Joint Employer Rulemaking Definitely on NLRB Agenda, Chairman Says

Responding to criticism from three liberal Senators, National Labor Relations Board (NLRB) Chairman John Ring has affirmed that the agency will issue a Notice of Proposed Rulemking (NPRM) on defining joint employer relationships “as soon as possible, but certainly by this summer.”

john-ring-new-nlrb-chair

John Ring, new NLRB Chair

The board’s intention to use rulemaking on the joint employer issue was first announced in its spring regulatory agenda, prompting a May 29 letter from Sens. Kristen Gillibrand, Elizabeth Warren and Bernie Sanders questioning the ethics of such rulemaking and accusing Ring of pre-determining the rule before public commentary is undertaken.

Ring responded yesterday with a written reply, arguing that  since “any rule developed will apply prospectively only, its application will not affect any case pending before the Board or one of its regional offices on the effective date of the final rule, and thus it will not affect any parties to pending cases.”

He also said he has “an open mind and will consider all comments we receive from interested parties,” but he “will not pretend that I am devoid of opinions on the subject.”

(more…)


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.
GoTo top Top

CMS Releases State-by-State Medicaid Scorecard

The Centers for Medicare and Medicaid Services (CMS) has released what is being called a “Medicaid & CHIP Scorecard” that attempts to compare the timeliness and quality of medical care of the two programs state by state, but a major problem is that reporting by the states is mostly voluntary.

cms-releases-medicaid-scorecard“Despite providing health coverage to more than 75 million Americans at a taxpayer cost of more than $558 billion a year, we have lacked transparency in the performance and outcomes of this critical program.” said CMS Administrator Seema Verma.

“The Scorecard will be used to track and display progress being made throughout and across the Medicaid and CHIP programs, so others can learn from the successes of high performing states. By using meaningful data and fostering transparency, we will see the development of best practices that lead to positive health outcomes for our most vulnerable populations.”

The scorecard spans several web pages and covers three main areas: State Health System Performance, State Administrative Accountability, and Federal Administrative Accountability. The report is also broken down into 17 comparison categories, but not one category includes results from all 50 states.

As The Washington Post points out, the statistics are also skewed because those states that reported often used different standards. Some states reported only results from patients who are on managed care; other states reported only results from patients on traditional fee-for-service Medicaid.

When asked if CMS would make the reporting mandatory, Verma said: “I think over time we’re going to review that.  It’s possible in the future we may change that policy — as we evolve and as we see how things are going, that might be something we would consider.”

(more…)


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.
GoTo top Top

New Jersey Institutes Statewide Obamacare Individual Mandate

New Jersey has become the second state to legislate an individual Obamacare-like health care mandate following the lead of Massachusetts, which instituted its mandate in 2006 when it passed Romneycare. The New Jersey mandate replaces the financial penalty for not having health insurance that Republicans in Congress repealed in December.

new-jersey-adopts-individual-mandateIn 2015 some 189,000 New Jersey residents paid $93 million in Affordable Care Act (ACA) fines for declining to obtain health insurance, according to the state’s Office of Legislative Services.

The funds collected under the new mandate, which takes effect Jan. 1, will go toward a state reinsurance fund to help lower premiums for residents.

“Protecting the viability of the individual mandate is needed to maintain a foundation for the insurance market and to allow the success of the ACA to continue,” Sen. Joe Vitale (D.-Middlesex), a sponsor of the bill, said in a statement. “New Jersey has benefited from the health care law, and we want to see that those benefits continue. It has made health care more affordable and more accessible, especially for those in need.”

(more…)


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.
GoTo top Top

All FMLA Forms Expire Tonight, But They’re Still Good

The seven forms and notices published by the Department of Labor (DOL) for the Family and Medical Leave Act (FMLA) expire tonight (May 31) at midnight, but a spokesperson says the documents are still good while permission for issuing newly dated versions is being obtained.

tax-act-includes-credit-for-paid-PMLA-leaveAccording to a spokesperson, a request to reissue the forms without any changes but with a new expiration date was sent to the Office of Management and Budget (OMB) earlier this year.

According to the federal Paperwork Reduction Act, all government forms expire after three years, at which time they can be dropped, revised and reprinted, or just left as is but with a new three-year lease on life.

According to the DOL, the current forms will be re-dated every month until OMB gives the green light for a three-year renewal. In other words, if you download a form tomorrow, it should have an expiration day of June 30, 2018 (instead of May 31).

POSTSCRIPT: I just checked, and they’ve already been re-dated.


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.
GoTo top Top

DHS Proposes Ending Entrepreneur Rule for U.S. Entry

The Department of Homeland Security (DHS) is proposing a rule to end a program that allows certain foreign entrepreneurs to be considered for parole to temporarily come to the United States to develop and build start-up businesses here, known as the International Entrepreneur Rule (IE Final Rule).

USCIS-implements-entrepreneur-entry-ruleIn July 2017, DHS published a final rule to delay the implementation date of the IE Final Rule to March 14, 2018, to give the department time to draft a rescission of the IE Final Rule. However, in December 2017, a federal court vacated the delay rule, requiring USCIS to begin accepting international entrepreneur parole applications consistent with the IE Final Rule.

DHS is now proposing to eliminate the IE Final Rule because the department believes that it represents an overly broad interpretation of parole authority, lacks sufficient protections for U.S. workers and investors, and is not the appropriate vehicle for attracting and retaining international entrepreneurs.

(more…)


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.
GoTo top Top

HHS Seeks to Modify Disclosure Rule, Establish Means to Share HIPAA Fines with Victims

Following comments made in March by Roger Severino, director of the Office for Civil Rights (OCR), the Department of Health and Human Services (HHS) recently published two Notices of Proposed Rulemaking (NPRMs), seeking comments on revising the disclosure rule covering protected health information (PHI) and on sharing HIPAA Privacy Rule violation fines with victims of breaches.

HIPAA-breach-notifications-are-dueThe current disclosure rule, established in 2011 as part of the then-recently enacted Health Information Technology for Economic and Clinical Health (“HITECH”) Act, is being withdrawn.

OCR’s Severino in his remarks in March offered the example of parents who had no idea their adult children were on opioids — until it was too late and they had overdosed. Therefore, he wants to add a “good faith” component to medical disclosures so that health care professionals can use their own better judgment when something needs to be disclosed to immediate family.

On the other point — sharing monies from breach penalties with victims — he told his audience:

OCR is interested in hearing from industry advocates and patients about what would be the proper approach for … creating a system though regulation in providing compensation to those hurt by breaches and HIPAA violations. A lot of breaches do end up causing significant stress, trauma and anxiety to people.

(more…)


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.
GoTo top Top

U.S. to Spend $685 Billion on Health Care Coverage for Those Under 65 in 2018

The federal government subsidizes health insurance for most Americans through a variety of programs and tax provisions. In 2018, net subsidies for non-institutionalized people under age 65 will total $685 billion, the Congressional Budget Office (CBO) and the staff of the Joint Committee on Taxation (JCT) estimate.

That amount includes the cost of preferential tax treatment for work-related insurance coverage, the cost of Medicaid and Medicare coverage for people under age 65, and government payments for other kinds of health insurance coverage—such as plans purchased through the marketplaces established under the Affordable Care Act (ACA).

Their published report describes the basis for the CBO’s baseline projections of the federal costs for those subsidies under current law for the 2018–2028 period. Those projections of costs are built upon estimates of the number of people with health insurance of various kinds. During the coming year, the CBO and JCT will use their projections as the benchmark for assessing proposed legislation’s effects on the subsidies.

(more…)


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.
GoTo top Top

Preview of Starbucks’ May 29 Racial Sensitivity Training

A preview of the May 29 curriculum for Starbucks partners | Starbucks Newsroom

FROM OUR APRIL 17 POST

After the manager at a Starbucks in Philadelphia had two black men arrested for trespassing when they asked to use the restroom without purchasing anything, the company announced it will close all 8,000 of its corporate locations on May 29 for a racial bias training session. Starbucks employs some 175,000 people at these locations.


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.
GoTo top Top

Sweeping EU Data Protection Regulation Takes Effect Today

BREAKING NEWS: The GDPR has forced some U.S. companies to shut down their websites, or to convert them to plain text versions. Tronc, which owns the Chicago Tribune, Los Angeles Times and other publications, has blocked EU access to its sites, fearing fines for non-compliance with the new regulation. Other sites have redone their privacy policies and/or placed easy opt-out features on their home pages, including the Wall Street Journal.

If your company’s website can be accessed by people living within the European Union, there’s a good chance you may have to update your terms of service and privacy policy and make other modifications, especially if you sell goods or collect any kind of data in the affected countries. Please note: your business does not have to be located in the EU for your web presence to fall under the regulation’s purview.

gdpr-takes-effect-today-may-25Approved in April 2016, the General Data Protection Regulation (GDPR) becomes enforceable today after a ramp-up compliance period.

The GDPR is big on personal data and includes a revolutionary new principle that allows users of your website to request that you remove all data stored about them. This provision is known as the right to be forgotten, or the right of erasure. Requests for personal data removal can be made in writing or orally (by phone or in person).

For those firms that re-use, re-purpose or sell the data they collect, the GDPR places new restrictions: “Personal data should not be used for purposes outside of the original intended and specified purpose, except with the consent of the data subject or the authority of the law.” (more…)


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.
GoTo top Top

5th Circuit Court Denies Appeal of Its Decision on the DOL Fiduciary Rule

The 5th U.S. Circuit Court of Appeals, which in March ruled the Department of Labor (DOL) had overstepped its authority in issuing its Fiduciary Rule, has now rebuffed a second appeal of that decision filed by the attorneys general of California, New York and Oregon. The three-judge panel hearing the appeal also refused to refer the matter to a hearing by the full court, a process known as en banc review.

5th-circuit-court-rejects-fiduciary-rule-appeal

West Courtroom

The DOL Fiduciary Rule would require all retirement advisers to put the interests of their clients first, ahead of their own compensation for the products they recommend, and thus it’s also known as the Best Interest Rule.

Though the 5th Circuit Court ruled against the Fiduciary Rule, it has not yet issued an injunction against it, so it technically remains on the books. After the court’s ruling on March 15, however, the DOL basically said it would not enforce the new standard, and the agency recently issued guidance affirming that it would largely remain on the sidelines.

This latest filing, which was actually an appeal of a May 2 adverse decision by the same circuit court panel, exhausted the appeals process at the circuit level, and now it is up to the DOL or Department of Justice (DOJ) to file an appeal with the Supreme Court, which appears unlikely. Those agencies have until June 13 to file an appeal.

(more…)


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.
GoTo top Top