FindLaw

By Eric Sinrod

Whether a particular patent is valid has potentially far-reaching implications. Novelty or newness is the basic underpinning of every invention that leads to a patent.
After a patent has been granted, parties may seek to defeat its validity in litigation by arguing that the patented subject matter was not novel at the time of invention. There may be a showing that the invention at issue was anticipated by what is referred to as prior art.
Given the vast access to information now provided by the Internet, parties have a much greater ability to search for and potentially discover prior art with respect to particular patented inventions. It is in this context that along comes Article One Partners, LLC (Article One). Article One has just launched a “new global community to legitimize the validity of patents.”

Article One seeks to have its member “Advisors” submit previously difficult to discover prior art evidence relating to the validity of “high profile patents.” Article One in turn intends to analyze this information to determine whether it can show patents to be legitimate or invalid.
If Article One concludes that patents are invalid (the real focus), Advisors can earn up to $50,000, with a total of $1 million being offered potentially at launch. Furthermore, Advisors who actively build the Article One community can earn compensation in Article One’s profit sharing plan.

A patent is a powerful government-granted right that enables a patent-holder to prevent competition with respect to an invention for a certain period of years. Article One claims that its efforts are intended to “restore the patent system to its original intent of granting exclusive rights for true innovation.”

Accordingly, Article One apparently believes that prior art that establishes that a patent has been granted for an “invention” that in fact was not novel should be used to invalidate the patent.

Article One’s name comes from that portion of the United States Constitution that provides that “the Congress shall have the power . . . to promote the progress of science and useful arts, by securing for limited times . . . inventors the exclusive rights to their discoveries.”

Lest we not be mistaken, for some time already the Internet has been used by others to harvest information of prior art that may have anticipated particular patented inventions. But here, Article One seeks to provide financial incentives to potential global Advisors in one community to come forward with possible prior art information.

Article One states that its mission is to “evaluate and provide information to the patent industry.” One would think that that means that Article One could become a support player in patent litigation against patent holders. Time will tell whether Article One’s approach will gain traction.

Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP (http://www.duanemorris.com) where he focuses on litigation matters of various types, including information technology and intellectual property disputes. His Web page is http://www.sinrodlaw.com and he can be reached at ejsinrod@duanemorris.com. To receive a every single week email link to Mr. Sinrod’s columns, please send an email to him with Subscribe in the Subject line.
This column is prepared and published for informational purposes only and shouldn’t be construed as legal advice. The views expressed in this column are those of the author and don’t necessarily reflect the views of the author’s law firm or its individual partners.

Article courtesy of  Nancy Grimes - Founder GLI / Grimes Legal, Inc. - Legal Search Firm
    Retained Legal Recruiters © Copyright 2008 Grimes Legal, Inc. | All rights reserved

By Paul Cherner

                 The Centers for Disease Control and prevention (”CDC”) has just issued a report indicating that in the past six months 22 million Americans have become sick with the H1N1 influenza virus (a/k/a the “swine flu”), of which 4,000 have died.  As this pandemic shows no signs of abating, employers are faced with many legal issues in addition to being concerned about the health and safety of their workers,  customers and clients, while at the same time attempting to determine how best to carry on their businesses under these circumstances.

                 An excellent reference source for most queries pertaining to this pandemic  is the federal government’s web site http://www.flu.gov., which contains very useful and specific information, as well as links to issues of specific concern to various businesses.

                The U.S. Department of Labor has just issued two sets of questions and answers concerning the impact of the Fair Labor Standards Behave (”FLSA”) and the Family and Medical Leave Act (”FMLA”) on issues pertaining to employees absences from work and payment to employees who are directly or indirectly affected by the H1N1 flu virus.  Additional guidance is provided by the EEOC with respect to the impact of the Americans with Disabilities Behave (”ADA”) on this pandemic situation. 

                As this situation has evolved, the federal government has continued to issue additional information and guidelines, some of which modified prior guidance.   Accordindly, continued monitoring of the main website -  www.flu.gov is advised.

Paul Cherner is a labor and employment lawyer in Chicago, IL. Visit his blog at http://hrcounselblog.com

Article courtesy of  Nancy Grimes - Founder GLI / Grimes Legal, Inc. - Legal Search Firm
    Retained Legal Recruiters © Copyright 2008 Grimes Legal, Inc. | All rights reserved

KEYS TO SUCCESS

Please note that the following steps aren’t listed by order of importance.  They’re all equally vital to the success of lateral hiring.  Therefore, these are not “a la carte” suggestions from which you can pick and choose, but prototype of which all must be implemented to achieve success without unnecessary risk with your new hires. 

THE PROCESS

               I.      Someone must clearly “own the process” of managing the lateral attorney’s entry into the firm and integration for several months thereafter.

§         This should be an authoritative attorney and not a member of the firm’s HR or attorney recruitment staff.

Ø       There should be one senior partner who is fully empowered with the backing of the firm’s management committee to guide the process.

Ø       This person may be a practice group chair relevant to the new lateral.

Ø       There must be no question of this person’s authority to drive the process.

§         Those who are also involved in the process must receive concrete, appreciable recognition and compensation for this involvement.  The firm should:

Ø       Clearly outline the mission via well-publicized firm policy, identify the leadership involved in the process and reward the effort.

Ø       Institute a system of accountability so there is a high level of familiarity as to what exactly needs to be done.

Ø       Reward attorneys when it comes to compensation who help other lawyers develop business or who engage other lawyers to develop prospective business.

Ø       Track, as an element of the compensation decision, the efforts of lawyers who work with other attorneys in cross-marketing, internal marketing, business development between business groups, introductions of existing clients to others in the firm, etc.

IMPLEMENTATION

             II.      Develop a Joint Business Plan Between the Firm and the Lateral.

§         Maximize the mutual benefit of the lateral move.

§         Designed to integrate the lateral and his business base.

§         To deal with client introductions.

§         Introduce the lateral to other practice groups in the firm.

§         To develop a marketing plan to expand the lateral’s business by exploiting the platform offered by the firm.

           III.      Focus on Improvement and Growth.

§   Focus on improvement of the lateral’s practice.

§   Focus on clients, firm’s existing clients and new business development.

§   Develop a plan for personal introductions and cross-selling.

           IV.      Develop an Awareness of the Lateral.

§         Have a champion within the firm, backed by management.

§         Arrange meetings with practice groups.

§         Introduction of the lateral of himself and his practice and clients.

§         Introductions of the lateral to business development discussions.

§         Identify these attorneys who best fit with the lateral, either for development of the lateral’s practice or the development of his clients.

§         Identify new opportunities and add Them to the lateral’s business plan so the firm can help accomplish the growth and assist in the follow through.

             V.      Periodic Briefings.

§         Practice leaders should meet monthly with the lateral during his first 6 months with the firm to monitor the above practices and to avoid missed opportunities.

§         Review progress of the lateral’s integration with teams.

§         Review development of the new cross-marketing opportunities.

§         Use this as a time to interact and make sure there’s continued chemistry.

§         Identify a course of action which will help the lateral further integrate, which will help him feel he is an important member of the team.

           VI.      Technical and Human Support.

§         Make the lateral aware of the firm’s full array of resources.

§         From the very beginning, make sure the lateral has full access to associate and staff support.

§         Placement of the lateral’s office near active, dynamic attorneys and other synergistic practice groups.

§         Make sure others seek out the lateral for lunches or casual meet-and-greets.

§         Whenever possible, place the lateral on meaningful firm committees or in management career opportunities.

CONCLUSION

Ability to expand and get support for the lateral’s practice is the single most important factor.

The next critical element is being integrated.

Having a well-defined and managed lateral integration plan and the commitment to the actual implementation should be at the forefront of everyone’s consciousness.

Article courtesy of  Nancy Grimes - Founder GLI / Grimes Legal, Inc. - Legal Search Firm
    Retained Legal Recruiters © Copyright 2008 Grimes Legal, Inc. | All rights reserved

By Paul Cherner

The EEOC has just published for public comment proposed new regulations interpreting the Americans with Disabilities Amendments Act of 2008 (”ADAA“). The ADAA, which became effective January 1, 2009, required the EEOC to revise its ADA regulations and to redefine the term “substantially limits” in accord with the Congressional goal of defining the term “disability” in favor of broad coverage to the maximum extent permitted by the ADA.

The proposed new rules reiterate that the definition of “disability’ should be broadly interpreted. The new rules liberally interpret the term “substantially limits” by providing that a limitation need not significantly or severely restrict a major life activity in order to meet the ADA standard for disability. The definition of “major life activities” has been expanded and now include factors on 2 non-exhaustive lists, including one that identifies major bodily functions.

Those rules provide that actions based on an impairment should also include actions based on symptoms of an impairment. They also provide that qualification standards, employment tests or other selection criteria based on an individual’s uncorrected vision shouldn’t be used unless shown to be job-related for the career opportunity in issue and consistent with business necessity.

There is a 60 day period for public comment and then a period of time in which the EEOC will consider the comments before issuing final rules, which will probably not occur before early 2010. However, all employers should be reviewing their ADA policies and practices NOW to take into account the new realities of dealing with a broader and more liberal ADA. The EEOC has published questions and answers regarding their proposed new ADAA rules and employers are advised to review that document with legal counsel and their HR team.

Paul Cherner is a labor and employment attorney in Chicago, IL. Visit his blog at http://hrcounselblog.com.

Article courtesy of  Nancy Grimes - Founder GLI / Grimes Legal, Inc. - Legal Search Firm
    Retained Legal Recruiters © Copyright 2008 Grimes Legal, Inc. | All rights reserved

From the small city solo practitioner to the major national players, every law firm must get involved in marketing at some level in order to obtain and retain clients. The quality of work a firm does can maintain clients and become a source of referrals but in order to reach and garner potential clients, a certain marketing strategy must be implemented in order to achieve the firm’s goals.

Lawyers practice law. Marketers offer a service or product. Marketers and lawyers have very different backgrounds, personality types, and career expectations. Lawyers and marketers need to accommodate their differences and play to each other’s strengths in order to have a successful relationship. And so it becomes necessary for a law firm to entrust its marketing to either an outside firm or an in-house department dedicated to the promotion of their business.

Who you have marketing your services will greatly impact the success of the plan. If you entrust this task to a team with whom you do not have a relationship built on respect and clear communication, the goals will never be achieved. Broad, undefined goals will hinder the marketer’s success. An agent that is misinformed or makes assumptions about the firm’s record will sabotage the outcome of the marketing plan. This lack of clarity often results in an “us vs. them” environment, a culture that can range from tolerant to uninterested to hostile when lawyers relate to their marketing professionals.

There are key factors to consider when preparing your marketing plan. Here are just a few:

Know your business development staff and give them clear goals and expectations.

Most marketers recognize that attorneys must feel comfortable with the marketer’s style and approach to create a productive working relationship. Most marketers offer a reasonably substantial sample product and will also provide a free initial consultation. This information can help you determine whether you would like to work with a particular marketer.

Once you’ve chosen someone to represent you, it is the law firm’s responsibility to determine priorities, with the advice of their marketing professionals. Lawyers must learn how to delegate certain parts of the marketing plan, whether it’s sending out letters, making follow up phone calls after a seminar, sending out your monthly newsletter, or building your legal firm web page. Your position as an lawyer is to do two things: bring in new clients and bill them for your services. Everything else should be delegated or outsourced.

It’s critical you establish the priorities of your marketing plan and are willing to delegate important tasks to your key people or representative. Your relationship with a marketing executive will only be successful if they have a clear understanding of what you expect of them versus what they can reasonably deliver.

Focus on important, achievable actions that will result in satisfying clients and attracting prospects. Identify the areas of business, the specific partners, and the aspects of a marketing plan that will have the greatest impact. Recognize these practices, events, or even cities that have high potential for an expanded market.

The Right Support Can Do Wonders For Success

A well-formed and balanced team can bring about the best results in any situation. The right support may include a senior partner or partners whose enthusiasm and openness to the marketer’s ideas can serve as a liaison and create a nurturing relationship with the firm. Often the most partner is not necessarily the right person to be involved with the firm’s marketing but a senior partner who holds a clear understanding of the marketing goal is the best choice. A candid approach with each other will attain the right balance of experience and personnel, resulting in a common goal.

Trust & Respect Your Marketing Team!

Trust is developed and must be mutual. In order to delegate your law firm’s marketing plan you must have someone you can allocate to and you must trust ‘em. You must believe the person entrusted with marketing has your best interests at heart and is competent. They must believe you will support their decisions and won’t try to undermine their authority to make progress.

Perhaps choosing a marketing consultant who is either a practicing attorney or who formerly practiced will help gain that trust. Another possibility is to choose a consultant with considerable experience working with attorneys. Why is this important? As many of us know, most bars heavily regulate lawyer advertising, imposing all sorts of rules, so it can be essential for your marketing agent to be aware of ethics issues or at a minimum, be sensitive to Them. By contrast, a marketer with no background in the law or with attorneys could recommend a marketing campaign that revolves around an ethically prohibited practice.

It’s much more likely that business development staff will be respected if the expectations of the firm’s marketers are clear. If lawyers don’t know whether the marketing personnel at the firm are to perform a strategic role, a sales role, or something else, marketers may find themselves shut out of important decisions or avoided by the lawyers. Success comes when marketers and lawyers communicate clearly and with mutual respect.

Last But Certainly Not Least, Your Budget…

Ideas abound but funding is not always available for those ideas. The marketing budget is one expense that many legal firms will consider reducing, or eliminating entirely, in the time of cutbacks. But studies have shown that this is the wrong move. When the economy is tight, it’s important to look at each marketing activity in terms of value and return on investment. Focus the majority of your firm’s marketing budget on investments that have low risk and high reward. If you’ve money left in the budget afterward, you can use it to test other marketing activities.

So whether your firm is large or small, survival rests on the basic principles of providing quality work and getting the word out there about your firm. With the assistance of a trusted, qualified marketing team the opportunities to expand your firm’s service are boundless.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Nancy Grimes has over 20 years’ experience serving the legal industry. Clients include international, national, regional, local and independent law firms and lawyers. “Counsel to Counsel” is updated weekly. Have a question you’d like answered? Email it to ncgrimes@grimeslegal.com.

Article courtesy of  Nancy Grimes - Founder GLI / Grimes Legal, Inc. - Legal Search Firm
    Retained Legal Recruiters © Copyright 2008 Grimes Legal, Inc. | All rights reserved

September 8, 2009

With the advent of the Internet, cell phones, wireless email devices and portable music players, many of us wear as a badge of honor our ability to multitask. But not so fast - a recent study by Stanford researchers concludes the opposite of what we might think: these of us who frequently are inundated with multiple sources of electronic information do not pay as close attention, control memory, or move from one task to another as well people who tend to complete one function or task at a time.

As part of the study, titled “Neural Predictors Of Moment-To-Moment Fluctuations In Cognitive Flexibility,” the researchers conducted several identical experiments on 2 groups - people who generally multitask and people who usually don’t.

The groups were shown images of certain types of rectangles in one experiment, and they were told to ignore certain blue rectangles while determining the jobs of red rectangles across image frames. In this experiment, it was the non-multitasking group that performed better than the multitasking group.

In yet another experiment, the non-multitasking group once more performed better than the multitasking group in picking out repeat instances of alphabetical letters appearing in sequences.

In one more experiment, the non-multitasking group again outperformed the multitasking group when it came to following instructions to focus on certain letters or numbers when shown pics of letters and numbers at the same time.

Intuition may lead people to think that a multitasking population would do better at these juggling experiments than a non-multitasking group, because they supposedly are used to and generally handle multiple streams of information. But science disagrees.

At the end of the day, it appears from the Stanford study that people who multitask are less able to focus and have trouble ignoring irrelevant information. Indeed, they appear to be easily pulled away from what is important and right in front of Them.

So, the next time you plan on moving back and forth between emails, text messages, Facebook, cell phone calls, television, work assignments, home projects, personal interactions, and driving a car, please consider tackling just one of these tasks at a time.

Of course, your author certainly can learn this lesson, but he was only interrupted by 2 phone calls while writing this piece - it could have been worse!

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP (http://www.duanemorris.com) where he focuses on litigation matters of various types, including information technology and intellectual property disputes. His Web site is http://www.sinrodlaw.com and he can be reached at ejsinrod@duanemorris.com. To receive a every single week email link to Mr. Sinrod’s columns, please send an email to him with Subscribe in the Subject line.

This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and don’t necessarily reflect the views of the author’s law firm or its individual partners.

Article courtesy of  Nancy Grimes - Founder GLI / Grimes Legal, Inc. - Legal Search Firm
    Retained Legal Recruiters © Copyright 2008 Grimes Legal, Inc. | All rights reserved

While lateral associate hiring has generally slowed in this rough economy and in-house opportunities have become scarce, lateral partners are finding themselves in a favorable job to make a move.  Many firms have increased their efforts to hire partners in the practice areas that are proving to be profitable: intellectual property, bankruptcy, employee benefits, tax and litigation.  But just how do you initiate the change and make it a success?  It’s not as hard as one may think if you use the right tools and resources.

Often our first inclination is to network with friends or colleagues.  Be careful when calling on friends!  It may be true that a friend is always there when you need ‘em, but in the case of calling on a friend at another firm, be mindful of the circumstances involved.  Know their status and position at the firm so his/her influence or recommendation doesn’t backfire on you.  When talking money, it’s never wise to discuss compensation with friends and co-workers.  If your friend offers to counsel you on compensation meetings, politely refuse the offer and handle it yourself.  No need for hard feelings or misguided counsel once they realize you are parleying for higher comp than theirs. 

Remember that you will got to decide if issues with the firm or negotiating with the firm are worth risking the friendship.  Sometimes it’s best to keep your allies at a distance and make your own opportunities.

So instead of relying on friends, why not trust the professionals?  This is your career we’re talking about!  You are a precious asset and should be presented in that light.  An experienced, talented recruiter who knows the market, firm reputations and the right contacts can open doors for you that would never be accessible on your own.  You will know you are in good hands when your recruiter guides you through the entire process – from presenting firms to you that are a nice fit both financially and culturally, to working on a business plan, completing questionnaires, and most of all assisting in the negotiation of your compensation and bonuses.  A recruiter that personally knows the hiring senior partners and recruitment coordinators can provide invaluable insight to a multitude of factors that can affect you including financial performance and stability, management style, and reputation.

Recruiters and headhunters can provide a smooth path to finding your new firm; however, it’s important that you make the initial move.  Don’t just wait for ‘em to discover you!  You’ve to be assertive enough to initiate the first contact if you’re ready for the change.  You need to do your own due diligence on firms that will best costume your practice and clients.  Being educated on the market, firm styles, and what each has to offer the other is working smart.  Often a headhunter is searching for someone to fill a specific slot within one particular firm.  That may not be the optimum position for you.

The key to a winning relationship with an experienced legal recruiter is to work as a team.  Be open to options you may not have considered.  Be sure your agent has quality information about as many firms and opportunities as possible.  Likewise, present firms that you’ve researched to the recruiter.  A seasoned recruiter can give you insight to a firm’s historical financial information; compensation arrangement; sources of capital; client base, as well as other issues. Additionally, you must consider the firm’s culture – will you be happy in that environment?  The way you are treated at your firm affects how successfully you practice law.  With the right support you can become an essential and vital team member.  If the firm is open to your associates joining you in your move and there are opportunities for them to make partner, it shows that they are interested in their strength and longevity.  Your recruiter may have already placed attorneys at a specific firm and can share previous experiences that demonstrate the firm’s culture.

And then of course there are issues of how to handle the process itself.  It may be years since you have had to prepare a resume or answer queries in an interview.  Your legal recruiter can advise you how to judiciously provide information to a firm you’re in negotiations with, what a partner can tell his or her clients about a possible move, and what to expect once you give your notice.  Counteroffers often lure a partner back because it’s easier than the change but do counteroffers ever really prove to be beneficial to the partner? Your recruiter can provide guidance on these questions – rely on them to pilot you through the process step by step.

Be supple and open to new ideas.  Listen and be patient.  Honest, open communication between you and your recruiter will result in more than just one opportunity knocking at your door!  Work smart with your recruiter to discover your new firm and as a result, you, your clients and your new employer all reap the benefits.

Nancy Grimes has over Twenty years’ experience serving the legal industry.  Clients include international, national, regional, local and independent law firms and attorneys.  “Counsel to Counsel” is updated every single week.  Have a question you’d like answered?  Email it to ncgrimes@grimeslegal.com.

Article courtesy of  Nancy Grimes - Founder GLI / Grimes Legal, Inc. - Legal Search Firm
    Retained Legal Recruiters © Copyright 2008 Grimes Legal, Inc. | All rights reserved

We all know today’s legal market has unique challenges.  With the uncertainly still looming over the financial markets, many law firms have been forced to lay off attorneys due to the substantial drop in transactional work.  Simultaneously, the overwhelming losses in the stock market have nurtured an abundance of litigation cases, which will likely steer Congress to establish more strict regulations for the financial industry. 

So…in light of this not so thrilling forecast, how do you stay nimble and place yourself in a job to exact the most benefit from the current market situation?  How do you solidify your client relationships to keep Them enamored with you?  Answer: Do some soul-searching and ask yourself those thought-provoking musings.  If you answer Them honestly, they will help you determine if you should weather the storm with your current firm start to look for new digs.

1.     Are you satisfied with your firm’s reputation in the legal and business communities?

2.     Is your firm well managed?

3.     Are you optimistic when it comes to the financial health of your firm?  Do you believe management is making the right decisions regarding the firm’s future?

4.     Does your firm provide the platform you require for building your practice?  Does your practice coincide with the strategic vision of the firm?

5.     Is the firm committed to marketing?  Does the firm provide you with the resources you need to successfully market your practice?

6.     Are firm billing rates compatible with your specialty and your clients?

7.     Do you’ve the opportunity to share in important departmental and firm decisions?  If you desire to play a leadership role in the firm, is it a possibility? 

8.     Do you feel you’re compensated fairly when compared with your peers at your current firm and with those at similar firms?

9.     Is your firm a wonderful cultural fit?  Do your peers share your views of work/life balance and superior client service and reputable character?

10. Do the firm’s physical surroundings provide an atmosphere where you can be productive?

11. Do you feel respected and valued by your peers?  Do you respect and value your colleagues’ legal work?  Are you comfortable referring your clients’ matters to Them?

12. Do you receive adequate support from associates, paralegals and support staff in order to get work done in a timely fashion?

13. Is the firm committed to pro bono work and community service in a way that coincides with your values and beliefs?

14. Is law office technology at a level that fully supports your practice?  As office technology is updated, does your firm provide adequate assistance and training? 

Nancy Grimes has over 20 years’ experience serving the legal industry.  Clients include international, national, regional, local and independent legal firms and lawyers.  “Counsel to Counsel” is updated every single week.  Have a question you’d like answered?  Email it to ncgrimes@grimeslegal.com.

                                                                                                                    By:Nancy

Article courtesy of  Nancy Grimes - Founder GLI / Grimes Legal, Inc. - Legal Search Firm
    Retained Legal Recruiters © Copyright 2008 Grimes Legal, Inc. | All rights reserved

A brief news item entitled “Bill would expand Aging department’s oversight” by Scott Gilbert, posted on July 16, 2009, by WITF (Harrisburg, PA), noted the proposed restructuring of the Pennsylvania Office of Long Term Living (OLTL) into the Pennsylvania Department of Aging (DoA)

All long-term living facilities, for seniors and younger people alike, may soon drop under one state agency.

The departments of Aging and Public Welfare currently share oversight of the Office of Long-Term Living. But the House has approved and sent on to the Senate a measure that would create the Department of Aging and Long-Term Living.

Crystal Lowe, who heads the Pennsylvania Association of Area Agencies on Aging, says the move makes sense.

Among the functions that would be shifted out of DPW is the licensing and regulation of personal-care homes and assisted-living facilities. Lowe says her group supports the legislation, provided the merger wouldn’t diminish the Aging department’s ability to advocate on issues unique to seniors.

The proposal was discussed at a meeting, held May 28, 2009, of the Medical Assistance Advisory Committee (MAAC) of the Pennsylvania Department of Public Welfare, when a resolution was adopted anticipating the organizational move of OLTL from DPW, to the DoA.

The Consumer Subcommittee made a motion that the Memorandum of Understanding formalize the role of the MAAC and the MAAC Subcommittees to continue to serve in an advisory capacity on the MA Programs that are moved to the Department of Aging and Long Term Living and that includes having someone come to the MAAC, not only to give reports, but to provide draft documents for comment and discussion for the MAAC to provide an advisory role independent of other committees.

It appears that the DoA anticipates receiving the prime role of addressing long-term care needs in Pennsylvania, as explored in its recent Summit held in State College.

A Press Release, entitled “PA Department of Aging Explores Needs of Older Adults at Senior Center Summit” (06/30/09), noted an information-gathering process that focused on the role of the existing senior centers statewide.

The Pennsylvania Department of Aging and the Long-Term Living Training Institute have heard worthy insight from experts in the aging field and older adults during a two-day conference attended by over 300 professionals and consumers.

Pennsylvania has over 600 senior centers where older citizens go for support, camaraderie, meals and access to important information about programs that can help ‘em.

“Senior centers offer a lifeline for many older residents who otherwise would be isolated,” said Department of Aging Secretary John Michael Hall. “Pennsylvania seeks to improve programs and access to centers across the state and to find innovative ways to make them more appealing, efficient and fine for members.”

Discussion groups focused on the changing role of senior centers, fundraising techniques, creating a business plan and making the centers better places for older residents to go. Objectives of the meeting include improving ways to transport seniors to centers in rural and suburban areas and finding more and better ways to sustain operations in a cost-effective way.

The legislation that would accomplish the restructuring is PA House Bill 1152, presently in Printers No. 2212 (28 pages in PDF format), which is summarized simply as “An Behave establishing the Department of Aging and Long-Term Living and providing for its powers and duties; and making related repeals.”

According to its Legislative History, HB 1152 was introduced on March 31, 2009, approved by the House on June 30th, and then was referred immediately, in the Senate, to its Aging & Youth Committee.

Very relevant to the discussion about regulation of personal care homes in Pennsylvania is Section 4’s empowerment that, among other missions, the proposed, newly-named “Department of Aging and Long-Term Living” shall administer and supervise a domiciliary care program for adults.

More specifically, under Subsection 9.1, the new DA/LTL shall: “License and regulate personal care homes and assisted living residences under all powers previously granted to the Department of Public Welfare as provided in Articles II and X of the behave of June 13, 1967 (P.L.31, No.21), known as the Public Welfare Code.”

The new DA/LTL would also handle programs for Pennsylvanians who are older or who have disabilities. Section 4, in Subsection 10, provides that it shall “[a]dminister and supervise an attendant care program for people with disabilities under the act of December 10, 1986 (P.L.1477, No.150), known as the Attendant Care Services Behave, and any related home and community-based services waiver for older adults and people with disabilities.”

The legislation also projects a sweeping vision for long-term living in Pennsylvania.

Section 4, Subsection 12, provides that the new DA/LTL shall:
In cooperation with the area agencies, Federal, State and local agencies that support people with disabilities and older adults, service providers, centers for independent living and support organizations, work toward the development of a continuum of home and community-based service, transportation and housing options for older adults and for people with disabilities designed to maintain them in the community and avoid or delay institutional care when clinically appropriate.

The department shall ensure that consumers are made aware of the availability of nursing facility services or other residential settings when identified as a clinically appropriate option.

System development activities shall include coordinating the Commonwealth’s plans for the provision, expansion and effective administration of all of the following:
(i) In-home services that recognize consumer choice, including personal assistance and supportive services, which shall include consumer-directed services.

(ii) Housing options such as service-enriched housing options, personal care homes and assisted living residences and nursing facility services, when clinically appropriate.

(iii) Special services to caregivers who support people with disabilities and older adults, recognizing the important role that families play in helping older adults and people with disabilities to live independently.

(iv) Adult every day living center services, respite services and other community-based services to support caregivers.

(v) The promotion of informal community supports.

(vi) Comprehensive and ongoing assessment programs.

(vii) Counseling programs to assist individuals in determining appropriate long-term living services.

(viii) Special advocacy efforts to promote greater awareness of, and more effective response to, Alzheimer’s disease and other related dementia.

(ix) Activities and services at community senior centers.

(x) Wellness and preventive health programs.
Although this may appear initially as an organizational shuffle, I think that it represents more.

This is a potential restatement by the legislative and executive branches as to who, in state government, will work in a coordinated effort on issues of older and disabled Pennsylvania citizens far into the future.

Neil E. Hendershot is a practicing & teaching lawyer in Harrisburg, Pennsylvania who works every day in the legal areas covered by the PA EE&F Law Blog

Article courtesy of  Nancy Grimes - Founder GLI / Grimes Legal, Inc. - Legal Search Firm
    Retained Legal Recruiters © Copyright 2008 Grimes Legal, Inc. | All rights reserved

Maine Seeks To Be The Tail Wagging The Dog

There have been prior efforts to regulate online marketing to children, such as the enactment by Congress of the Children’s Online Privacy Protection Act (COPPA). But now along comes Maine, with its Behave To Prevent Predatory Marketing Practices Against Minors (the Maine Act), as the latest governmental crusader seeking to protect the rights of children against abusive marketing. Is this a positive development, with Maine seeking to be the governmental tail wagging the dog in this arena? Read on.

COPPA, which has been on the books for a decade, demands verifiable parental consent before Web sites may collect personal information from children under the age of 13 years old. The Maine Act, which is scheduled to go into effect next month, goes farther in several respects.

• First, the Maine Behave applies generally to minors, which likely refers to anyone under the age of Eighteen years old.

• Second, the Maine Act not only regulates the potential collection of information online, but it also appears to govern other forms of information collection.

• Third, the Maine Behave applies generally to persons, whereas COPPA specifically targets Website operators. A person is broadly defined under the Maine Act as “an individual, firm, partnership, corporation, association, syndicate, organization, society, business, trust, attorney-in-fact and every natural or artificial legal entity.”

• Fourth, and significantly, the Maine Act, different than COPPA, allows for significant fines and private causes of action with the potential for attorney’s fees.

The Maine Act prohibits predatory marketing against minors as follows: “A person may not use any health-related information or personal information regarding a minor for the purpose of marketing a product or service to that minor or promoting any course of action for the minor relating to a product.” This appears to be a flat prohibition that cannot be cured even with parental consent.

As far as the unlawful collection and use of health-related data from minors, the Maine Act provides: “It’s unlawful for a person to knowingly collect or receive health-related information or personal information for marketing purposes from a minor without first obtaining verifiable parental consent from that minor’s parent or legal guardian.”

For purposes of the Maine Act, personal information refers to an individual’s first name or first initial and last name, a home other physical address, a social security number, a driver’s license number or state identification card number, and information concerning a minor that’s collected in combination with one of the foregoing identifiers.

Health-related information refers to any information about an individual or a member of the individual’s family relating to health, nutrition, drug or medication use, physical or bodily condition, mental health, medical history, medical insurance coverage or claims or similar data.

Bottom line, is the Maine Behave a positive development?

While the goal of preventing predatory marketing practices toward minors is laudable, this approach appears to have some flaws.

One such flaw is that marketing, especially online marketing, is not necessarily confined by state boundaries. It is natural that emails cross state lines. Indeed, when mass emails are sent (hopefully, complying with the Can-Spam Act), the email senders do not necessarily know where the email recipients on their lists live; it’s safe to say that email lists include recipients from various states. Furthermore, Web sites are viewable nationwide (indeed, worldwide), and they aren’t available only in a specific state.

Should Maine, just one small state out of 50, be able to force the issue of compliance practices for national marketers? This likely should be addressed at the federal level to achieve national uniformity. While it may or may not be that some of Maine’s ideas may ultimately deserve national consensus, that may not be for Maine alone to decide.

Furthermore, Maine’s strict prohibitions may not be perceived favorably on reflection even among minors within Maine’s borders. For example, for users over 13, Facebook reportedly uses personal information for the offering of services. Under the Maine regime, those services may become unavailable to Maine’s minors.

Perhaps also Maine minors no longer would receive marketing information they may deem worthy, such as information relating to test taking services, athletics endeavors, and position opportunities. The point is that Maine minors may not perceive all marketing to them as truly predatory.

It will be interesting to see how the Maine experiment plays out. Will it lead to laws in other states? Will it lead to federal legislation? Will it cause a backlash within Maine’s own borders. Stay tuned.

FindLaw columnist Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP (http://www.duanemorris.com) where he focuses on litigation matters of various types, including information technology and intellectual property disputes.  His Website is http://www.sinrodlaw.com and he can be reached at ejsinrod@duanemorris.com.  To receive a every single week email link to Mr. Sinrod’s columns, please send an email to him with Subscribe in the Subject line. 

Article courtesy of  Nancy Grimes - Founder GLI / Grimes Legal, Inc. - Legal Search Firm
    Retained Legal Recruiters © Copyright 2008 Grimes Legal, Inc. | All rights reserved