On January 30, 2013, the U.S. Department of the Treasury, the Department of Labor, and the Department of Health and Human Services (the “Departments”) issued proposed regulations to amend to exempt group health plans established or maintained by certain “religious employers” with respect to the Affordable Care Act (“ACA”) requirement to cover contraceptive services. The ACA currently requires non-exempt, non-grandfathered group health plans to provide, without cost-sharing by employees, certain preventive health services including contraceptive services, sterilization, and abortion services. In response to concerns that this requirement violates religious beliefs of employers, the Departments have promulgated proposed amendments to the regulations.

The proposed regulations amend the criteria for the religious employer exemption. The current definition of “religious employer” requires that the employer:

  1. Has the inculcation of religious values as its purpose;
  2. Primarily employs persons who share its religious tenets;
  3. Primarily services persons who share its religious tenets; and
  4. Is a non-profit organization described in Section 6033(a)(1)(a)(3)(A)(i) or (iii) of the Internal Revenue Code.

The proposed regulations revise the definition of “religious employer” to eliminate the first three prongs listed above, but maintain prong number four. Section 6033 of the Internal Revenue Code refers to churches, their integrated auxiliaries, and conventions or associations of churches, as well as to the exclusively religious activities of any religious order. The Departments have represented that with the revised definition there will “no longer be any question as to whether group health plans of houses of worship that provide educational, charitable, or social services to their communities qualify for the exemption.”
Continue Reading A New Definition to “Religious Employer” under the Affordable Care Act

Practically speaking, a houseboat is still a vessel. But the same is not true for every floating house. And just when we thought that the highest tribunal in the land had a fast hold on its commitment to expanding the definition of a vessel, the Supreme Court issues a holding that not only creates confusion by curtailing its existing definition, but also indicates a new method for determining if a floating structure is, in fact, a vessel.(1)   Owners of residences afloat throughout the United States admiralty jurisdiction, now wonder, “Is my houseboat a vessel?” Houseboat owners, you are not alone! Maritime attorneys and judges alike try to answer the same question secondary to the Supreme Court’s recent contribution to the ever-developing jurisprudence attempting to define a vessel.

The controversial subject of the Supreme Court’s latest vessel status pronouncement arose in 2006 when Fane Lozman docked his 60’x 12’ floating home in a marina owned by the City of Riviera Beach, Florida. Lozman’s abode — equipped with French doors on 3 sides, a sitting room, bedroom, closet, kitchen, and an office — remained at the Riviera Beach Marina until the City, despite the absence of admiralty jurisdiction, filed an in rem suit against the vessel, purchased the home at auction, and destroyed it. The district court and the 11th Circuit Court of Appeals both found admiralty jurisdiction to exist holding that the home was a vessel. The Supreme Court reversed the judgment of the Court of Appeals finding that Fane Lozman owned nothing more than a floating house.
Continue Reading Not Every Boat is a Vessel: Lozman v. City of Riviera Beach

The U.S. Equal Employment Opportunity Commission (“EEOC”) is seeking public input into a Quality Control Plan it is developing as part of its Strategic Plan for the fiscal years 2012-2016. The Strategic Plan provides the framework by which the EEOC accomplishes its mission to stop and remedy unlawful employment discrimination. The Quality Control Plan will revise the criteria by which the EEOC evaluates the quality of its investigations and conciliations. Criteria currently used by the EEOC measure whether a charge has been correctly categorized and filed within the agency’s data system, but do not measure whether charges are appropriately reassessed on a timely basis, how efficient and timely the investigation has been, what the investigation consisted of, or whether the investigator correctly applied the law to the facts of the charge. The EEOC would like recommendations for criteria to assess the quality of its investigations or conciliations or general recommendations for improving the quality of its intake process, investigations, and conciliations.

Suggestions must be submitted to the EEOC by 5:00 p.m. EDT on Friday, March 1, 2013 and should be submitted electronically to strategic.plan@eeoc.gov or by mail at Executive Officer, Office of the Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street, NE, Washington, D.C. 20507. Submissions should include a contact e-mail and/or mailing address. Submissions will be reviewed for possible inclusion in a future EEOC Commission meeting in Washington, D.C. and if a submission is selected, the author or a representative will be invited to testify before the Commission.

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. These laws include Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act, the Equal Pay Act of 1963, the Age Discrimination in Employment Act of 1967, and Title I of the Americans with Disabilities Act of 1990.

The Occupational Safety and Health Administration (OSHA) is seeking public comments regarding a proposal for a new online whistleblower complaint form. The form, which would allow whistleblowers to electronically submit whistleblower complaints directly to OSHA, is part of OSHA’s proposal to revise the information collection requirements for handling retaliation complaints filed with OSHA under various whistleblower protection statutes. The proposal may be accessed electronically here, and comments are due on or before March 18, 2013.

OSHA is responsible for investigating alleged violations of whistleblower provisions contained in a number of statutes. These statutes include:

  • Occupational Safety and Health Act, 29 U.S.C. 660
  • Asbestos Hazard Emergency Response Act, 15 U.S.C. 2651
  • International Safe Container Act, 46 U.S.C. 80507
  • Safe Drinking Water Act, 42 U.S.C. 300j-9(i)
  • Federal Water Pollution Control Act, 33 U.S.C. 1367
  • Toxic Substances Control Act, 15 U.S.C. 2622
  • Solid Waste Disposal Act, 42 U.S.C. 6971
  • Clean Air Act, 42 U.S.C. 7622
  • Energy Reorganization Act of 1974, 42 U.S.C. 5851
  • Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. 9610
  • Wendell H. Ford Aviation Investment and Reform Act for the 21st Century
  • Corporate and Criminal Fraud Accountability Act of 2002 (Title VIII of the Sarbanes-Oxley Act of 2002)
  • Pipeline Safety and Improvement Act of 2002
  • National Transit Systems Security Act and the Federal Railroad Safety Act
  • Consumer Product Safety Improvement Act of 2008
  • Affordable Care Act, 29 U.S.C. 218C
  • Consumer Financial Protection Act, Section 1057 of the Dodd Frank Wall Street Reform and Consumer Protection Act, Public Law 111-203
  • Seaman’s Protection Act, 46 U.S.C. 2114, as amended by Section 611 of the Coast Guard Authorization Act of 2010, Public Law 111-281
  • Section 402 of the FDA Food Safety and Modernization Act, Public Law 111-353
  • Section 31307 of the Moving Ahead for Progress in the 21st Century Act, 49 U.S.C. 30171

The electronic form expands the methods in which a whistleblower may submit a complaint to OSHA under one of these statutes – either by submitting the form electronically directly through the Internet; or by downloading, completing, and submitting the form to OSHA by fax, mail, or hand-delivery. The proposed form will enable workers to electronically submit whistleblower complaints directly to OSHA 24-hours a day. Last year, a record number of whistle-blower cases were filed and resolved by OSHA. This was after a series of initiatives were launched during the 2012 fiscal year to strengthen OSHA’s whistleblower protection programs. It is believed that the current proposals, if accepted and initiated in 2013, will result in an even greater number of OSHA whistleblower claims being filed.

In a recent Tax Court case, a law firm was denied a current deduction for litigation expenses advanced on behalf of its contingent fee clients. The Tax Court held that the expenses were in nature of loans, and not ordinary and necessary business expenses that could be deducted when paid (advanced), even if there was low likelihood of reimbursement. At issue in the case were both expenses for contingency fee cases with individual clients as well as class action cases. The Tax Court found the cost advances in both types of cases to be loans and not currently deductible. With respect to the contingency fee cases with individual clients, the taxpayer had a system for classifying cases as high risk vs. low risk and would only deduct the advances on the higher risk cases. Only the advances for the low risk cases were booked as loans. The Tax Court found that there was a significant likelihood for reimbursement of the expenses advanced and stated that a low likelihood of recovery does not justify deductibility when advanced. With respect to the class action cases, the taxpayer argued that advanced expenses in class action cases were not loans and were therefore deductible because expense awards required court approval and/or there was “no identifiable obligor” until judgment was entered. The Tax Court rejected this argument on the basis that the taxpayer was entitled to reimbursement of those expenses from class members under common-fund doctrine.

(Humphrey, Farrington & McClain, P.C. v. Commissioner, (2013) TC Memo 2013-23, 2013 RIA TC Memo ¶2013-23).

February 5, 2013, the U.S. Department of Labor issued its final rule rolling out new amendments to the FMLA regulations that correspond with military related leaves of absence.  The FMLA was amended in 2008 and 2010 to provide leave rights for military families.  The amended regulations implement changes made to the FMLA.  In addition, the prior FMLA regulations included appendices with model forms.  The appendices were removed from the revised regulations to allow the DOL greater flexibility to make non-substantive changes to the forms.  Although the forms will no longer be in the regulations, they will still be available from the DOL.  You may need to amend your current practices, posters, and/or your employee handbooks to comply with the new regulations.  The new regulations will take affect March 8, 2013.

In a unanimous 3-0 decision, on January 25, 2013, the U.S. Court of Appeals for the D.C. Circuit Court held that President Obama’s three recess appointments to the National Labor Relations Board exceeded his Constitutional authority.

Articles on this decision can be found here, and here.

The decision calls into question all of the Board’s rulings and orders issued following the recess appointments.  The Supreme Court may ultimately have the last say.  Stay tuned.

In 2013, business owners with 50 or more full-time employees are expected to be finalizing their plans in response to the employer mandate health care reform, which becomes effective in 2014. Among the choices for business owners will be complying with the employer mandate or planning to pay the penalties for opting out, or executing plans to avoid the employer mandate by trimming their workforce or selling all or a portion of their business before 2014.

Beginning January 1, 2014, the so-called “employer mandate” under the Patient Protection and Affordable Care Act (t he “PPACA”) requires employers with 50 or more full-time equivalent employees (“FTEs”), with “full-time” defined as working at least 30 hours per week, to offer “minimum essential” and “affordable” health insurance to those employees and their dependents. Employers who do not comply will be subject to potentially significant penalties. Employers are not required to provide health care coverage for part-time employees, however, part-time employees must be counted as partial employees when determining whether an employer has 50 FTEs. There will also be various other new requirements under the PPACA effecting employers beginning in 2014 that are beyond the scope of this piece.

Many business owners are considering what they can do to get their FTE count below 50 and avoid the employer mandate and the associated cost increases and regulatory burdens.  Beware, however, that a reduction below this threshold effective January 1, 2014 may not avoid the employer mandate.   The proposed regulations provide that a business could be subject to the employer mandate if during 2013 it averaged 50 or more FTEs.  Employers would have the option to determine their 2013 headcounts by averaging the full 12 months of 2013 or any consecutive six-month period during 2013.  These regulations are in the process of being promulgated and are not yet final.

Additionally, the rules regarding who is an “employer” are not straight forward and contain traps for the unwary, and can render some plans to dodge the employer mandate ineffective. Similarly, having a basic understanding of the rules should alert business owners to seek advice if two or more related businesses may be considered as a single “employer” under the employer mandate rules.
Continue Reading The Employer Mandate Health Care Reform: A Decision Point For Smaller Companies

On December 12, 2012, the U.S. Department of Health Human Services (HHS) launched a new website focused on the use of mobile devices in relation to health information privacy and security.  The website is entitled Mobile Devices: Know the RISKS. Take the STEPS. PROTECT and SECURE Health Information.  The website provides educational materials, such as videos and fact sheets, aimed at promoting best practices for safeguarding protected health information on mobile devices like laptops, tablets, and smartphones.

Included on the website is the following five-step process for addressing mobile devices within a healthcare organization:

  1. Decide appropriate use for mobile devices within the organization;
  2. Assess the risks associated with mobile devices;
  3. Identify a mobile device risk management strategy;
  4. Develop, document, and implement mobile device policies; and
  5. Train the workforce on the policies.

Additionally, the website contains a number of videos covering the basics of mobile device security.  The videos address subjects such as mobile devices in the organization’s risk assessment, preparing for and responding to the theft of a mobile device, and appropriate safeguards when using a mobile device to handle health information on a public Wi-Fi network.

Based upon the information on the website, as well as recent enforcement actions related to mobile device issues (for example, the Massachusetts Eye and Ear Infirmary (MEEI) Resolution Agreement1), health care providers who are Covered Entities under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) should consider taking appropriate steps regarding the use of mobile devices, such as performing an appropriate risk assessment, developing policies and procedures addressing the use of mobile devices, and providing adequate training to workforce members on the use of such devices.  This new website can serve as a helpful tool when taking such actions.

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1 In September 2012, MEEI paid $1.5 million to HHS to settle potential violations of the HIPAA Security Rule following the submission of a breach report by MEEI related to the theft of an unencrypted personal laptop containing electronic protected health information (ePHI).  An investigation conducted by the HHS Office for Civil Rights indicated that MEEI failed to take necessary steps to comply with Security Rule requirements, including conducting a thorough analysis of the risk to confidentiality of ePHI maintained on portable devices and adopting policies and procedures to restrict access to ePHI to authorized users of portable devices.  The MEEI Resolution Agreement and accompanying Corrective Action Plan between HHS and MEEI are available here.

The Medicare laws have undergone significant changes. With the relatively new reporting regulations and the focus on compliance, litigators must implement new procedures in their practice.  Many companies are establishing guidelines to obtain information needed to comply with the Medicare Secondary Payer Act (“MSP”) and the Medicare, Medicaid and SCHIP Extension Act of 2007 (“MMSEA”).

The Centers for Medicare & Medicaid Services (“CMS”) is responsible for oversight of the Medicare program. While the CMS has published information to guide the parties, there is room for interpretation of many of the guidelines and, in some instances, there are no guidelines to assist the parties.

Our White Paper is designed to provide parties involved in toxic tort liability suits with knowledge of the key provisions of the MSP and the MMSEA. The manuscript focuses on the practical aspects of obtaining information needed for compliance, common misconceptions and risk avoidance. The manuscript also discusses the significance of cases involving incidents that pre-date the December 5, 1980 MSP, practical aspects of determining when the December 5, 1980 policy may be applied and recent guidance from the CMS on that issue.

Download the White Paper.