Issue January/February 2016

January 2016

Software companies versus doctors: Who owns electronic health records?

Congress enacted the American Recovery and Reinvestment Act in 2009. A section of that legislation was the Health Information Technology for Economic and Clinical Health Act (HITECH Act). The provisions of the HITECH Act included the Meaningful Use Program operated by the Centers for Medicare and Medicaid Services and mandated by the Affordable Care Act. (42 U.S.C. §§ 3002 and 3013 (2010)) Providers are given financial incentives by the Meaningful Use program to implement electronic health records (EHR). The incentives can amount "up to $44,000 through the Medicare EHR Incentive Program and up to $63,750 through the Medicaid EHR Incentive Program." (Affordable Care Act Implementation and Information, American Medical Group Association, available at As providers have begun taking advantage of this cash-for-EHR system, many have overlooked the terms and implications of the contractual relationship binding providers and EHR software companies.

Offshore asset disclosure rules every attorney should know

For the IRS, the fiscal year ended Sept. 30, 2014, marked the fourth consecutive year of reduced appropriations.1 Substantially reduced funding has had a serious negative impact on taxpayer services,2 and the number of audits dropped 12 percent from the previous fiscal year to its lowest number since 2005.3 Despite these reduced IRS resources, the IRS, along with the Department of Justice and the Financial Crimes Enforcement Network (FinCen) continue to focus strongly on steps to ensure taxpayer disclosure of offshore assets. As of early November 2015, the Treasury Department has signed 78 Intergovernmental Agreements (IGAs) with other countries in furtherance of the enforcement and compliance provisions of the Foreign Account Tax Compliance Act (FATCA).  Moreover, IGAs have been reached in substance but are still pending with 34 other countries.4 Under these IGAs, Competent Authority Arrangements (CAAs) continue to be reached between the IRS and foreign taxing authorities to exchange tax information. On September 24, 2015, the IRS announced that it entered into signed CAAs with Australia and the U.K., with the expectation that several other CAAs will be reached in the near future.5 Financial institutions and tax authorities in IGA countries will exchange taxpayer and account holder information using the International Data Exchange Service (IDES) in an effort to enforce offshore account disclosure and prevent money laundering and related crimes.6 Under the terms of some IGAs, foreign financial institutions (FFIs) must register with the IRS7 to disclose information directly to IRS personnel or face a 30 percent withholding tax on U.S.-source payments made to them. Despite doubts from critics about the ability of Treasury to exert such extraterritorial jurisdiction over foreign financial institutions, there are 177,147 FFIs registered with the IRS as of early November 20158 with the total number steadily increasing monthly.

Reasonableness versus precision: SJC clarifies evidentiary standard for regulating adverse secondary effects of expressive content

Municipalities have long sought to mitigate the adverse secondary effects of adult entertainment. When adverse secondary effects are the focus, courts have generally applied intermediate scrutiny: the regulation must serve a substantial government interest; the regulation must be "narrowly tailored" to accomplishing that interest; and there must be "reasonable alternative avenues of communication." See D.H.L. Assocs., Inc. v. O'Gorman, 199 F.3d 50, 59 (1st Cir. 1999); D.H.L. Assocs., Inc. v. Bd. of Selectmen of Tyngsborough, 64 Mass. App. Ct. 254, 257 (2005).

Six tax traps for foreign investors

The Internal Revenue Code contains numerous traps for the unwary foreign investor in U.S. real estate or businesses. The tax law provisions applicable to nonresident foreign investors are very often quite different - and more onerous - than the familiar tax rules applicable to U.S. citizens and foreign residents in the United States. This article identifies a few of the most common areas where nonresident foreign investors may need specialized tax advice to avoid costly mistakes.

Take note of employment law changes before expanding your practice

The Massachusetts Bar Association's Young Lawyers Division is designed for attorneys in practice for 10 years or fewer (or since no earlier than 2005). Many of these young lawyers are employed in solo practices and small firms as a result of their difficulty finding employment during and after the Great Recession of 2007-2009. Now that the economy is recovering, these young lawyers have an opportunity to expand their legal practices.

A primer for the new immigration practitioner

As the old adage goes, "A little knowledge is a dangerous thing." Immigration law is very complex, and is fraught with opportunities for attorneys - and non-attorney practitioners - to commit errors. At times, these errors can be attributed to the cross-pollination, if you will, of immigration and other areas (i.e. criminal and family law). This article aims to alert new immigration practitioners about issues they may encounter and how to approach them.

The need for juvenile record expungement in Massachusetts

Child protection is one of the commonwealth's greatest ambitions and the hallmark of a civilized society. Nonetheless, current Massachusetts law fails to protect some of this state's most vulnerable youth: those who have already interacted with the juvenile and criminal justice systems. These court interactions follow young people for the rest of their lives in the form of court and criminal records that create a barrier to securing independent housing, pursuing higher education or more lucrative career opportunities.

Pharmaceutical regulation: Symptoms may include cheaper drugs and fewer ads

You see it every time you turn on the TV. The prompt to "talk to your doctor," paired with rushed, small-print, side-effects disclosure, hastily run across the screen. There is a chance that this may change. On Nov. 17, 2015, the American Medical Association (AMA) called for a ban on direct to consumer advertising of prescription drugs and medical devices.

Essential free software for your law practice

Software is at the heart of any successful law practice. It is the engine that keeps the gears turning. For young lawyers, small firms and solo practitioners, cost is a large factor in deciding what software to use. There are many problems that are addressed with software, and if you know where to look, there are many free and fully functional programs to use. The following are some of the best free software that almost any law practice can use.