Monday, August 29, 2005

Federal Estate Tax

A USAToday article last Friday spotlighted the approach of the Senate’s consideration of the “Death Tax Repeal Permanency Act of 2005,”introduced last July 29th., which would effectively eliminate the Federal estate tax. (HR 8)

The House passed the bill April 13th. without amendment.

The bill “declares that the sunset provisions of the Economic Growth & Tax Relief Reconciliation Act of 2001 (Pub.L. 107-16), which terminates its application to estates of decedents dying, gifts made, or generation skipping transfers after Dec. 31, 2010, shall not in fact apply to Title V, which repeals estate and generation-skipping transfer taxes, thus making the repeal permanent.”

Portions of Ohio’s operating budget (HB 66), passed last June 30, “constructively repealed Ohio’s additional estate sponge tax and generation-skipping sponge tax for decedents dying on or after it’s effective date.” (Prior posting)

Friday, August 26, 2005

Public Defender Fee

Effective October 1st., there are new statutory provisions in HB 66 implementing a $25 fee to be charged to all persons requesting or being provided with a public defender or private counsel in Ohio. Forms and additional information, including the pertinent portion of HB 66, are available on the Ohio Public Defender’s website

DNA Database Legislation

Ohio Gov. Robert Taft on February 15th. signed H.B 525 from the 125th. General Assembly into law, which is now going to “expand the existing collection mechanism which requires DNA samples to be taken of all persons convicted or pleading guilty to a felony or specified misdemeanors, and from all minors adjudicated delinquent for committing acts which would be felonies or those specified misdemeanors if committed by an adult.”

It is also going to permit “any blood relative to submit a DNA sample for inclusion in the Relatives of Missing Persons Database, along with parents and siblings of missing persons.”
The law expands the rationale for the Bureau of Criminal Identification & Investigation’s (BCII) sharing of DNA information with other law enforcement agencies, and now provides for the “’unidentified remains,’ in addition to unidentified bodies, to be sent to the county’s morgue for identification and disposal, and requires coroners to take fingerprints, photographs, and DNA samples from unidentified remains & transfer that information to the BCII.”

The new legislation also extends by one year the deadline for Ohio’s DNA exoneration testing program. The new deadline is October 29, 2005. Additional information & application are available on the Ohio Public Defenders’ Office website.

Ohio began collecting DNA samples in 1996 from its most violent convicted felons, according to a statement by the Attorney General’s office, and broadened the scope of “qualifying offenses” in August 2002. DNA samples, once collected, become part of the FBI’s Combined DNA Index System (CODIS).

The American Society of Law, Medicine & Ethics has an excellent survey overviewing DNA database statutes on its website.

Friday, August 19, 2005

Duty to Report Finding of Corpses

Findlaw had an article posted this morning on the Missouri Court of Appeals (Western District) overturning a man’s conviction in a case for abandoning a friend’s dead body because “friendship” is not a close enough relationship to warrant a duty to report the finding.

Death Penalty Legislation

A Knight’s news service article Wednesday reviewed death penalty issues, focusing on the “Streamlined Procedures Act” now in Congress. House & Senate versions are the same.

“The legislation,” the article states, “would dramatically change what is known as habeas corpus review, protections against violations of constitutional rights that date back to the Civil War. In most instances, those changes would prevent habeas corpus review by federal judges unless there is firm proof of innocence, particularly difficult because in many cases such evidence isn’t unearthed until appeals reach federal court.”

In addition to the “Streamlined Procedures Act,” there are several other death penalty bills pending in Congress, including Senate Bill 122, which would abolish the death penalty for federal offenses altogether and commute those already sentenced to death to terms of life imprisonment without parole.

Thursday, August 18, 2005

North Carolina domestic violence law

An article on MSNBC this morning reports North Carolina’s legislature passing a bill that “encourages guns for battered spouses.”(House Bill 1311). GS 14-415.15(b) is on the issuance of handgun permits.

North Carolina’s General Statutes on domestic violence are contained in Chapter 50B, to which this bill is directly related. A second bill, pending, would “clarify & enhance” specifically the relief segments of those statutes. (SB 1029)

Both bills would become effective October 1, 2005

Wednesday, August 17, 2005

Oregon prescription law against methamphetamine

The State of Oregon became the first in the country to attempt to stem methamphetamine abuses by requiring prescriptions for everyday cold & allergy medications that can be converted into the substance, according to USA Today this morning. A second bill, enhancing the penalties for methamphetamine-related crimes, was also signed by Gov. Ted Kulongoski.

“Meth has robbed many Oregon children of the right to grow up in a happy & healthy home,” he stated in his press release yesterday, “Limiting the availability of pseudoephedrine and providing long-term treatment will give hope for these kids to get their families back.”

A National Conference of State Legislatures (NCSL) report updated last Monday, states that “as of June, more than 600 separate bills & resolutions in all 50 states proposed to address a wide array of policies affecting access, affordability, payment and other regulation of prescription drugs.” A list of bills subjected to consideration by state legislatures the first half of this year is attached.

We’ve had two previous postings on this topic which might have additional information of interest. (See June 21 and 29)

Patient Safety & Quality Improvement Act

The Patient Safety & Quality Improvement Act of 2005 (S. 544), was signed by President Bush on July 29th..

BNA’s U.S. Law Week reports that “the law creates a system for voluntary reporting by health care providers of medical errors to patient safety organizations, and provides legal privilege & confidentiality protection to ‘any data, reports, records, memoranda, or analyses” developed by a PSO or prepared by a health care provider and delivered to a PSO.” (Bill Summary)

A report done by the Congressional Research Office back in March said both House and Senate versions of this legislation were in response to a 1999 Institute of Medicine publication, To Err Is Human, which had found that “medical errors are primarily the result of faulty systems, processes, and conditions that lead people to make mistakes, and recommended establishing a national mandatory reporting system to hold hospitals accountable for serious medical errors, as well as voluntary, confidential ones for reporting errors that result in little or no harm …”

The Report states that 22 states already mandate medical error reporting by hospitals. Additional information on state activity can be obtained on the National Conference of State Legislatures’ and National Academy for State Health Policy’s websites.

Monday, August 15, 2005

Kentucky Casemaker

An article in Friday’s online Business Courier makes the announcement of the Ohio State Bar Association’s adding Kentucky to its Casemaker online research consortium beginning in April 2006, bringing to 22 the number of states participating in the program since its inception in 1999. (OSBA press release)

The libraries of each individual participating state bar association are called unique because they are the domain of that association and tailored to local needs rather than other services which might be more generalized. Member states post their own “user manuals” reflecting their particular contents.

There’s a good background article on Casemaker on by T.R. Halvorson and Margi Heinen from back in September 2002.

IRS Pension Regulations

In simultaneous releases Aug. 12th., the Internal Revenue Service issued both final and proposed regulations affecting the so-called “anti-cutback rule” for pension plans, according to a Thompson briefing.

“The ‘anti-cutback rule’ under ERISA (and the tax code) generally forbids plan amendments that eliminate or reduce optional forms of benefits, early retirement benefits, or retirement-related subsidies that were in place before the amendment,” Thompson reported, “The new rules intending to reflect the Supreme Court’s holding in Central Laborers’ Pension Fund v. Heinz, (541 U.S. 739, June 7, 2004) that “a plan could not enforce a ‘suspension’ of benefits against retirees who had taken new jobs as supervisors in the same industry, where plan provisions purporting to deny them benefits didn’t restrict supervisory work until after the participants had accrued their benefits and had worked for two years as supervisors following their initial receipt of plan benefits.”

The final regulations became effective August 12, 2005

Comments can be made in writing or electronically on the proposed regulations until November 10, 2005, with the IRS having scheduled a public hearing on December 6th..

Ohio Supreme Court Ethics Opinions

Three ethics opinions have been issued by the Ohio Supreme Court:

Opinion 2005-6 “…lawyer or law firm should not participate in local TV station advertising & public service program if entitled ‘Ask the Expert’”

Opinion 2005-7 addresses questions regarding attorney participation in public education and pro bono activities.

Opinion 2005-8 “ … In the absence of express ethical or statutory restriction, retired judge who engages in practice of law may also serve a private
judge pursuant to ORC §2701.10 “

Thursday, August 11, 2005

'Booker'/Sentencing news

There’s an article on this morning entitled “Survey Reveals Little Change in Sentencing Habits After ‘Booker’,” which is going to be interesting to some.

--- and the Sentencing Commission has a new “Post-Booker Sentencing Update” posted, prepared using data extracted as of July 12, 2005.

Also, there are two days left to make public comments to the U.S. Sentencing Commission on proposed amendments to the Federal Sentencing Guidelines.
“Notice of proposed amendments was published in the Federal Register on February 23, 2005 (see 70 FR 8868). The Commission held a public hearing on the proposed amendments in Washington, D.C., on April 12, 2005. On April 29, 2005, the Commission submitted these amendments to Congress and specified an effective date of November 1, 2005.”

"Small Business Health Fairness Act"

The House of Representatives, on July 27th., passed the “Small Business Health Fairness Act” (HR 525), sending it to the Senate where it is now under consideration. (Press Release)

The bill would “provide for the establishment & governance of ‘association health plans,’ which are group health plans whose sponsors are trade, industry, professional, chamber of commerce, or similar business associations which meet certain ERISA certification requirements…” (Summary).

Wednesday, August 10, 2005

Medical/Health Care News

The Dept. of Health & Human Services is developing and will be implementing a “strategic plan to guide the nationwide implementation of health information technology in both the public & private health care sectors,” according to an article in Aspen’s Medical Benefits newsletter .
A 92-page report by the GAO identifies “lessons learned from the Dept. of Defense and Veterans Affairs toward implementing a national IT infrastructure.”

Also in the July 30th. newsletter, for those interested in health issues, was an article addressing the fact that “comprehensive information on the full range of medications that people take, including prescription & over-the-counter drugs, vitamins/minerals, herbal/natural supplements, is not available.” The Sloan Epidemiology Center at Boston University in May 2005, however, issued the “first population-based survey to provide comprehensive & ongoing information on use in the United States of the broad range of medications.”

Small Business Loan Legislation

Maine Senator Olympia Snowe, who chairs the Senate’s Committee on Small Business & Entrepreneurship, introduced a bill that would “provide small businesses with easier access to loans and increases efficiency in the Small Business Administration’s largest loan program.”

The bill, SB 1603, is titled “Small Business Lending Improvement Act of 2005”, and more information is in the Committee’s Aug. 1st. press release.

Municipality Evictions of Sex Offenders

The City of Norwood has filed suits against three registered sex offenders who are residing within 1,000 feet of schools. A recent amendment to state registry statutes that took effect April 29th. now gives municipal & township legal officials the authority to file evictions against those violating this prescription.

While at least one of those filed against told the Cincinnati Post that he intended to fight the action and that the law is of a “feel-good” nature and doesn’t protect anyone, Norwood Law Director Rick Gibson said the law doesn’t go far enough, “saying nothing about parks, day care centers or malls, where kids congregate.”

H.B. 118, introduced on March 8, 2005 and S.B. 146, introduced May 10, would take part of that additional step, extending residency restrictions to 1,000 feet of any preschool premise or school bus stop, respectively.

The City of Cincinnati was reported to be initiating like proceedings starting next week.
Previous postings on Aug. 3rd. and May 12th. have additional information

Tuesday, August 09, 2005

cell phone "ICE"

An initiative started in Great Britan back in May called “ICE”, which stands for “in case of emergency”, is drawing some attention here in the United States. Articles the July 18th. Washington Post, BBC’s world edition news site on July 12, and “ICE’s” website, all have additional information on the idea.

Thought up by British paramedic Bob Brotchie, the concept’s simple enough: Most people don’t carry emergency contact information or next of kin details, but they do have cell phones. Emergency contact information is just programmed into your phonebook.

Life may not be all that easy, though, and an article in this morning’s Enquirer, along with the one in the Washington Post, note that there could be privacy and other issues involved.

Monday, August 08, 2005

Domestic relations/custody case

A article this morning concerns a domestic relations case that “will have broad impact on custody disputes (in) holding that a judge can restrict who spends the night at a divorced parent’s home when the parent’s child is there as long as the decision is based on ‘the best interests of the child.’” (Peck v. Peck, Case 05-04-00919-CV Texas Fifth Dist. Court of Appeals, July 13, 2005).

Medicare prescription drug benefit

I’ve been seeing a number of ads on TV about the new Medicare Prescription Drug Benefits inclusion, so thought I’d pass some information on.

The site being advertised in

The Medicare Rx Education Network consists of 40 national organizations which will share resources, coordinate activities, and disseminate information to Medicare beneficiaries & their caretakers about the new Medicare Part D drug coverage.

Medicare has covered hospitalization and doctors, but, beginning January 1st., will now include a prescription drug benefit. Beneficiaries, however, have to sign up to participate. That enrollment begins November 15, 2005

Additional information can be obtained on the site, by the press release, or in the 16-page PDF Centers for Medicare & Medicaid Services fact sheet.

Friday, August 05, 2005

Nat'l. Employee Savings & Trust Equity Guarantee Act

The Senate Finance Committee last July 26th. approved the “chairman’s mark” of the National Employee Savings & Trust Equity Guarantee Act of 2005 (NESTEG), a comprehensive pension reform measure introduced back in January.

The bill, SB 219, would amend the Internal Revenue Code and Employee Retirement Income Security Act “to protect the retirement security of Americans workers by ensuring that pension assets are adequately diversified and by providing workers with adequate access to, and information about, their pension plans.” (Bill summary and Senate Finance Committee press release)

Wednesday, August 03, 2005

Sex offender evictions

An Enquirer article this morning reports that “more than three dozen sex offenders in Cincinnati will find themselves in court later this month if they refuse to move from neighborhoods that are too close to schools.”

SB 5 (2003) established the rule prohibiting sex offenders from residing within 1,000 feet of a school, and gave landlords the right to evict those who did, back in 2003. (See ORC §5321.051 and 5321.03 ).
Earlier this year, HB 473, which became effective April 29th., extended those eviction rights, “granting to prosecuting attorneys, municipal & township chief legal officers, and officials designated as prosecutors in a municipal corporation a cause of action for injunctive relief when an offender required to register under that Law violates its prohibition …”

Tuesday, August 02, 2005

H.B. 66 estate tax changes

The Probate Law Journal of Ohio in its July/August issue has two notes to pass along, both relative to the new budget bill.

The additional estate, or so-called “sponge” tax was repealed, being phased out along with the phasing out of the federal estate tax credit for state death taxes.
Offsetting that, perhaps, is that H.B. 66 reinstates income taxes on trusts for tax year 2005 and makes it permanent. According to the ‘Journal, “Since we had no tax in 2005 until HB 66 became effective, estimated payments for trusts won’t be due (with respect to tax year 2005) until Sept. 15th..

Additional information on changes to estate tax law can be found in the Ohio Legislative Service’s bill analysis (near the end).

Cuno v. DaimlerChrysler review

The State of Ohio has asked the U.S. Supreme Court to review Cuno v. DaimlerChrysler to determine whether the “Commerce Clause” of the Constitution allows a state to attempt to attract new business investments by offering credits against that state’s general corporate francise or incomes taxes, where the amount of credit is based on a business’s new investment potential in the state.
Ohio is the third party asking for review; prior requests have been made by both Cuno and DaimlerChrysler