Medical Marijuana in New Mexico

Although federal law currently prohibits any use of cannabis, the Lynn and Erin Compassionate Use Act delegated authority to The New Mexico Department of Health, Public Health Division to ensure the safe production, distribution and dispensing of cannabis for the sole purpose of medical use in New Mexico.

It is important to note, the purpose of the Act is solely to alleviate symptoms caused by debilitating medical conditions and their medical treatments.  In order to legally use medical marijuana in New Mexico, physicians wanting to certify use must closely follow the regulations issued by the Department.

Here are a few guidelines on how to certify medical marijuana use in New Mexico.

Certification requires a written statement (in a patient’s medical records or a statement signed by a patient’s practitioner) that, in the practitioner’s professional opinion, the patient has a debilitating medical condition and the practitioner believes that the potential health benefits of the medical use of cannabis would likely outweigh the health risks for the patient.

A physician (or physician’s assistant’s) written certification is not valid for more than one year from the date of issuance.  Any written certification should include the following:

  • history and complete examination of the patient;
  • development of a treatment plan with objectives;
  • provision of informed consent including discussion of side effects;
  • periodic review of the treatment’s efficacy;
  • consultation as necessary; and
  • proper record keeping that supports the decision to recommend the use of medical cannabis.

A practitioner who wishes to issue a written certification can register with the New Mexico Board of Pharmacy to become a regular participant in the prescription monitoring report issued by the board. The link to the website is here:  www.nmpmp.org

Before issuing a written certification, the physician should obtain a patient report for the preceding 12 months.

Dena Wurman is a health law attorney and outside counsel to the University of New Mexico (UNM) for matters related to health law and employment.  Her legal practice focuses primarily on federal law and health law.  For a free phone consultation, call (505) 506-9434 or e-mail dwlegal@comcast.net

Four Ways the President’s Executive Action May Apply to You

If you are a young person who arrived in the US before turning 16, are the parent of a US citizen or permanent resident child or would like to use your credit card to pay for your naturalization application, here is how the President’s recent speech has introduced opportunities to work legally or become a US citizen.

  1. Extending the period of DACA and work authorization from two years to three years | Details
  2. Allowing parents of U.S. citizens and lawful permanent residents who have been present in the country since January 1, 2010, to request deferred action and employment authorization for three years | Details
  3. Expanding the use of provisional waivers of unlawful presence to include the spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. citizens | Details
  4. Promoting citizenship education and public awareness for lawful permanent residents and providing an option for naturalization applicants to use credit cards to pay the application fee.

Attorney Dena Wurman represents clients in court and immigration proceedings.  For a complimentary consultation call (505)506-9434.

 

Student who filed fraudulent I-9 form denied green card

There was an interesting case recently, decided in October 2014 by the Federal Board of Immigration Appeals (BIA) that applies generally to all cases in immigration court. (Matter of Ezra Kibichii Bett)

In that case, an immigrant student from Kenya — on an F non-immigrant visa — filed a Form I-9 (Employment Eligibility Verification) with two different employers on October 9, 2009, and October 27, 2009. On each form, a box was checked signifying that the applicant was a United States citizen. He acknowledged that the signature on both forms resembled his own.  Later, when he tried to get a green card by marriage to a US Citizen wife, the court said no, because he falsified the I-9 forms. The court said, any alien who falsely represents, or has falsely represented, himself or herself to be a citizen of the United States, should be denied a green card (permanent residency.)

Just to keep things interesting the government regularly issues new I-9 forms.  There is also a new version in Spanish.

Ms. Wurman represents clients in court and administrative proceedings and helps clients on their legal matters. She has represented non-profit entities, schools, businesses, individuals and international companies.  For a complimentary consultation, e-mail dwlegal@comcast.net or call (505)506-9434.

How to Title Property

Title to property is one of the things that controls whether or not a probate is necessary.

There are many ways to title property:

1.  Sole name of a person (only decedent‘s name appears on bank account, house, or other assets).

2.  Tenants in common (each tenant owns his or her own portion as a separate, distinct interest in the property that cannot be transferred or legally destroyed by the other co-tenant(s). One tenant in common passes his/her share to his/her heirs or devisees at death. At decedent‘s death, decedent‘s tenant in common share requires a court probate proceeding. The decedent‘s heirs or devisees will then own the property with the surviving co-tenant(s).

The above two forms of property ownership require a court proceeding to pass ownership to a decedent‘s heirs or devisees. They are considered part of the decedent‘s probate estate. They are also part of the decedent‘s gross estate.

Other ways to title property include:

1.  Joint tenants with right of survivorship (at death of one joint tenant, property passes to surviving joint tenant(s) without a probate or court proceeding). Joint tenancy title may appear as ―joint tenants,‖ ―joint tenants with right of survivorship,‖ or ―jtwros.‖ Any of these is a permissible designation of a joint tenancy for deeds, financial accounts or other documents. In cases involving a joint tenancy deed to real property, the decedent joint tenant‘s death certificate should be recorded in the county clerk‘s office in the county where the property is located.

2.  Payable on death (POD) accounts (name a beneficiary for bank accounts or U.S. savings bonds; beneficiary automatically receives the property after the owner‘s death without a probate, see Sections 45-6-201 through 227).

3.  Other assets with named beneficiaries, such as life insurance, annuities, individual retirement accounts (IRAs) (owner names in writing a beneficiary and at owner’s death, the property passes automatically to the named beneficiary without a probate, unless the beneficiary has predeceased the owner). However, if the owner has named ― my estate as the beneficiary, a probate will probably be necessary,

4.  Transfer on death (TOD) accounts (name a beneficiary to receive stocks, bonds, and other investment securities; beneficiary automatically receives the property after the owner‘s death without a probate, see Sections 45-6-301 through 311).

5.  Transfer on death deeds (TODD) for real property (must be prepared and recorded properly before the owner‘s death to pass title to the real property automatically to the TODD beneficiaries after the owner‘s death without a probate, see Section 45-6-401).

6.  Trusts (trustor can create a written trust during his/her lifetime, transfer all property into the name of the trustee of the trust, and the trust property passes automatically to named trust beneficiaries upon trustor‘s death without a probate).

7.  Life estates (a person retains an ownership interest during his/her lifetime, then upon his/her death, the property passes automatically to designated remainder beneficiaries without a probate; life estates usually occur with real property and require a special deed to create this interest).

The above seven forms of property ownership usually do not require a court probate proceeding to pass ownership to a decedent’s heirs or devisees. Therefore, they are not considered part of the decedent’s probate estate, but are part of decedent’s gross estate.

Source:  New Mexico Probate Judges Manual (2013)

Ms. Wurman represents clients in court and administrative proceedings and helps clients with their legal matters. She has represented non-profit entities, schools, businesses, individuals and international companies.  For a complimentary consultation, e-mail dwlegal@comcast.net or call (505)506-9434.

Changing Fees for Visa and Citizenship Services

Effective September 6, 2014, the Department of State is amending the Schedule of Fees for Consular Services for certain nonimmigrant visa application processing fees, certain immigrant visa application processing and special visa services fees, and certain citizenship services fees.  Included are two categories of petition-based nonimmigrant visas and the tiered application processing fees for immigrant visas.  The interim final rule also amends the security surcharge for immigrant visa services and the fees for certain immigrant visa services.  Lastly, the rule raises the application processing fee for renunciation of U.S. citizenship and lowers the hourly consular officer time charge.  The Department of State said it is adjusting the fees in light of the findings of a recent Cost of Service study to ensure that the fees for consular services better align with the costs of providing those services.

Some of the changes include:

The processing fee for E treaty trader and treaty investor visa applications will decrease from $270 to $205.

The processing fee for an employment-based visa application (based on an approved I-140 alien worker or I-526 alien entrepreneur petition) will decrease from $405 to $345.

Other immigrant visa application fees (including for I-360 self-petitioners, special immigrant visa applicants, and all others) will decrease from $220 to $205.

Certain qualifying Iraqi and Afghan special immigrant visa applicants are statutorily exempt from paying any visa-related fees.

The Immigrant Visa Security Surcharge, paid by all applicants except those who are statutorily exempted from paying fees, will increase from $75 to $100.

The fee for processing an application for waiver of the two-year residence requirement for J-1 exchange visitors will decrease from $215 to $120.

The affidavit of support fee will increase from $88 to $120.

The fee for processing renunciation of U.S. citizenship requests will increase from $450 to $2,350.

Comments on the interim final rule, which was published in the Federal Register on August 28, 2014, are due by October 21, 2014.

Free consultation:

medical

New Mexico Rules for Medical Records

N.M. Reg. 16.27.18.17

Confidentiality and Data Privacy

All mental health counselors, therapists, and alcohol and drug counselors may not disclose confidential information pertaining to a client. A licensee must inform the client of limitations on confidentiality. The licensee should continue to treat information as confidential even after the relationship with the client has ended.

Disclosure With Consent

A client may give informed written consent to disclosure of their treatment information. A parent or guardian must consent to disclosure of information on behalf of a client who is under the age of consent.

Disclosure Without Consent

Substance abuse treatment information may be disclosed if “necessary to protect against a clear and substantial risk of imminent serious harm being inflicted by the client on the client or another person(s).” If the counselor is a defendant in a civil, criminal, or disciplinary action arising from the treatment, confidential information from the client may be disclosed in that action. Confidential information may be disclosed for purpose of reporting the abuse of children and vulnerable adults. Information may be disclosed for purposes of supervision, teaching, research or other published reports, provided that patient identifying information is disguised.

The regulation does not address disclosure pursuant to a court order.

N.M. Code R. § 16.10.17.8

Release of medical records

A patient or the patient’s legally designated representative may request a complete copy of the patient’s medical records. Physicians must provide copies to a patient or to another physician as requested in a timely manner, except that psychotherapy notes, which must be maintained separately from the rest of the patient’s medical record, may be withheld from the patient. Psychotherapy notes may be released to other health care providers upon the express authorization from the patient. If the medical records are the property of a separate and independent organization, the physician should act as the patient’s advocate and work to facilitate the patient’s request for records.

A physician may charge a reasonable cost-based copying fee of up to $30 for the first 15 pages, and $0.25 per page thereafter, and the actual cost of reproducing electronic records and record formats other than paper, such as x-rays.  A physician may also charge a reasonable, cost-based fee for mailing the records, as applicable.

A physician may not withhold medical records because an account is overdue or a bill for treatment, medical records, or other services is owed.

N.M. Code R. § 7.7.2.19

Policies

These requirements apply to all licensed public and private hospital facilities in New Mexico.

Every hospital must have written policies on patient rights and responsibilities that must provide the following:

  • Patients may not be denied appropriate hospital care because of the patient’s race creed, color, national origin, religion, sex, sexual orientation, marital status, age, disability or source of payment;
  • Patients must be treated with consideration, respect, and recognition of their individuality, including the need for privacy in treatment;
  • The individual patient’s medical records, including all computerized medical information, must be kept confidential in accordance with applicable federal, state and local laws;
  • The patient or any authorized person must have access to the patient’s medical record, except that access to psychiatric records may be limited by treating professionals when hospital policies specify requirements for limiting access;
  • Every patient shall be entitled to know who has overall responsibility for the patient’s care;
  • Every patient or any authorized person must receive information about the patient’s illness, course of treatment and prognosis for recovery in terms the patient can understand from the appropriate person within the facility;
  • Every patient, or his designated representative where appropriate, must have the opportunity to participate to the fullest extent possible in planning for the patient’s care and treatment;
  • Every patient, or his designated representative, must be given a copy of the patient’s rights and responsibilities at the time of admission;
  • Except in emergencies, the consent of the patient, or his or her authorized representative, must be obtained before treatment is administered;
  • Any patient may refuse treatment to the extent permitted by law and must be informed of the medical consequences of the refusal;
  • The patient, his or her authorized representative, or other person granted the power to authorize medical treatment, must be fully informed and give consent for the patient’s participation in any form of research or experimentation;
  • Except in emergencies, the patient may be transferred to another facility only with a full explanation of the reason for the transfer, provision for continuing care; and acceptance by the receiving institution;
  • Every patient must be informed in writing about the hospital’s policies and procedures for initiation, review and resolution of patient complaints, including the address where complaints may be filed with the department; and
  • Every patient must have freedom from physical or verbal abuse, harassment and inappropriate physical and chemical restraints.

Every hospital must report to the tumor registry all malignant neoplasms that are diagnosed by the hospital and all malignant neoplasm’s diagnosed elsewhere if the individual is subsequently admitted to the hospital. The report must be submitted to the University of New Mexico tumor registry within six months after the diagnosis is made or within six months after the individual’s first admission to the hospital if the neoplasm is diagnosed elsewhere, as appropriate.

A policy for compliance with all applicable state and federal reporting requirements must be adopted and updated as necessary; such federal requirements include but are not limited to the New Mexico health policy commission, the national practitioner data bank and the healthcare integrity and protection data bank.

N.M. Stat. § 14-6-3

Access to medical records by applicants for disability benefits; violations

These requirements apply to any person who is licensed, certified or otherwise authorized by law to provide or render health care, as well as to any facility that employs or contracts with such person.

A patient or former patient who is applying for benefits based on social security disability or appealing a denial of such benefits, or an authorized representative of such patient, may request a copy of the patient’s medical records. Within thirty days of receiving such request, the health care provider must provide the copy, and may charge the requestor for copying and/or obtaining the record.

The request submitted to the provider must include a statement or document from the agency that administers the benefits confirming the application or appeal.

Call for a free 15-minute consultation (505) 506-9434.

Requirements for the E Investment Visa

Here are the requirements for the E-2 Investor Visa:

  • The investor, either a person, partnership or corporate entity, must have the citizenship of a treaty country.
  • If a business, at least 50 percent of the business must be owned by persons with the treaty country’s nationality.
  • The investment must be substantial, with investment funds or assets committed and irrevocable. It must be sufficient to ensure the successful operation of the enterprise.
  • The investment must be a real operating enterprise, an active commercial or entrepreneurial undertaking. A paper organization, speculative or idle investment does not qualify. Uncommitted funds in a bank account or similar security are not considered an investment.
  • It must generate significantly more income than just to provide a living to you and family, or it must have a significant economic impact in the United States.
  • You must have control of the funds, and the investment must be at risk in the commercial sense. Loans secured with the assets of the investment enterprise are not allowed.
  • You must be coming to the United States to develop and direct the enterprise. If you are not the principal investor, you must be considered an essential employee, employed in a supervisory, executive, or highly specialized skill capacity.  Ordinary skilled and unskilled workers do not qualify.

Documentation must be organized in such a way that the consular officer can locate all of the relevant facts to make adjudication within 5-10 minutes. Applicants who fail to submit the necessary information will face delays in the processing and adjudication of their cases.

Ms. Wurman represents clients in court and administrative proceedings and advises clients on immigration matters and other areas of government law. She has represented non-profit entities, schools, businesses and international companies.  For a complimentary consultation, e-mail dwlegal@comcast.net

New Work Rule for H-1B Spouses

The lack of employment authorization for family members of H-1B workers often gives rise to personal and economic hardship the longer they remain in the United States. The time frame required to obtain permanent residency may be many years. As a result, retention of these highly-skilled workers in the U.S. can be a problem for an employer.

The contributions of highly skilled employees, to the U.S. economy, are important. Advances in entrepreneurial research and development correlate highly with economic growth and job creation. With this idea in mind, the government is now proposing that family members (of H-1B workers who are applying for permanent residency) be allowed to work too. The proposed rule would benefit U.S. employers who suffer when an H-1B employee abandons their efforts to become permanent residents.

Currently, when the spouse of an H1-B employee wants to obtain work authorization – they are eligible as derivative beneficiaries – they must wait until their husband or wife submits forms to get their green card. An alien is prohibited from submitting these forms until a visa number is available. Visa numbers are limited each year and waiting can take several years until a husband or wife can work.

The new proposed rule will not extend to children.  If finalized, it would impact approximately 100,000 H-4 spouses and drop to a projected 35,900 spouses in subsequent years.  Benchmarking against other immigrant receiving countries that allow more favorable work authorization, the U.S. currently has less favorable rules for immigrant spouses.

Ms. Wurman represents clients in court and administrative proceedings and advises clients on immigration matters and other areas of government law. She has represented non-profit entities, schools, businesses and international companies.  For a complimentary consultation, e-mail dwlegal@comcast.net

 

 

 


 

Breach of Contract in Washington State

In March 2014, the National Association of Realtors (NAR) sued one of its most highly compensated executives for misappropriation of trade secrets and breach of contract after he resigned and took a job at its chief competitor, Zillow.

Zillow, and NAR’s partner Move, are two of the top three consumer sites for the online U.S. residential real estate market. Move provides lead-generation, relationship-management and website development services. Move also operates an aggregation service providing Multiple Listing Service (MLS) and broker data to customers. In 1996, The National Association of Realtors (NAR) allowed Move to operate its website www.realtor.com.

Non-disclosure agreements between NAR and Move prevent sharing of confidential information outside of their partnership.

The lawsuit, Move Inc. vs. Zillow, Inc., alleges that Zillow’s act of hiring Samuelson, as Chief Industry Development Officer, was a threat which will eventually lead to misappropriation of NAR’s trade secrets, because he cannot perform without disclosing these secrets. The mere threat requires the court to intervene.

The other part of their argument is for breach of contract. While employed at Move, Samuelson signed a confidentiality agreement. The agreement prohibited Samuelson from directly or indirectly soliciting Move’s suppliers or customers if information about the supplier or customer relationship is a trade secret. The agreement also included a clause that even a threatened breach could cause irreparable harm entitling Move to court-ordered relief. There would be no need to prove damages, according to the agreement.

Other key facts in the complaint are Samuelson deleted all the files on his computers despite signing an agreement that this data belonged to the company and should be preserved. Move instructed Samuelson that there were litigation holds on documents stored on his company issued computers.

The trade secrets Move, Inc. seeks to protect were not reasonable ascertainable because Move:

• limited access to the executive team or smaller group of executives
• required confidential passwords
• required non-disclosure agreements in significant contracts
• quarterly certification of Code of Conduct

A cause of action has two parts: 1) a legal basis for the wrong the plaintiff claims to have suffered (e.g., misappropriation and breach of contract), and 2) a remedy which the plaintiff asks the court to grant (e.g., $250K plus attorney fees). NAR in this case is asking for damages, attorney’s fees and action by the court to protect its trade secrets.

Do you suspect your employee has breached an agreement? Call (505) 506-9434 for a confidential consultation.

HIPAA

What is HIPAA? HIPAA is the acronym for the Health Insurance Portability and Accountability Act that was passed by Congress in 1996. The HIPAA Privacy regulations require health care providers and organizations, as well as their business associates, develop and follow procedures that ensure the confidentiality and security of protected health information (PHI) when it is transferred, received, handled, or shared. This applies to all forms of PHI, including paper, oral, and electronic, etc. Furthermore, only the minimum health information necessary to conduct business is to be used or shared.

Do you have a question about HIPAA or data security?

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