Monthly Archives: January 2013

Data Privacy and Healthcare Alert: Final Rule implements HITECH revisions to Privacy and Security Rules

The Office for Civil Rights of the Department of Health and Human Services (OCR) issued an omnibus final rule (Final Rule) on January 17, 2013, implementing various provisions of the Health Information Technology for Economic and Clinical Health Act (HITECH Act or HITECH). The Final Rule revises the Privacy, Security and Enforcement Rules that were previously issued under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the interim final Breach Notification Rule that was previously issued in accordance with the HITECH Act. The Final Rule was published in the Federal Register on January 25, 2013, and is available here.

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Patient Protection and Affordable Care Act Alert-Issue 3: Health Care Reform – Employer "Pay or Play" Mandate in 2014

The re-election of President Obama and the lack of change in the control of the houses of Congress effectively ensure that the provisions of Health Care Reform will remain in place and will continue along the path of implementation.

This is the third Alert in a series designed to help employers understand and address the effects of Health Care Reform on your businesses so you are in the best position to make decisions in response to these new requirements. Our first Alert dealt with the implementation of new health flexible spending account limits; our second Alert provided guidance on reporting cost of health care coverage on form W-2. At this point, most of the regulatory guidance needed has either not yet been issued or has only been issued in proposed form. Therefore, we will provide the best possible guidance based on existing knowledge. 

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Predictive Coding: Will E-Discovery Swallow The Judicial System?

In an earlier article, we discussed the significance of Magistrate Judge Andrew J. Peck’s (SDNY) opinion in Da Silva Moore v. Publicis Groupe (2/24/12), a highly publicized decision that approved of the use of computer-assisted review in place of “eyes on” document review.

Eric Seggebruch, the Regional Manager for eDiscovery at Recommind, Inc., testified before Judge Peck as an expert witness during a  Da Silva Moore discovery hearing. Seggebruch has authored a helpful article titled “Electronic Discovery Utilizing Predictive Coding,” that provides both technical and practical insights concerning predictive coding and its likely future in the legal marketplace.  

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Authority grows on concealed weapons in the workplace

Arnstein & Lehr attorney Jesse R. Dill

Jesse R. Dill

In light of recent events, many employers are more concerned than ever over violence entering the workplace. Policies and security measures are being examined and highly scrutinized. Last month I wrote about a Western District of Kentucky decision that found an employee was not protected by Kentucky law when he pulled a firearm from his vehicle to show a security guard. An opinion followed shortly thereafter out of the Western District of Michigan that may also help employers interpret their state’s concealed carry laws.

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ILN Today Post

HOWARD & HOWARD CONGRATULATES OUR ATTORNEYS NAMED TO ILLINOIS SUPER LAWYERS AND ILLINOIS RISING STARS 2013

Royal Oak, Michigan, January 24, 2013: Thirteen of Howard & Howard’s attorneys were recently named to Illinois Super Lawyers® and Illinois Rising Stars 2013 as a result of a survey by Law & Politics Media, Inc.  They were selected through a process which included peer evaluation and independent research.  Only five percent of the attorneys in Illinois were named to the Super Lawyers list and two and one half percent to Rising StarsMore…

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Attention Food Service Providers: Celiac Disease and Severe Allergies Now Classified as Disabilities Under ADA

Andrea R. Calem and Frank C. Morris, Jr. have released an Act Now Advisory  – DOJ Serves Notice: Celiac Disease and Severe Allergies Now Classified as Disabilities Under the Americans With Disabilities Act, Creating Far-Reaching Implications for Virtually Every Facility Serving Food.    

Following is an excerpt:

A recent settlement agreement between the United States Department of Justice (“DOJ”) and Lesley University in Cambridge, Massachusetts explicitly extends the protections of the Americans with Disabilities Act (“ADA”) to individuals with severe allergies and autoimmune conditions such as celiac disease. The position of the DOJ Civil Rights Division reflected in this precedential settlement agreement shows that every entity serving food to the public, leasing to those who serve food and even employers with cafeterias must consider how ADA requirements may affect what food is offered, how it is prepared and even how it is stored.

Read the full advisory on the Epstein Becker Green website.

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Court Enforces Missouri Forum Selection Clause Against Resident Of The Philippines

Forum selection clauses are common in non-compete agreements, particularly when the employer is multi-state or multi-national. One question that often arises, however, is whether a court will actually require an employee to litigate in a distant jurisdiction with which he had minimal contacts. In a recent case from the Eastern District of Missouri, a federal judge enforced just such a forum selection clause.

Specifically, in Emerson Electric Co. v. Peter Ramos Yeo, the defendant, Peter Ramos Yeo (“Yeo”), was a former “key employee” who had signed a stock option agreement containing a non-compete clause and a Missouri forum selection clause. Because Yeo lives in the Philippines and purportedly had a “lack of minimum contacts with Missouri” (the court did not specify just how minimal his contacts with Missouri were), he challenged the enforceability of the Missouri forum selection clause, arguing, in effect, that the expense and burden of having to litigate in Missouri rendered the forum selection clause unfair and/or unreasonable. (Yeo also unsuccessfully challenged the enforceability of the non-compete on other grounds not discussed in this post.)

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Breaking News: Sweeping Changes to OSHA’s Sweep Auger Enforcement

By Amanda R. Strainis-Walker and Eric J. Conn

The roller coaster ride that has been OSHA’s enforcement policy in connection with work inside grain bins with energized sweep augers has taken another major turn.  After decades of employees working inside grain bins with sweep augers, a string of recent, somewhat confusing, Interpretation Letters issued by OSHA effectively banned the practice outright.  Now, a groundbreaking settlement of an OSHA case against an Illinois grain company became a Final Order of the OSH Review Commission in January, and that settlement renewed the industry’s right to work inside grain bins with energized sweep augers, and provided real clarity as to the conditions that OSHA considers to be acceptable for that work.

Sweep Augers

A sweep auger is a mechanism that attaches to a pivot point in the center of a flat-bottom grain bin, and then travels at very slow speeds in a circle around the bin, pulling grain from the perimeter of the bin towards a floor sump in the center of the bin by a helical screw blade called a flighting, where the grain exits to another conveying system.  Generally, one or more workers will be positioned inside the bin behind the sweep auger to make regular adjustments to the auger to keep it advancing on track, and also to manually sweep grain not captured by the auger.

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Supreme Court Opinion in Sebelius v. Auburn Regional Medical Center Rejects a Challenge by Hospitals to Medicare’s SSI Fraction Calculation

A unanimous Supreme Court has issued its opinion in Sebelius v. Auburn Regional Medical Center, No. 11-1231 (Jan. 22, 2013), rejecting a challenge by hospitals to Medicare’s Supplemental Security Income (“SSI”) fraction calculation, which affects the reimbursement amount health care providers receive for inpatient services rendered to Medicare beneficiaries and any upward payment adjustment for serving a disproportionate number of low-income patients. In doing so, the Court reversed the judgment of the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) allowing an administrative appeal made 10 years after the initial reimbursement determination.
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Supreme Court Opinion in Sebelius v. Auburn Regional Medical Center Rejects a Challenge by Hospitals to Medicare’s SSI Fraction Calculation

A unanimous Supreme Court has issued its opinion in Sebelius v. Auburn Regional Medical Center, No. 11-1231 (Jan. 22, 2013), rejecting a challenge by hospitals to Medicare’s Supplemental Security Income (“SSI”) fraction calculation, which affects the reimbursement amount health care providers receive for inpatient services rendered to Medicare beneficiaries and any upward payment adjustment for serving a disproportionate number of low-income patients. In doing so, the Court reversed the judgment of the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) allowing an administrative appeal made 10 years after the initial reimbursement determination.

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