News & Legal Updates Archive

The Centers for Medicare and Medicaid Services has issued a proposed rule for Medicare payment and related policy changes under the Medicare Physician Fee Schedule going into calendar year 2021. This proposed rule would help to implement a recent Executive Order from the Trump administration which aims to permanently expand telehealth benefits for Medicare beneficiaries following the COVID-19 Public Health Emergency and increase access to care in rural communities.

The Centers for Medicare & Medicaid Services has issued proposed changes and offered guidance on Medicare payment requirements for remote patient monitoring and other services within its Medicare Physician Fee Schedule proposed rule for calendar year 2021.

President Donald Trump signed four controversial executive actions on August 8 in an attempt to provide much needed economic relief during the COVID-19 pandemic. If successful and implemented, the actions would provide additional unemployment benefits, defer payroll taxes, extend the moratorium on student loan payments, and provide for the ability to halt evictions and foreclosures.

On August 4, 2020, Senators Jeff Merkley and Bernie Sanders introduced the National Biometric Information Privacy Act (the “National Act”), a data privacy law modeled after the Illinois Biometric Information Privacy Act (the “Illinois Act”). As Illinois’s experience shows, the proposed act has potential to give rise to a tidal wave of expensive class action lawsuits against all manner of businesses throughout the country. Companies should carefully monitor the progress of the National Act and analyze the impact it would have on their businesses.

Have you ever settled a dispute for less than you deserved on a claim because you didn’t have the backup to substantiate your claim? We see it all the time and it never sits right with us or our client when we know that money was left on the table because the records didn’t show what we all knew to be true. 

The FDA is issuing new warnings and increasing its monitoring of the production of alcohol-based hand sanitizer due to the presence of contaminants in violation of the Food Drug and Cosmetic Act and the fact that many products are failing to meet production guidelines put in place during the coronavirus public health emergency. Currently, 87 hand sanitizers are on the FDA’s do-not-use dangerous product list.

During the COVID-19 pandemic, the internet has become an essential tool to help people work and carry out daily tasks; however, for some people with disabilities, the internet has long been critical to helping them live independently. With this in mind, now is the time for your business to evaluate its website to determine whether it is appropriately accessible to disabled persons.

Words matter. This is especially true in the context of post-employment restrictive covenants, which are generally disfavored by courts. This article assesses how the lack of consistency of triggering verbiage will impact the applicability and ultimate enforceability of a post-employment restrictive covenant.

Senate Republicans have introduced a new $1 trillion stimulus package - the HEALS Act. According to Senate Majority Leader Mitch McConnell, the HEALS Act is intended to be a “tailored and targeted draft that will cut right to the heart of three distinct crises facing our country – getting kids back in school, getting workers back to work, and winning the healthcare fight against the virus.”

Everyone involved in a construction project has a responsibility to take precautions to avoid injuries. The precautions that an employer takes will not only help avoid injuries, it will also help limit citations in the event of an injury or Occupational Safety and Health Administration (OSHA) inspection, and can help limit the severity of any citations that do result in the event of an inspection. Here are the steps that an employer should take before, during, and after an OSHA visit.

In a diversion from its now regular stream of COVID-19 related guidance, the Department of Labor recently turned its attention to the Family and Medical Leave Act (FMLA). On July 16, 2020, the DOL’s Wage and Hour Division announced what it called “significant steps to improve workers’ and employers’ experiences with the use of the FMLA” by issuing new model notices and forms

The Department of Health and Human Services (HHS) has released the, “General and Targeted Distribution Post-Payment Notice of Reporting Requirements,” on its CARES Act Provider Relief Fund (PRF) website. This notice is intended for healthcare providers who received one or more General or Targeted Distribution payments exceeding $10,000.

In the hectic day-to-day world of managing a construction project, it can be difficult to make sure you are including all costs that result from a change to your scope of work, whether you are pricing a proposed change order or a claim. While your contract likely addresses which specific time and cost impacts you can, and cannot, include in a change order or claim, this checklist can help to make sure you are not leaving things on the table.

Martin T. McElligott has joined the Chicago office of McDonald Hopkins LLC as an associate in the firm’s national Data Privacy and Cybersecurity Practice Group.

On June 23, 2020, the IRS and the Treasury Department issued new guidance (Notice 2020-51) that allows more people to roll a distribution (that they thought was a minimum required distribution) back into the plan or an IRA.

It is clear that the construction industry has been impacted by the coronavirus pandemic. Project owners, contractors, material suppliers, and equipment lessors are understandably concerned as some construction projects have stopped work and others are stalling as developers evaluate the situation. In this volatile environment, those in the construction industry need to know how a bankruptcy might impact the projects where they are working. In this post, we will look at what happens when the general contractor files for bankruptcy.

It is clear that the construction industry has been impacted by the coronavirus pandemic. Project owners, contractors, material suppliers, and equipment lessors are understandably concerned as some construction projects have stopped work and others are stalling as developers evaluate the situation. In this volatile environment, those in the construction industry need to know how a bankruptcy might impact the projects where they are working. In this post, we will look at what happens when the project owner files for bankruptcy.

The CARES Act creates a moratorium on required minimum distributions for 2020. You can take the distribution if you prefer, of course, but you will not be penalized if you do not. This will be welcome relief for people who do not want to liquidate investments in a down market in order to satisfy the minimum distribution requirement.

At the end of March 2020, CMS suspended Medicare Fee-for-Service review due to the COVID-19 public health emergency. CMS recently announced that it plans to discontinue that suspension on August 3 due to the reopening of states and the importance of these medical review opportunities.

Contractors who assume that the terms of the contract included with a request for proposals (RFP) will be negotiated and finalized if the contractor is selected from the list of proposers do so at their peril.

New markets tax credits (NMTCs) create an incentive for taxpayers to invest in community development projects located in low-income census tracts that may otherwise not attract significant private investment. Although the federal NMTC program is set to expire on December 31, 2020, there is currently bipartisan support to extend the program. 

Ambassador of France to the United States Philippe Etienne formally introduced McDonald Hopkins member Isabelle Bibet-Kalinyak as the new Honorary Consul for France in Cleveland and Columbus and discussed opportunities for French business in the U.S. Midwest while visiting Cleveland for the first time on Wednesday.

Perhaps no doctrine in construction law causes as much confusion as pay-if-paid and pay-when-paid provisions. In many states, the terms are used interchangeably; however, in Ohio, they mean very different things despite the seemingly identical terms. It is critically important that contractors, subcontractors, and suppliers understand the distinction and the consequences of those contingent payment clauses.

The OIG Work Plan sets out the various projects, audits and evaluations that the OIG will focus its efforts on each year. It is updated monthly and when finalized, the reports are publicized with recommendations. This alert will highlight two of the recent updates - using trend analysis to determine fraud and abuse in COVID-19 add on testing and review of expanded telehealth services

Industry experts predict that the current pandemic will likely result in a flood of litigation in the construction industry. If you either do not have a contract or your contract does not contain a force majeure provision, you should be aware of the common law doctrines of impossibility, impracticability, and commercial frustration that can excuse contract obligations and when they apply.

The Consumer Financial Protection Bureau, the nation’s top financial privacy watchdog, has survived a constitutional challenge to its very existence. As such, financial institutions subject to the bureau’s jurisdiction are required to remain in compliance with the bureau’s robust privacy regulations.

As the majority of the country experiences a resurgence in COVID-19 cases, many states, counties and cities are mandating that face coverings be worn in public and when social distancing is not possible. Many of the mandatory orders follow the guidelines initially introduced by the Centers for Disease Control and Prevention. 

In a 233 to 188 vote, the House of Representatives successfully adopted the Moving Forward Act, a $1.5 trillion infrastructure bill intended to drastically improve American infrastructure and guide the country towards greener and renewable energy sources. However, the Moving Forward Act still faces an uncertain future.

As the world has reeled from the impact of COVID-19 this spring, bankruptcy courts across the country  have also been adjusting to a new type of bankruptcy case – the first bankruptcy cases filed under the new subchapter 5 of the Bankruptcy Code (“subchapter 5”). Part one of this two-part blog series will address the issue of a debtor’s election to proceed as a subchapter 5 debtor.

As the world has reeled from the impact of COVID-19 this spring, bankruptcy courts across the country  have also been adjusting to a new type of bankruptcy case – the first bankruptcy cases filed under the new subchapter 5 of the Bankruptcy Code (“subchapter 5”). Part two of this two-part blog series examines the definition of a “small business debtor,” and the role and powers of a subchapter 5 trustee.

July 1, 2020, marks six months since the California Consumer Privacy Act came into effect. And perhaps more importantly, it also marks the first day that the California Attorney General may file enforcement lawsuits against for-profit entities that run afoul of the landmark legislation.

When a deal starts, it doesn’t always seem necessary to “paper” every little detail. But, the importance of using written contracts and purchase order forms for construction projects simply cannot be overstated.

Government and public work contracts can be difficult for contractors given all the rules and requirements that exist. If a public entity doesn’t follow certain procedures, a contractor may not receive payment even if it performed flawlessly under its contract.

Brian G. Bembenick has joined McDonald Hopkins LLC as Of Counsel in the firm’s Cleveland office, where he will bring 30 years of experience to the firm’s Intellectual Property Department.

Introduced on June 22, 2020, by the House of Representatives Committee on Transportation and Infrastructure, The Moving Forward Act includes $1.5 trillion to overhaul and rebuild American infrastructure. In addition to providing funding for the improvement of America’s roads, bridges, transit systems and renewable energy initiatives, the Moving Forward Act contains several new and expanded public finance provisions.

House of Representatives Democrats unveiled a massive $1.5 trillion bill on Monday, June 22, intended to overhaul and rebuild American infrastructure. The 2,300 page bill, titled the Moving Forward Act, allocates billions of dollars to America’s roads, bridges, transit systems, schools, housing, broadband access, and renewable energy initiatives. 

As Illinois and other states continue to lift restrictions and move into different stages of reopening, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued new guidance on how non-essential businesses should reopen amid the coronavirus pandemic. The new guidance is intended to supplement OSHA’s previously developed Guidance on Preparing Workplaces for COVID-19 and the White House’s Guidelines for Opening up America Again

On June 17, 2020, the Sixth Circuit Court of Appeals found that in a case involving whether franchise agreements violate antitrust laws, an arbitrator– not a court – was the proper party to resolve a dispute between a former employee of a Domino’s Pizza franchise and Domino’s Pizza.

Vermont has recently amended its data breach notification statute, and organizations who transact with Vermont residents should be aware of the law’s new requirements.

The U.S. Equal Employment Opportunity Commission (EEOC) continues to update its COVID-19 Technical Assistance Guidance Q&A to provide employers with practical return to work guidance. In a June 11 update, the EEOC addressed questions concerning pandemic-related harassment, pregnant employees, age concerns, as well as other workplace issues.

Washington, D.C. is joining dozens of states that are expanding the applicability of, and the requirements under, their data breach notification statutes.

Monday, June 15, 2020, the United States Supreme Court issued a landmark employment decision, Bostock v. Clayton County, Georgia, ruling that the prohibitions against workplace discrimination and harassment in Title VII of the Civil Rights Act of 1964 protect employees from discrimination based on sexual orientation and gender identity.

Recognizing the difficulties faced by participants and retirement plan administrators trying to operate in the midst of the coronavirus pandemic, the IRS issued Notice 2020-42 which temporarily deems the physically present witnessing requirement for spousal consent to be satisfied if certain applicable requirements are met. 

Employers with employees returning to the workplace have a long list of new requirements to deal with. Now employers can add to that list the Occupational Safety and Health Administration’s (OSHA) requirement relate to evaluating and reporting when a COVID-19 case is a work-related incident.

On June 5, 2020, the Paycheck Protection Program Flexibility Act of 2020 (PPPFA) was enacted, relaxing loan forgiveness requirements and improving access to relief through the Paycheck Protection Program (PPP).

James P. Muraff has joined the McDonald Hopkins LLC as a member in the firm’s Chicago office, where he will bring more than 25 years of experience to the firm’s Intellectual Property Department.

4 highlights of the Small Business Reorganization Act, which became effective on February 20, 2019. The passage of the SBRA in this contentious season in Congress was one of Congress’s most remarkable and unexpected achievements. 

On June 3, 2020, the Senate approved the Paycheck Protection Flexibility Act of 2020 (H.R. 7010), legistlation the House passed on May 28, that is intended to relax requirements and increase access for small businesses seeking emergency funding under the PPP. President Donald Trump is expected to sign the bill within the next few days.

McDonald Hopkins members Peter M. Bernhardt, Alan M. Berger and John T. Metzger have been recognized by Florida Super Lawyers as among the top attorneys in Florida. No more than five percent of the lawyers in the state are selected by Super Lawyers.

A new bill, which significantly relaxes the terms and restrictions for the Paycheck Protection Program, overwhelmingly supported by the House of Representatives, is on its way to President Donald Trump for signature after the Senate cleared the bill on June 4.