This Month's News

Congress passes major foster care/adoption reform

ABA President H. Thomas Wells Jr. commended Congress last month for passing foster care reform legislation that he said will benefit many of the nation’s most vulnerable children and youth. Read more...

ABA highlights trends in end-of-life planning

Advance directives for health care decisionmaking have evolved significantly in the past three decades since the first “living will” was proposed in 1969, Joseph D. O’Connor, chair of the ABA Commission on Law and Aging, told the Senate Special Committee on Aging last month. Read more...

President signs mental health parity and addiction equity bill

President Bush signed legislation Oct. 3 that includes parity provisions supported by the ABA to require group health plans to apply the same level of treatment benefits to mental health or substance-related disorders as they do to other medically necessary care. Read more...

ABA urges equal justice for U.S. servicemembers

The ABA is urging Congress to pass legislation to allow court-martialed members of the U.S. military to petition for review by the U.S. Supreme Court of certain cases after the servicemembers have been denied review by the Court of Appeals for the Armed Forces (CAAF). Read more...

DOJ issues new privilege-waiver guidelines

ABA President H. Thomas Wells Jr. applauded the Justice Department’s (DOJ) recent decision to issue new corporate charging guidelines that protect the attorney-client privilege and other key legal rights during government investigations, but said that “comprehensive legislation is the only way to make such reforms permanent, give them the force of law, and apply them to all federal agencies.” Read more...

New rule adopted for disclosure of privileged material

The ABA, its Litigation Section and Task Force on Attorney-Client Privilege, and a coalition of numerous business and legal groups scored a victory last month when President Bush signed a new law adopting Federal Rule of Evidence 502 that sets clear guidelines regarding the inadvertent disclosure of privileged material during discovery. Read more...

Temporary CR funds government programs

Most federal programs will remain at fiscal year 2008 funding levels until at least March 6, 2009, under a continuing resolution signed Sept. 30 by President Bush. Read more...


WASHINGTON NEWS BRIEFS

ALJ SALARIES: The ABA last month urged the Office of Personnel Management (OPM) and the president to use their authority to make locality adjustments to the basic pay of administrative law judges (ALJs) and to grant ALJs the same national pay raise that is expected to be authorized for the General Schedule for fiscal year 2009. Read more...

AMERICANS WITH DISABILITIES ACT: President Bush signed legislation Sept. 25 that amends the 1990 Americans with Disabilities Act (ADA) to expand the scope of protection under the law by broadening the number of physical ailments that courts could define as disabilities. Read more...

HEALTH CARE DECISIONS: The ABA expressed opposition last month to proposed regulations that the association believes will make it more difficult for patients to obtain all the relevant and medically accurate information necessary for fully informed health care decisionmaking. Read more...


COMPLETE ARTICLES

Congress passes major foster care/adoption reform

ABA President H. Thomas Wells Jr. commended Congress last month for passing foster care reform legislation that he said will benefit many of the nation’s most vulnerable children and youth.

P.L. 110-351 (H.R. 6893), the Fostering Connections to Success and Increasing Adoptions Act, is a “big step forward for thousands of children who have been abused, neglected, or find themselves removed from home and placed in foster care,” Wells said. He emphasized that the legal reforms in the act will aid in finding and involving relatives, including grandparents, in the care of the children.

The legislation, which represents a compromise between earlier Senate and House bills, is the first comprehensive overhaul of an adoption incentives program that was originally enacted in 1997, and the new law extends foster care and adoption assistance benefits to Native American children. The House voice vote passing the compromise Sept. 17 was followed by a final Senate voice vote clearing the measure Sept. 22 for the president, who signed the bill Oct. 7.

In addition to providing grants for assistance payments to encourage the placement of foster children in the homes of relatives, the new law will provide relatives who adopt the children with the same federal payment that non-relatives receive for adopting foster children. Financial incentives to states to increase their number of adoptions for special-needs children will be doubled from $2,000 to $4,000; incentives to states for the adoption of children older than nine will increase from $4,000 to $8,000.

Wells pointed out that the legislation will expand federal financial resources to states permit foster youth older than 18 to remain in foster care until they are 21 as they transition into adulthood while attending school or working.

Provisions in the new law also expand programs that provide transportation to and from school for foster children.

In addition, funding will be available for the short-term training for members of the staff of abuse and neglect courts, judges, agency attorneys, attorneys representing children or parents, guardians ad litem, or other court-appointed special advocates.

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ABA highlights trends in end-of-life planning

Advance directives for health care decisionmaking have evolved significantly in the past three decades since the first “living will” was proposed in 1969, Joseph D. O’Connor, chair of the ABA Commission on Law and Aging, told the Senate Special Committee on Aging last month.

During a Sept. 24 hearing on how to respect Americans’ choices at the end of life, O’Connor explained that states have been moving away from a legal transactional mode of advance planning toward a communications model that is less legalistic and more adaptable to a wide variety of individuals and cultures. He cautioned, however, that concerns about potential abuse in the system cannot be blithely discarded.

“While no significant patterns of abuse have been identified in the research literature, the fact that these decisions do indeed involve life and death consequences means the protection of vulnerable persons will remain a challenge,” he said.

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Sen. Sheldon Whitehouse (D-R.I.), who chaired the hearing, highlighted two broad policy questions: how to make sure Americans carefully think about, communicate and document how they want to be treated at the end of life; and how to help translate documented wishes into a plan of care with a provider.   He said that currently roughly 70 percent of physicians whose patients have advance directives do not know about them. “We need to improve the link between patient wishes and services rendered,” he emphasized.

O’Connor highlighted that a review of current trends in advance directive laws reveals incremental but real steps toward simplification of state law, especially with respect to mandatory forms or language. He said one measure of simplification is that state law has become uncomplicated enough to enable a single advance directive form to meet the statutory requirements of a significant majority of the states. In addition, another indicator of simplification is a trend toward the statutory recognition of oral advance directives documented in the patient’s record.

An emerging next step, he said, is the Physicians Orders for Life-Sustaining Treatment (POLST) process, a protocol for seriously chronically ill patients that translates their goals of care into medical order forms that address several high-probability medical scenarios, including cardio-pulmonary resuscitation, and which travels with patients across all care settings.

O’Connor emphasized that there has been a minimal federal role in the evolution of advance directives, but if Congress decides to consider federal attention in this area, the following options should be weighed: overcoming interstate variability of state laws; affirming the principle of self-determination; affirming portability; encouraging the POLST Paradigm; encouraging meaningful physician consultation with patients; providing public education and information; supporting advance directive registries; and addressing cultural diversity.

Dr. Diane Meier, director of the Center to Advance Palliative Care and of the Hertzberg Palliative Care Institute at the Mount Sinai School of Medicine, stressed the importance of palliative care in end-of-life discussions and described such care as a growing medical sub-specialty that needs to become an integral and reliable component of the U.S. health care system.

Others on the panel included: Oklahoma Attorney General W.A. Drew Edmondson, who has taken a major leadership role in bringing end-of-life issues to the attention of attorneys general; Joan Curran, executive director for external affairs, Gundersen Lutheran Medical Center, LaCrosse, Wisconsin, which pioneered the “Respecting Choices” program; Dr. Joan Teno, professor of community health and medicine, Warren Alpert School of Medicine, Brown University, Providence, Rhode Island, who has extensively researched advance planning in nursing homes; and Dr. Patricia Bomba, vice president and medical director, Geriatrics, Excellus BlueCross BlueShield, Rochester, New York, who spearheaded the development of POLST in New York State.

Sen. Sheldon Whitehouse (D-R.I.) and Joseph D. O’Connor, chair, ABA Commission on Law and Aging, at the Sept. 24 hearing

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President signs mental health and addiction parity bill

President Bush signed legislation Oct. 3 that includes parity provisions supported by the ABA to require group health plans to apply the same level of treatment benefits to mental health or substance-related disorders as they do to other medically necessary care.

The parity provisions in P.L. 110-343 (H.R. 1424), which go into effect Jan. 1, 2009, will be required for health plans covering 50 or more employees and encompass inpatient and outpatient services received either in-network or out-or-network and emergency care services.

The new law, known as the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act, addresses the gap in current law, under which most health insurance benefit programs, in both the public and private sectors, do not cover substance abuse and mental health treatment in the same manner they cover other medical treatment. As a result, insurers often require higher copayments and deductibles, have different limits on doctor visits and days of hospitalization, and have different annual or lifetime maximums for mental or substance-related disorders than for other care.

In addition, P.L. 110-343 extends protection to 82 million more people who are not protected by state laws and to 31 million individuals who are in plans subject to state regulation.

ABA President H. Thomas Wells Jr. hailed the new federal law as “an important breakthrough for millions of Americans.” He emphasized in a statement that until now Americans insured under group health plans have not been able to count on care if their misfortune involved is a mental or substance-related disorder rather than a physical disease or injury, he said.

The final version of the legislation is a compromise between bills passed this Congress by both the House and Senate after a 12-year effort.

Rep. Patrick Kennedy (D-R.I.), who sponsored the bill in the House and worked closely with Rep. Jim Ramstad (R-Minn.) for its passage, called the legislation “a remarkable achievement” demonstrating that “by bringing researchers, health care providers, businesses, patients and advocates together to work collaboratively, you can make great strides in public health policy.”

Sens. Pete Domenici (R-N.M.), Edward M. Kennedy (D-Mass.) and Mike Enzi (R-Wyo.) led the effort in the Senate.

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ABA urges equal justice for U.S. servicemembers

The ABA is urging Congress to pass legislation to allow court-martialed members of the U.S. military to petition for review by the U.S. Supreme Court of certain cases after the servicemembers have been denied review by the Court of Appeals for the Armed Forces (CAAF).

Rep. Susan Davis

Calling the bipartisan measure “straightforward, narrowly tailored, remedial legislation that will restore due process and equal treatment under the law to our military servicemembers,” ABA  Governmental Affairs Director Thomas M. Susman, in a letter to both House and Senate leaders late last month, encouraged final action on the proposal before the 110th Congress adjourns.

Current law prohibits most court-martialed servicemembers from petitioning the Supreme Court for review of their convictions but allows government prosecutors to routinely petition the court for review of courts-martial acquittals. A convicted servicemember may petition the Supreme Court for review only in cases where the CAAF has either conducted a review of the court-martial or has granted the servicemember’s petition for extraordinary relief.

If the CAAF does not grant the servicemember’s petition for review, which occurs approximately 90 percent of the time, the accused is precluded from ever obtaining review by a federal court.

According to Susman, the pending legislation, S. 2052 and H.R. 3174, would eliminate this inequity by permitting all court-martialed servicemembers who face dismissal, discharge or confinement for a year or more to petition the Supreme Court for discretionary review through writ of certiorari. He said that the legislation, which is opposed by the Defense Department, will not result in any increase in direct spending and rebuffed arguments that the bill would create workload problems, emphatically stating that “nothing is more important than the provision of fundamental due process to our servicemembers.”

During debate on H.R. 3174, which passed the House Sept. 27, bill sponsor Susan Davis (D-Calif.), said, “It is unjust to deny the members of our Armed Forces access to our system of justice as they fight for our freedom around the world. They deserve better.”

The House measure was sent to the Senate and held at the desk. Efforts to place it on the consent calendar for a vote will resume when the Senate returns after the Nov. 4 elections.

    

The identical Senate bill, S. 2052, was approved by a unanimous voice vote Sept. 11 by the Senate Judiciary Committee.

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DOJ issues new privilege-waiver guidelines

ABA President H. Thomas Wells Jr. applauded the Justice Department’s (DOJ) recent decision to issue new corporate charging guidelines that protect the attorney-client privilege and other key legal rights during government investigations, but said that “comprehensive legislation is the only way to make such reforms permanent, give them the force of law, and apply them to all federal agencies.”

The new guidelines, unveiled Aug. 28 by Deputy Attorney General Mark Filip as a replacement for the department’s 2006 “McNulty Memorandum,” expressly bar prosecutors from pressuring companies and other organizations to waive fundamental attorney-client privilege or work product protections during investigations. The new guidelines, which will be included in the U.S. Attorneys Manual, provide that credit for cooperation in criminal investigations by the government will not depend on the company’s waiver of these core legal rights but on the disclosure of relevant facts.

The policy also bars prosecutors from denying cooperation credit to companies that assist employees with their legal defenses or decline to fire employees for exercising their Fifth Amendment rights. In addition, prosecutors may not ask companies to take these punitive actions against their employees.

Wells emphasized that although the new guidelines are a welcome improvement over the McNulty Memorandum, they are the department’s fifth such policy in ten years and can be changed again at any time. Therefore, the new DOJ policy fails to provide certainty that critical attorney-client privilege, work product and employee constitutional protections will be assured in the future.

“These bedrock legal rights are sacrosanct and must not be dependent on the personal leanings of each new deputy attorney general,” explained Wells.

He also stressed that the new DOJ guidelines do nothing to change similar waiver policies still in place at the Securities and Exchange Commission, the Environmental Protection Agency and the Department of Housing and Urban Development or to affect informal waiver practices of many other agencies.

“While the ABA supports and appreciates the department’s new policy, that policy cannot, standing alone, reverse the widespread ‘culture of waiver’ created by all these federal policies – a culture that is seriously undermining both the confidential attorney-client relationship and basic employee rights in the corporate community,” Wells said.

Because of the inherent limitations of the new DOJ policy, Wells called on the Senate to pass S. 3217, the “ Attorney-Client Privilege Protection Act.” The legislation, sponsored by Sen. Arlen Specter (R-Pa.), would prohibit any federal official from pressuring companies to waive attorney-client privilege, work product or employee legal protections or to consider any voluntary waiver by companies when assessing whether companies are cooperating during investigations of corporate wrongdoing. The House passed its version of the legislation, H.R. 3013, last year.

According to the ABA, the bills “strike the proper balance between the legitimate needs of federal prosecutors and regulators and the constitutional and fundamental legal rights of individuals and organizations.”

The ABA policy is based on the findings and recommendations of the ABA Task Force on Attorney-Client Privilege, established in 2004 and chaired by R. William Ide III. The ABA and the task force have been working closely with a broad coalition of business and legal groups ranging from the U.S. Chamber of Commerce to the American Civil Liberties Union – as well as a growing number of state and local bar associations -- to reverse government privilege waiver policies.

In addition to the recently issued Justice Department guidelines, the group’s efforts have resulted in reversal of privilege waiver policies by the U.S. Sentencing Commission and the Commodity Futures Trading Commission. Another success is the enactment Sept. 19 of P.L. 110-322 (S. 2450), legislation adopting new Federal Rule of Evidence 502 that sets clear guidelines regarding the inadvertent disclosure of privileged materials.

According to Ide, the protection of confidential communications between clients and their lawyers, as embodied in the attorney-client privilege, has been a “bedrock principle of our justice system for hundreds of years” and from a practical standpoint the privilege plays a key role in helping companies to act legally and properly by permitting corporate clients to seek out and obtain guidance on how to conform conduct to the law. As a result, explains Ide, “the privilege provides important benefits to corporate institutions, the investing community and society-at-large.”

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New rule adopted for disclosure of privileged material

The ABA, its Litigation Section and Task Force on Attorney-Client Privilege, and a coalition of numerous business and legal groups scored a victory last month when President Bush signed a new law adopting Federal Rule of Evidence 502 that sets clear guidelines regarding the inadvertent disclosure of privileged material during discovery.

The new rule enacted by P.L. 110-322 (S. 2450), signed by the president Sept 19, provides protection against accidental waiver of the attorney-client privilege and work product immunity and encompasses not only disclosures made in federal proceedings but also those made to federal agencies.

Following House passage of S. 2450 on Sept. 9, which cleared the bill for the president, ABA President H. Thomas Wells Jr. commended the House for its unanimous vote and said the legislation “will bring much needed clarity, certainty and control over spiraling discovery costs in complex federal litigation and in dealings with federal agencies.”  Wells pointed out that until now existing law on the effects of inadvertent disclosure of privileged materials during discovery “has been inconsistent and uncertain, and it varies widely from one jurisdiction to the next.”

The new rule, he said, will substantially reduce the potential for harm to clients on both sides by allowing them to retrieve privileged materials produced inadvertently, as long as they had taken reasonable steps to avoid such disclosures and moved promptly to recover them once a mistake was discovered.

The rule also provides that when a party produces one privileged document, any resulting waiver of privilege will not extend to other related documents, as long as there was no intentional or misleading use of the protected information. In addition, the rule provides that federal court orders protecting against waiver enforceable in both federal and state courts, and confidentiality agreements between parties that are incorporated into court orders will be enforceable against nonparties.

In his statement, Wells also praised House Judiciary Committee Chairman John Conyers Jr. (D-Mich.), House Judiciary Committee Ranking Member Lamar Smith (R-Texas), Rep. Sheila Jackson Lee (D-Texas), Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.), and Senate Judiciary Committee Ranking Member Arlen Specter (R-Pa.) for the pivotal roles they played in facilitating final passage of the legislation.

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Temporary CR funds government programs

Most federal programs will remain at fiscal year 2008 funding levels until at least March 6, 2009, under a continuing resolution signed Sept. 30 by President Bush.

P.L. 110-329 (H.R. 2638), an omnibus package, was necessary because Congress did not act on any of the regular annual appropriations bills that fund government programs before the Oct. 1, 2008, start of fiscal year 2009. Only military construction and the Departments of Defense, Veterans Affairs and Homeland Security will receive full fiscal year 2009 funding under the legislation.

As a result, the Legal Services Corporation (LSC) will continue at its current level of $350.49 million until the new Congress addresses the funding issues early next year. Both the House and Senate Appropriations Committees approved increasing the LSC funding to $390 million as part of their fiscal year 2009 funding bills.

The ABA urges a significant increase in LSC appropriations, maintaining that every day new situations such as natural disasters and the mortgage foreclosure crisis arise that continue to stretch the ability of the country to ensure that low-income persons can fairly resolve their legal problems through the justice system. In addition, LSC-funded programs are the nation’s primary source of legal assistance for women who are victims of domestic violence.

During consideration of fiscal year 2009 appropriations, 55 senators transmitted strong bipartisan support for increased LSC funding in a letter circulated by Sens. Edward M. Kennedy (D-Mass.) and Gordon Smith (R-Ore.) and sent in May to the Senate Appropriations Committee.

National support was expressed in a first-of-its-kind letter signed by the presidents of all 50 state bar associations, the Bar Association of the District of Columbia, the Puerto Rico Bar Association, and the Virgin Islands Bar Association. That letter was sent to both the House and Senate Appropriations Subcommittees on Commerce, Justice, Science, and Related Agencies.

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COMPLETE WASHINGTON NEWS BRIEFS

ALJ SALARIES: The ABA last month urged the Office of Personnel Management (OPM) and the president to use their authority to make locality adjustments to the basic pay of administrative law judges (ALJs) and to grant ALJs the same national pay raise that is expected to be authorized for the General Schedule for fiscal year 2009. “The ABA has long advocated that the compensation of the administrative judiciary be appropriate to its judicial status and functions,” ABA Governmental Affairs Director Thomas M. Susman wrote Sept. 25 to Howard Weizmann, the OPM deputy director and the president’s pay agent. “Unfortunately, over the last decade and a half, entry-level ALJ salaries have not kept pace with salaries for the most senior governmental attorneys under the General Schedule, for senior attorneys in the Senior Executive Service (SES), or for experienced attorneys in the private sector,” Susman said. He explained that a separate pay scale established in 1990 that linked ALJ pay to the Executive Schedule failed to maintain the salary parity that previously had existed with other senior executive personnel. ABA-supported legislation enacted in 1999 gave the president the authority to annually authorize the same national pay raise for ALJs that is authorized for the General Schedule. Susman urged immediate action, noting that the situation “is making it increasingly difficult to attract and retain the best talent to the administrative judiciary.”

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AMERICANS WITH DISABILITIES ACT: President Bush signed legislation Sept. 25 that amends the 1990 Americans with Disabilities Act (ADA) to expand the scope of protection under the law by broadening the number of physical ailments that courts could define as disabilities. P.L. 110-325 (S. 3406) overturns a decade of Supreme Court decisions that found that disabled individuals who are functional in the workplace because their illnesses are episodic or because they are treated by medication do not qualify for ADA protection. The new law specifies that those individuals are included under the act and that courts must determine an individual’s disability status without referencing the “ameliorative effects of mitigating measures” such as medication, medical equipment, prosthetics, etc. New regulations for the law, which goes into effect Jan. 1, 2009, will be developed by the Justice Department, the Equal Employment Opportunity Commission and the Department of Transportation. Although the ABA was an original supporter of the ADA, the association did not take a formal position on the amending legislation. Nonetheless, the ABA provided members of Congress with its Commission on Mental and Physical Disability Law’s annual survey of employment cases brought in federal court under the ADA. The survey showed that employers won 97.2 percent of the cases in 2006, suggesting that the ADA might not be serving the purpose for which it was originally enacted. The association applauded congressional efforts to evaluate possible inequities in the law to ensure adequate access to redress for individuals with disabilities.

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HEALTH CARE DECISIONS: The ABA expressed opposition last month to proposed regulations that the association believes will make it more difficult for patients to obtain all the relevant and medically accurate information necessary for fully informed health care decisionmaking. According to the ABA, the proposed “provider conscience” regulations, issued by the Office of Public Health and Science of the Department of Health and Human Services, appear to be predicated on the belief that the conscience provisions of certain federal health-related laws should be broadly interpreted and widely applied. The existing provisions prohibit recipients of certain federal funds from coercing individuals in the health care field into participating in actions they find objectionable on religious or moral grounds. They also prohibit federal agencies and programs and state and local governments that receive certain federal funds from discriminating against individuals and institutions that refuse to provide, refer for, pay for, or cover specific medical services, including abortion or sterilization. “Through broad, vague, and ultimately confusing language, the proposed regulations promote expansive definitions of what it means to assist in the performance of a health care service, potentially allowing health care workers at any point in the health care delivery continuum – from clerks, to insurance company employees, to physicians and nurses – to refuse to provide patients with the health information they need,” ABA Governmental Affairs Director Thomas M. Susman said in a Sept. 25 comment letter submitted by the ABA. The association, he said, opposes the proposed regulations because they undermine basic principles of informed consent.

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