This could only happen in Illinois, and in Cook County

 Here is a link to a Chicago Tribune Story involving the former chairman of the Cook County Board, Todd Stroger, filing a claim for unemployment benefits after he lost his bid for reelection. 

http://www.chicagotribune.com/news/local/breaking/chibrknews-todd-stroger-seeking-unemployment-benefits-20110305,0,6987397.story?track=rss

Illinois Court Holds Errant Golf Shot = No Liability

Golfer off the hook in errant shot lawsuit

By Art Barnum, Tribune reporter

(from the Chicago Tribune, Feb. 26, 2011)

A DuPage County judge dismissed Friday a lawsuit against a Naperville golfer whose errant tee shot struck a woman gardening in a backyard adjacent to a West Chicago country club.
Lillian Demo, who owns a house along the 17th hole of St. Andrews Golf and Country Club, sued in 2007 for unspecified damages from Raymond Kinney, who hit the wayward shot Aug. 25, 2005. Demo claims she was struck in the head and still suffers migraine headaches.

According to the suit, Kinney was negligent in failing to aim and properly execute his swing.
In dismissing the lawsuit, Judge John Elsner said the contention that a golfer is negligent and liable when a shot veers off course "is simply not the law in Illinois."

Kinney's attorney, Michael Baggot, said the lawsuit "ignores the fact … that bad shots are inherent in the game of golf. As such, people who live near golf courses or tend their gardens, which are adjacent to a golf course, should be aware of the risk involved in a game of golf."

The dismissal order also noted that Kinney "was well-schooled in the mechanics of golf" and that "there is no evidence that he was facing other than straight down the fairway, his grip on the golf club was improper or that his swing was negligent."

St. Andrews was part of the original lawsuit, but the club last month reached a $30,000 out-of-court settlement, according to court files.

Kinney, who said he's a 17 handicap, happened to be on a golf course in Naples, Fla., on Friday when he was reached for comment.

He said his shot was errant and that he and others in his foursome had yelled "fore." But he said he didn't know how far off course the shot had gone until he walked down the fairway and the woman's husband starting yelling at him.

"When we approached the guy, who said his wife was bleeding, we saw 10 or more golf balls already in the backyard," Kinney said.

Demo could not be reached for comment.

Health Law News: WSJ sues to open Medicare Database

WSJ Files Lawsuit To Open Medicare Database.

The Wall Street Journal (1/26, Adams) reports Dow Jones, the publisher of The Wall Street Journal, has filed a lawsuit in the US District Court for the Middle District of Florida to overturn an over three-decades old ban on public access to a confidential Medicare database. In 1979, the American Medical Association successfully sued the US government to keep secret how much Medicare money individual physicians receive. A spokesperson for the Department of Health and Human Services said the agency would not comment while the lawsuit is being reviewed.

        The AP (1/26) adds that AMA President Dr. Cecil Wilson "said that members of the public could draw misleading conclusions from the data if it is released, given its complexity and 'significant limitations.'" Physicians who "provide care to Medicare patients are already subject to widespread governmental oversight," Dr. Wilson said in a statement. He also pointed out that "federal agencies and contractors have access to the full range of Medicare data and are aggressively ferreting out improper claims." 

(reprinted from the American Health Lawyers Association Members' News Service)

School Law: What if I want to send my child to a School in another district? The view from both Illinois & Indiana

One of the most important things a parent can do is to provide his/her child with a good education.  Here in the U.S., children are provided an education that is primarily government subsidized through the public school systems.  But the ability to attend a particular school is determined by whether the student’s family resides within the geographic boundaries of the district. Unfortunately, many people (particularly poorer families residing in urban areas) live in school districts where the schools are inadequate at best.  How can parents find a way to get their children a better education?  

The most obvious way is for the family relocate to a better district.  But many families can’t afford housing in a more upscale neighborhood, or, in today’s economy, can’t sell their home for enough to make the move.  If the family stays put, a private school is an option, but the expense there can be too much, or the student might not meet admission requirements.  The family could try home schooling, but if both parents work, this is near impossible.

 

The last solution is one many families choose -- to simply enroll their kids in the better public school district, even though they don’t live there.

 

Of course, in most cases, in Illinois, this is illegal.  I used to represent several public school districts in the southern suburbs of Chicago.  Each semester, these schools discovered dozens of children sent by their parents from inner city Chicago neighborhoods to attend school in the suburbs.  To these parents the risk of being caught breaking the law was worth it -- the schools and neighborhoods were safer, and the quality of the education was infinitely better. 

 

But the cost to the school districts where these “cheaters” enroll can be astronomical.  According to a recent article in the Illinois Bar Journal, the average cost to taxpayers per student in the Chicago suburbs ranges from $7,000 to $10,000 per year.  But if the student is in special education, and requires additional service, the cost can skyrocket to five or six times that amount.  The cost of educating each student is presumed to belong to the district in which the student lives.

 

What happens when a student is “caught” attending school in a district where they don’t live?  In Illinois, the school will notify the family that tuition (that is, the school’s cost of educating that student) must be paid.  A family that objects and claims the child legitimately resides in district has an opportunity for due process.  But proving the child meets the residency requirements is a lot tougher than showing the kid lives in a domicile in the district. 

Illinois law provides that in order to prove residency in a public school district, the parent or legal guardian of the child must show 1) that they have legal custody of the child and 2) that the student resides in the district for purposes other than merely attending school.  

Under the school code, a minor child is presumed to reside with its parents, or custody can be established by a court order, guardianship, or custody by an adult exercising legal responsibility for the student.  But the school code is clear a custody arrangement created for the sole purpose of the child attending school in a particular district is NOT valid.  

This last concept is the biggest hurdle in Illinois.   Generally, the Courts strictly uphold this rule.  So simply having your child move in with Grandma or another relative isn’t enough.  Even if that relative has been appointed a legal guardian.  Even where there might be some other valid reason for the child to stay with the relative.  If the family can’t prove a legitimate, non-school related reason for the move, there is a good chance the family will be handed a tuition bill. 

Sometimes, the circumstances are compelling enough to sway the courts.  Sometimes broken homes and financial difficulties force the parents to send the child elsewhere.  Where the totality of the evidence shows the child’s residency is necessary for a steady or secure family life, the courts might rule in favor of establishing residency in a home other than the parents’.  For example, if a single mother abandoned a child, the father is unknown, and the child ends up living with the mother’s sister in a more affluent district, the school might be hard pressed to claim the custody was solely school related.  But each case is decided on its facts, and the courts tend to favor the schools. 

There are some special rules in Illinois which allow homeless children to attend school where that child lived before they became homeless, or where they are actually living at the time, though there have been instances where districts have refused to enroll students who can’t show residency because they technically don’t have one.   In today’s foreclosure crisis, this issue may become more acute. 

Then there are the Illinois parents who attempt to establish a second residence themselves.  Rather than have the kids live with Grandma in the swanky suburb, one parent will rent an apartment in order to get their child into a better school, while the rest of the family stays in the longstanding family home.  Illinois law on residency, however, requires both a physical presence and the intent to make that domicile a permanent residence.  For example, if only one parent moves with the child, or if the family resides together in the established home on weekends, leaving the apartment vacant at times when school is not in session, the Courts have not treated the arrangement favorably.  Of course, in the case of a divorce, it may be easier to show the reasons for a child to move to the other parent’s abode -- though if there is joint custody, the parents still might have to prove which house the child regularly spends his nights.  But in any case, if the family cannot prove the child regularly sleeps in the abode other than to have access to educational programs in the district, there could even be a tuition bill where there IS a family residence in the district.

What about Indiana?  Those of us dealing with this situation in the southern suburbs of Chicago can gaze over the state line and see a slightly different picture. While the concepts are similar, Indiana law is not quite so strict.  And a recent change allowing school districts (called “school corporations” in Indiana) to “loosen up” residency requirements has really changed the rules completely.

Traditionally, a public school student in Indiana could attend school tuition free in the school corporation where he/she established “legal settlement.”  “Legal settlement” was generally defined as where a student’s parents resided, or the resident of a legal guardian.  A student could attend school in a corporation where he/she did not reside if the student or his/her parents paid transfer tuition to another school corporation and the second school corporation is willing to accept the student (similar to Illinois’ rules); the student could demand to be “better accommodated” in another school corporation; or the student might have been placed in a licensed health care facility, child care facility, or foster home in an area outside the student's legal settlement.

The concept of “better accommodation” was designed to allow for a student who was pursuing a particular vocational training program or college preparatory course, and their home school corporation did not offer such programs.  The student could be allowed to transfer to the district that offered the necessary classes.  Other issues that could allow for a “better accommodation” transfer were overcrowding, a medical/disability need, or if the home school corporation lost its certification.  If the schools were not cooperative, all this would have to be argued and proved in court.  But if the transfer for “better accommodation” was granted, there was no need to pay the tuition.  (Illinois has a procedure similar to this for special needs students, but it generally will only be allowed for children that are in special education and require services the home district can’t afford to or doesn’t have the capacity to provide). 

But then the Indiana School Law was amended effective July 1, 2010 to allow for what some school officials are calling “open enrollment.”  It’s really not “open,” by any means.  But the new law allows schools to accept students from other districts for cash tuition.  However, each school corporation is allowed to establish its own cash tuition policies, require parents to adhere to them, or decide to not accept students from outside the district at all.  The Legislature has pretty much left the details of how this will work up to the individual school corporations. 

I have heard rumors that one of the top-rated school systems in Lake County Indiana is openly promoting its cash tuition options -- in effect, advertising for students from other school districts to choose to transfer there, despite not living in that municipality.  How can this be? 

Last year, the Indiana legislature changed the way schools are funded.  Before last year, if a parent wanted to send their student to a school corporation different from their “legal settlement,” the family would be responsible to pay the equivalent of the per-pupil cost of in new school, based on what the school collected in local taxes.  But now, public education is pooled into a statewide “general fund.”  Thus, public education in Indiana is now funded at the state level by more than just property taxes, rather than at the local level.  This means that as long as parents elect to make this choice, and the new school accepts them before final enrollment figures are established in early September of each school year, there will be little or no extra “tuition” that will be required.  Indeed, all the family will probably be liable to pay is the difference between the per-pupil cost in their home school corporation and the new one, if any. 

This is truly a radical concept.  But there are limitations.  As mentioned, the school could adopt objective policies to screen potential students, such as minimal academic thresholds.  As long as it’s objectively fair, it’s allowed.  The old “better accommodation” standards are still available, but probably won’t need to be invoked much anymore.  Plus, once a student is accepted by a new school, the school can’t revoke that enrollment; the “legal settlement” is established in the new school corporation, regardless of where the student lives.  (Of course, the student could still be excluded for disciplinary or health reasons, as was true in their home corporation).  The one big hitch in this concept is athletics.  No “cash tuition” transfer to a new school will be allowed if it appears it was done primarily for athletic reasons, and the student involved will be barred from interscholastic sports at the new school. 

So there is a stark contrast between the public school residency requirements of Indiana and Illinois.  In Illinois, a parent takes a legal risk by trying to enroll his/her student to a school district in which they do not live. For under Illinois law, a family that sends a student to an out-of-district school without paying for it commits fraud.  There is also a risk that a family which legitimately meets the residency requirements could be accused of violating the statute in instances where the facts are questionable, e.g. a student coming to live with his divorced father when he starts high school after years of living with his mother.

Indiana, on the other hand, is blazing a new trail in the world of “school freedom, allowing students to attend a school corporation in a town or county they do not live in as long as they are willing to meet certain criteria established by the school and are willing to pay the difference in the tuition.  But this is an untested concept.  Will many students actually make the switch?  How will this affect the poor performing schools?  Will the “prime” schools face overcrowding? What happens when a school turns away students that objectively seem to qualify?  Only time will tell whether the new Indiana “cash tuition” program will succeed.  

Corporate Law: The Illinois Tax Increase and your business

A nice, concise summary of how the new Illinois income tax increase affects businesses:

http://www.chicagocorporateattorneys.com/2011/01/13/what-the-illinois-tax-increase-means-for-business/

Estate Planning: For Teenagers??

Planning for the future is important.  We need to provide for our family in case something unexpected occurs. Many of my clients achieve a level of “peace of mind” through an appropriately tailored estate plan.  But if there are adult dependent children living in the family, the estate plan might need an extra step.  Adult dependent children need an estate plan, too.

"Say what?  My 18 year old child needs a will?”

Well, not exactly.  But your 18 year old child does need to give you the legal authority to act on their behalf should they become disabled and unable to communicate.  Why?  Because health care providers and the colleges your child attends consider your child an adult when it comes to decisions relating to health care and school records.  Add to this the ramifications of the Health Insurance Portability and Accountability Act (known by its infamous acronym “HIPAA”), and health care providers become loathe to disclose any information about your son or daughter. 

This shouldn’t happen.  The HIPAA privacy regulations offer exceptions which give health care providers some “common sense” discretion to disclose “personal health information” to “a family member, other relative, or a close personal friend.” (45 CFR 164.510(b)). This rule goes on to specifically allow a provider to use its professional judgment and experience with common practice in deciding whether and what to tell such persons. 

But many providers overreact, and interpret HIPAA’s privacy protections as an absolute barrier to all disclosure.  This leads to absurd results. For example, a client told me about a college sophomore who traveled to an “away game” for the school’s hockey team.  This young lady was somehow injured at the game, and transported by ambulance to a local hospital.  The student’s parents were notified that their daughter had been hospitalized, but no one was willing to disclose where she had been taken, or the extent of her injuries.  Those parents spent a sleepless night worrying until their daughter contacted them the next morning, fortunately not seriously injured.

How can parents avoid this?  By having their college aged children execute a durable power of attorney.  This is a legal document that permits the child to appoint a parent (or other person) as agent to carry out certain functions and make decisions in their place. It is a simple form that is “fill in the blanks” and signed – no court order or other action is needed (though I do recommend consulting an attorney -- the instructions in the body of the document should be tailored for the specific situation).  Under Illinois law, a Durable Power of Attorney for Health Care permits your child to appoint you or your spouse as an agent while expressing their per­sonal wishes about health care decisions in the event they become incapacitated. In addition, I recommend executing a Durable Power of Attorney for Property to cover issues relating to school records (e.g. in the event of an emergency when the child is unavailable or missing, the school clearly understands the child’s intent to allow information to be given to his/her parents).

While the exceptions to the HIPAA privacy regulations should allow parents to receive critical information about the medical treatment of their adult college-aged children, a properly worded and executed power attorney gives parents the specific, direct authority to overcome the misinterpretation of privacy rules. Some students might balk at the idea of their parents having access to their records, but these documents can be personalized to only allow such access in the event of an emergency.  I recommend that parents of college aged children arrange to have their kids execute the appropriate powers of attorney before they start school in the fall (or now, as they are returning to school after the holiday break), and have copies filed with the appropriate authorities and health care providers on campus.  Then, they can head off situations like the one I described, and be assured that whatever happens, they will be “in the know” regarding their child’s status at school

Employment Law: New Laws for the New Year: Employee Credit Privacy Act

As the new year has now begun, its time to focus on a few new laws that took effect on January 1, 2011 that affect the way employers conduct business.

Illinois employers are now prohibited from discriminating against job applicants or employees on the basis of their credit histories. The new "Employee Credit Privacy Act" forbids inquiries about a person's credit history to determine the terms and conditions of employment, such as promotion, discharge, or compensation. While prohibiting employers from obtaining an applicant's or employee's credit reports in many instances, the law does permit employers to conduct thorough background investigations that do not include a credit history or report.

The new law contains some key exceptions which allow employers to still conduct and consider credit checks when filling positions that involve (1) bonding or security under state or federal law; (2) custody of, or unsupervised access to, $2,500 or more in cash or marketable assets; (3) signatory power over businesses assets of $100 or more per transaction; (4) management and control of the business; or (5) access to personal, financial or confidential information, trade secrets, or state or national security information.


 I have observed situations where an employee's financial woes led to that person stealing from their employer, or worse, their employer's customers. I have clients in the health care and housing industries that serve senior citizens.  Because of the vulnerability level of their clients, these operations sometimes used credit history checks to look out to see if an employee might be more prone to theft if they were experiencing financial difficulties.  Unfortunately, this concept is an inexact science.  And certainly, personal financial difficulty is not necessarily a barometer for determining who is likely to steal.   That appears to be the intent behind this law -- the General Assembly has recognized how truly tough things are in the current recession.  Not since the Great Depression have more Illinois workers faced joblessness or tainted credit records.  Illinois' unemployment rates have been as high as 3 to 4 percentage points above national averages.  In signing the law, Governor Quinn said, “A job seeker’s ability to earn a decent living should not depend on how well they are weathering the greatest economic recession since the 1930s,” adding, “This law will stop employers from denying a job or promotion based on information that is not an indicator of a person’s character or ability to do a job well.”

Penalties for failing to adhere to this new law include the rights of aggrieved persons to bring a suit for injunctive relief, damages or both, and to recover attorneys' fees incurred in successfully bringing suit. It also prohibits employers from retaliating or discriminating against anyone who has filed suit under its provisions, testified, assisted or participated in an investigation, proceeding or action concerning its violation, or opposed such a violation. Interestingly, the law also prohibits employers from discriminating or retaliating against one who “was about to” do any of these things.