Can you sue for Bedsores or Pressure Sores?

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Bedsores should not happen while in a nursing home or hospital. Often they are due to neglect and negligence.

Bedsores, Pressure Sores or Decubitis Ulcers are not the fault of the patient. At a hospital or nursing home there are federal laws in place to protect patients and assure they get the proper care. When these standards of care are not used sores can develop. Simple duties like turning an immobile patent frequently to relieve pressure, proper cleaning an hygiene are sometimes not provided. If a sore develops the patient has now become a victim. The sores can cause extreme pain and suffering and unfortunately even death. You can sue. And you have every right to do so and get financial compensation. Depending on the case, monetary awards can be in the millions. Below are some of the different types of lawsuits relating to sores.

Medical Malpractice

Medical Malpractice cases arise when a health care practitioner departs from the accepted standard of care in the medical community. In more simple terms, when a hospital, doctor, nurse, practitioner commits a serious error in his/her care and treatment, which results in further injury to the patient. Some common examples are failing to diagnose the bedsore; failing to report bedsores or pressure sores; failing to admit a patient into the hospital for bedsores when necessary; and failing to perform a medical procedure or provide treatment for bedsores that was otherwise indicated.

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Nursing Home Liability

The elderly population frequently suffers due to serious neglect once they become patients or residents in nursing homes or any long term care facility.  Some critical issues relating to sores are: over or improper medication; lack of supervision; inadequate wound care leading to infections; not reporting the issue in a timely manner and overall neglect.

The severe injuries that patients experience along with the constant pain and suffering associated with bedsores are often the result of preventable situations. In our experience in handling these types of cases we have found frequent examples of poor care planning; lack of stimulation; failures to turn and position patients; failure to provided adequate pressure relief devices to patients; and unbelievably, failure to change adult diapers and failure to provide sufficient quantities of food and water. As a result of neglect in Nursing Homes, the illnesses range from severe infections and amputations, to dehydration and, unfortunately, death. Bedsores and pressure sores often lead to further infections and illnesses.

Hospital Negligence

At one time or another we all go to hospitals. While patients there, we have the right to expect quality medical care and treatment.  The unfortunate reality is that there are often tragic outcomes that are the result of medical malpractice which should never occur. This is especially true with bedsores.

Hospital Negligence occurs when there are “departures in the standards of good and accepted medical practices” that one should be able to expect in the local medical community given the current state of medical treatment and technology. These departures in the standard of care can stem from negligent treatment on the part of Doctors, Surgeons, Specialists, Lab Technicians, Physician Assistants, Nurses, Nurses Aides, Therapists, Administrators, Pharmacists and any other member of the Hospital Staff whose conduct, actions, or inaction, causes injuries and suffering that should not have occurred.

Some examples of Hospital Negligence include failure to provide proper medication or medical devices; failure to provide proper monitoring and supervision; failure to order consultations to other medical specialists; failure to diagnose bedsores in a timely fashion; failure to prevent infection and amputation; failure to turn and position the patient resulting in pressure sores, bedsores or decubitus ulcers; failure to perform a medical procedure or surgery properly; failure to warn patient of risks of a surgery or medical procedure; failure to keep family members informed regarding medical decision making; and failure to provide safe and proper discharge instructions.

Wrongful Death

This type of lawsuit occurs when a spouse or close relative has a right to recover when a loved one dies due to the sores or a medical complication that was related to the sores. Recovery is from the at-fault or negligent party. Recovery can include loss of income, services, comfort and society. New York has a very restrictive and complicated wrongful death statute. Our knowledgeable lawyers take you through it one step at a time. We understand that dealing with the loss of a loved one is not easy, so we are extremely sensitive when dealing with family members. Unfortunately, left untreated or not treated in time, bedsores can rapidly progress from stage 1-4 and lead to further complications often resulting in a wrongful death.

If you or someone you know is a victim of bedsores, the first thing to do is get the stage of the sore identified and immediate and proper medical attention. If you think you have a lawsuit then contact me on how to proceed. You can also begin an evaluation online by clicking here. We can even help you get better medical attention at the same time. Feel free to email about these matters at bedsores@RaphanLaw.com

Regards, Brian

Payments to Caregiver Subject Medicaid Applicant to Penalty Period

Reversing a lower court, a Michigan appeals court rules that under state regulations a Medicaid applicant’s payments to a non-relative caregiver subjected the applicant to a penalty period because the caregiver did not have a written contract and a doctor had not recommended the service be provided. Jensen v. Department of Human Services (Mich. Ct. App., No. 319098, Feb. 19, 2015).

Jason Jensen hired a non-relative caregiver for his grandmother, Betty Jensen, who suffered from dementia. Mr. Jensen and the caregiver had an informal agreement and no contract was signed, but Mr. Jensen paid the caregiver a total of $19,000 from Ms. Jensen’s assets over the course of the months she worked for Ms. Jensen. When Ms. Jensen’s condition worsened, she entered a nursing home and applied for Medicaid. The state established a penalty period, holding that the payments to the caregiver were an unlawful transfer. Ms. Jensen died before the penalty period ended.

Mr. Jensen appealed, but the state upheld the decision. Under state regulations, payments to caregivers are considered “divestments” and transfers for less than fair market value unless there is a signed contract and a doctor has recommended in writing that the services be provided, among other requirements. Mr. Jensen appealed to court, and the trial court reversed, holding that the regulation requiring that a contract be in writing applied only to relative caregivers. The state appealed.

The Michigan Court of Appeals reverses, holding that the trial court improperly interpreted the regulations and that the penalty period was appropriate. According to the court, because there was no written contract and no written doctor’s recommendation for the services, the payments to the caregiver were a divestment. The court notes that “it does not appear from the factual record that [Mr.] Jensen overpaid for [the caregiver’s] services, or hired [the caregiver] unnecessarily. If we were not bound by the plain language of [the regulations], and were we permitted de novo review of the lower tribunals’ factual considerations, we would reach quite a different result.”

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Feel free to contact me with any Medicaid Planning questions,

Regards,

Brian A. Raphan

When Is A Guardian Required for an Adult?

Guardianships are set up to protect and help people in need, such as an elder or loved one unable to care for their own financial or health related well being. When is it required? What is the process?

When is a Guardianship Required For An Adult?

It may be necessary to petition a court to appoint a legal guardian for persons: Who have a physical or mental problem that prevents them from taking care of their own basic needs; Who as a result are in danger of substantial harm; and Who have no person already legally authorized to assume responsibility for them. Under some circumstances, it may be necessary for a court to appoint an emergency guardian, who can act on your behalf during a crisis (such as immediately following a car accident) until you regain your ability to make your own decisions.

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How is a Guardian Appointed?

The precise procedure will vary to some degree from jurisdiction to jurisdiction. The typical steps are as follows:The person seeking the appointment of a guardian files a petition with the probate court for the jurisdiction where the allegedly legally incapacitated person resides. This petitioner is often a relative, an administrator for a nursing home or health care facility, or other interested person. A petition is ordinarily accompanied by medical affidavits or other sworn statements which evidence the person’s incapacity, and either identifies the person or persons who desire to be named guardian or requests the appointment of a public guardian.The court arranges for any necessary evaluation of the allegedly legally incapacitated person. Often, this will involve the appointment of a “guardian ad litem”, a person who is appointed to provide an independent report to the court on behalf of the allegedly legally incapacitated person.

If appointed, the guardian ad litem will meet with the allegedly incapacitated person, inform that person of his or her legal rights, and report back to the court on the person’s wishes. The guardian ad litem may also speak to the petitioner, to health care providers, and to other interested individuals in order to provide the court with full information about the allegedly incapacitated person’s condition and prognosis. Depending upon state law, the court may appoint a doctor or professional to examine the allegedly incapacitated person. If the person contests the appointment of a guardian, a trial is scheduled during which sworn testimony will be given, and at the conclusion of which the judge will decide if the petitioner met the requisite burden of proof for the appointment of a guardian. The allegedly incapacitated person is ordinarily entitled to appointed counsel, if unable to afford a private attorney.If the allegedly incapacitated person consents to the petition, or is unable to respond to inquiries due to disability, the court will hold a hearing at which witnesses will provide sworn testimony to support the allegations in the petition. If the evidentiary basis is deemed sufficient, the guardian will be appointed.If a guardian is appointed, the judge will issue the guardian legal documents (often called “letters of authority”) permitting the guardian to act on behalf of the legally incapacitated person.What Are a Guardian’s Duties?The guardian makes decisions about how the person lives, including their residence, health care, food, and social activity. The guardian is supposed to consider the wishes of the incapacitated person, as well as their previously established valued, when making these living decisions. The guardian is intended to monitor the legally incapacitated person, to make sure that the person lives in the most appropriate, least restrictive environment possible, with appropriate food, clothing, social opportunities, and medical care.A guardian may be required to post a bond, unless the requirement is waived by the court. In most jurisdictions where bond is required, waivers are routine.

What’s the purpose of court supervision?

The court supervises the guardian’s choices on behalf of the ward. After the initial appointment of a guardian, an initial review is usually scheduled, followed by annual reports by the guardian to the court. The purpose of this supervision is to ensure that the legally incapacitated person is in fact benefiting from the most appropriate, least restrictive living environment possible, with appropriate food, clothing, social opportunities, and medical care.

Avoiding Guardianship:

It is possible to avoid the necessity of a guardianship through estate planning. A good estate plan will include a medical power of attorney which will enable a trusted individual to make health care decisions for you in the event of incapacity, and a general durable power of attorney to permit a trusted individual to manage your personal affairs. To a considerable extent, those documents can specify how you wish to live, and how you wish to be treated, in the event of disability – whereas a court or guardian may make decisions with which you would disagree. In most cases, when these documents have been executed in accord with the laws of your state, it will not be necessary for your loved ones to seek the appointment of a guardian or conservator should something happen to you – something that can be cumbersome and emotionally taxing at an already difficult time.

Free Downloads: Easy to read elder guides for families and seniors.

Probate, Estate Planning, Healthcare Proxies, Medicaid Planning, etc. Get informed and find many of the answers to your existing questions in these guides. Download and save as reference for free.

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Medicaid Applicant’s Irrevocable Trust Is an Available Resource Because Trustee Can Make Distributions

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An Alabama appeals court rules that a Medicaid applicant’s special needs trust is an available resource because the trustee had discretion to make payments under the trust. Alabama Medicaid Agency v. Hardy (Ala. Civ. App., No. 2140565, Jan. 29, 2016).

Denise Hardy inherited a one-half interest in a house and placed it in an irrevocable trust. The trust instrument stated that the trustee could distribute income to Ms. Hardy at the trustee’s discretion and that the trust was intended to be a special needs trust. Ms. Hardy entered a nursing home and applied for Medicaid. The state determined that the trust was an available resource.

Ms. Hardy appealed, and an administrative law judge agreed that the trust was an available resource. Ms. Hardy appealed to court, arguing that the trust was not available because it was irrevocable and could not be altered. The trial court reversed the state’s decision and ordered the state to pay Ms. Hardy benefits. The state appealed.

The Alabama Court of Civil Appeals reverses, holding the trust is an available resource. According to the court, a trust is an available resource if there is any circumstance under which payments can be made to the beneficiary, and that in this case, “if the house was sold and half of the proceeds of the sale were placed in the trust, the trustee could then make distributions as required by the terms of  [Ms.] Hardy’s trust.”

For the full text of this decision, go to: https://acis.alabama.gov/displaydocs.cfm?no=713449&event=4JX0KDU8D

8 Medicaid Planning Mistakes to Avoid: Click here

Additional Medicaid Planning questions? Click here

Regards,

Brian A. Raphan

 

Maybe it’s time for a geriatric care manager

Geriatric care

Why do we hear so much about geriatric care management these days? It’s because there are so many benefits they can provide to seniors and care givers. Let’s first clarify the term: A professional Geriatric Care Manager (GCM) is a health and human services specialist who helps families who are caring for older relatives. The GCM is trained and experienced in any of several fields related to care management, including nursing, gerontology, social work, psychology, and logistics of health care and often finances relating to the elderly. They are trained to assess, plan, coordinate, monitor and provide services for the elderly and their families. Although not lawyers, they are often aware of legal issues elders may be soon facing.

The benefits to you, the child or care giver of the elder range from saving time (vetting out various needs), saving money (knowing financial pitfalls of some decisions in advance), making better care decisions (with insight from someone who has seen it all) and most importantly –reducing stress.  The stress of being alone in the decision making process, relief of now being informed about your various options and what may be right for the specific needs of the elder, ranging from doctor decisions, how to provide care, assisted living, home care and nursing care options. Doing it alone takes an enormous amount of time, energy, resources and self reliance.

According to Gladys Harris Geriatric Care Manager of The Olive Group, you may need a Geriatric Care Manager if:

•    A person has limited or no family support available

•    Family has just become involved with helping the individual and needs direction regarding available senior services

•    A person has multiple medical or psychological issues

•    A person is unable to live safely in his / her current environment

•    Family is either “burned out” or confused about care solutions

•    Family has a limited time and / or expertise in dealing with loved one’s chronic care needs

•    Family is at odds regarding care decisions

•    Individual is not pleased with current care providers and requires advocacy

•    Individual is confused regarding his / her own financial and / or legal situation

•    Family needs education and / or direction in dealing with behaviors associated with dementia

Gladys is a recommended resource of ours and helps families and elders in New Jersey. They offer a unique combination of compassion, knowledge, a ‘can-do’ attitude and a wide range of services which also include:

Solution Focused Counseling: Life transitions are a common reason for counseling. We focus on empowering individuals to find solutions in their life by figuring out what a person’s goals are, and supporting them to find ways to achieve those goals.

Care Coordination: Our holistic assessment includes a physical, psychological and social functioning evaluation of the older adult, as well as a home safety inspection. Based on the assessment, we will develop a customized client care plan to identify private and public resources available to support the older adult. We coordinate the support systems needed to keep the older adult safe and happy at home.

Wellness Monitoring: Regular visits with the older adult to help ensure that they receive the best care available. During our visits we ensure older adults are receiving help with things that they want done, computer skills, organize photos, plan family events, etc.

Accessibility Issue Resolution: Aging-in-place often requires making changes to the home to help maintain independence.  This may be de-cluttering, home improvements, home safety inspection

Relocation Services: We support families during transitions from home to another location or facility.   These services include cleaning, de-cluttering, downsizing, and setting up in the older adult’s new home.

Cost savings is also a key component to good geriatric care management. You can learn more about it and find out more about the range of services by clicking here: www.TheOliveGroup.llc.com

Regards,

Brian

Court Ruling: Transfers Made Years Before Needing Care Were Not Made in Order to Qualify for Medicaid

Doing Medicaid Planning for clients, I often get asked the question: “How does medicaid determine if my gifts were made to qualify for medicaid or not?” Saavy clients have a long history of gifting to show a pattern meant for gifting not medicaid spend down. This recent decision should be of interest.

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A New York appeals court holds that a Medicaid applicant who transferred funds several years before needing long-term care and kept enough resources to care for herself rebutted the presumption that the transfers were made in order to qualify for Medicaid. Safran v. Shah (N.Y. Sup. Ct., App. Div., 2nd. Dept., 2013-04373, 20166/12, July 2, 2014).

While she was living independently and didn’t require long-term care, Louise Kornhaber transferred funds to her family as gifts. Several years later, Ms. Kornhaber entered a nursing home. Due to the unexpected theft of her remaining resources, Ms. Kornhaber applied for Medicaid. The state assessed a penalty period based on the uncompensated transfers.

Ms. Kornhaber appealed, arguing that the transfers were made for a reason other than to qualify for Medicaid. The state affirmed the penalty period, and Ms. Kornhaber appealed to court.

The New York Supreme Court, Appellate Division, orders the state to provide Ms. Kornhaber with Medicaid benefits, holding that the penalty period was not appropriate. The court rules that because Ms. Kornhaber still had enough resources to maintain herself for years after she made the transfers, she rebutted the presumption that the transfer was made in order to qualify for Medicaid.

Medicaid Planning takes the experience and legal expertise of a qualified attorney. The detailed process of medicaid planning needs to avoid errors and mistakes that can make you ineligible of cost you possibly tens of thousands of dollars in delays or penalties. Click here to read: 8  Medicaid Mistakes to Avoid,

For the full text of this decision, go to: https://www.nycourts.gov/reporter/3dseries/2014/2014_04943.htm

Any questions? Send me an email: info@raphanlaw.com or call 212-268-8200 during the day for a free consultation.

Regards, Brian

Heir Liable for Reimbursement of Mother’s Medicaid Expenses

medicare denialA California appeals court rules that the heir of an estate who sold her interest in her mother’s house to her brother is liable to the state for reimbursement of her mother’s Medicaid expensesEstate of Mays (Cal. App., 3d, No. C070568, June 30, 2014).

Medi-Cal (Medicaid) recipient Merver Mays died, leaving her house as her only asset. Ms. Mays’ daughter, Betty Bedford, petitioned the court to be appointed administrator of the estate, but she was never formally appointed because she didn’t pay the surety bond. The state filed a creditor’s claim against the estate for reimbursement of Medi-Cal expenses, and the court determined the claim was valid.  A dispute arose between Ms. Bedford and her brother, Roy Flemons, over ownership of the house. After the court determined Mr. Flemons owned a one-half interest in the property, Ms. Bedford and Mr. Flemons entered into an agreement in which Mr. Flemons paid Ms. Bedford $75,000 and transferred the house to his name.

The state petitioned the court for an order requiring Ms. Bedford to account for her administration of Ms. Mays’s estate. The court determined Ms. Bedford was liable to the state for the amount she received from Mr. Flemons because although she wasn’t formally appointed administrator, she was acting as administrator. Ms. Bedford appealed.

The California Court of Appeal, 3rd Appellate District, affirms on different grounds. The court rules that Ms. Bedford cannot be held liable due to her failure as administrator of the estate because she was never formally appointed administrator. However, the court holds that Ms. Bedford is liable as an heir of the estate who received estate property. According to the court, Ms. Bedford’s settlement with Mr. Flemons was “essentially an end-run around the creditor’s claim and the estate process” and “the $75,000 payment represented proceeds of the estate that would otherwise be available to satisfy creditors’ claims.”

Planning wisely, accurate and legally is key in Medicaid Planning. Make sure you use an attorney with experience, knowledge and is extremely familiar with rules in your state. Read 8 Medicaid Planning Mistakes to Avoid by clicking here.  You can also download a FREE GUIDE to Medicaid’s Asset Transfer Rules on the right hand column of this page on my website.

If you have any questions regarding Medicaid Planning feel free to give me a call.

Regards, Brian

212-268-8200  www.RaphanLaw.com

Judge: Casey Kasem’s daughter in charge of care

The Associated Press

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PORT ORCHARD, Wash. (AP) — A Washington state judge on Friday said Casey Kasem’s daughter, not her stepmother, is in charge of the medical care for the 82-year-old radio personality, who remains in critical condition with an infected bedsore.

However, all members of Kasem’s family can visit him at the hospital — just not at the me time, Kitsap County Superior Court Judge Jennifer Forbes ruled.

Kasem has been receiving intravenous antibiotics and other care at St. Anthony Hospital in Gig Harbor, Washington, for a serious pressure ulcer he had when he was admitted on Sunday, according to a hospital statement.

Hospital spokesman Scott Thompson said Friday he would make no comment beyond the statement that was issued Thursday.

“Right now, Casey Kasem’s health is declining and (he) won’t be with us much longer,” daughter Kerri Kasem’s spokesman, Danny Deraney, said in a statement.

“I want to be there for my dad,” Kerri Kasem said outside court Friday, KOMO-TV reported. “All of us. So if he does happen to open his eyes and look up, his entire family is there.”

The former radio show host is suffering from a form of dementia called Lewy Body Disease, according to court records.

His daughter said she is considering putting her father in hospice care at St. Anthony, the Kitsap Sun reported.

Kasem gained fame with his radio music countdown shows, “American Top 40” and “Casey’s Top 40.” He also was the voice of Shaggy in the cartoon “Scooby Doo.”

Wife Jean Kasem has been in control of her husband’s medical care and has controlled access to him as his children from an earlier marriage contested who should make those decisions. The couple have been staying for about a month at the home of friends in Kitsap County, west of Seattle.

On May 20, while Kasem and his wife were in Washington state, Los Angeles Superior Court Judge Daniel S. Murphy expanded Kerri Kasem’s power to determine her father’s medical care and ordered Jean Kasem to allow her stepdaughter to see him. Murphy also temporarily suspended Jean Kasem’s control over her husband’s medical care.

Forbes held Friday that the California court order prevails, with Kerri Kasem working in consultation with doctors, the Kitsap Sun reported.

The judge ordered separate visitation times because of the animosity between Jean Kasem and her husband’s children. Should the two sides meet, they must not speak to each other, she said.

The judge also found Jean Kasem in contempt of court for failing to allow Kerri Kasem to see her father the day the California court order was issued. However, the judge did not impose any sanctions.

“I don’t want to rub salt in the wound,” she said. “Mrs. Kasem is dealing with some of the worst times of her life. I feel for her.”

As Casey Kasem was removed by his daughter last weekend from the home where he has been staying, Jean Kasem tossed a package of ground meat at her stepdaughter.

“If you need to know why I did it — when a person is about to pass away, there are always rabid dogs,” Jean Kasem told reporters in response to a question after a court session Monday.

Hold on…Should you sign that Nursing Home Admissions Agreement??? Not so fast…

nursing home
“Read the agreement carefully before signing. Nursing Home Agreements can be complicated and confusing”

Admitting a loved one to a nursing home can be very stressful. In addition to dealing with a sick family member and managing all the details involved with the move, you must decide whether to sign all the papers the nursing home is giving you. Nursing home admission agreements can be complicated and confusing, so what do you do?

It is important not to rush, but rather to read. If possible, have your attorney review the agreement before signing it. Read the agreement carefully because it could contain illegal or misleading provisions. Try not to sign the agreement until after the resident has moved into the facility. Once a resident has moved in, you will have much more leverage. But even if you have to sign the agreement before the resident moves in, you should still request that the nursing home delete any illegal or unfair terms.

Two items commonly found in these agreements that you need to pay close attention to are a requirement that you be liable for the resident’s expenses and a binding arbitration agreement.

Responsible party
A nursing home may try to get you to sign the agreement as the “responsible party.” It is very important that you do not agree to this. Nursing homes are prohibited from requiring third parties to guarantee payment of nursing home bills, but many try to get family members to voluntarily agree to pay the bills.

If possible, the resident should sign the agreement him- or herself. If the resident is incapacitated, you may sign the agreement, but be clear you are signing as the resident’s agent. Signing the agreement as a responsible party may obligate you to pay the nursing home if the nursing resident is unable to. Look over the agreement for the term “responsible party,” “guarantor,” “financial agent,” or anything similar. Before signing, cross out any terms that indicate you will be responsible for payment and clearly indicate that you are only agreeing to use the resident’s income and resources to pay.

Arbitration provision
Many nursing home admission agreements contain a provision stating that all disputes regarding the resident’s care will be decided through arbitration. An arbitration provision is not illegal, but by signing it, you are giving up your right to go to court to resolve a dispute with the facility. The nursing home cannot require you to sign an arbitration provision, and you should cross out the arbitration language before signing.

Other provisions
The following are some other provisions to look out for in a nursing home admission agreement.

Private pay requirement. It is illegal for the nursing home to require a Medicare or Medicaid recipient to pay the private rate for a period of time. The nursing home also cannot require a resident to affirm that he or she is not eligible for Medicare or Medicaid.
Eviction procedures. It is illegal for the nursing home to authorize eviction for any reason other than the following: the nursing home cannot meet the resident’s needs, the resident’s heath has improved, the resident’s presence is endangering other residents, the resident has not paid, or the nursing home is ceasing operations.
Waiver of rights. Any provision that waives the nursing home’s liability for lost or stolen personal items is illegal. It is also illegal for the nursing home to waive liability for the resident’s health.

This article comes from my December Elder Law Answers Newsletter, you can get it free here: Free Elder Law Newsletter

For more information regarding this article feel free to contact me.

Regards, Brian
Brian A. Raphan, P.C.
7 Penn Plaza   |   7th Ave/31st Street   |   New York, NY 10001
212-268-8200
http://www.raphanlaw.com

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