Medicare Drug Coverage: New Challenges and New Resources

Medicare Part D prescription drug coverage begins on Sunday, amid continuing concerns by seniors and their advocates. NPR reports that there are 6.5 million "dual eligible" recipients--those who are eligible for both medicare and medicaid--who should be automatically enrolled in a medicare drug plan, but some are falling through the cracks and could end up with no coverage at all. Kansas.com explains an additional challenge for these "dual eligibles"--that the plan in which they are enrolled may not be suited to their needs. But, according to the site, "The good news is, the law allows these 'dual beneficiaries' the right to change their plan every month if necessary as they work to find one that covers all their prescriptions." An additional concern is the small number of medicare recipients who have chosen a drug plan this far. According to Medical News Today, "less than five percent of people who could voluntarily choose a prescription drug plan have done so."

Help for recipients continues to grow as well. According to a December 29, 2005 Boston Globe article, there is a bill on the governor's desk that would provide seniors with some temporary protection if they find their initial drug coverage plan does not cover their necessary medications. There are also additional web resources available. The Globe's website, Boston.com, has added a special section Medicare Prescription Drug Benefit: Special Report, which includes resources, tips, definitions, and questions and answers. The Centers for Medicare and Medicaid Services provide many resources, including A National Conversation--Friends and Family First, Medicare Prescription Drug Coverage. This interactive website helps facilitate "a conversation with a friend or loved one about the new Medicare Prescription Drug Coverage." It provides five web-based steps: "1. Understand the basics of Medicare Prescription Drug Coverage. 2. Determine how your friend or family member gets current prescription coverage today. 3. Gather some important information. 4. Review the plan choices. 5. Help them enroll."
You can find more links at our Law About Medicare.

Returns

This is the time of year when many questions come in about store return policies. According to the Office of Consumer Affairs, "As long as the product is not defective, a merchant can choose any return policy, provided the merchant discloses this policy to the buyer before the purchase. A store, however, cannot use its disclosed policy to refuse the return of defective merchandise. When the item purchased is defective, you can choose a repair, replacement or refund." The More information is available at Law About Shopping and Returns.

Prenuptial Agreement and Alimony

On Wednesday, December 21, 2005, the SJC validated a prenuptial agreement precluding alimony in Austin v. Austin, 445 Mass. 601. The court held that "Antenuptial agreements that waive alimony are not "per se against public policy and may be specifically enforced." "Because we conclude that the agreement was valid at the time it was executed and fair and reasonable at the time of divorce, " alimony should not have been awarded. Discussion is available from the Boston Globe.

Store Openings on Christmas

We've recently been asked if stores will be open the day after Christmas. MGL ch. 135, sec. 6 says that stores are closed for Christmas. If Christmas falls on a Sunday, the legal holiday is observed on Monday according to MGL. ch. 4, sec 7. WWLP reported that the Attorney General's office "received so many inquiries about what stores can be open that they had the legislature pass a law clarifying the situation." That new law, chapter 165 of 2005, was signed by the Governor on Thursday December 15, 2005. It says, in part, that the exemption from blue law restrictions "shall not apply to any legal holiday as defined in clause eighteenth of section 7 of chapter 4, but this exemption shall apply to the day following Christmas Day when Christmas occurs on a Sunday." It further clarifies, "All stores and shops which sell goods at retail may be open at any time on Sundays and on Memorial Day, July Fourth and Labor Day, but no such stores and shops may be open on Christmas Day if Christmas occurs on a Sunday." More information on blue laws and other retail issues, such as gift certificates and returns, can be found at Law About Shopping and Returns.

Patriot Act Reauthorization On Hold

On Friday, December 16, 2005, the Senate blocked reauthorization of key provisions of the Patriot Act. According to ABC News, "much of the controversy involved powers granted to law enforcement agencies to gain access to a wealth of personal data, including library and medical records, in secret, as part of investigations into suspected terrorist activity." In a recently-revealed email message, the FBI is quoted as saying, "While radical militant librarians kick us around, true terrorists benefit from OIPR’s failure to let us use the tools given to us.” More information on this and other issues of concern to librarians can be found in Library Journal.

Error in Melanie's Law

Barbara Fell-Johnson, Head Law Librarian at the Hampshire Law Library, has pointed out a significant technical error in Melanie's Law, 2005 St. c.122, which she promptly reported to the Senate Committee on the Judiciary. 2005 St. c.122 Sect. 6A actually DELETES THE WRONG SECTION OF THE GENERAL LAWS and as a result leaves us with TWO sections dealing with the same subject matter, and one former section that appears to be missing altogether.

It accidentally deleted c.90 s.24 (1)(c)(4) which previously read: "Notwithstanding the foregoing, no new license shall be issued or right to operate be reinstated by the registrar to any person convicted of a violation of subparagraph (1) of paragraph (a) until ten years after the date of conviction in case the registrar determines upon investigation and after hearing that the action of the person so convicted in committing such offense caused an accident resulting in the death of another, nor at any time after a subsequent conviction of such an offense, whenever committed, in case the registrar determines in the manner aforesaid that the action of such person, in committing the offense of which he was so subsequently convicted, caused an accident resulting in the death of another."

It did NOT delete the section it should have deleted: c.90 GL s.24(4), which previously read "In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or prior finding of sufficient facts by either original court papers or certified attested copy of original court papers, accompanied by a certified attested copy of the biographical and informational data from official probation office records, shall be prima facie evidence that a defendant has been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program because of a like offense by a court of the commonwealth one or more times preceding the date of commission of the offense for which said defendant is being prosecuted."

It replaced section 24(1)(c)(4) with the following wording:

"In any prosecution commenced pursuant to this section, introduction into evidence of a prior conviction or a prior finding of sufficient facts by either certified attested copies of original court papers, or certified attested copies of the defendant's biographical and informational data from records of the department of probation, any jail or house of corrections, the department of correction, or the registry, shall be prima facie evidence that the defendant before the court had been convicted previously or assigned to an alcohol or controlled substance education, treatment, or rehabilitation program by a court of the commonwealth or any other jurisdiction. Such documentation shall be self-authenticating and admissible, after the commonwealth has established the defendant's guilt on the primary offense, as evidence in any court of the commonwealth to prove the defendant's commission of any prior convictions described therein. The commonwealth shall not be required to introduce any additional corrobating evidence, nor live witness testimony to establish the validity of such prior convictions. "

So now we are left with a new 24(1)(c)(4) and 24(4) which deal with exactly the same thing, but with different wording, and no 24(1)(c)(4) that deals with license reinstatement. We'll leave it to the lawyers and judges out there to interpret all this, but as librarians, we thought we'd bring it to your attention.

Credit Card Interest Rates

Bankrate.com has very helpful information on their site about the rates that credit cards can charge. In Usury Laws Offer Little Protection for Credit Card Holders, they say, in part, "It's a popular misconception that state usury laws protect borrowers from high interest rates on their credit card debt." "There are 26 states that have no limit on what bank credit card issuers can charge for interest rates, according to the American Bankers Association. Issuers in 27 states have no limit on what they can charge for annual fees. California, Delaware, South Dakota and Tennessee are among the states offering the least protection. These four states currently have no maximums on the following: delinquency fees, cash advance fees, over-the-limit fees, transaction fees, stop payment fees, ATM fees, mandatory grace period." Their Credit Card Fees and Penalties FAQ is also full of clear, concise information on the topic. More information on usury laws and interest rates is available at Law About Interest Rates.

Expunging Juvenile Probation Records

Questions about criminal records rank among the top three most frequently-asked questions we get in the law libraries. The Mass. District Attorneys Association has a brief entry on their site about Expungement of Juvenile Probation Records. This entry explains the decision in Comm. v. Gavin G., 437 Mass. 470 (2002), saying "The SJC held that while Juvenile Court judges do have the authority to order expungement of police records, no such authority exists to order expungement of probation records." The Gavin G. decision also explains the security juvenile records already enjoy. "As to juvenile records maintained by the probation department, persons "other than any law enforcement agency, any court, or any appointing authority" seeking information from the probation department concerning "court appearances and adjudications in a case of delinquency or the case of a child in need of services" must be told that "no record exists." G. L. c. 276, § 100A. Thus, the only entities that may have access to such juvenile records, or who may even be informed that such records exist, are law enforcement agencies, courts, and appointing authorities." For more information about criminal records, and how to expunge or seal them, see Mass. Law About Criminal Records.

Emergency Contraception

In September, the Massachusetts legislature passed An Act Providing Timely Access to Emergency Contraception, chapter 91 of 2005, over Governor Romney's veto. Although the act will be effective on December 14, 2005, the Department of Public Health must first pass regulations for its implementation. According to the Boston Globe, "Sally Fogerty, the associate commissioner of the state agency, could not immediately offer a timetable for the new rules." Emergency contraception, and the role of pharmacists in its distribution, has become a hot issue across the country, and so we've put together a new page, Law About Contraception, which provides access to a variety of sources on the debate.

Tax Relief

Two new tax relief measures were passed recently in Massachusetts. Senior Tax Relief, St.2005, c.136, passed on November 20, 2005, allows more homeowners over 65 to claim a tax credit, and allows cities and towns to charge a lower interest rate on deferred property taxes. Heating Energy Assistance and Tax Relief, St.2005, c.140, passed on November 22, 2005, provides home heating credits, and credits for energy efficient appliances and the like. These items and more tax information are available at Mass. Law About Taxation.

Play Ball!

The Red Sox have reportedly filed suit against former first baseman Doug Mientkiewicz to determine ownership of the ball that won the Red Sox their first world series since 1918. The suit was filed in Suffolk Superior Court on November 30, 2005, according to the Boston Globe. Bloomberg.com reports that in the case, Boston Red Sox Baseball Limited Partnership v. Doug Mientkiewicz, the Red Sox maintain that since Mientkiewicz was a Red Sox employee at the time, the ball rightfully belongs to the team.