Medicaid identification rules in effect Saturday

Effective this Saturday, July 1st , individuals applying for Medicaid, or upon their first re-determination, will have to provide satisfactory documentation of their citizenship or nationality. American citizenship, or a legal immigration status, has always been a requirement for Medicaid eligibility, but up to now beneficiaries were allowed to “self-attest” their citizenship and identities. That’s changed with Section 6036 of the Deficit Reduction Act going into effect.

On June 9th , the Centers for Medicare & Medicaid Services issued new guidelines for state agencies to follow in the implementation of the new rules, providing for “a range of ways citizenship status and personal identity may be documented in recognition of the diversity of beneficiaries served by Medicaid.” (CMS site)

The guidelines set up a hierarchy in which documentary evidence of citizenship & identity can be made, sought first from a list of primary documents and progressing to, in weakest form and then only in “rare circumstances,” written affidavits, signed under penalty of perjury by two citizens, one of whom cannot be related to the individual in question, having specific knowledge of the recipient’s citizenship status.

Hamilton County online court records

Growing concerns about security and identity theft, exemplified both locally & nationally, have led the Hamilton County Clerk of Courts Office to suspended Internet access to its court records as of last Monday. (Article)

Clerk of Courts Greg Hartmann said, the website “is a tremendous public resource, but it needs to be balanced with the needs of privacy & security.”

Public records will continue to be available at the Hamilton County Courthouse, as will the policy of issuing parties to particular cases passwords allowing them to access those cases online.

Presidential eminent domain order

In response to Kelo v. New London and eminent domain issues involving the Federal government, President Bush, last Friday, issued an executive order declaring, “It is the policy of the United States to protect the rights of Americans to their private property, including by limiting the taking of private property by the Federal Government to situations in which the taking is for public use, with just compensation, and for the purpose of benefiting the general public & not merely for the purpose of advancing the economic interest of private parties to be given ownership or use of the property taken.”

No Suit over Light Smokes: Marketing Doesn't Merit Class Action, Ohio Supreme Court Rules

Two Ohio smokers cannot bring a class-action lawsuit against Philip Morris USA Inc. over the way the tobacco giant marketed "light" cigarettes, the Ohio Supreme Court ruled in mid-June. The smokers had argued that the cigarette maker knew the product it marketed as having less tar and nicotine are as dangerous as regular cigarettes.

In a divided decision, the Ohio Supreme Court ruled that Philip Morris would have had to act in a way "previously declared to be deceptive" under Ohio law when advertising its light cigarettes. Moreover, the smokers failed to demonstrate the company had. Lobbyists for manufacturers and other Ohio businesses had fought a lower court’s decision allowing a class-action suit, which they saw as possibly opening business sectors other than tobacco to future litigation. The majority of justices ruled that under Ohio's consumer protection statutes, it is unclear whether Philip Morris acted to "deliberately deceive consumers into believing that Marlboro Lights and Virginia Slims Lights are safer or healthier than other cigarettes." The minority strongly disagreed with the majority's "unconscionably narrow reading" of Ohio law, stating that the decision "immunized companies from class action lawsuits by the people they deceive."

Corporate Taxations

The Ohio Department of Taxation, last week, issued a rule now defining “non-profit organizations” for the purposes of commercial activities. CAT statutes exclude non-profits, but did not define them for commercial purposes. The new rule also addresses exclusions for certain fees and contributions. (OAC 5703-29-10 per information release CAT 2005-14)



Kentucky has issued an “emergency regulation” clarifying the apportionment formula for financial organizations computing corporation income taxes in that state.
Business income earned by financial organizations & loan companies in Kentucky has to be determined using an apportionment formula comprised of a property, payroll, and double-weighted sales factor. (See 103 KAR 16:150E)

Ohio Workers' Comp. legislation

With the passage of Senate Bill 7 back in March, Ohio has—“for the first time in nine years, or since the last referendum in 1997-- new substantive workers’ compensation legislation.” Cincinnati attorney George Wilkerson summarized some of the major points of the bill in the May/June issues of Workers’ Compensation Journal of Ohio.

As in 1997, a referendum challenging SB 7 has been filed with the Attorney General & Secretary of State’s Offices. The standing bill, however, still seems worthy of attention in so much as there have been significant changes in Ohio’s workers’ compensation law. (Information on both the 1997 and current referendums are available on Stewart Jaffy & Associates’ website @ http://www.jaffylaw.com/news_2006_referendum.html )(Current OAG posted copy)

The holding in Bailey v. Republic Engineered Steels, five years ago, for instance, that, compensable injuries included those incurred “to an employee psychologically injured by causing or witnessing work-related injury to another” is cleaned up and clearer. [Relating to ORC § 4123.01 (C)(1)]

The new law legislatively countermands the Supreme Court’s 2002 ruling in State ex rel. Thomas v. Industrial Commission of Ohio, and revises the statutory definition of “permanent total disability” by listing factors that can’t be included for consideration. [Re. ORC § 4123.58(C) ]

Senate Bill 7 also reverses Schell v. Globe Trucking, returning to a former statutory description – i.e. a pre-existing condition must be substantially aggravated by an injury, and that aggravation has to be documented by objective diagnostic or clinical findings or test results. Subjective complaints without objective support is no longer sufficient. [ORC § 4123.01 (C)] [Schell v. Globe Trucking, 48 O St.3d 1, 548 NE2d 920 (1990)]


All else aside, the new law becomes effective June 30, 2006.

"Reasonableness" of Sentence

Since Blakely and Booker these past few years, many of us perhaps have come to equate sentencing laws with more overt, “in-your-face” crimes like kidnapping, murder, and death penalty appeals, but it is, of course, more than those. Still, it is evolving territory, so to speak.

A Law.com article, this morning, examines a recent 2nd. U.S. Circuit Court of Appeals decision, vacating a defendant’s sentence of home incarceration for violating antitrust laws, finding that sentence “unreasonably lenient even under the now-advisory federal sentencing guidelines.” (See U.S. v. Rattoballi, case 05-1562-cr)

“Following Booker,” the article says, “the 2nd. Circuit issued an opinion in U.S. v. Crosby, saying Booker, despite its apparent promise of far greater discretion for sentencing judges, did not allow for ‘unfettered discretion to select any sentence within the applicable statutory minimum & maximum …. Instead, district court judges must exercise their discretion informed by factors set forth in 18 U.S.C. §3553 (a), and their sentences reviewed for reasonableness.’”

2nd. Circuit Chief Judge John Walker, said of this current instance that “non-guideline sentences a district court imposes in reliance on factors incompatible with the (U.S. Sentencing) Commission’s policy statements may be deemed substantially unreasonable in the absence of persuavive explanations as to why the sentence actually comports with § 3553(a) factors.” In Rattoballi, the recommended guideline range would’ve been 27-33 months in prison, but the Southern District of New York sentenced him to a year of home confinement and five years probation, and, while ordered to pay $155,000 restitution, did not impose a fine because Rattoballi was unable to pay.

Judge Walker said the Circuit Court ruling, in applying the reasonableness standard, “declined to adopt per se rules, opting instead to fashion the mosaic of reasonableness through case-by-case adjudication,” faulting it, as the Law.com article put it, “for running afoul of § 3553 (c)(2), which both before and after Booker requires a judge to state in open court the specific reasons for imposing a particular sentence when it departs from the advisory guideline range, and do so ‘with specificity in the written order of judgment & commitment .’”


[Additional background information on the 2nd. Circuit’s 2005 Crosby decision available at Law.com (registration)]

New Kentucky income tax regulations

The Kentucky Department of Revenue has issued some new income tax regulations:

· Adjustments to gross income, net operating loss deduction for personal income taxes
( 103 KAR 17: 060E )

If a deduction or adjustment is allowable based on the receipt of certain types of income, limited to a maximum amount for federal income tax purposes, Kentucky income used to make allocations has to be same type as that used on the federal return. Kentucky residents, part-year & non- residents have to compute NOL deductions using income & expenses allowed on Kentucky returns.

· Guidelines for couples on division of income
( 103 KAR 17: 100E )

Income derived from joint ownership of real property, and tangible & intangible personal property, has to be divided equally by married couples filing joint returns. Income from self- employment has to be divided according to the percentage amount of each spouse’s contribution of services or capital, unless taxes have been paid separately by each spouse or a par6nership agreement provides proof of separate income.

· Guidance on corporate claims of right adjustment
( 103 KAR 16: 320E )

If year the income or deduction was originally reported is still under the statute of limitations, claim of right has to be made by amending that same year’s income tax return. If year is closed under statute of limitations, claim has to be made in same tax year as credit or deduction was claimed for federal purposes, subject to adjustments between federal and Kentucky law.

· Apportionment on completed contract basis
( 103 KAR 16: 340E )

Is method of accounting that allows deferment of reporting business income or loss from multi- year construction contracts until year project is completed or accepted, consequently requiring separate computations be made for each contract completed during tax year, regardless of whether project is located in or outside of Kentucky, to determine amount of income attributable to sources in Kentucky.

Eastern Shawnee Tribe v. Ohio

The Eastern Shawnee Tribe of Oklahoma filed a 128-page consolidated answer to more than a dozen motions to dismiss and for pleading judgments this past weekend.

Originally filed last June and amended that following September, the Shawnee claim is essentially one for recognition & relief of land interests in large parts of Ohio, which, they’re holding, have never been extinquished or where done so improperly and in violation of federal law. Along with title claims go “due consideration for all benefits & appurtenances associated thereto, including taxes, rents, issues, and profits derived from those lands.”

“This case is about righting centuries of wrongs perpetuated against the Shawnee by the state of Ohio, local governments, and individual landowners,” the Tribe’s answer reads in introductory part. “The goal is simple—to recover its aboriginal homelands in Ohio—but the case is complex.”

The State of Ohio, Governor, and 60 other governmental entities and individuals were named in the suit, including Hamilton, Warren, Butler, and Clermont Counties.

Ohio Attorney General Jim Petro, in an October 2005 press release accompanying Ohio’s answer and motion to dismiss, said “The State of Ohio was not party to the Indian treaties in question, all of which were between the United States and a number of different Indian tribes—not just the Eastern Shawnee—and neither the U.S. nor those other tribes are parties to the suit.” (Motion)

The Attorney General’s statement also says, “The Eastern Shawnee’s claims are over 150 years old, and it would be inequitable and unconscionable to allow them to set aside property interests of those who have no connection to the treaties at issue.”

ID Theft

Potentially sensitive information was revealed stolen from Medicaid , the Veterans’ Administration, and Hotels.com over the past weekend – all via stolen laptops.

Headlines such as these and about the ability of the more unscrupulous, especially those more recently, should raise our awareness and concern—and not just with laptops. It can—and pretty much seems to-- happen to almost anyone.

Echoes? Last Wednesday we reported the suit again the Department of Veterans’ Affairs over the theft of 26,000 veterans’ personal data – that incident now turned out to be more extensive than first thought…. Stolen laptop.

Remember Los Alamos losing discs (and then finding them behind a copier) a while back? There was more.

It wasn’t that long ago that ChoicePoint had things stirred up for some time.

The problem’s not just in the United States, as this article from the BBC illustrates.

The point is, there are no absolutes. You can’t “cover all the bases” all of the time, and answers & solutions seem fleeting. Sometimes its just dumb luck, and there wasn’t anything that could’ve been done anyway. But awareness & a little more than just reasonable care can pay off several times over. Over the past year or so, there have been a number of “guides” and articles on how to counter potential information thefts, Some of them might be helpful to our readers. Law.com, for instance, posted an article a couple of days ago about potential laptop dangers; and PCstats published “Beginners’ Guide: Preventing Data Theft From a Stolen Laptop,” which is more involved and goes into more detail.

Ohio death penalty reversal

The Ohio Supreme Court last Wednesday reversed the death sentence of convicted killer Troy Tenace, saying, in effect, that a combination of a chaotic childhood with abusive parents and other factors outweighed the brutality of the offense.

“In his appeal,” the Court’s syllabus read, “Tenace had raised 17 propositions of law. We have reviewed each and determined that none justify a reversal of Tenance’s conviction for aggravated murder.”

But, the Court continued, “Pursuant to ORC §2929.05(A), we have also independently weighed the aggravating circumstances against the mitigating evidence and compared Tenace’s sentence to those imposed in similar cases. (Here) we find that the aggravating circumstance does not outweigh the mitigations beyond a reasonable doubt, and therefore reverse Tenace’s sentence of death.”

Opinion
ORC § 2929.05