District Court Trumps Appeals Court on Obama Overtime Rule

A month before the U.S. 5th Circuit Court of Appeals was to consider the preliminary injunction against the Obama-era overtime rule raising the salary threshold for exemption to $47,417 a year, the Texas District Court that issued the preliminary injunction against the rule made it permanent. This means the process must start all over again, with a new appeal filed by the Trump administration if it wants to challenge the new ruling, which it declined to do.

Judge Amos Mazzant on Aug. 31 made his November 2016 preliminary injunction permanent by declaring that the Obama salary threshold increase would essentially make an employee’s duties, functions or tasks irrelevant if the employee’s salary falls below the new minimum salary level.”

Judge Mazzant also noted that while the Department of Labor (DOL) is permitted to establish a salary level to create a “floor” to assist in determining whether an employee qualified as a “bona fide” exempt employee, “the Department does not have the authority to use a salary-level test that will effectively eliminate the duties test.” Consequently, the court ruled the Final Rule to be invalid and permanently enjoined its implementation.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Trump Administration to Cut Funding for Obamacare Advertising, Promotion

The Trump administration is slashing advertising for enrollment in Affordable Care Act (ACA) policies for 2018 from $100 million to $10 million, and cutting funding for “navigators,” individuals who help people sign up, from $62.5 million to $36 million, CNBC reports today, citing phone calls from Health and Human Services (HHS) officials.

Those officials and others in the administration claim that the money doesn’t deliver the goods, while Democrats will probably jump on the news to claim the White House is seeking to “implode” Obamacare, using President Trump’s term.

Enrollment for ACA policies begins in November.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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HHS Restores Work Requirement for Temporary Assistance for Needly Families

Done away with by the Obama administration in 2012, the requirement to work to participate in the Temporary Aid for Needy Families (TANF) program has been restored by the Trump administration in an announcement by the Department of Health and Human Services on Aug. 30.

“Reemphasizing the work requirements in the welfare program means once again promoting gainful employment and economic independence as goals for every family,” said Acting Assistant Secretary for Children and Families Steven Wagner in a statement. “The waiver option offered by the Obama administration is being replaced today by an expectation that work should always be encouraged as a condition for receiving welfare.”

States can still apply for waivers from the requirement for their residents, but it should be noted that at the same time it was reversing the Obama-era waiver, it was rejecting an application from Ohio for just show a waiver.

“Our agency is committed to helping low-income families transition from welfare to work,” explained Office of Family Assistance Director Clarence Carter. “We cannot achieve the goal of self-sufficiency if meaningful work participation is divorced from welfare cash assistance.”


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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HHS Issues Limited HIPAA Waivers for Hurricane Harvey-Devastated Areas

The Department of Health and Human Services (HHS) has issued a limited set of waivers from HIPAA requirements for those affected in Texas and Louisiana by Hurricane/Tropical Storm Harvey.

Though the agency cannot waive the HIPAA Privacy Rule, it can take more limited, focused actions.

Here, then, are the five provisions for which Secretary Tom Price, M.D., waived HIPAA sanctions and penalties:

  1. The requirements to obtain a patient’s agreement to speak with family members or friends involved in the patient’s care
  2. The requirement to honor a request to opt out of the facility directory
  3. The requirement to distribute a notice of privacy practices
  4. The patient’s right to request privacy restrictions
  5. The patient’s right to request confidential communications

The waivers apply for up to 72 hours after a hospital implements its disaster protocol.

READ THE FULL HHS WAIVER BULLETIN


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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DOL Opens 15-Day Public Commentary Period on 18-Month Delay of Fiduciary Rule

The Department of Labor (DOL) has wasted no time in promulgating a Notice of Proposed Rulemaking (NPRM) on its 18-month delay in enforcement of the Obama-era fiduciary rule that took effect June 9. The NPRM was published Aug. 31. The publication opened a 15-day public commentary period.

The delay will take enforcement of the fiduciary rule from Jan. 1, 2017, to July 1, 2019.

“It’s a very clear attempt at death by delay,” Andrew Stoltmann, a Chicago securities attorney and an official with the Public Investors Arbitration Bar Association, told Investment News.  “The DOL, with Trump’s likely blessing, is trying to delay and gut the fiduciary duty rule.”


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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OMB Approves DOL Request to Publish 18-Month Delay of Fiduciary Rule

The Office of Management and Budget (OMB) this week approved a request by the Department of Labor (DOL) to publish a rule delaying implementation of the enforcement phase of its fiduciary rule for 18 months, from Jan. 1, 2017, to July 1, 2018.

Once the DOL publishes the rule, a public commentary period will commence, with the whole matter likely to wrap up from the end of October.

The delay is officially in response to an executive order by President Trump to review the fiduciary rule.

The rule took effect on June 9 after a delay from April 7, while enforcement was delayed until Jan. 1, 2017. This subsequent rule will push that date back a year and a half.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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OMB Blocks Pay Reporting Requirement of EEO-1

The Office of Management and Budget (OMB) has initiated “a review and immediate stay of the effectiveness of the pay data collection aspects” of the EEO-1 form, according to the Equal Employment Opportunity Commission (EEOC), which under President Obama had instituted compensation reporting requirements on firms with at least 100 employees.

The deadline for submitting the data had earlier been pushed back, but the OMB action puts everything on hold. The firms still must complete other long-standing sections on race and gender by March 31, 2018, according to EEOC’s instructions.

The OMB can rescind its approval of a rule if it later finds that its burden estimate was “materially in error.” The agency did not confirm that it used that option.

EEOC Acting Chair Victoria Lipnic voted against the reporting rule under Obama and still lacks a Republican majority to reverse course.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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OSHA Plans to Update Lockout/Tagout Rule

The Occupational Safety and Health Administration (OSHA) will launch a request for public input next April as it seeks to update its 1989 lockout/tagout standard, which is falling behind the times, especially when it comes to computer-based control of hazardous energy.

“The agency has recently seen an increase in requests for variances for these devices,” an OSHA spokeswoman emailed the publication Business Insurance on Thursday. “Additionally, there are international standards harmonization concerns since this method of lockout/tagout is more accepted in other nations. In light of these developments, the agency plans to issue a Request for Information to learn more about the strengths and limitations of this new technology, as well as its potential hazards to workers.”

The American National Standards Institute updated its lockout/tagout standard in December 2016. That same year, OSHA issued 3,406 lockout/tagout violations, making it the fifth-most cited violation.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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5th Circuit to Hear Overtime Rule Appeal Arguments on Oct. 3

The 5th U.S. Circuit Court of Appeals has set Tuesday morning, Oct. 3, as the time for oral arguments on the Obama-era overtime rule that was blocked by a federal judge days before it was to take effect this past December.

That rule would’ve doubled the salary threshold for exemption from overtime pay from $455 a week ($23,660 yearly) to $913 weekly ($47,476).

The Trump Department of Labor (DOL) will not defend the Obama salary levels but will argue that setting a salary threshold is allowable under the Fair Labor Standards Act (FLSA). The November 2016 ruling cited the use of a salary threshold as a reason to block the overtime rule, saying the DOL overstepped its legal boundaries in doing so.

The Trump DOL is already seeking public input on establishing a new overtime rule and is hoping to gain the authority to use salary threshold from the New Orleans court, considered the most conservative in the nation.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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Last of 81 ‘Bare’ Counties Lands an Obamacare Insurer

Seven states had been scrambling to find insurers willing to sell Affordable Care Act (ACA) health insurance policies in 81 “bare” counties, and this week the sole remaining, unserviced county — Paulding in rural Ohio — found a suitor in CareSource.

The result is that there are no longer any areas of the United States where Obamacare policies won’t be available. The 81 “bare” counties had become so because their populations were generally older and sicker, so the insurance companies jettisoned them to save money.

Of course, there could still be defections before the insurers sign their ACA contracts in September, but for now, all U.S. counties will have health insurance providers when open enrollment commences in November.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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