Weiss Zarett Welcomes Joshua Sussman, Esq.

Joshua Sussman is pleased to announce that he has joined Weiss Zarett Brofman Sonnenklar & Levy, P.C. Joshua brings over 8 years of commercial litigation and real estate litigation experience. He has handled an array of business disputes in New York and New Jersey including disputes between shareholders or members of closely held companies, bankruptcy, trade secret misappropriation, unfair competition, restrictive covenant litigation, business valuation litigation, and general commercial litigation prosecuting and defending breach of contract claims.  In addition, Josh handles commercial real estate disputes, commercial landlord and tenant litigation, and commercial foreclosures.

Joshua and the Weiss Zarett team believe in a thoughtful, practical, and efficient approach to dispute resolution both within and outside the courtroom. Every situation is unique requiring a thoughtful strategy and solution. When litigation cannot be avoided, Josh and the firm’s litigators will zealously and effectively represent our clients’ interests. Weiss Zarett keeps stakeholders apprised each step of the way and intimately involved in the decision making process. There are no surprises.

Weiss Zarett is a prominent and well-respected Long Island-based Firm known for assisting members of the healthcare industry and general business clients.  In the healthcare field, Weiss Zarett represents physicians and physician groups, other healthcare providers and health-related businesses with a wide array of legal services including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, governmental and commercial payor audits, bankruptcy, and commercial real-estate transactions.  Weiss Zarett brings decades of experience to this complex and ever-changing area of practice. 

Equally experienced outside of the healthcare industry, Weiss Zarett advises and represents businesses and business owners in corporate and commercial matters, business disputes, employment practice, commercial, bankruptcy and commercial real estate and commercial landlord and tenant litigation, creditor’s rights, financing, documenting secured transactions and all phases of commercial real-estate transactions. 

Joshua is excited about his new home with Weiss Zarett and looks forward to assisting you with your legal needs. Please feel free to call upon us for your legal needs. 

Entering Into Surrogacy Agreements Under the Child-Parent Security Act

By Jessica Woodrow, Esq.
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This is the second installment in the four-part series

 The Child-Parent Security Act: Embarking on the Surrogacy Journey

On February 15, 2021, the Child-Parent Security Act (“CPSA”) will take effect, eliminating New York’s longstanding proscription against compensated gestational surrogacy. Signed into law by Governor Andrew Cuomo on April 2, 2020, the CPSA will not only allow New Yorkers to contract with gestational surrogates for the first time, but also streamline the process for establishing parentage of children born through third-party reproduction.

Gestational surrogacy contracts in New York will be subject to strict statutory requirements. Before entering into a surrogacy arrangement, it is essential to understand how New York law will affect parties’ respective surrogacy journeys. Navigating these complex waters requires the skill and experience of a licensed attorney. In fact, the statute requires that the parties to a surrogacy agreement must be represented by separate legal counsel; that the attorneys must be licensed to practice in New York; and that the attorneys are not affiliated with one another, or with the licensed and registered surrogacy program that facilitated the intended parent-surrogate match. Depending on your situation, the following considerations are important in planning your surrogacy journey.

Eligibility Requirements for Intended Parent(s).

The following requirements must be met in order to meet the definition of an “Intended Parent” for purposes of entering into a surrogacy agreement in New York:

  • At least one intended parent must be a United States citizen or lawful permanent resident.
  • At least one intended parent must have been a New York resident for at least six months.
  • The intended parent(s) must be represented by independent legal counsel licensed to practice in New York throughout the contractual process and for the duration of the contract, and the attorney may not be affiliated with counsel for the surrogate or with the surrogacy program that matched the intended parent(s) with the surrogate.
  • Spouses must enter into the agreement as intended parents together; an adult individual who is in a spousal relationship may enter into a surrogacy agreement without his or her spouse only if the spouses are living separate and apart for at least three years prior to execution of the agreement, or if the spouses are living separate and apart pursuant to a written separation agreement or a judgment of separation or divorce. Where the spouse of an intended parent is not a necessary party to the contract, he or she has no rights or obligations to the child.

Eligibility does not depend on an intended parent’s gender or marital status. Unmarried individuals may enter into a surrogacy agreement, as may any two adult who are “intimate partners” together. This last requirement is noteworthy in that “intimate partners” is not defined to include only romantically involved partners; rather, the language of the statute appears to allow any two individuals to undertake a surrogacy journey together, regardless of the platonic nature of their relationship. Likewise, same- and opposite-sex couples and single parents alike can obtain a Judgement of Parentage.

Eligibility Requirements for Gestational Surrogates.

The following requirements must be met in order to meet the definition of a “Surrogate” for purposes of entering into a surrogacy agreement in New York:

  • The surrogate is at least 21 years old.
  • The surrogate is a United States citizen or a lawful permanent resident. If at least one intended parent is not a resident of New York for at least six months, the surrogate must be.
  • The surrogate did not provide the egg used to conceive the child.
  • The surrogate has undergone a medical evaluation and has been screened for health conditions that may pose risks to the surrogate or embryo during the pregnancy.
  • The surrogate gives fully informed consent.
  • The surrogate and/or the surrogate’s spouse, if applicable, are represented by independent legal counsel, presumably throughout the contractual process and for the duration of the contract. 
  • The surrogate has a comprehensive health insurance policy as required under the statute, which must take effect before the surrogate begins taking medication or commencing treatment to further embryo transfer. 
  • The surrogate has a life insurance policy as required under the statute, which must take effect before the surrogate begins taking medication or commencing treatment to further embryo transfer. 
  • The surrogate’s legal fees, health insurance policy, and life insurance policy are paid for by the intended parent(s). The surrogate may waive this requirement only if the surrogate is not receiving compensation.
  • The surrogate meets all other requirements deemed appropriate by the commissioner of health regarding the health of the prospective surrogate, once the commissioner promulgates rules and regulations as required by the statute.

Disputes arising from surrogacy agreements.

No matter how carefully a surrogacy agreement is drafted, disputes may arise. Because New York’s surrogacy law is in its infancy, these novel matters will have to be explored in the coming months and years. In the case of a dispute related to the agreement itself, the parties will be entitled to all remedies other than specific performance. Likely disputes include compensation and payments to donors and surrogates; surrogates’ rights under the SBR; attorneys’ fees; and inheritance rights in cases where an intended parent dies before the child’s birth. Disputes with insurance companies are also likely, especially as insurance carriers begin offering coverage under new types of policies specific to gestational surrogacy. Disputes related to acknowledgments of parentage may also arise. 

Whatever the reason for a potential dispute, it is essential to craft an agreement that anticipates and addresses the risks, complications, and sources of conflict in advance. These concerns include:

  • Access by the intended parent(s) to the surrogate’s medical information during the pregnancy.
  • Prenatal testing and contingency plans in the event of abnormal test results.
  • The number of embryos transferred and the possibly of reducing the number of fetuses during pregnancy.
  • The relationship and frequency of contact between the intended parent(s) and the surrogate during the pregnancy and after the birth.
  • Expectations related to the surrogate’s behavior and habits during pregnancy, including diet and nutrition, exercise, safety precautions, and limitations on travel.
  • Potential additional expenses in the event of complications requiring convalescence or other limitations that prevent the surrogate from working.
  • Disclosure to non-parties of the surrogacy arrangement.

Careful consideration of these and other potential conflicts can help guard against unanticipated disputes and encourage a harmonious relationship between intended parents and surrogates.

___________________________

For many intended parents, the decision to pursue gestational surrogacy is arrived at after a series of hardships and heartbreaks. Even after the decision is made, the process may be as complicated as it is rewarding. Before entering into a surrogacy agreement in New York, intended parents and surrogates alike should be certain that surrogacy is the right choice. This means committing to work together with knowledgeable professionals who can successfully guide you through this complex process while ensuring that you understand the risks and benefits of surrogacy arrangements.

If you are considering gestational surrogacy, either as an intended parent or a prospective surrogate, our firm can help you determine whether surrogacy is right for you. From explaining how New York surrogacy law applies to your unique circumstances, to negotiating and drafting compliant surrogacy agreements, to securing parental rights as soon as possible after the birth of a child, Weiss Zarett can guide you through the process even as the CPSA continues to be developed.

___________________________

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. Ms. Woodrow has spent years studying the intersection of contract law and reproductive technology, and she is excited to be among the first practitioners in New York to assist clients in pursuing their dreams of starting or growing a family through surrogacy. 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.

Compensated Surrogacy Brings Sweeping Change for New York Families

By Jessica Woodrow, Esq.
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This is the first installment in the four-part series 

The Child-Parent Security Act: Embarking on the Surrogacy Journey

On February 15, 2021, the Child-Parent Security Act (“CPSA”) will take effect, eliminating New York’s longstanding proscription against compensated gestational surrogacy. Signed into law by Governor Andrew Cuomo on April 2, 2020, the CPSA will not only allow New Yorkers to contract with gestational surrogates for the first time, but also streamlines the process for establishing parentage of children born through third-party reproduction. Prior to the passage of the CPSA, compensated gestational surrogacy was illegal in New York State and punishable by fines and criminal sanctions. New York was one of the last states to recognize intended parents’ right to contract with gestational surrogates; when the CPSA takes effect this month, Michigan will be the only state in the country that criminalizes compensated gestational surrogacy. 

Gestational surrogacy contracts in New York will be subject to strict statutory requirements. Before entering into a surrogacy arrangement, it is essential to understand how New York law will affect parties’ respective surrogacy journeys. The CPSA also addresses procedures for securing a judgment of parentage, sets forth strict requirements for drafting enforceable surrogacy agreements, and directs the Department of Health to promulgate rules and regulations for surrogacy programs and assisted reproduction providers to assure the health and safety of surrogates and gamete donors. This Part I of the series will give a general overview of the scope and breadth of the CPSA. Part II will discuss eligibility for entering into surrogacy agreements. Part III will discuss The Surrogate’s Bill of Rights. Part IV will discuss parentage proceedings. 

Surrogates’ rights.

Compared to other states’ surrogacy statutes, the CPSA is uniquely protective of surrogate’s rights. The newly-minted Surrogate’s Bill of Rights, unprecedented in surrogacy law, specifically enumerates robust surrogates’ rights relating to: health and welfare decision-making; independent legal counsel; cost-free health insurance, medical care, mental health counselling, and life insurance; and termination of the surrogacy agreement prior to becoming pregnant. For a more detailed discussion of the Surrogate’s Bill of Rights, see part III of this series,New York’s Novel Surrogate’s Bill of Rights Provides Unprecedented Protection for Gestational Surrogates.

The CPSA applies to gestational surrogacy only.  

While CPSA legalizes gestational surrogacy in New York for the first time, this only applies to surrogacy arrangements wherein the surrogate has no genetic relationship to the child. This means that “traditional” (i.e., genetic) compensated surrogacy agreements remain prohibited under New York law. Traditional surrogates who accept compensation are subject to severe criminal sanctions, and any agreement between the surrogate and the intended parents is unenforceable.

Compensation concerns.

The surrogate’s base compensation is determined by the medical risks, physical discomfort, inconvenience, and responsibilities of the surrogate. The surrogate may not be compensated for releasing her parental rights, nor may compensation be based upon genotypic or phenotypic characteristics of the child. 

The surrogate’s base compensation and reasonably anticipated expenses must be placed in escrow with an independent escrow agent before the surrogate begins taking medication or commencing treatment to further embryo transfer. The escrow agent must consent to the jurisdiction of New York courts for all enforcement proceedings; must be licensed in New York; must be independent from all attorneys representing the parties to the agreement. 

Surrogacy programs must be licensed and registered by New York State.

The CPSA requires that all surrogacy programs operating in New York must be licensed and registered. The New York State Department of Finance and the New York State Department of Health are required to draft and implement “best practices” regulations for surrogacy professionals. However, while these programs are subject to regulation, it is unclear whether intended parents’ use of a surrogacy program is required under the statute.

Department of Health to regulate the practice of gestational surrogacy.

Under the newly added Article 25-B of the Public Health Law, the Department of Health will create a voluntary central tracking registry of consenting surrogates. The purpose of this anonymous registry is to establish a means for gathering and maintaining accurate information about surrogates, including the number of times a person has acted as a surrogate, the surrogate’s health information, and other information deemed appropriate by the commissioner. 

Under the statute, the Department of Health is also required to promulgate guidelines and procedures for obtaining fully informed consent from potential surrogates, including but not limited to a full disclosure of any known or potential health risks and mental health impacts associated with surrogacy. Further, the Department must develop and distribute general information relating to gestational surrogacy and develop guidelines and protocols to assist physicians in screening potential surrogates and to reduce conflicts of interest among physicians providing health care services to surrogates. 

Parentage proceedings under the CPSA.

The CPSA sets forth clear legal procedures for obtaining a judgment of parentage for children born through sperm, egg or embryo donation and/or with the assistance of a gestational carrier. While the CPSA also addresses parentage of children conceived through assisted reproduction (i.e., where there is a gestating intended parent and no surrogate), its most detailed provisions address the parentage of children born through surrogacy arrangements. Under the new statute, parentage is determined by the intention to parent rather than by genetic connection. The CPSA also permits cryopreserved embryos created by spouses or partners to enter into an agreement transferring sole dispositional control of the embryo(s) to one party and absolving the former spouse of parental responsibility. While the CPSA streamlines these procedures, securing a judgment of parentage is complicated and time consuming, requiring careful planning with the assistance of a knowledgeable attorney. For a more detailed discussion of Parentage Proceedings, see part IV of this series,Parentage Proceedings Under the Child Parent Security Act.

___________________________

For many intended parents, the decision to pursue gestational surrogacy is arrived at after a series of hardships and heartbreaks. Even after the decision is made, the process may be as complicated as it is rewarding. Before entering into a surrogacy agreement in New York, intended parents and surrogates alike should be certain that surrogacy is the right choice. This means committing to work together with knowledgeable professionals who can successfully guide you through this complex process while ensuring that you understand the risks and benefits of surrogacy arrangements.

If you are considering gestational surrogacy, either as an intended parent or a prospective surrogate, our firm can help you determine whether surrogacy is right for you. From explaining how New York surrogacy law applies to your unique circumstances, to negotiating and drafting compliant surrogacy agreements, to securing parental rights as soon as possible after the birth of a child, Weiss Zarett can guide you through the process even as the CPSA continues to be developed.

___________________________

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. Ms. Woodrow has spent years studying the intersection of contract law and reproductive technology, and she is excited to be among the first practitioners in New York to assist clients in pursuing their dreams of starting or growing a family through surrogacy. 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.

Weiss Zarett & the PAP (Physician Advocacy Program)

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Weiss Zarett will continue to offer the PAP (Physician Advocacy Program) for 2021 and we’ll be providing the same services with no increase in pricing since 2017. The 3 plans offered by the 2021 PAP (including the prorated cost from March 1, 2021 to December 31, 2021 are as follows.

Premium Plan

  • $671 per year 
  • Legal representation in connection with a matter before the OPMC, OPD, OMIG, MAC, OIG, QIO, OSHA or OCR.  
  • Providers WITH administrative coverage from their insurance company will receive legal representation pursuant to the PAP without additional cost until the later of the following: (1) the limits of the administrative coverage under their insurance policy are reached; or (2) through the initial interview/appearance before the applicable governmental authority.
  • Providers WITHOUT administrative coverage from their insurance company receive legal representation without additional cost through the initial interview/appearance before the applicable governmental authority.
  • Legal representation pursuant to the PAP does not include subsequent services during any hearing process following the initial interview/appearance. 
  • FREE review of your medical records by a certified coder and a conference call to discuss.
  • FREE 30-minute consultation on ANY legal matter within the scope of practice of Weiss Zarett.    

Comprehensive Plan

  • $446 per year 
  • Legal representation in connection with a matter before the OPMC, OPD, QIO, OIG, OSHA or OCR. 
  • Providers WITH coverage from their insurance company will receive legal representation pursuant to the PAP without additional cost until the later of the following: (1) the limits of the administrative coverage under their insurance policy are reached; or (2) through the initial interview/appearance before the applicable governmental authority.
  • Providers WITHOUT administrative coverage from their insurance company receive legal representation without additional cost through the initial interview/appearance before the applicable governmental authority.  Legal representation pursuant to the PAP does not include subsequent services during any hearing process following the initial interview/appearance.  
  • *Please note that the Comprehensive Plan does NOT include a review of your medical records, a conference call between you and the coder and no 30-minute call. 

Basic Plan

  • $221 per year 
  • Legal representation in connection with a matter before the OPMC or the OPD.
  • Providers WITH administrative coverage from their insurance company will receive legal representation pursuant to the PAP without additional cost until the later of the following: (1) the limits of the administrative coverage under their insurance policy are reached; or (2) through the initial interview/appearance before the applicable governmental authority.  
  • Providers WITHOUT administrative coverage from their insurance company receive legal representation without additional cost through the initial interview/appearance before the applicable governmental authority.  Legal representation pursuant to the PAP does not include subsequent services during any hearing process following the initial interview/appearance.  
  • *Please note that the Basic Plan does NOT include a free review of your medical records by a certified coder and a conference call to discuss the findings related to your documentation and coding or representation in connection with matters before QIO, OIG, OSHA, OCR, MAC or OMIG, or the annual 30-minute consultation. 

If you are interested in enrolling in the 2021 PAP or have any questions, please contact Mathew Levy, Esq. at 516-926-3320 or MLevy@weisszarett.com.

OCR’s Audit Report Reveals Concerns that Continue to Guide HIPAA Enforcement

By Mathew J. Levy, Esq. & Zoila Sanchez, MPH, JD
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Recently, the Office of Civils Rights (OCR) within the U.S. Department of Health and Human Services (HHS) published its 2016-2017 Health Insurance Portability and Accountability Act (HIPAA) Audits Industry Report. HHS is required to periodically audit a sample of covered entities and business associates for HIPAA compliance under the Health Information Technology for Economic and Clinical Act (HITECH) Act. 

Across this sample, OCR found failures with the Notice of Privacy Practices requirements, the HIPAA Breach Notification Rule, the individual right of access to health information rule and the HIPAA Security Rule. Since the Audit was completed in 2016-2017, we would expect that a number of the fundamental deficiencies that OCR identified have been rectified by covered entities and business associates, as the OCR has been very aggressive in its enforcement activities during the last five years imposing significant financial penalties on non-compliant entities. Nonetheless, it is worth noting that these are the areas that OCR chose to focus on then and they remain as serious in 2021 as they were during this audit period:

  • Notice of Practices: of the 166 covered entities sampled, 98% failed to fully include required content for HIPAA-mandated Notice of Privacy Practices including content related to individual rights and the use of plain language as required by the Privacy Rule.
  • Breach of Notification to Individuals: findings uncovered failures to include the required description of Protected Health Information (PHI) and steps for individual protection. 
  • Individual Right of Access: the majority of covered entities failed to correctly implement individual right-of-access requirements, such as  granting reasonable access to PHI records within 30 days and charging a reasonable cost-based fee – due to Electronic Health Record (EHR), health care entities and business associates should only charge per-page fees that represent actual cost of the paper and manpower to print the record.
  • HIPAA Security Rule: findings showed failures to implement the detailed requirements for risk analysis and risk management. 

These areas of concern will continue to guide OCR’s continuing HIPAA enforcement efforts, which is intended to ensure that covered entities (and business associates) carefully and thoroughly identify security risks to protected health information in their custody and meet their duty to provide patients with understandable documents that describe their HIPAA rights and their timely and cost-based access to their medical records. 

It is critical for covered entities, including health care entities, and business associates to know the minimum requirements for HIPAA compliance. One way to assess whether your practice is ready for audit is to familiarize yourself with “Self-Audit For HIPAA Compliance – Is Your Practice Ready?”

Should you have any questions regarding HIPAA compliance, please contact Mathew Levy at 516-926-3320 or MLevy@weisszarett.com.

About the Authors: 

Mathew J. Levy is a Partner of the firm and co-chairs the Firm’s corporate transaction and healthcare regulatory practice. Mr. Levy has extensive experience in, defending healthcare professionals in actions brought by State licensing authorities and the Federal agencies (OIG, Medicare, OMIG, Medicaid, DEA, OSHA, OCR OSHA, Hospital Review Boards, Office of Professional Medical Conduct and Office of Professional Discipline.) Mr. Levy has successfully defended numerous healthcare providers in actions involving the US Attorney’s Office investigations, Medicare Fraud Waste and Abuse investigations, Medicaid Fraud Control Unit investigations, OPMC, OPD, Medicare, Medicaid as well as commercial insurance audits including Prepayment Review, Post Payment Review, Medicare Hearings and Hospital Discipline Investigations.

Mr. Levy has successfully structured and negotiated joint venture agreements, private equity transactions, venture capital transactions, stock purchase agreements, asset sale agreements, shareholders agreements, partnership agreements, employment contracts, managed care agreements and commercial leases. Among the areas in which he focuses are coordinating mergers and acquisitions, compliance programs, ambulatory surgery centers, the establishment of diagnostic and treatment centers, HIPAA privacy regulations, fee-splitting issues, Stark law issues, fraud and abuse rules and regulations and Medicare/ Medicaid, Oxford, Americhoice, Fidelis, Healthfirst and other third-party payor settlements.

Zoila Sanchez, J.D., M.P.H. joined the Firm full-time upon graduating with her Juris Doctor degree from the Maurice A. Deane School of Law at Hofstra University. During law school, Ms. Sanchez served as a Legal Clerk with the U.S. Department of Health and Human Services Office of Counsel to the Inspector General in Washington, DC, where her work focused on health care fraud and abuse.  In addition, Ms. Sanchez clerked for over a year at the Firm while in law school. Ms. Sanchez has experience in supporting the Firm’s business and health care law, and litigation practice areas.

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.