Know Your Legal Rights – Interview by Houston Sun News

Know Your Legal Rights….A Talk With Renown Attorney Bob S. Bennett

By Keryl L. Douglas, Esq.

Knowing their legal rights is imperative for laypersons, especially when confronted by authority or legal challenges; and so it is with experienced lawyers as well.  As evident from his very own personal confrontation with authority and legal challenge from the State Bar of Texas, it was imperative for Attorney Bob S. Bennett to know and diligently pursue his rights.  “They generally get it right; but when they get it wrong, it is devastating,” Bennett said of the State Bar and persons who get unjust outcomes.

Interestingly, one of Bob Bennett’s very ardent and unwavering supporters entirely convinced of Bennett’s innocence, legal experience, and character was Anthony Graves, who had been represented by Bennett since his exoneration after unjustly serving more than 18 years behind bars for murders he did not commit.  He was released on Oct. 27, 2010. As you may recall, Anthony Graves was the innocent man wrongly convicted of the 1992 multiple murders of Bobbie Davis (45), Davis’ daughter (16), and four grandchildren. Bennett began representing Graves after his exoneration when the former Texas death row inmate filed a grievance with The State Bar of Texas imploring discipline for the prosecutor who got him wrongfully convicted him of capital murder.  Bennett and Graves prevailed and the Prosecutor Charles Sebesta, with 25 years experience, was disbarred.

Robert Bennett is touted to be one of Houston’s renowned attorneys in the areas of Medical and Legal license defense.  For professionals, maintaining and protecting their licenses is a priority.  Bennett has defended professionals and their licensing for at least the last two of his approximate four decades of legal practice.  Then, in 2014, he found himself similarly faced with one of the worst kinds of threat to a legal license – disbarment.

Americans spend over $100 billion in legal fees every year. Lack of communication by consel and Fee disputes are among the leading causes of State Bar Complaints and Legal malpractice claims. Some clients file grievances in attempt to avoid paying fees legitimately and rightly owed to attorneys.  Bennett’s experience soberly shows, not even attorneys considered “great” are immune to such challenge to their licenses.

A client of Bennett filed complaint alleging failure to return fees pursuit to Rule 1.15(d).  Ultimately, after appeal, the conviction and/or disbarment on that claim was reversed by Appeals Court; its Opinion stating there was “legally and factually insufficient” evidence to support the finding of the lower Court .

In 2014, after a three day trial before then Judge Carmen Kelsey, Judge Kelsey ruled disbarment of Bennett rather than the two year suspension requested by the State Bar attorneys. Bennett appealed. A litany of people proffered encouragement, confidence in his character and practice of law (including Anthony Graves},  wrote letters, filed amici briefs, volunteered to testify at trial.  Many disagreed with the ruling and believed Judge Kelsey lacked the adequate experience to hear and properly rule on the case. Lillian Hardwick, Co-Author of “The Handbook on Texas Lawyer and Judicial Ethics,” considered an expert on such matters, told the court that the civil wrongs of breach of contract and breach of fiduciary duty can’t be equated to violations of the disciplinary rules.”

(Knowing his legal rights), Bennett appealed his case.  For further inquiry, the case is Robert S. Bennett v. Commission for Lawyer Discipline, case no. 14-14-00470-CV, Fourteenth Judicial District Court of Appeals for the State of Texas.  In 2016, the Texas Appellate Court reversed the infamous disbarment of Atty. Bennett, and he is back to what he loves: offering expert defense to professionals who’s licensing is under threat.  Bennett said he was very pleased with their argument before the Appeals Court, elated with the outcome, and very optimistic about the remaining issue of rule 3.02.  Interestingly, Judge Carmen Kelsey lost her bid for re-election.

Bob Bennett’s personal experience/confrontation is a “case study” for lawyers and laypersons alike. Bennett has offered CLE’s on relevant issues for many years before he found himself in similar circumstance.  While he and others feel the actions against him were unjust and unwarranted, he moves forward, using his experience to further help others. CLEonline.com has a program based on the grievance disciplinary case involving Bennett’s case which essentially involved every single facet of the grievance  process, from initiation to conclusion.

Groups around the nation are calling for reform: transparency, fair judicial processes, uniformity and lack of bias in grievance/disciplinary processes, investigations, findings and decisions by State Bars; more easily accessible and consumer-friendly processes and websites, etc.  Attorney Bob S. Bennett said” The Sunset Review Committee is working with the Texas State Legislature regarding reform of the Texas State Bar.”  The Houston Sun anticipates reporting on the outcome of this reform effort.

A complete video of the Bob S. Bennett Interview may be found soon on the Houston Sun website, as well as at https://vimeo.com/200990526/c96479cd89, and other sites.


This article is written by Houston Sun News.

Bennett and Katz – ADA Obligations to Deaf Patients

 By Sherri R. Katz and Robert S. Bennett 

Katz-bob-bennett-houston-attorneyWhat are the responsibilities of a health care provider regarding providing a sign language interpreter for a deaf patient, and can a doctor refuse to treat this deaf patient without being subjected to an allegation of discrimination?

The short answer is that health care providers should carefully consider an established and/or a new patient’s request for a sign language interpreter to ensure effective communication with the patient in compliance with the Americans with Disabilities Act (ADA) and the Rehabilitation Act.

Hypothetical Facts

 ADA-bennett-houston-bobA doctor’s office is contacted by a new patient to schedule an appointment with the doctor.  Patient is deaf, and is in contact with a communication access group that supports the efforts of hearing impaired individuals.  Patient, via the access group representative, informs the doctor that he has an obligation to provide a sign language interpreter for patient.  This information is also provided in writing, with various documents attached, such as materials from the National Association of the Deaf.

These materials include a public two-page letter to U.S. Rep. Howard L. Berman dated 8/28/1992 from Acting Assistant Attorney General; a two-page public letter to a doctor dated 6/29/1992 from Deputy Director of the ADA Civil Rights Division; and a two page American Medical Association memo prepared by the AMA Office of the General Counsel.

The patient requests that the doctor provide a qualified interpreter to ensure effective communication, due to the possible complexity of the communication involved.

Discussion

Compliance with americans with disabilities act and the Rehabilitation act

 

Healthcare providers are prohibited from discriminating against deaf individuals by both the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973.  The Rehabilitation Act has long prohibited programs receiving federal funds from discriminating against individuals on the basis of disability.

Section 504 of the Rehabilitation Act guarantees that person with disabilities will receive “meaningful access” to programs and activities receiving federal financial assistance.  Several courts, including the 5th Circuit, have held that the receipt of Medicare and Medicaid funds constitutes “federal financial assistance” and thus subjects health care providers to the mandates of section 504.[1]

Title III of the Americans with Disabilities Act (ADA) followed the reasoning of the Rehabilitation Act and extends protection to disabled individuals in the private sector by prohibiting discrimination against individuals with disabilities by places of public accommodation.  Private health care providers are considered places of public accommodation.  Title III of the ADA applies to all private health care providers, regardless of the size of the office or the number of employees.  It applies to providers of both physical and mental health care, and includes offices of private physicians and dentists.

The protections of disabled persons under Title III of the ADA are not as broad as those provided by section 504, since section 504 encompasses any program or activity that receives federal funds.  However, the rights and responsibilities established by the ADA and the Rehabilitation Act are nearly identical and the two statutes are, for the most part, distinguished by the fact that section 504 applies only to entities receiving public funding.  A claim brought under the Rehabilitation Act is interpreted in the same manner as a claim brought under the ADA

Under Title III of the ADA, health care providers have a duty to provide effective communication, using auxiliary aids and services that ensure that communication with people who have a hearing loss is as effective as communication with others.  This duty is to ensure that that an individual with a disability, such as hearing loss, is not excluded, denied services, segregated, or otherwise treated differently than other individuals.  The duty to provide effective communication applies to customers, clients, and other individuals with hearing loss who are seeking or receiving services from the health care provider.

According to Title III, appropriate auxiliary aids and services can include equipment or services a person needs to understand aural communication.  This includes qualified interpreters, assistive listening devices, notetakers, written materials, television decoders and telecommunications devices for the deaf (sometimes called TTY’s or TTD’s).

However, Title III of the ADA does not require the use of any auxiliary aid or service that would result in an undue burden on the health care provider, or in a fundamental alteration in the nature of the goods or services provided by a health care provider.  However, the health care provider still has the duty to furnish an alternative auxiliary aid or service that would not result in a fundamental alteration or undue burden.

An individual doctor’s liability under both Title III of the ADA and section 504 of the Rehabilitation Act depends upon the degree of control he exercises over the practices and policies that led to the alleged discrimination of a disabled individual.  It is clear that doctors practicing in their own offices are subject to both Title III and section 504 because they exercise ownership and operation of their own offices’ policies and practices.[2]

There is, however, limited relief for patients claiming a denial of auxiliary aids under Title III of the ADA.  Because a private plaintiff suing under Title III can obtain only injunctive relief, and not compensatory relief, the plaintiff has to satisfy standing requirements, which has evolved into the theory used by a number of courts which have dismissed plaintiff’s claims on lack of standing because of inability to show that the injury complained of would likely occur again in the future.[3]

By contrast, a plaintiff suing under Section 504 of the Rehabilitation Act can recover compensatory damages.  But section 504 does not provide a federal medical malpractice tort remedy.[4]  And, there have evolved provisions whereby the auxiliary aids provisions of Title III of the ADA have proven particularly well suited to public enforcement actions brought by the Department of Justice or the United States Attorney’s Office for that particular jurisdiction.

 

Practical Considerations

 

Although “effective communication” is mandated by section 504 and Title III of the ADA, the term is not defined specifically by the regulations of either statute.  Likewise, case law has not provided a precise meaning of the term either.  By looking at general dictionary definitions, “effective communication” appears to encompass the idea that knowledge is shared in a manner that is capable of bringing about a desired result.  This would refer to the communication between the patient and the medical staff which successfully conveys knowledge, thoughts, and opinions successfully between doctor and patient.

Although healthcare providers have a duty to ensure effective communication with deaf patients, they do have some choice as to the aids and services they will provide. The auxiliary aid requirement is flexible, and the health care provider can choose among various alternatives as long as the result is effective communication for the deaf patient.  The effectiveness of an auxiliary aid or service is measured by a flexible standard that takes into account the nature of the communication and the length and complexity of the communication involved.

There is some argument that a health care provider, as a recipient of federal funding under section 504, is required to give primary consideration to a deaf patient’s request for an interpreter.  In a policy letter released by the Office of Civil Rights, which is still in effect today, it was stated that health care providers should give a level of deference to a patient’s choice of auxiliary aid or service because, in most circumstances, the deaf person is in the best position to judge which means of communication will give him or her equal opportunity in health service.  This deference means that the patient’s judgment in choosing effective communication must be considered of utmost importance.

In addition, the Department of Justice expects that the health care provider will consult with the deaf patient and “consider carefully” his or her self-assessed communication needs before acquiring a particular aid or service.[5]

Sometimes, a healthcare provider might be tempted to use family members or friends of the deaf patient to interpret, in an attempt to comply with the effective communication requirement.  If a health care provider is considering this alternative, they should proceed with caution.  The use of family members as interpreters has been recognized as failing to meet the proper standards for confidentiality and privacy for the deaf patient.  In addition, a family member or friend will likely lack specialized training in signing medical terminology.

Moreover, regulations to the ADA expressly recognize that family members and friends are generally not consider “qualified” interpreters, by stating that the family member or friend may not be qualified because of personal involvement, or considerations of confidentiality that may adversely affect the ability to interpret effectively, accurately, and impartially.[6]

Although it may be the situation that the cost of providing an auxiliary aid or service, such as a sign language interpreter, may exceed the charge to the patient for that very same service, it is widely believed that the health care provider is expected to treat the costs of providing the auxiliary aid as part of the annual overhead costs of operating a business.  It must also be remembered that the health care provider cannot charge a patient for the costs of providing auxiliary aids, either directly or through the patient’s insurance carrier.[7]

If the health care provider does provide a sign language interpreter or other auxiliary aid or service, the business may claim a tax credit of up to 50 percent of eligible access expenditures that are over $250 but less than $10,250.  Eligible access expenditures include the costs of interpreters or TTY’s, or providing other auxiliary aids and services.[8]

Conclusion

There is a need for accurate, immediate, and effective communication in medical settings.  By using a sign language interpreter, a health care provider would avoid any problems in the failure of a deaf patient (or family member) to communicate vital information to his health care staff, such as the patient’s health history and current symptoms.  Further, without the aid of a sign language interpreter, a health care provider might not be able to explain medical procedures and options, including obtaining informed consent from a deaf patient to perform an indicated and necessary medical procedure.

Any lack of effective communication between a deaf patient and a health care provider could possibly lead to misdiagnoses and/or problems in treatment.  This, in turn, could potentially lead to a standard malpractice claim against the health care provider, in addition to potential claims under Title III of the ADA or section 504 of the Rehabilitation Act.

It is usually the conclusion that the nature of the possible repercussions of failing to provide a sign language interpreter, measured against the relative expense of retaining such an auxiliary aid for the deaf patient might lean toward providing the sign language interpreter that the patient has requested.

Communication with the patient might result in an agreement to utilize a different auxiliary aid or service rather than a sign language interpreter to meet the ADA’s requirement of effective communication, but caution might suggest giving deference to a patient’s analysis of her situation and her request for a sign language interpreter.

The cost of this auxiliary aid must be absorbed as office overhead, and cannot be billed directly to the patient or her insurance carrier.  However, consultation with the health care provider’s tax advisor is recommended to discuss the options available to claim the cost of auxiliary aid or services as a tax credit.

Bennett and Katz practice in Houston, Texas.

 

 


[1] See Frazier v. Board of Trustees of NW Miss. Regional Med. Center, 765 F.2d 1278 (5th Cir. 1985).

[2] See Mayberry v. Von Valtier, 843 F. Supp 1160 (E.D. Mich. 1994)(court applied both Title III and section 504 to an individual doctor who allegedly failed to provide a sign language interpreter to a profoundly deaf patient during office visits).

[3] See Aikens v. St. Helena Hospital, 843 F. Supp. 1329 (N.D. Cal. 1994)(dismissing ADA claims for lack of standing).

[4] See Grazn v. Charter Hosp. of NW Indiana, 104 F.3d 116 (7th Cir. 1997).

[5] See 56 Fed. Reg. at 35566-67.

[6] 28 Code of Federal Regulation, section 36.104 app. B (1995).

[7] 28 Code of Federal Regulation, section 36.301 (c).

[8] You should consult your tax adviser for the most current federal tax regulations regarding claiming a tax credit for auxiliary aids and services.

bennett-bob-houston-schip

The S-Chip Debate & why Doctors Should Support Senator Kay Bailey Hutchinson

The S-Chip Debate & Why Doctors Should Support Senator Kay Bailey Hutchinson

 By Sherri R. Katz and Robert S. Bennett

bennett-bob-houston-schipThe S-CHIP (State Children’s Health Insurance Program) has been on the front burner in the news for months, and now has suffered a presidential veto. Initially, S-CHIP was created in 1997 as a bipartisan effort to provide insurance coverage for children living in families with too much income to qualify for Medicaid by not enough to afford private insurance. An estimated 91% of children who are insured by S-CHIP come from families with incomes below 200% of the federal poverty level, or $41,300 for a family of four in 2007(1). Before the enactment of S-CHIP, only eleven states covered children in families of 185% of the poverty level or higher. By 2006, forty-two (42) states covered children with family incomes of 200% of the poverty level, including seven states in which the cost of living is particularly high, which set income thresholds for S-CHIP eligibility at 300%.(2)

The original bill’s legal mandate expired September 30, 2007. Reauthorization of S-CHIP was attempted, although the most recent bill was vetoed by President Bush on October 3, 2007. That bill was a product of bipartisan negotiations, which included Charles Grassley, R-Iowa and Sen. Orrin Hatch, R-Utah. The original S-CHIP program covered approximately 6.6 million children nationwide.

kay-bob-bennett-houstonIn the most recent bill, strongly supported by our very own Senator Kay Bailey Hutchinson, R-Texas, Congress voted to appropriate $60 billion for S-CHIP over the next five years, which would allow the current regulations to stay in place and permit an additional four (4) million children nationwide to enroll. The appropriation would be funded by higher taxes on tobacco products by increasing the federal excise tax on cigarettes to $1.00 per pact, from the current $0.39 per pack.

Opposing the bill is U.S. Senator John Cornyn, R-Texas. He supports President Bush’s veto of the bill. Senator Charles E. Grassley, R-Iowa, helped write the bill, and has been quoted as saying “This bill is not socialized medicine.”

After vetoing the S-CHIP reauthorization, President Bush released a letter to Congress through the Office of the Press Secretary. In that letter, President Bush states that he is vetoing the bill “because this legislation would move health care in this country in the wrong direction.” President Bush ends his letter by stating “our goal should be to move children who have no health insurance to private coverage, not to move children who already have private health insurance to government coverage(3).”

President Bush and his allies have declined to support the measure, asserting that the reauthorization of S-CHIP at a substantially higher level of spending would “crowd out” private insurance in favor of public coverage and lead down a path to socialized medicine. However, according to America’s Health Insurance Plans, as reported in the New England Journal of Medicine, more than 70% of children whose coverage is through S-CHIP are part of private plans. President Bush’s 2008 budget proposed the addition of only $4.8 billion over the next five years, an amount that would fall well short of the monies needed to maintain the existing S-CHIP caseloads(4).

Given all the media attention on S-CHIP and children’s healthcare, from a health care provider’s perspective, it appears that the overriding question we should be asking is “how bad is children’s healthcare in the United States?”

A recent New England Journal of Medicine article published October 11, 2007(5), says that the state of children’s healthcare in this country is “far from optimal.” This comment comes as a result of conducting a study of medical records from 1,536 children who were randomly selected from twelve (12) metropolitan areas(6). On average, according to the data in the medical records, children in the study received 46.5% of the indicated care(7).

Because the health care of this country’s children is paramount, and amidst the political battles over ideologies and the S-CHIP program, several groups have come out in support of the bill. In addition, because the House democrats approved a more expansive version of the Senate bill by repealing an impending reduction in Medicare payments to physicians, the American Medical Association (AMA) and the AARP have come out in support of the bill. Other organizations that support the bipartisan S-CHIP expansion include Americans United for Change (AUC), MoveOn.org, Service Employees International Union (which claims over one million hospital workers as members), and the American Cancer Society’s Cancer Action Network. Most doctors would like to see that their patients had the insurance to pay for medical services.

 President Bush vetoed the bipartisan S-CHIP bill on October 3, 2007. Deputy Press secretary Tony Fratto quoted President Bush as saying he is “willing to work with members of both parties from both houses” on the issue. However, it appears that the GOP will have enough votes to sustain the veto of the program on the scheduled Thursday, October 18, 2007 vote. The bill was originally passed 265 to 159 in the House. Supporters of the bill need 290 yes votes to enact the bill over President Bush’s veto, if all 435 House members vote on Thursday.

Democrats and Republican supporters of the bill, including Senator Kay Bailey Hutchison hope to gather enough support to override that presidential veto. House Speaker Nancy Pelosi, D-Calif., has said about the vote to override the veto: “We’ll try very hard to override it. But one thing’s for sure: We won’t rest until those 10 million children have health care.”

Senator Hutchison has said she “of course” will vote to override President Bush’s veto of the children’s insurance program expansion that she has supported. Senator Hutchison was quoted in the Houston Chronicle as saying “I will, of course, vote to override, because I think that from my standpoint, I did the right thing”, adding that the S-CHIP reauthorization included proper limits, protection for Texas’ funding, and a way to reach children who still don’t have healthcare.

Ernest Istook, a former U.S. Congressman from Oklahoma, now a distinguished fellow at the Heritage Foundation, hails President Bush and his allies as heroes, not villains, in the ongoing S-CHIP saga. “They know that bigger SCHIP, like all bigger government, means the next generation will inherit the debt to pay for it.”(8)

But U.S. Senator Edward M. Kennedy, D-Mass., has an entirely different perspective. “This is all a matter of priorities: the cost of Iraq, $333 million a day; the cost of SCHIP, $19 million a day.”

In Texas, even if Congress cannot reach a compromise or if the presidential veto is not overridden, state officials have said that the state is unlikely to face cutbacks in its S-CHIP program. According to a spokeswoman for Texas Health and Human Services Commission, the state has sufficient funding from existing federal grants to continue the program for at least a year.

The struggle over the reauthorization of S-CHIP reflects the recurring national debate of the role that government should play in providing health coverage to all Americans, not just children. According to the New England Journal of Medicine(9), the growth of public healthcare has far outstripped private spending since 1965, because, in the absence of affordable private insurance, the federal government has expanded coverage of populations considered appropriate recipients of public support. This trend will only accelerate with the coming retirement of baby boomers.

But the question still remains: How bad IS children’s healthcare in the United States and what are we going to do about it? Senator Kay Bailey Hutchison and The American Medical Association appear to believe that supporting the reauthorization of S-CHIP is a good place to start. If, as a physician, you support Senator Hutchison’s position for children’s healthcare, please contact Senator John Cornyn at: www.cornyn.senate.gov or 517 Hart Senate Office Building, Washington D.C., 20510; 202-224-2934 and request he support overriding the S-CHIP presidential veto. For additional information about matters of interest to physicians go to www.bennettlawfirm.typepad.com or www.bennettlawfirmmed.com.

 

End Notes

 

1. The Battle over SCHIP by John K. Iglehart, New England Journal of Medicine (NEJM), Volume 357:957-960, September 6, 2007.

2. Id.

3.President Bush’s Letter to Congress, from The White House, Office of the Press Secretary, for Immediate Release October 3, 2007.

4. The Battle over SCHIP by John K. Iglehart, New England Journal of Medicine (NEJM), Volume 357:957-960, September 6, 2007.

5. The Quality of Ambulatory Care Delivered to Children in the United States by Rita Mangione-Smith, M.D., M.P.H,; Alison H. DeCristofaro, M.P.H.; Claude M. Setodji, Ph.D.; Joan Keesey, B.A.; David J. Klein, M.S.; John L. Adams, Ph.D.; Mark A. Schuster, M.D., Ph.D.; and Elizabeth A. McGlynn; Volume 357:1515-1523, October 11, 2007.

6. The NEJM study covered all children, even those covered by health insurance and those not eligible for SCHIP.

7. This average is from data indicating children received 67.6% of the indicated care for acute medical problems; data indicating children received 53.4% of the indicated care for chronic medical conditions; and from data indicating children received 40.7% for indicated preventive care.

8. “Left Loves S-CHIP”, by Ernest Istook, Nation Review Online (NRO), October 15, 2007.

9. The Battle over SCHIP by John K. Iglehart, New England Journal of Medicine (NEJM), Volume 357:957-960, September 6, 2007.