Law Office of Faye Riva Cohen, P.C.

The Law Office of Faye Riva Cohen, P.C. has had several articles published in The Legal Intelligencer and has led various seminars in the Philadelphia area. Please take some time and review a sampling of them posted here:

Articles:

Employed? Or Not Employed? That is the Question
By: James W. Cushing, Esquire; published: March 30, 2006, The Legal Intelligencer

Seminars:

The Law Office of Faye Riva Cohen, P.C. periodically holds seminars. If you would like to hold a seminar at your place of employment, house of worship, meeting hall, et cetera, please feel free to contact this office to arrange it. Recently the following seminars have been held:

The Medical Authorization Process Under HIPAA: Protection or Burden?

We will not accept the authorization for the release of medical records that you had your client complete; he must complete our authorization instead, because of HIPAA. "The patient must physically come to our office and sign our authorization in person in order for our office to release medical records to the patient or anyone else because of HIPAA. "I can't talk to you at all about your client's health condition because of HIPAA. These are common phrases I have heard from health care providers when trying to gather evidence for a client's case.

The word "HIPAA" has become synonymous with patient privacy. This privacy concept comes from the Privacy Rule, which developed out of a Congressional mandate for the adoption of Federal privacy protections for individually identifiable health information. In the Administrative Simplification provisions, Sections 261-264, of the Health Insurance Portability and Accountability Act ("HIPAA") of 1996, Public Law 104-191, Congress directed the Secretary of Health and Human Services to establish these Federal privacy protections.

The HIPAA Administrative Simplification provisions directed the Secretary of Health and Human Services to adopt national standards for electronic health care transactions. To ensure that this new information sharing would not jeopardize patient privacy, Section 264 of HIPAA directed the Secretary of Health and Human Services to establish Federal privacy protections for individually identifiable health information. Thus, the Secretary drafted the Privacy Rule and required compliance, for most covered entities, by April 14, 2003. Covered entities include health plans, health care clearinghouses, and health care providers.

According to the Privacy Rule, a valid authorization for the release of protected health information is required when an attorney is requesting his client's medical information from a health care provider. See 45 C.F.R. § 164.508 (2003). The general requirements for a valid authorization include:

a description of the protected health information to be used or disclosed
the names of person(s) or class of persons authorized to make requested use or disclosure
the names of person(s) or class of persons to whom the covered entity may make the requested use or disclosure
a description of each purpose of the requested use or disclosure
an expiration date or expiration event
the patient's signature and date
notification to the patient of his right to revoke, how to exercise that right, and the exceptions to the right to revoke
notification of the ability or inability to condition treatment, payment, or enrollment for benefits on signing the authorization
an explanation of the potential for the information to be disclosed to another by the recipient and no longer be protected

Although these authorization rules may be followed by an attorney's office, it does not guarantee cooperation from health care providers. Any attorney, or support staff, who has attempted to gather a client's medical documentation to prove his case has undoubtedly heard the phrase "HIPAA" countless times, as a rebuttal to providing documentation.

Some may say that the Privacy Rule has empowered patients to have more control over their health information. However, the way the Privacy Rule functions in the attorney-client context is anything but empowering, because clients who want their attorneys to have unlimited access to their health information are burdened by the barriers their health providers place on the collection of this important information. Fear of penalties, misunderstanding of the Privacy Rule, and possibly a general dislike of the legal profession may all contribute to the apprehensiveness or unwillingness of certain health care providers to assist a law office with the development of a client/patient's case. Whatever the rationale may be, this lack of cooperation can disadvantage a client's case by delaying the receipt of essential evidence.

One example of how this lack of cooperation can disadvantage a client's case occurred when our office was attempting to gather medical records from a hospital for a Social Security Disability case. These records illustrated when and how our client began suffering from auditory hallucinations, paranoia, and depression. The client spent a week at the hospital in an attempt to stabilize her psychiatric symptoms. These records were imperative for proving to the administrative law judge that this client was no longer able to work due to the onset of her mental conditions.

Our office went through the standard process of calling the hospital to inquire as to where to send a request for medical records. We prepared a detailed request and sent it to the medical records department along with a HIPAA compliant authorization that we had our client review and sign. In response to this request, the medical records department refused to accept our authorization and informed us that a hospital authorization would need to be completed by the patient (even though it is extremely difficult to even get this client to answer her telephone, let alone fill out more paperwork). The client also had a disability advocate, who in the meantime hand delivered a request for medical records. When she followed up with her request, she was informed that there was no record of such a request.

Our office continued to attempt to receive these much-needed records. We made sure all of the requested paperwork was completed and sent another request for medical records to the medical records department. We called their office daily to ensure that our second request was received and responded to. When we finally were told that it was received, we were informed that we were missing the required hospital authorization. We explained that the requested authorization was enclosed and that now the hearing was quickly approaching, so we needed their assistance with this matter. We spoke with the supervisor who could not assist us further because of "HIPAA". The department would not expedite the process in any way and their only suggestion was to resend everything again and then wait to see what happens.

Since we had our client's interest in mind and wanted to make sure the judge had ample time to review these important medical records prior to the hearing, we were forced to go beyond the medical records staff and talk to hospital administration. After several telephone calls and letters, we were able to set up a time to pick up these medical records. We were glad we went through all of the trouble of obtaining this documentation because we ultimately won the case for the client and these records assisted us in proving the elements of her case. However, our office was forced to spend a great amount of time and energy conducting the seemingly simple task of gathering a client's medical records. This type of delay obviously can have a negative financial impact on a client and could be extremely detrimental to a client's case. Unfortunately, this hospital staff's behavior is just one example of how some health care providers function under the guise of protecting patient privacy.

Although it would be ideal for patients to be able to gather their medical information without the assistance of an attorney, often times it is necessary for an attorney to handle this part of the legal process on behalf of their clients (e.g., handling disability cases where a client has difficulty remembering tasks or physically visiting a doctor's office).

Attorneys are required to provide diligent representation to their clients and need the cooperation of health care providers to meet this obligation. Although the protection of patient privacy is clearly an important goal, in practice it appears that the real world application of HIPAA's Privacy Rule is more of a burden on clients and their counsel than a protection of clients' rights.

Employed? Or Not Employed? That Is The Question!

It might seem obvious that one of the primary criteria used to determine whether an individual is eligible for Unemployment Compensation is for that individual to have been actually employed by the perceived "employer" he was "working for" before his/her separation from said perceived employer. Although colloquial parlance equates "working for" someone/something with employment, Unemployment Compensation Law makes a distinction between those who "work for" someone/something under an employment relationship and those who have an independent contracting relationship. Consequently, when an individual applies for and is denied Unemployment Compensation, he may be shocked to learn that his denial is due to the fact that the person/entity he had been "working for," for however long or short period of time, was never actually his "employer". While some may say that this distinction appears to be mere hair splitting, its impact on whether an Unemployment Compensation claimant is granted or denied benefits is ultimately dispositive. That is, an individual who has an independent contractor relationship with an individual/entity is not eligible for Unemployment Compensation benefits if that relationship is terminated. It matters not whether the contracting relationship was terminated for "cause" or was "voluntary" - the mere existence of an independent contractor relationship renders the potential claimant ineligible for benefits. Therefore, it is crucial to know and understand the distinction between employment and independent contracting in the context of Unemployment Compensation and this article will lay out the criteria for the definition of independent contracting as it applies to the collection of Unemployment Compensation benefits.

Under Pennsylvania Unemployment Compensation Law, if one is an independent contractor, then one is considered to be self-employed. Although the statute defines neither independent contractor nor self-employment, the statute does define "employment" essentially as follows: " [s]ervices performed by an individual for wages shall be deemed to be employment subject to this act". 43 P.S. § 753 (l)(2)(B). The statute continues, establishing basic guidelines as to what employment is not: "[one is deemed employed] unless and until it is shown to the satisfaction of the department that--(a) such individual has been and will continue to be free from control or direction over the performance of such services both under the contract for service and in fact; and (b) as to such services such individual is customarily engaged in an independently established trade, occupation, profession or business. 43 P.S. § 753 (l)(2)(B).

While describing what employment is not, the above quoted basic guidelines, conversely, establish the essential criteria for self-employment (i.e. independent contracting). Consequently, the Pennsylvania Courts use the following two-part test to determine whether an individual is self-employed (i.e.: independently contracting): (1) whether the claimant was free from control and direction in the performance of the work; and (2) the business is one that is customarily engaged in as an independent trade or business. (Venango Newspapers v. Com., Unemployment Compensation Board of Review, 158 Pa. Cmwlth. 379, 631 A.2d 1384 (Pa. Cmwlth. 1993), holding that where claimant did not receive on-the-job training, supplied his own tools and had no taxes deducted from the sums received, claimant was not an employee.) As the claim that an individual is not an employee but rather an independent contractor is essentially an affirmative defense made by the alleged employer against the claim for benefits, the alleged employer generally has the burden to prove that the claimant is not an employee.

To determine whether an individual is free from the control and direction of an employer in the performance of work, the Pennsylvania Courts frequently look to eight factors. No one factor is determinative as to whether an individual is an employee or independent contractor, and the Court generally considers and weighs all eight factors in the employment relationship.

The eight factors considered by the Court are as follows: first, the Court examines how the job was performed. Specifically, the Court is more likely to decide that an individual is an independent contractor if he sets his own hours, creates his own work/task agenda, and/or decides how many other workers are needed for a particular task. Second, the Court looks at whether there was a fixed rate of remuneration. Who decides the cost of the services being provided? Who decides when/if raises are granted? A worker who establishes his own pay rate and decides when his own pay rate increases or decreases is functioning more like an independent contractor than employee. Third, the Court notes whether taxes are deducted from the claimant's remuneration. The Court is more likely to rule that a worker is an independent contractor if the worker receives a 1099 form and is able to deduct expenses and be responsible for paying his own taxes. Fourth, the Court also notes whether the alleged employer supplies the tools necessary to carry out the services being provided. If the worker must provide and use his own tools to carry out his tasks, the Court is more likely to rule that the worker is an independent contractor. Fifth, the Court ascertains whether the alleged employer offers on-the-job training. If an alleged employer provides on-the-job training, the Court is more likely to rule that there is an employment relationship. Sixth, the Court discerns whether there were regular meetings with the alleged employer. Regular meetings generally will signify an employment relationship. Seventh, the Court inquires into whether the claimant suffers risk of loss when claimant's expenses exceed income. In other words, if the business fails, will the alleged employee merely lose his job, or will the alleged employee have the responsibility to satisfy the business "potential creditors If the alleged employee merely loses his job, and has no responsibility to address the business' creditors, then the Court is likely to rule that he is an employee rather than an independent contractor. Eighth, the Court investigates into whether the claimant was compelled to look only to the employer for further employment. If a worker regularly sought and/or acquired the same or similar work from other sources, while already engaged with an alleged employer, then the Court is likely to rule that the worker had independent contracting relationships with his "employers. See, e.g., Venango, 157 Pa. Cmlwth. 379, 631 A.2d 1384 (Pa. Cmwlth. 1993); Kelly v. Comm., Unemployment Compensation Board of Review, 107 Pa. Cmwlth. 261, 528 A.2d 294 (Pa. Cmwlth. 1987) (holding that claimant was self-employed where claimant was paid a lump sum for his performance, and he was not compelled to look only to general contractor for further employment); Pavalonis v. Comm., Unemployment Compensation Board of Review, 57 Pa. Cmwlth. 289, 426 A.2d 215 (Pa. Cmwlth. 1981) (holding that claimant was self-employed when claimant supplied all of his tools and materials, did not receive any on-the job training, did not receive a fixed hourly wage and had no taxes deducted from the sums received from employers).

To determine whether a business is one which is customarily engaged in as an independent trade or business, the Pennsylvania Courts consider two factors: (1) whether the claimant is capable of performing the activities in question for anyone who wish to avail themselves of the services; and (2) whether the nature of the business compel the individual to look only to a single employer for the continuation of such services. See, e.g., Venango Newspapers, 631 A.2d 1384 (Pa. Cmwlth. 1993); Kelly, 528 A.2d 294 (Pa. Cmwlth. 1987); Pavalonis, 57 Pa. Cmwlth. 289, 426 A.2d 215 (Pa. Cmwlth. 1981).

The two above-mentioned factors essentially revolve around a worker's loyalty to the individual/entity providing him with the work. Is the worker permitted to do the same work for two different (even competing) individuals/entities simultaneously? Does the worker recieve all of his work from a single individual/entity? May/must the worker seek work from more than one source? Perhaps most importantly, who decides where the worker can perform his services? If a worker is constrained to work for a single individual/entity and/or cannot select himself where he will perform his services, then the Court will weigh these factors in favor of the worker being in an employment relationship rather than an independent contracting relationship.

Significantly, the amount of money a worker receives is not a determinative factor in these analyses, as even a small sum earned does not automatically remove the designation of "independent contractor".

Ultimately, all of the above factors can essentially be reduced to a single word: freedom. Does the worker have the freedom to set his own schedule? The freedom to establish his own pay rate? The freedom to work for competing businesses simultaneously? As a corollary, does the worker have to bear the responsibilities associated with this freedom, such as deducting his own taxes, using his own tools, and bearing the risk and burden of financial loss in the business? In the end, the more freedom a worker has the more likely the Court will find that he is an independent contractor (self-employed); the less freedom a worker has the more likely the Court will rule that the worker is an employee.

The Number of the Least: Establishing Small Firm Technological Infrastructure on a Shoe-String Budget

The book of Revelation refers to the "number of the beast" - a "code" or form of identification without which man can neither buy nor sell. Many commentators have argued that this is an analogy for man's growing technological dependence in the Information Age. Individual commentaries on biblical text notwithstanding, the analogy certainly applies to the practice of law in this new millennium. Although law schools still teach the tradition methods of "paper research", they are also offering an ever increasing number of courses instructing law students on the use of information technology and computer-based research. The federal courts have moved fully into electronic filing for the processing of nearly every species of legal filing and the state courts which have not yet done so, will do so in the very near future.

In short, the legal profession, like nearly every other aspect of economic and social endeavor in contemporary American society, has become so dependent upon information technology that the legal practitioner who eschews that technology will be hard-pressed to efficiently and/or effectively ply his/her trade. While large firms generally have more capital to invest in both the necessary technology and the personnel adept in its deployment, use and maintenance, the sole practioner and the small firm may be more financially constrained This article proposes to suggest various options, methods, and tools to establish a technological infrastructure sufficient to allow the sole practioner and the small firm to effectively, efficiently and economically engage in the art of lawyering in the Information Age. For the purposes of this article, a small firm will be defined as one requiring a network of no more than nine computers, or workstations. This article also presupposes that your firm's office space has network wiring pre-installed, and that the operating system (OS) installed on each computer on the network is Microsoft Windows XP Professional ^tm (XP Pro).

First and foremost, your firm will need a method of connecting to the internet. An internet connection is necessary for email, online legal research and electronic court filing. No matter what your firm's method of connecting, an Internet Service Provider (ISP) will be required. There are various ISP vendors in the market, the largest and best known probably being Verizon ^tm, Earthlink ^tm and Yahoo ^tm . Each provider will offer various packages for small businesses, so shop around for one that best meets your firm's needs and budget. While three methods of internet connection are offered by various ISP providers, (DSL, Cable Modem, Telephone Modem), DSL is recommended as it possesses a combination of data transfer speed, cost effectiveness and ease of use far superior to the other two methods.

Routers are devices that allow a given number of computers to connect to the internet, and, at the same time, to each other. Routers also have security features built into them to frustrate outside attempts to hack networks, effectively standing between your network and the internet, providing a security buffer, while at the same time "routing" data from the internet to a given network and, in turn, among the computers that comprise that network. A good 4 port "wired" router costs about $50, and can support a nine workstation network through the use of switches. Switches, like routers, allow several computers to connect to a single data line, but are less secure and efficient than routers, while being much less expensive, running $10-$20 per unit. Switches are most useful when used in conjunction with a router to allow 2-4 computers to share a single router port.

Computers on wireless networks connect through a card inside each unit that sends signals to, and receives signals from, a central wireless router which is, in turn, connected to the internet through your firm's chosen ISP provider. The cards cost $50-$70 and a competent wireless router will run from $70 to $200. For a nine-station network, total cost would average about $700. Wireless routers, however, are generally not recommended as they are less secure, less reliable, and more expensive than the hard-wired alternatives.

Two options exist for connecting the firm's small office network: Peer-to-Peer (P2P), or client server (CS). A P2P network connects work station computers to each other and, through a router, to the internet. Software applications (word processing, web browsers, etc) are installed and operate on each computer individually. A CS network requires that the router and all workstations (clients) connect through a central computer (server). Software applications are installed on the server only and the workstations access that software by way of access accounts, purchased from the software provider on the basis of the number of anticipated users. Of the two options, P2P is preferable for networks of nine (9) computers or less. XP Pro supports such a network natively and it is very easy to set up, whereas CS networks usually require some level of specialized knowledge and software to configure. The general rule of thumb is, if the firm does not plan to expand its network beyond nine (9) workstations within a three (3) year period, use P2P.

As to the computers themselves, a low-end workstation is more than adequate to handle the computing needs of a small firm. The minimal specifications for such a workstation are: Processor - Pentium Celeron ^tm; Memory - 256 MB; Hard Drive - 40 GB; CD ROM read/write (R/RW) drive. Such units can be purchased from various computer vendors (i.e. Dell ^tm, Gateway ^tm , etc.) for about $500, including a monitor and XP Pro pre-installed. While not absolutely necessary, it is highly recommended that one computer on a P2P network be detailed to central storage of all the firm's files (file server). Not to be confused with the server on a CS network, a file server does not store software used by the computers on the network, but does contain all data files (word processing documents, etc.) generated and maintained by the firm. These files can be accessed by any computer on the network by way of an easy to use network function in XP Pro called "file sharing." Also, in order to minimize the risk of virus infection and/or accidental data corruption/erasure, this computer should not be used as a workstation, nor should it be used to navigate the internet except to locate and download drivers and other software needed for smooth operation. In order to preserve the firm's data in the event of a crash or other critical system failure, the file server should be equipped with a DVD R/RW drive for backing up the firm's files on a daily or weekly basis. A single standard double-layer DVD, costing about $.50 per disk, will record up to 6 GB of data, which is more than enough storage for the amount of data files generated and maintained in most small firms.

The internet offers a legion of free and useful software applications ("Freeware"), which can save a small firm hundreds, if not thousands, of dollars. Other types of software allow free use for a limited time or with restricted functionality until a fee is paid ("Shareware"), allowing the user to "try before you buy." Be sure to read the End User License Agreements (EULAs) for each piece of software the firm is considering as it may contain restrictions on use for business purposes. If such restrictions exist, use at your own risk.

For virus protection, it is difficult to match AVG Free ^tm. For firewall protection, ZoneAlarm ^tm is highly recommended. Although prone to certain compatibility issues when translating documents generated by other word processing programs (i.e. Microsoft Word ^tm ), Open Office ^tm is a free and complete office suite offering features comparable to Microsoft Office ^tm , including word processor, spreadsheet, multimedia presentation suite, and a native Portable Document Format (pdf) converter, which is essential for converting word processing files to pdf format for electronic filing. For web browsing, the best free browser is Mozilla Firefox ^tm. It has no restrictions on business use, and is cleaner, leaner and much more secure than other free browsers, including the one that comes bundled with XP Pro. Equally attractive is Mozilla's free email client, Thunderbird ^tm. For reliably calculating filing deadlines, Acute Software ^tm offers a handy, free date calculator. For instant messaging (IM) between the personnel in the firm, Gaim ^tm is a free IM client that will handle most preexisting IM accounts without advertisements or pop-up windows. For detecting software applications surreptitiously installed by advertisers (Adware and Spyware), Lavasoft's ^tm AdAware ^tm is difficult to beat. Also, it should be noted that there are several excellent commercial software titles on the market, so shop around and decide whether your firm needs commercial software, or can suffice with freeware.

As to the fax, laser printer and copier machines common to all offices, these can be replaced by an all-in-one unit, which incorporates each function into a single unit. While each of these roles has been traditionally fulfilled by separate machines, the all-in-one units offer the best bang for the buck and can be made available to the entire network from a single workstation through the use of an easy to use function in XP Pro called "printer sharing." Aside from the obvious necessity of the printer, copier and fax functions, most of these all-in-one units also offer a scanner function. A scanner is absolutely indispensable for rendering hardcopy exhibits into pdf format for electronic filing. Considering that the legal profession often entails the processing of large amounts of paperwork, be sure to check the specifications of any machine the firm is considering in order to ensure that it will be capable of handling the load, and that the unit in question has some form of bulk feed function equivalent to a copier. Single page scanners are not up to the task and, if chosen, will form a production bottleneck. The most well known manufacturers for such machines are Hewlett-Packard ^tm, Panasonic ^tm, and Canon ^tm .

In conclusion, this article has attempted to offer an overview of methods by which a small firm with constrained finances may establish the technological infrastructure necessary to compete effectively in the field of legal practice in the Information Age. Given the length constraints inherent in an article such as this one, the subjects addressed herein have only been touched upon, and can be further developed with diligent research. For more Freeware and/or Shareware, check out sourceforge.net and www.tucows.com. For further education on hardware, software and nearly everything tech, www.tomshardware.com is highly recommended. For reviews of software and hardware, consult www.cnet.com. For low-cost hardware and software with fast delivery, try www.newegg.com and www.tigerdirect.com.