New Line Fence Law

CLIENT ALERT

DON’T GET “FENCED IN” BY
NEW OHIO LINE FENCE LAW

Ohio has enacted a new Line Fence Law that creates new rules for line fence obligations and the process for resolving line fence disputes. A rule of individual responsibility will apply to “new” line fences, while “old” and previously existing fences will be subject to a rule of equitable shares. The new law has also placed new obligations on landowners to ensure the continuation of shared responsibility for old or preexisting fences, with a deadline to file certain affidavits as early as September 30, 2009.

What is a Line Fence?

The new Line Fence Law has expanded the previous definition of a line fence to include fence that has been “considered” as the division line even if a land survey subsequently shows that the fence is not placed directly on the property line. This change addresses the situation where landowners have historically treated the fence as the property line, but a recent survey shows that the fence is not exactly on the property line.

Allocating Responsibility for Line Fences

There are now three different rules used to determine responsibilities for construction and maintenance of line fences. The type of fence determines the applicable rule. The Rule of Equitable Shares will apply to some line fences, and adjoining landowners will share “equitably” in the costs of building and maintaining a fence. Other types of fences will fall under the Rule of Individual Responsibility, with the owner who proposes the fence constructing and maintaining it. The old law’s Rule of Equal Shares remains in place only in one situation.

Rule of Equitable Shares

This new rule apportions responsibility based upon “equity” or fairness factors related to the purpose, use and location of the fence. The Rule of Equitable Shares only applies to removed line fences, previously existing line fences, and line fences that were in existence as of September 30, 2008.

Rule of Individual Responsibility

Under the new law, only the landowner who wants to build a “new” line fence will be responsible for the fence. A “new” line fence is one placed where a line fence has never existed. The landowner who desires the new line fence must individually bear the cost of building and maintaining the fence, and cannot force the neighbor to contribute to those costs when constructing the fence.

Equal Shares Rule

The old law’s approach of equal shares for line fences remains in place only for certain governmental fences.

Types of Line Fences

The new law applies different rules of responsibility to different types of line fences:

Existing Line Fence

An existing line fence is one that existed on September 30, 2008. Existing line fences are subject to the Equitable Shares Rule. If the adjoining landowners decide to build a new line fence in place of the existing fence, the new fence will also be subject to the Equitable Shares Rule.

Previously Existing Line Fence

The new line fence law allows for two ways to establish that a line fence previously existed on a property line. The Equitable Shares Rule applies for both methods.

1. Filing an Affidavit of Previously Existing Fence: If a line fence existed within the past two years but has been removed, landowners may file an Affidavit of Previously Existing Fence. This affidavit must be filed with the county recorder by September 30, 2009.

2. Establishing a previously existing line fence by evidence. The court of common pleas or township trustees will review evidence to determine whether a line fence existed at the claimed location.

Removed Line Fence

Under the new law, the Equitable Shares Rule will apply to a situation where an old line fence is removed and not immediately replaced. The owner who removed the fence must establish the removal by filing an affidavit and must notify the adjoining landowner prior to removal.

1. Notice of Removal. The landowner must provide acceptable notice to the adjoining owner at least 28 days prior to removing a line fence. An owner who fails to provide notice of removal forfeits the right to make a reimbursement claim for a replacement fence.

2. Affidavit of a Removed Partition Fence. An owner who removes a line fence without replacing it within one year must file an affidavit to ensure that the Equitable Shares Rules will apply to a replacement fence. If an affidavit is not filed, the owner who constructs a new fence on the location is individually responsible for the fence.

New Line Fence

If a line fence meets the definition of a “new” line fence, the Rule of Individual Responsibility will apply. The owner who wants the new fence must individually pay for the cost of building and maintaining the line fence.

Reimbursement Claim Line Fence

If an owner constructs a new line fence, they may seek reimbursement for the costs of building and maintaining the fence from an adjoining landowner who uses the fence to contain livestock within thirty years after the fence was constructed. If a reimbursement claim is paid, the reimbursement claim line fence will be subject to the Equitable Shares Rule.

Governmental Line Fence

The governmental line fence is the only fence that is still subject to the old law’s Equal Shares Rule.

Alternative Landowner Agreements

Landowners may enter into an agreement with one another that alters how or whether the line fence law applies to their properties. The landowner agreement is valid and binding on future property owners if the agreement is in writing, includes a description of the land where the fence is located, a description of the purpose and use of the fence, and the owners file it with the county recorder where the land is located.

Access for Line Fence Work

Under the new law, landowners must now allow access for a neighbor to build or maintain a line fence. A neighbor, or their contractor, now has the right to enter upon up to ten feet of the adjoining property to construct and maintain a line fence. The landowner doing work on the line fence is responsible for harm caused to the adjoining property.

If you would like to discuss how these changes affect you or your properties or business, or for a fuller description of the changes in the line fence law, please contact:

Scott. M. Lewis
slewis@meyersroman.com
(216) 831-0042, Ext. 124

Meyers, Roman, Friedberg & Lewis earns Green Certification from Cleveland Metro Bar Assoc.! http://ping.fm/wa6hv

Meyers, Roman, Friedberg & Lewis is Green Certified!

Thanks primarily to the efforts of Peter Brosse, MRFL has been notified by the Cleveland Metropolitan Bar Association that we are now officially CMBA “Green Certified” for the year beginning July 1, 2009 and ending June 30th, 2010. This is a terrific start to our “greening” process …….

DMEPOS - Competitive Bidding - Are you ready? Check out our client alert: http://ping.fm/1zuAQ

DME Competitive Bidding -- Are you ready?

CLIENT ALERT
ROUND ONE OF THE MEDICARE COMPETITIVE BIDDING PROCESS IS UNDERWAY – ARE YOU PREPARED?

If you are a supplier of Durable Medical Equipment, Prosthetic, Orthotics & Supplies (DMEPOS) which you bill Medicare for, significant rule changes are about to change the way you do business. On January 16, 2009, the Centers for Medicare & Medicaid Services (CMS), the federal agency within the United States Department of Health and Human Services (DHHS) that administers the Medicare program and works in partnership with state governments to administer Medicaid, the State Children's Health Insurance Program (SCHIP), and health insurance portability standards, issued an interim final rule on the competitive bidding program necessary to conduct the Round 1 rebid competition in 2009. That rule became effective on April 18, 2009. To ensure that suppliers have ample time to prepare for the competition, CMS announced on May 29, 2009 the following progression for the program:
SPRING 2009
CMS BEGINS PRE-BIDDING SUPPLIER AWARENESS CAMPAIGN
PROGRAM ADVISORY AND OVERSIGHT COMMITTEE (PAOC) MEETING (JUNE 4, 2009)
SUMMER 2009
CMS ANNOUNCES BIDDING SCHEDULE/SCHEDULE OF EDUCATION EVENTS
CMS BEGINS BIDDER EDUCATION CAMPAIGN
BIDDER REGISTRATION PERIOD TO OBTAIN USER IDS AND PASSWORDS BEGINS
FALL 2009
BIDDING BEGINS
Don’t wait! If you are a supplier interested in bidding, you must take the following action now:
UPDATE YOUR NSC FILES: ALL suppliers must notify the National Supplier Clearinghouse (NSC) of any change to the information provided on the Medicare enrollment application (CMS-855S) within 30 days of the change. This is especially important for suppliers who will be involved in the Medicare DMEPOS Competitive Bidding Program. These suppliers must ensure the information listed on their supplier files is accurate to enable participation in the program.

GET LICENSED: Suppliers submitting a bid for a product category in a competitive bidding area (CBA) must meet all DMEPOS state licensure requirements and other applicable state licensure requirements, if any, for that product category for every state in that CBA. Prior to submitting a bid for a CBA and product category, the supplier must have a copy of the applicable state licenses on file with the NSC.
GET ACCREDITED: Time is running out. With limited exceptions, if suppliers are not accredited by the September 30, 2009 deadline, Medicare Part B billing privileges may be revoked on October 1, 2009. Without accreditation, a DMEPOS supplier may not be awarded a competitive bid. Further information on the DMEPOS accreditation requirements: may be found at the CMS website:
http://www.cms.hhs.gov/DMEPOSCompetitiveBid/01_overview.asp#TopOfPage
GET BONDED: Certain suppliers must obtain and submit a surety bond by the October 2, 2009 deadline or risk having their Medicare Part B billing privileges revoked.
This letter and Client Alert is a summary only, prepared for general informational purposes, and is not an exhaustive description of the DMEPOS Competitive Bidding Program and related issues. Nothing in this letter is intended to constitute a legal opinion or legal advice of the undersigned or Meyers, Roman, Friedberg & Lewis. If you would like to be removed from our e-mail distribution list, or no longer wish to receive our Client Alerts, please e-mail us at scox@meyersroman.com.

If you would like to discuss how these changes affect you or your business, or for a full description of the DMEPOS Competitive Bidding Program, please contact:

Mary Louisa L’Hommedieu, Esq.
Meyers, Roman, Friedberg & Lewis
28601 Chagrin Blvd., Ste. 500
Cleveland, Ohio 44122
(216) 831-0042
mlhommedieu@meyersroman.com

My Women's Business Network

We will be exhibiting at the My Women's Business Network First Annual Trade Show today. There will be prizes and access to information and contacts for women owned businesses in the northeast Ohio area. Let me know if you enjoyed the event, or have any suggestions for the future!

Five-Star Quality Rating for Nursing Homes

Five Star Quality Rating System for Nursing Homes

Baltimore's Inner Harbor and the site of the 2009 Institute of Medicare and Medicaid Payment Issues.

The 2009 Institute on Medicare and Medicaid Issues was, as in years past, a well-run and highly informative event. The Institute provides the latest developments in law, and the opportunity to discuss those developments with employees of the Centers for Medicare and Medicaid Services ("CMS").

One hot topic addressed at the conference was the most recent evolution of the Nursing Home Compare Website. Similar in look to a hotel rating system, the site will now include the new five-star quality rating program in which CMS assigns each nursing facility a star rating. A one star rating is classified as "much below average," while a five star rating gets the "much above average" rating. While the Five-Star program is intended to provide consumers with an easy way to compare nursing homes, it has garnered quite a bit of controversy. After all -- your nursing facility is not a hotel.

Even CMS concedes that those facilities with one star ratings still meet the federal conditions of participation. The star ratings are based exclusively on the subjective review of federal surveyors and may cause the average consumer to avoid all but the highest rated facilities. While that might seem like a logical (and desired) progression, a one star facility might still be the perfect fit for a loved one. The only way to tell is to make the visit and interview the facility.

So what does it take to get a higher rating? Survey, Staffing & Quality Measures. The scoring system starts with a review of the most recent on site inspections by surveyors (including standard annual surveys and complaint surveys), and then adds and compares that information to annual surveys conducted in the last three years along with complaint surveys from the same time period which resulted in a deficiency. The more frequent citations with higher severity the lower the ultimate rating. Once the initial score has been determined, they can add or subtract a star based on the staffing levels CMS finds optimal. Next, a star is added or subtracted based on a quality measure rating (e.g, the frequency of pressure sores, or changes to a resident's mobility).

Published Ratings

On December 18, 2008, CMS published its rating system. 23% of nursing homes were rated as one star, 21% as a two-star, 23% as a 4-star and 12% were rated as five star. Take a look at the site http://www.medcare.gov/NHCompare/ . Let me know what you think.