How To Prepare For A Deposition

By Toni-Ann M. Buono, Esq.

During litigation, whether you are a physician, a business owner, or simply a non-party witness, there will likely come a time that you will be faced with having to testify at a deposition.  In Part One of this series, we explained what a deposition is and what to expect during a deposition.  This article will explain how to effectively prepare for your deposition with your attorney. 

First and foremost, you should have a clear understanding of all facts pertinent to your case if you are a plaintiff or a defendant.  If you are a third-party witness, in conjunction with your lawyer, you should review all documents and communications relevant to the pending case and all matters outlined in the subpoena or deposition notice you received.  Your lawyer should meet with you in person to prepare you in advance of your deposition.  As you will need time to digest the information and continue to prepare, the in-person meeting will likely take place days or weeks before the scheduled date of the deposition.

 During your in-person meeting with your attorney, they will discuss with you what to expect and the procedural posture of the case.  It is also likely that your attorney will go through a series of questions that they anticipate the attorney conducting the deposition will ask you.  This is important because it allows you an opportunity to phrase your answer appropriately and to be certain that you are supplying the precise amount of information the answer requires.  Often times, once a witness becomes comfortable with the discussion, he or she will elaborate on matters either irrelevant to or outside the scope of the question posed.  Your attorney should prepare you to listen closely to the questions asked, so you are able to respond accordingly.

If you are a plaintiff or defendant, during the meeting, you may also review documents with your attorney.  These documents could include the pleadings in the litigation (i.e., Complaint or Petition, Answer and Reply), written discovery questions (i.e., Interrogatories), documents produced during discovery, affidavits, previous testimony, photographs, recorded conversations and correspondence.  However, be mindful that the review of documents should be in consultation with your lawyer.  You should be clear with your lawyer what you reviewed prior to your deposition.  This is important because one question that you will certainly be asked is: “Have you reviewed any documents in preparation for your deposition?”  If you have in fact reviewed documents in preparation, the attorney conducting the deposition will go through a series of questions inquiring as to which documents you reviewed, why you reviewed each document, and how you obtained a copy of each document.  Likewise, you should advise your attorney if you have spoken with anyone or intend to speak to anyone about the case or your upcoming testimony.  You will also be asked in detail about those conversations. 

It is also important to note that your attorney may tell you not to review certain documents or information that may be extraneous to your knowledge.  For example, if you are a business owner with an unfair competition claim, reviewing the financial statements of the competing business you are litigating against may subject you to questions regarding your understanding of accounting matters, which may be outside the scope of your expertise.

Lastly, even if uncomfortable, it is vital that you make your attorney aware of all relevant facts and circumstances surrounding the case that may be negative to your position or to you personally.  While you may be anxious to share certain information with your attorney, that information will remain privileged and may be helpful during your preparation session.  Indeed, your attorney may prepare you for certain uncomfortable questions and assist you in formulating a response.     

It is critical that you continue to prepare following your meeting with your attorney.  You should review all documents that you examined with your attorney, think about how you will answer certain questions, and the impression you want to make.  If you are unsure how to answer a question truthfully, have any reservations about your upcoming testimony, or remember anything that you did not discuss with your attorney, be sure to consult with your attorney prior to the day of your deposition.

Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.

ATTORNEY ADVERTISING: PRIOR RESULTS DO NOT GUARANTEE FUTURE OUTCOMES.

What To Expect At A Deposition

By Toni-Ann M. Buono, Esq.

During litigation, whether you are a physician, a business owner, or simply a non-party witness, there will likely come a time that you will be faced with having to testify at a deposition.  This article explains what a deposition is and what to expect during a deposition.  Part Two of this series will explain how to effectively prepare for your deposition with your attorney. 

What is a deposition?

A deposition (or an examination before trial) is a witness’ sworn out-of-court testimony regarding facts relevant to a pending case.  A deposition takes the form of a question-and-answer session, which is transcribed by a court reporter.  On occasion, the deposition may also be videotaped.              

Why is a deposition needed?

Depositions are utilized by attorneys during the discovery process in a civil case to gather evidence and information.  The testimony given during a deposition may be used as evidence during trial, in dispositive motions, or even to challenge the witness’s credibility at trial.  During a deposition, your demeanor, personality, appearance and etiquette are all being evaluated to determine whether you would be a credible witness at trial, before a judge and/or jury.              

Where does it take place and who will be there?

A deposition most often occurs in a law office conference room.  Other times it may be scheduled at the courthouse.  If you are a plaintiff or defendant in the case, your attorney will be present with you at the deposition.  If you are a non-party witness, you may choose to have a lawyer represent you at the deposition – although not required, it is highly recommended.  Others present will include the court reporter, the attorney questioning the witness, and potentially the plaintiff and/or defendant in the case, with their respective attorneys.  The judge presiding over the case will not be present, although if there are disputes during the deposition, the judge may be contacted to rule on those disputes.   

What to expect.

As a witness, you have a right to be treated with professionalism and courtesy by all in attendance.  At the beginning of the deposition, you will be asked your name and address for the record.  Next, the attorney questioning you will give you some preliminary instructions for the deposition.  Typical instructions include the following:

  • Please keep all of your responses verbal, as the court reporter is unable to notate hand gestures or nods of the head.
  • If you are unclear about a question or have any confusion, please ask for clarification or ask to have the question rephrased.
  • The witness must let the attorney finish each question before the witness responds, so the court reporter has a proper record of the exchange.
  • The witness is welcome to take a break at any point during the deposition; however, please do not ask to take a break in the middle of a question.  Once the attorney has asked the question and the witness responds, the witness is welcome to take a break after the answer is on the record.

It is also typical that the attorney will ask you if you are under the influence of any alcohol or drugs or have any conditions that would impair your judgment during the deposition.  You may also be asked if you are required to take any medication that you have not taken that day that would impair your judgment.  Those questions are important to ensure that you will not later claim that your ability to truthfully and accurately answer the questions posed was compromised.  You should advise your attorney prior to the deposition if you would answer “yes” to any of these questions.

Next, you will likely be asked if you reviewed any documents or spoke with anyone in preparation for your deposition.  A discussion on how to prepare for your deposition, including a review of documents, is more fully discussed in Part Two of this series.

Following the preliminary instructions and preparation questions, the attorney will proceed to inquire as to whether you have ever testified at a deposition or trial, your educational background, your employment background, and any additional relevant demographic information.  

Once the preliminary and background questions have been posed, the attorney will then focus on questions relevant to the pending litigation.  It may feel as if you are simply having a friendly conversation with another person.  However, no matter how friendly and civil your discussion with counsel is, you should not let your guard down.  Attorneys may try to befriend a witness so that the witness may feel comfortable enough to share with them matters that they have not spoken  about with their own lawyer.

When answering questions during the deposition, it is helpful to remember these tips:

  • Listen to each question carefully.  While the attorney may be asking you a very specific question, you may be prepared to give a full explanation surrounding a particular circumstance.  Always listen to the full question being posed so you can answer succinctly instead of providing information that was not requested. 
  • Think about your answer before responding to the question. If the answer simply requires a “yes” or “no” response, be sure to answer accordingly.  If the attorney wants you to elaborate, they will inquire further. 
  • Take your time when responding.  There is no rush to get the answer on the record.  Be sure that you understand each question and are giving the appropriate answer.  If you do not understand a question, please say so.  Lack of understanding a question framed by a lawyer is not a sign of ignorance!
  • Be honest in your responses.  Remember that you are under oath and if you give a different answer at trial, your previous answer(s) will damage your credibility.  More importantly, you could face criminal and civil penalties for intentionally giving untruthful answers.

While the rules of evidence are relaxed in a deposition, you may observe the attorneys make objections to certain questions.  A rule of thumb is to pause before giving your answer to allow your attorney an opportunity to evaluate the question and make an objection if necessary.  Even if an objection is made, a witness usually must still answer the question.  However, your attorney may advise you not to answer.  In certain circumstances, the attorneys may decide to contact the presiding judge to rule on an objection. 

During your deposition, you will likely be shown various documents, which will be marked as exhibits.  The attorney will give you an opportunity to review each document before you are asked questions about it.  It is important that you carefully read each document in its entirety before you answer questions about it.  It is a normal occurrence for a witness to be shown a document that he/she has never seen before.  You should not be alarmed if you are shown a document for the first time and are unable to answer questions about it.  The attorney asking you questions will have a reason for questioning you about the document, and may be attempting to authenticate it.

Lastly, the length of your deposition will depend on your knowledge and involvement in the case.  For example, as a named party in a commercial case, you should expect a full-day deposition.  Alternatively, if you are merely an employee of a business in the litigation with limited knowledge, your deposition may only last a couple of hours.  Your attorney will be able to advise you on the expected length of your deposition.  

Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions. ATTORNEY ADVERTISING: PRIOR RESULTS DO NOT GUARANTEE FUTURE OUTCOMES

GUIDANCE FOR TELEHEALTH SERVICES DURING THE COVID-19 PANDEMIC: MEDICAID REIMBURSEMENT AND BUPRENORPHINE PRESCRIBING

By Jessica Woodrow, Esq. & Carla Hogan, Esq.

Starting March 13, 2020, the New York State Department of Health (DOH) has allowed electronic/virtual telehealth services for Medicaid beneficiaries for the duration of the ongoing COVID-19 pandemic. Other New York state agencies have followed suit. Additionally, the Substance Abuse and Mental Health Services Administration and the Drug Enforcement Agency relaxed requirements relating to buprenorphine prescribing.

Medicaid Billing

Under recent DOH guidance, Medicaid now reimburses remotely conducted patient evaluations and management services for established patients when in-person visits are not medically recommended. Pursuant to Governor Andrew Cuomo’s Executive Order 202, properly documented telemedicine visits will be considered medically necessary for Medicaid reimbursement for the duration of the coronavirus shutdown, if such visits are clinically indicated.

Previous amendments to New York’s Insurance and Public Health Laws require that all services covered under a comprehensive health insurance policy or contract must also be covered when the service is delivered remotely for New York Medicaid Managed Care plans. The DOH is encouraging telemedicine to provide COVID-19 related services to Medicaid recipients. Medicaid will also cover additional services including no-copay COVID–19 testing, as well as physician, clinic, and emergency visits where the purpose of the visit is COVID–19 testing.

According to a May 2020 DOH guidance update, the POS code for providers billing Medicaid for telehealth services should, “reflect the location where the service would have been provided face-to-face,” i.e., the office where the provider typically conducts in-person patient visits.  In addition, the health care provider can bill for services delivered by telephone if unable to facilitate the audiovisual services typically referred to as telemedicine.

Similarly, the NYS Office of Mental Health, The New York Office of People with Developmental Disabilities and the NYS Office of Substance Abuse Services, have all relaxed their requirements pertaining to telehealth services, making it easier for practitioners to treat, even via telephone.

As of March 6, Medicare authorized payment for telehealth services, including those delivered in a patient’s residence.  Medicare will pay for visits from a wide array of providers, including physical and mental health services, the latter including reimbursement for licensed clinical social workers.

Buprenorphine Prescribing

With respect to buprenorphine prescribing, on March 31, SAMHSA and the Drug Enforcement Agency (DEA) released guidance providing flexibility to prescribe buprenorphine to new and existing patients with opioid use disorder remotely by otherwise authorized practitioners without requiring such practitioners to first conduct an examination of the patient in person; SAMHSA has preemptively exercised its authority to “exempt providers from the requirement to perform in-person physical evaluations under 42 CFR § 8.12(f)(2) for any patient who will be treated with buprenorphine if a program physician, primary care physician, or an authorized healthcare professional under the supervision of a program physician, determines that an adequate evaluation of the patient can be accomplished via telehealth.” However, SAMHSA’s separate guidance for patients treated with methadone still require an in-person medical evaluation.  Earlier guidance, however, does permit methadone patients whose doctors certify them as “stable in their recovery” to receive a larger supply of the medication to take home rather than having to attend clinic regularly, to avoid COVID-19 exposure.

Finally, all providers treating via telehealth should be reviewing their consent- to treat forms to ensure that telehealth is included.  With respect to the provision of mental health services, a specific telehealth consent form is recommended due to the inherent nature of the treatment.  If you would like your forms reviewed or updated, please contact Carla Hogan or Jessica Woodrow, listed below.

Carla E. Hogan is Of Counsel to the Firm and is an AV rated attorney with other 30 years’ experience providing employment and health law counseling to for profit and not for profit entities, regulated providers and licensed professionals.  She can be reached at chogan@weisszarett@gmail.com or 518-527-9981

Jessica Woodrow is an Associate Attorney in the litigation and administrative proceedings practice group, handling matters involving all aspects of civil litigation with a primary practice focus on healthcare law.She can be reached at jwoodrow@weisszarett.com or 516-627-7000

Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a New York law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, employment counseling and controversies, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.

ATTORNEY ADVERTISING: PRIOR RESULTS DO NOT GUARANTEE FUTURE OUTCOMES.

PPP Loan Forgiveness Issues: When Employees Refuse to be Rehired

By Seth A. Nadel, Esq.

On May 3, 2020, the Small Business Administration (“SBA”) issued updated guidance to address the most recent concern of employers who have received Paycheck Protection Program (“PPP”) loans: employees who decline to be rehired.

The most compelling feature of PPP loans is the prospect of loan forgiveness. Under the applicable rules, a business receiving a PPP loan is eligible to have some or all of the loan amount forgiven so long as the loan proceeds are used for eligible expenses in the 8-week period following the disbursement of the loan. For some businesses – particularly those that have been forced to close by government mandates – this may mean that employers will be essentially paying the employees to stay home, but this is how the program is designed to operate.

Because the PPP’s primary objective is to protect the jobs of employees at small businesses, the rules provide that loan forgiveness will be proportionately reduced if a business reduces and does not restore its employee headcount to at least 75% of pre-COVID levels before June 30, 2020. For example, if a business terminates 25% of its employees and does not rehire or replace those employees before the end of June 2020, it will be subject to a 25% reduction in amounts that would otherwise be forgivable under the program.

However, due to enhanced unemployment benefits authorized by the CARES Act through July 31, 2020, concerns about COVID exposure, and other considerations, many furloughed employees are now refusing offers to be rehired or restored to their previous positions or salaries. These refusals present a quandary for employers who are specifically required to use a certain amount of their PPP funds for payroll in order to avoid taking an across-the-board haircut on their prospective loan forgiveness. As an employer cannot force an employee to return to work or accept their salary, employers have been left to wonder what might happen in the event a sizable portion of their workforce would simply prefer to remain unemployed and collect enhanced unemployment benefits            .

Fortunately, the SBA has specifically addressed this issue in its updated FAQ. To summarize, employers can avoid the penalties resulting from employees’ refusal to be rehired by meeting two requirements. First, they must make a written offer of rehire to the employee. Second, in the event the employee declines to be rehired, the employer must document the employee’s refusal to be rehired. Employers that do so in good faith will be allowed to exclude those employees when calculating whether they have maintained adequate staffing to avoid loan forgiveness penalties. A link to the most recent FAQ may be found here, and this issue is addressed in Question # 40.

As a matter of best practices, employers should additionally document the transmission of all offers of rehire (by retaining proof of either conventional or electronic mailing), as well as the responses of employees to the extent they are in writing. Also, as noted by the SBA, employers and particularly employees should be aware that a refusal to accept rehire by a former employee could very well render the refusing employee ineligible to continue receiving unemployment benefits. Should the Department of Labor learn that an employee has refused an offer of rehire, it is doubtful that the desire to remain unemployed to capture the enhanced benefits will be seen as a legitimate reason to have remained unemployed.

Because the issues surrounding PPP loan forgiveness will loom large in the coming months, it is anticipated that additional guidance from the SBA will be forthcoming on this and other outstanding issues. As such, the Firm will be keeping abreast of new information as it becomes available.

If you have any questions about PPP loans, please feel free to reach out to Seth Nadel, Esq. at 516-627-7000 or snadel@weisszarett.com.

Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.

ATTORNEY ADVERTISING: PRIOR RESULTS DO NOT GUARANTEE FUTURE OUTCOMES.

New York COVID-19 Leave Laws

By Toni-Ann M. Buono, Esq. & Carla Hogan, Esq.

Previously, we summarized the April 1 federal paid leave laws and regulations under the Families First Coronavirus Response Act (“FFCRA”).  Two weeks earlier, New York State enacted similar COVID-19 legislation providing paid sick leave to State employees subject to a mandatory or precautionary COVID-19 order of quarantine.  Here we compare the benefit interplay among FFCRA, the NYS COVID-19 paid sick leave provisions, and New York City’s Paid Safe and Sick Leave Law, which took effect May 5, 2018, but now also provides additional categories for COVID-19 related reasons.  

Click Here to View the Benefit Comparison Table

Frequently Asked Questions:

How does FFCRA impact the new NYS Paid Sick Leave for COVID-19?  If an employer has fewer than 500 employees, the provisions of the NYS Paid Sick Leave for COVID-19 will apply if the NYS benefits exceed those provided by FFCRA.  In that case, the employee can claim the monetary difference between the NYS and federal benefits.  An employer can require the employee to use FFCRA and NYS Paid Sick Leave for COVID-19 benefits concurrently.

What if an employer is located in NYC or an employee works in NYC, does the employee get the benefit of both the state and city COVID-19 sick leave provisions?   Yes, if the employee is eligible for both.  In fact, the city and state benefits will run consecutively.  Eligible employees will receive the minimum amount of paid or unpaid leave set forth in the NYC Paid Safe and Sick Leave Law, plus any paid leave the employee is entitled to under the NYS Paid Sick Leave for COVID-19.  Also, the employee may be able to access the two unpaid days afforded by the NYC Temporary Schedule Change Law, which are in addition to the NYC Paid Safe and Sick Leave Law.

What are a NYS employee’s options where a family member is sick with COVID-19?  The NYS COVID-19 legislation expanded the definition of a “serious health condition” under NYS Paid Family Leave to include those suffering from COVID-19.  An employee can now apply for NYS Paid Family Leave to care for a family member with a serious health condition if a licensed health care provider[1] certifies that the request for leave is justified.  That certification is included in the application package, which can be accessed here.  In this instance, an order of quarantine or isolation is not required, as compared to the application for NYS Paid Sick Leave for COVID-19, which requires such an order.   NYS guidance states that “family members” include an employee’s spouse, domestic partner (whether the same or different gender), child/stepchild and anyone which the employee has legal custody of, parent/stepparent, parent-in-law, grandparent or grandchild. 

Can a NYS employee receive both disability and paid NYS Paid Family Leave after his NYS Paid Sick Leave for his COVID-19 expires?  Yes, if the employee remains under a mandatory or precautionary order of quarantine.  For an employee who works for a small (as defined above) employer who made less than $1 million dollars, he can apply for NYS Paid Family Leave, which pays a maximum of 60% of his pay, up to a maximum weekly benefit of $840.70.  This employee can apply for benefits as soon as he is under an order of quarantine since he is only guaranteed unpaid job-protected leave for the duration of the quarantine.  After receiving NYS Paid Family Leave, the employee will receive disability benefits to match his full wages, up to $2,043.92, with this combined benefit totaling $2,884.62 per week.  For an employee who works for a small (defined above) employer who made more than $1 million dollars or a medium (defined above) sized employer, the employee must first take the 5 days of paid sick leave he is entitled to under the NYS Paid Sick Leave for COVID-19.  Assuming the employee is under a mandatory or precautionary order of quarantine for 14 days, the additional 9 days of quarantine will be covered with a combination of NYS Paid Family Leave and disability benefits for the same amount described above for small employers who made less than $1 million dollars.  For an employee who works for a large (defined above) employer, the NYS guidance suggests that the 14 days of paid leave to which the employee is entitled under the NYS Paid Sick Leave for COVID-19 should cover the full time period of the quarantine. 

How does an employee obtain an order of quarantine?  NYS guidance recommends contacting your local health department to obtain an order of quarantine or isolation.  A list of NYS local health departments can be found here.  As local health departments have implemented their own procedures for obtaining an order of quarantine or isolation, local representatives will be able to guide employees to the specific forms required to obtain such an order.  For example, Suffolk County currently has online forms which can be auto-generated.  We have been advised that official NYS orders of quarantine from the NYS Department of Health may take up to 30 days to receive.  NYS guidance does further suggest that if unable to immediately obtain an order of quarantine or isolation, an employee should submit documentation from his healthcare provider that he or his minor dependent child have been treated and that he or his child qualify for the order.  This documentation can then be submitted along with the necessary application (explained below) to the employer’s insurance carrier during the time period the employee is waiting for the order of quarantine or isolation. 

How does an employee apply for NYS Paid Family Leave/disability benefits?  A NYS employee, after he exhausts NYS Paid Sick Leave for COVID-19, can notify his employer of his intent to seek these benefits and submit a Request for COVID-19 Quarantine Leave form to his employer.  After the employer and employee have completed their sections of the form, the employee must submit it, along with the quarantine order, to his employer’s disability and Paid Family Leave insurance carrier within 30 days after the start of the leave.  Employees can search their employer’s insurance carrier here.  Guidance received from the State indicates that applications for NYS Paid Family leave and/or disability benefits are being handled at the discretion of the employer’s insurance carrier or claims-file manager, which has the ability to deny or approve the claim and set the amount of time the employee can take.  The guidance we received also indicates that the carriers have shown wide discretion in how these claims are treated.

In light of COVID-19, if an employer terminates an employee, should the employer include any language in the termination letter regarding the reason for the employee’s termination? Anecdotal evidence suggests that an employee’s application for unemployment insurance will be more easily processed if the termination or furlough letter specifically states that the termination is due to a COVID-19 related reason, such as a lack of business, no available work for the employee to perform, or closure of the business for economic reasons.  

As guidance surrounding each of the above COVID-19 leave laws continues to evolve on a daily basis, employers and employees are encouraged to speak with counsel regarding their rights and responsibilities during these unprecedented times.

Weiss Zarett represents healthcare providers and business owners in a wide variety of employment matters, including advising clients on current COVID-19 issues.  If you have any employment-related questions, please email Carla Hogan, Esq. at chogan@weisszarett.com or Toni-Ann M. Buono, Esq. at tbuono@weisszarett.com or call us at (516) 627-7000.

Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including employment, corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.

ATTORNEY ADVERTISING: PRIOR RESULTS DO NOT GUARANTEE FUTURE OUTCOMES.


[1] Under NYS law, the following providers meet the definition of a Licensed Health Care Provider: Physician, Physician Assistant, Chiropractor, Dentist, Physical Therapist, Nurse Practitioner, Registered Professional Nurse, Podiatrist, Optometrist, Psychologist, Clinical Social Worker, Occupational Therapist, Midwife, Mental Health Practitioner, Speech-language Pathologists and Audiologists.