Monthly Archives: August 2012

New Article About What Grain Handlers Should Do to Prepare for and Manage OSHA Inspections

By Eric J. Conn, Head of the OSHA Practice Group

We recently authored an article for Feed & Grain magazine entitled “When OSHA Comes Knockin’.” The article explains why employers in the grain industry need to be prepared for an OSHA inspection, and outlines steps they should take to prepare for and manage a visit from an OSHA inspector.

Here is an excerpt from the article:

As Alexander Graham Bell famously said, “Before anything else, preparation is the key to success.” No truer words could be said to employers in the grain industry today about OSHA inspections. Secretary of Labor, Hilda Solis, summed up OSHA’s enforcement philosophy during her swearing in, when she stated: “There is a new sheriff in town. Make no mistake about it, the Department of Labor is back in the enforcement business. We’re serious. We’re very serious.” OSHA has certainly lived up to that tough talk.

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ICD-10 Compliance Delayed

In response to public encouragement, HHS announced earlier this week that it will delay requirements for ICD-10 compliance from October 1, 2013 to October 1, 2014.  The reconsideration of the compliance date was, according to the final rule,  a result of  ”(1) the industry transition to Version 5010 did not proceed as effectively as expected; (2) providers expressed concern that other statutory initiatives are stretching their resources; and (3) surveys and polls indicated a lack of readiness for the ICD-10 transition.”  To view the final rule announcing the compliance delay click here.

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Can Telemedicine Operators Provide Free or Discounted Technology to Participating Providers?

Imagine there are two hospitals (or two physician groups). One is highly specialized and has developed a telemedicine program for treating stroke patients; the other is a community hospital or physician practice that would like to take part in this telemedicine program but does not want to pay for the technology needed to virtually connect with the program’s specialists.  Can the telemedicine provider buy this technology for the receiving hospital or physician group, or rent it out at a deep discount, without violating the law? 

This turns out to be a hard question. Under federal law, it is a criminal offense to knowingly and willfully pay another provider as an inducement or reward for referrals of items or services provided under federal health care programs, such as Medicare or Medicaid. This is known as the Anti-Kickback Statute, and the penalties for violating it can be severe (see here and here). There are exceptions to the Anti-Kickback Statute (referred to as safe harbors), but none of these are likely to apply in this context.

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CMS signals examination of medical staff participation rule – what it means for your transaction preparation

Earlier this summer, I wrote about the new conditions of participation for hospitals that, among other things, would have required medical staff participation on hospital governing boards. As I suggested might happen, it appears CMS may revisit this requirement. Specifically, CMS has apparently directed state survey agencies not to assess compliance with this requirement, or to cite deficiencies relating to any non-compliance with this requirement, until further advised by CMS.

There are a variety of ways to look at the circumstances of and fallout from the medical staff participation requirement. At the time the new conditions of participation were announced, this appeared a cautionary tale, one that illustrated the potential and unintended consequences, and potentially adverse effect, of a lack of foresight, proper analysis and planning. In view of the recent suspension of enforcement, which may lead to an eventual abandonment or repeal of the rule, this may now look like nothing more than an example of how even potentially significant adverse consequences can ultimately be avoided, or “undone”.

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ILN Today Post

Home Building Act update: No duty of care owed by builders and developers when statutory warranties apply

Following the recent Supreme Court decision of Owners Corporation Strata Plan 72535 v Brookfield[1], builders and developers do not owe a common law duty of care to owners corporations, or it would appear other successors in title, in circumstances where there is an alleged breach of the statutory warranties implied by the Home Building Act 1989 (NSW) (Act).

Further, the Court held that whether a particular contract is a contract to do ‘residential building work’ within the meaning of the Act will be determined by considering the subject matter of the contract at the time the contract was entered into and the subsequent use of the building does not affect this assessment. More…

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Glass ceiling no longer as relevant for modern career women

A recent survey of 1,000 UK working women between the ages of 18 – 60 has revealed that two thirds believe they faced multiple barriers throughout their careers, rather than just a single ceiling on entry to the boardroom.

The survey, by Ernst & Young, identified four key barriers to career progression for today’s working women – age, lack of role models, motherhood, and qualifications and experience.

When respondents were asked to identify what three things their organisations could do to remove these barriers, or better support women’s career progression, the top answers were:

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"How changes to health care laws will impact businesses in the short and long term," Dale R. Vlasek interviewed by Smart Business Magazine

During the next two years, there are things that employers need to know and need to be doing to comply with the Patient Protection and Affordable Care Act.

“While this was working its way through the Supreme Court, many were holding their breath waiting to see what would happen,” says Dale R. Vlasek, a member and chair of the employee benefits practice group for McDonald Hopkins. “The decision is that it is constitutional, which means that businesses must take action.”

Smart Business spoke with Vlasek about the changes businesses need to be aware of as health care reform takes effect. 

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Requiring Confidentiality During HR Investigations May Violate National Labor Relations Act

By:  Steven M. Swirsky, Adam C. Abrahms, Donald S. Krueger, and D. Martin Stanberry

In another foray by the National Labor Relations Board (“NLRB” or the “Board”) into new territory affecting non-union workplaces, a divided three-member Board panel found that an employer’s direction that employees not discuss matters under investigation with their co-workers violated Section 8(a)(1) of the National Labor Relations Act (the “Act”) because it “had a reasonable tendency to coerce employees in the exercise of their rights” under the Act. Banner Health System, 358 NLRB No. 93 (July 30, 2012).

In concluding that the request for confidentiality “had a reasonable tendency to coerce employees,” the majority gave no weight to the fact that the request was not tied to a threat of discipline. Instead, without offering any explanation, the Board held that “[t]he law… does not require that a rule contain a direct or specific threat of discipline in order to be found unlawful.”

Read the full advisory online

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Mark F. Miller attends London Olympic Games as World Archery official

Arnstein & Lehr Attorney Mark F. Miller

Mark F. Miller

Arnstein & Lehr Chicago Partner Mark F. Miller attended the London Olympic Games as an Executive Board member of World Archery (“WA”) and as chair of the WA Constitution and Rules Committee. WA is the International Governing Body for international archery recognized by the International Olympic Committee. The Executive Board is made up of 14 members from throughout the world. Mr. Miller is the only member from the Western Hemisphere. While the Olympics are under the control of the International Olympic Committee, each sport’s International Federation conducts the event for the IOC.

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Robert E. McKenzie speaks on national business talk radio, Money for Lunch, regarding taxation issues

Arnstein & Lehr Attorney Robert E. McKenzie

Robert E. McKenzie

Arnstein & Lehr Chicago Partner Robert E. McKenzie spoke on August 24 on Money For Lunch, a talk radio channel, regarding various taxation issues and the IRS. Mr. McKenzie comments the average taxpayer has 1.1% chance of being audited, plus he describes various factors that increase the chance of being audited. Mr. McKenzie’s segment starts at the 47 minute, 35 second point in the below link.

To listen to the radio interview, please click here.

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