffrey Harris Deborah FitzGerald Past President NORTHWEST WEST Gary M. Singer Charles A. Morehead III Office of the Secretary Ken Hassett JUDICIAL REPRESENTATIVE Laura Varela The Honorable Jeffrey R. Levenson

15 2013 Annual Meeting and Installation Dinner On June 20, 2013, the Broward County Bar Association celebrated the installation of its 88th president, Alan Fishman, as well as its incoming officers and board members. At the same event, the Young Lawyers Section installed its new president, Marissa Pullano, and the YLS Board of Directors. Congratulations to Alan, Marissa and both Boards. President s Award recipient, Christin Gallardo, with Deborah FitzGerald (president July 2012 June 2013). A special thank you to Carey Fischer for providing entertainment during the cocktail reception. Practice Chair award recipients, Leonardo Ortiz and Gavin Caddy (Construction Law), with Deborah FitzGerald (president July 2012 June 2013). Committee Chairperson Award recipient, Edwina Kessler (Publicity and Publications), with Deborah FitzGerald (president July 2012 June 2013). Paul May Young Lawyers Section Professionalism Award recipient, Diana Sulea, with Liza Smoker Faw, YLS President Elect. Joseph J. Carter Professionalism Award recipient, Samuel Coffey, with Andrea Gundersen, Professionalism Chairperson (July 2012 June 2013). Lynn Futch Professionalism Award recipient, Jeff Solomon, with Andrea Gundersen, Professionalism Chairperson (July 2012 June 2013). Judge Renee Goldenberg, Judge Sharon Zeller and Attorney Beverly Vesel at the Cocktail Reception. Practice Section Chair Award recipient, Neal Falk (Worker s Compensation Law), with Deborah FitzGerald (president July 2012 June 2013).

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17 Latest Supreme Court Decisions By Nancy Little Hoffman Supreme Court Rejects Attempt to Prevent Challenge to Legislative Apportionment Plan The Legislature sought extraordinary writ review to block the League of Women Voters from maintaining a lawsuit in circuit court presenting fact-based challenges to the 2012 legislative apportionment plan. The Supreme Court held that its constitutional authority to review the facial validity of the plan within thirty days based on a limited record did not preclude the circuit court from determining the plan s validity based on facts not available at the time of the high court s initial review. Florida House of Representatives v. League of Women Voters, 38 Fla. L. Weekly S565 (Fla. July 11, 2013). Implied Warranties Apply to Essential Services in Residential Development; Legislature Cannot Abolish Common Law Right by Enacting Statute to Overrule Judicial Decision Upholding a Fifth District decision, the Supreme Court held that a homeowners association had standing to pursue claims on behalf of homeowners against a builder for breach of implied warranties of fitness and merchantability, extending those warranties to improvements that provide services essential to the habitability of residences. The Court also invalidated the Legislature s enactment of a statute purporting to overrule retroactively the Fifth District decision, because (1) its retroactivity offended due process by abolishing vested rights; (2) it violated the constitution s access to courts provision by attempting to invalidate a common law cause of action; and (3) it violated the separation of powers clause. The Court noted: The Legislature does not sit as a supervising appellate court over our district courts of appeal. Maronda Homes, Inc. v. Lakeview Reserve Homeowners Association, Inc., 38 Fla. L. Weekly S573 (Fla. July 11, 2013). Homeowners Allowed to Challenge Foreclosure Sale on Equitable Grounds Other Than Inadequate Bid Price Where a mortgage lender settled with borrowers for a reduced amount, which they paid timely, but the home was nonetheless sold at a foreclosure sale, the circuit court vacated the sale, dismissed the action, and ordered repayment of the purchase price to the third-party buyer. On appeal by the buyer, the Fourth District affirmed and certified the question as to whether it is necessary to allege and prove an inadequate bid price in order to vacate a judicial sale. The Supreme Court held that vacation was proper where, as here, the homeowners alleged and proved adequate equitable grounds, even though there was no challenge to the bid price or the manner in which the sale was conducted. Arsali v. Chase Home Finance, LLC, 38 Fla. L. Weekly S562 (Fla. July 11, 2013). Dual Prosecutions Under Separate Subsections of Drivers License Law Violated Double Jeopardy The Supreme Court held that a defendant cannot be prosecuted for both driving with a suspended license and driving as a habitual traffic offender. The applicable sections reflect that the two crimes are mutually exclusive, and prosecutions for both would thus violate the prohibition against double jeopardy. Gil v. State, 38 Fla. L. Weekly S581 (Fla. July 11, 2013). Lawyer practicing in the Fort Lauderdale area since She may be contacted at or by at NLHappeals@aol.com. For more information, see NancyLittleHoffmann. com. Broward County Bar Association Barrister August

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19 RAE E. CHOROWSKI SUPREME COURT CERTIFIED FAMILY LAW MEDIATOR MEGHAN M. CLARY RENITA F. HENRY OF COUNSEL PAULA REVENE, P.A. CHOROWSKI & ASSOCIATES, P.A. IS PLEASED TO ANNOUNCE MEGHAN M. CLARY HAS BEEN MADE A PARTNER IN THE FIRM AND THE NEW NAME OF THE FIRM IS CHOROWSKI & CLARY, P.A. The addition of Meghan Clary s name to our law firm has been made in recognition of her extraordinary contributions to the firm and our clients. We are particularly proud of Meghan s diligent and distinguished service as President of the Young Lawyers Section of the Broward County Bar for the past year and we look forward to the continuing contributions she will make to this firm and to the legal community in the coming years. Rae Chorowski Meghan Clary Chorowski & Clary, P.A. will continue to offer our clients exceptional representation in all aspects of marital and family law. Law Offices of Chorowski & Clary, P.A. 600 South Andrews Avenue Second Floor Fort Lauderdale, FL Office: Fax:

20 1051 S.E. Third Avenue Fort Lauderdale, FL PRSRT STD U.S. U.S. POSTAGE PAID FT. FT. LAUDERDALE, LAUD. FL FL PERMIT NO. # 2998 August :00 am 5:00 pm Eight Hour Adult Guardianship Class Attorneys Welcome, approved by the Florida Bar for CLE credits; Fee $180. Venue: BCBA Offices Address: 1051 SE 3rd Avenue, Fort Lauderdale Contact: Tish (954) to register for this event 9:00 am 1:00 pm Four Hour Minor Guardianship Class Description: Attorneys Welcome, approved by the Florida Bar for CLE credits; Fee $100. Venue: BCBA Conference Center Address: 1051 SE 3rd Avenue, Fort Lauderdale Contact: Tish (954) to register for this event. calendar of events 12:00 pm 1:30 pm West Broward Section CLE Luncheon Description: Speaker: Mayor John P. Jack Seiler: Includes Lunch and CLE; $25, $30 at the door. Venue: Plantation Preserve Golf Course Address: 7050 W. Broward Boulevard, Plantation Contact: Bonnie Ross (954) or bonnie@browardbar.org