Statutory Update: What Came out of Albany and Washington in 2010

1. Statutory Update: What Came out of Albany and Washington in 2010 Bar Association of Erie County Noonday CLE September 29, 2010 Frank Housh, fhoush@houshlaw.com Download at (blog) The Philistine at Bar www.houshlaw.com

2. New New York Laws Assembly Senate

3. Chapter 8: Family Health Care Decision Act • The FHCDA allows family members to make health care decisions, including decisions about the withholding or withdrawal of life-sustaining treatment, on behalf of patients who lose their ability to make such decisions and have not prepared advance directives regarding their wishes. • Up until now, New York, like many other states only allowed an agent or surrogate to make health care decisions for an incapacitated person, including end of life decisions, if the incapacitated person had previously signed a health care proxy appointing the agent to make those decisions. It was a common misconception by many family members that they could act as the health care decision maker because they were the next of kin. However, that will change in New York this year under the New Family Health Care Decisions Act. • The new law establishes procedures authorizing family members, or other persons close to patients who lack decision-making capacity, to decide about treatment, in consultation with health care professionals and in accord with specified safeguards. It includes procedures and standards for decisions about life sustaining treatments.

4. Chapter 14: New Crime - Endangering the Welfare of an Incompetent Person • Establishes felony offenses relating to endangering the welfare of an incompetent or physically disabled person; defines "incompetent or physically disabled person" to mean an individual who is unable to care for himself or herself because of a physical disability, mental disease or defect. • Under the existing law, a caregiver of a vulnerable elderly person who endangers that person's welfare is guilty of a class E or class D felony, depending upon the nature and seriousness of the offense, but no such protections extend to persons who are not vulnerable elderly persons, but who are, nonetheless, incapable of taking care of themselves and entrusted to the care of others as a result of being incompetent or physically disabled.

5. Chapter 25: CPLR Amendment Re: Fire Loss • Allows court to compel the parties to submit to the appraisal process as set out in a standard fire policy regardless of any dispute raised concerning scope of coverage or scope of loss.

6. Chapter 44: Open Meetings Law • Authorizes the court to declare that a public body has violated the open meetings law or to declare that actions taken by a public body are void; requires members of the public body to attend a training session concerning the obligations of the open meetings law.

7. Chapter 101: Charter Schools • Charters to be issued through a new competitive request for proposals process developed by the Board of Regents and the Board of Trustees of the State University of New York and to establish enhanced transparency and accountability measures for the operation and management of charter schools. • Many changes to Charter Schools. • Race to the Top funds required this change.

8. Chapter 169: DWI - Jack Shea’s Law •  Under the prior law, if a police officer asked medical personnel to draw blood from a suspected drunk or impaired driver following a collision, and a physician did not directly supervise the procedure, the evidence was inadmissible. • Nurse practitioners and EMTs can now draw blood without direct physician supervision from motorists who are suspected of driving under the influence of drugs or alcohol. • The bill resulted from the tragic death of two-time Olympic gold medalist Jack Shea.

9. Chapter 176: Stop and Frisk Database • Shuts down NYC Stop and Frisk Database • Strong 4th Amendment and Privacy issues

10. Chapter 193: Addition to Definition of “Sexual Contact” • There have are many instances in New York City, specifically, where an offender has ejaculated on women in the subway. There have been instances of college students ejaculating on sleeping female colleagues.

11. Chapter 227: Civil Damages for Victims of Hate Crimes • In the last few years, the Anti-Defamation League of B'nai B'rith reported 1,685 anti-Semitic incidents, the highest total in 12 years, The National Gay and Lesbian Task Force reported 7,031 incidents of anti-gay violence in 1989. In 1992, according to the FBI more than 7,600 hate crimes were reported. In New York State, the Division of Criminal Justice Services reported that in 1994, with only 11% of State Law enforcement agencies reporting, 997 acts of bias related nonviolence or intimidation occurred. New York has criminalized acts of violence and intimidation motivated by hate.

12. Chapter 329: Attorney’s Fees in Matrimonial Actions • Current law places an onus upon the party in a matrimonial action seeking counsel fees pendentelite, to show why the interests of justice require it. In addition, Judges appear reluctant to order pendentelite counsel fee awards in matrimonial actions under the current statute. • This bill provides for a rebuttable presumption of interim attorney's fees to the non-monied spouse in a matrimonial case or in proceedings to enforce a judgment therein. It also authorizes the court to order expert fees to be paid by one party to the other to enable the party to carry on or defend the action.

13. Chapter 384: No-Fault Divorce • Allows a judgment of divorce to be granted to either party to a divorce action without assigning fault to the other party. However, a divorce could only be granted after the major ancillary issues have been resolved. • Signed August 13, 2010 • Effective October 12, 2010

14. New Federal Laws House of Representatives Senate

16. Public Law 2: Lilly Ledbetter Fair Pay Act of 2009 • The Supreme Court in Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), significantly impairs statutory protections against discrimination in compensation that Congress established and that have been bedrock principles of American law for decades. The Ledbetter decision undermines those statutory protections by unduly restricting the time period in which victims of discrimination can challenge and recover for discriminatory compensation decisions or other practices, contrary to the intent of Congress.

17. Public Law 24: Credit CARD Act of 2009 • Credit Card Accountability, Responsibility and Disclosure (CARD) Act.  • Comprehensive credit card reform, the “Cardholder Bill of Rights.” • Bans Unfair Rate Increases • Prevents Unfair Fee Traps • Plain Sight /Plain Language Disclosures • Protections for Students and Young People

18. Public Law 122: The Human Rights Enforcement Act • Establishes a section within the Criminal Division of the Department of Justice to enforce human rights laws, to make technical and conforming amendments to criminal and immigration laws pertaining to human rights violations, and for other purposes. • Allows prosecution of torture, genocide, child soldiers and war crimes committed by anyone in the U.S.

19. Public Laws 148 and 152: Health Care Reform • Effective September 23, 2010: • No Denying Coverage of Children Based on Pre-Existing Conditions. • Insurance Companies May Not Rescinding Coverage.  • No Lifetime Limits on Insurance Coverage. • Annual Dollar Limits on Insurance Coverage. (e.g., hospital coverage) are Regulated • External Appeal of Insurance Decisions • www.healthcare.gov

20. Public Law 154: The PACT Act • Prevent All Cigarette Trafficking Act, effective June 29, 2010 . Requires Internet and other mail-order sellers to: • Pay all applicable federal, state, local or Tribal tobacco taxes and affix any related tax stamps, before delivering any cigarettes or smokeless tobacco products to any customer in a state; • Comply with various state and local laws as if the Internet sellers were tobacco product retailers located in the same state as their customers; • Register with the state and make periodic reports to state tax collection officials; and • Check the age and ID of customers both at purchase and at delivery to stop Internet cigarette and smokeless tobacco sales to kids. • The bill also subjects illegal Internet sellers to strong new penalties, allows for the enforcement of the new federal law by the attorneys generals of the states, localities and Indian Tribes where the tobacco products are delivered, and provides other enforcement tools to enable federal and state enforcement officials to stop the deliveries to consumers of illegally sold cigarettes and smokeless tobacco by non-complying Internet sellers. • Makes tobacco products non-mailable matter.

21. Public Law 203: Wall Street Reform • Dodd-Frank Wall Street Reform and Consumer Protection Act. • Creates the Consumer Financial Protection Bureau within the Federal Reserve. • Creates the Financial Stability Oversight Council intended to identify and responding to emerging risks, including banks that get “too big to fail.” • Federal Reserve, mortgage, and credit rating agency reform.

22. Public Law 216: Airline Safety Act of 2010 • Directs the FAA to issue a regulation no later than August 1, 2011, to specify limitations on the hours of pilot flight and duty time to address problems relating to pilot fatigue. • Currently, there are different rest requirements for domestic, international and unscheduled flights. The proposed rule would eliminate these distinctions. • The FAA proposes to set a nine-hour minimum opportunity for rest prior to the duty period, a one-hour increase over the current rules. The proposed rule would establish a new method for measuring a pilot’s rest period, so that the pilot can have the chance to receive at least eight hours of sleep during that rest period.

23. Public Law 220: Fair Sentencing Act of 2010 • Reduces the disparity in the amounts of powder cocaine and crack cocaine required for the imposition of mandatory minimum sentences and eliminates the mandatory minimum sentence for simple possession of crack cocaine.  It also increases monetary penalties for major drug traffickers. • Retroactive? Still up in the air, seeUnited States v. Kolter, 849 F.2d 541,544 (11th Cir. 1988), United States v. Blue Sea Line, 553 F.2d 445, (5th Cir. 1977) for other cases interpreting the retroactivity of new legislative modifications to sentencing regime.