In an article published by STAT, a journal about health, medicine, and the life sciences, captioned Replace the failure of Medicare Advantage with ‘Medicare Part F’,  Steve Cohen, an attorney at Pollock Cohen, a litigation-oriented law firm based in New York City, opines "The shortcomings of the current Medicare system must be addressed ASAP. A good place to start is recognizing what hasn’t worked — and why — in order to develop a revamped system of medical care that both effectively and economically serves the growing senior population."

Click the URL set out below to access the article posted on the Internet:

https://www.statnews.com/2022/11/15/replace-medicare-advantage-failure-with-medicare-part-f/

Concerning Medicare and Medicare Advantage

In an article published by STAT, a journal focusing on health, medicine, and the life sciences, captioned Replace the failure of Medicare Advantage with ‘Medicare Part F’,  Steve Cohen, an attorney at Pollock Cohen, a litigation-oriented law firm based in New York City, opines "The shortcomings of the current Medicare system must be addressed ASAP. A good place to start is recognizing what hasn’t worked — and why — in order to develop a revamped system of medical care that both effectively and economically serves the growing senior population."

Click the URL set out below to access this STAT article posted on the Internet:

https://www.statnews.com/2022/11/15/replace-medicare-advantage-failure-with-medicare-part-f/

 

Recovering attorneys' fees and costs incurred in a New York State's Freedom of Information Law CPLR Article 78 action

A "substantially prevailing" party in a CPLR Article 78 involving New York State's Freedom of Information Law may claim "attorneys' fee and costs" where the information demanded was withheld by the custodian of the records and the party seeking the information was required to seek judicial assistance to obtain them.*

In this action the Appellate Division, citing Matter of Dioso Faustino Freedom of Info. Law Request v City of New York, 191 AD3d 504, ruled that where the custodian of the records [Custodian] had "no reasonable basis for denying access" to the records sought pursuant to FOIL, it was undisputed that Petitioner substantially prevailed" as Custodian, during the pendency of this proceeding, "disclosed the records sought in the FOIL request with limited redactions."

A "substantially prevailing" party in a CPLR Article 78 involving New York State's Freedom of Information Law [FOIL] may claim "attorneys' fee and costs" where the information demanded was withheld by the custodian of the records and the party seeking the information was required to seek judicial assistance to obtain the documents or records demanded.

Significantly, the court opined "the voluntariness of [the] disclosure is irrelevant to the issue of whether [Petitioner] substantially prevailed".

As Custodian had conceded the issue of whether it had a reasonable basis for denying access in a prior FOIL proceeding between the same parties before "this court", which was limited to one of the documents at issue here, a medical screening manual, the Appellate Division remanded the matter to Supreme Court for a determination of Petitioner's attorneys' fees and other litigation costs.

* Public Officers Law §89[4][c][ii].

Click HEREto access the decision of the Appellate Division posted on the Internet.

An administrative regulation, or an amendment to such regulation, will be sustained if not arbitrary or irrational

The Independent Insurance Agents and Brokers of New York, Inc., et al., [Petitioners], challenged the validity of the recently amended Insurance Regulation 187 (11 NYCRR 224), which provides protections to consumers engaging in life insurance and annuity transactions. 

The Court of Appeals held that "[b]ecause the Department of Financial Services [DFS] appropriately exercised its authority to create a carefully considered and clear regulation, it found no basis to invalidate the regulation." 

The court explained that: 

1. An administrative regulation will be upheld only if it has a rational basis, and is not unreasonable, arbitrary or capricious, citing New York StateAssn. of Counties v Axelrod, 78 NY2d at 166. 

2. "If a regulation is to be nullified, the challenger must establish that it is so lacking in reason for its promulgation that it is essentially arbitrary", citing Kuppersmith v Dowling, 93 NY2d 90.

3. "So long as the regulation is 'genuine[ly] reasonable and rational' it should be upheld—courts should not scrutinize the 'policy considerations underlying the' regulation”, citing New York StateAssn. of Counties v Axelrod, 78 NY2d 158.

The Court of Appeals then opined "The goal of the amendment is straightforward and supported by the administrative record, and the amendment is plainly tailored to achieve those objectives [and] DFS reasonably concluded that the 'best interest' framework was needed to protect consumers, and [Petitioners] cannot show that the amended regulation is 'essentially arbitrary'".

In the words of the court, "[e]ach of [Petitioners] arguments for invalidating the regulation is unavailing. Petitioners have fallen woefully short of their burden to sustain a facial due process challenge on vagueness grounds, and the extensive administrative record supporting the amended regulation refutes their alternative challenges."

Click on the URL shown below to access the text of the decision of the Court of Appeals.

 https://www.nycourts.gov/reporter/3dseries/2022/2022_05917.htm

 

Education Law §3012-c evaluation procedures apply only to classroom teachers and building principals

A New York City Department of Education [Employer] "per session football coach" [Coach] appealed the Employer's "unsatisfactory performance rating" for his services during the 2018 football season. 

Coach initiated a CPLR Article 78 action seeking a court order directing Employer to expunge the U-rating and reinstate "his ability to do per session [coaching] work  ...." contending that Employer "violated procedure by failing to conduct observations of his performance and provide him with notice of any of the misconduct."

The Appellate Division rejected Coach's argument, explaining that "the evaluation procedures set forth in Education Law §3012-c [Annual professional performance review of classroom teachers and building principals] expressly applies only to "classroom teachers and building principals and [Coach] has not demonstrated that they apply to per session coaches."

The Appellate Division then opined that the Employer's U-rating was not arbitrary and capricious and was supported by a rational basis by the evidence in the record. Such evidence said the court, indicated, among other things, Coach's "arrest for driving while intoxicated, continued alcohol usage on school premises, covering up of misconduct by a football player, and lack of leadership," which led to decline of the football program.

Click HEREto access the Appellate Division's decision in this action.