HEALTH REFORM: PPACA Amends Rehabilitation Act to Mandate Standards for Medical Diagnostic Equipment to Accommodate Individuals with Disabilities

The Patient Protection and Affordable Care Act (“PPACA”) contains a provision that will significantly affect all types of health care manufacturers and providers.[1] Section 4203 of PPACA amends Title V of the Rehabilitation Act of 1973 (“Rehab Act”) by adding a new section that requires the Architectural and Transportation Barriers Compliance Board (“ATBCB”), in consultation with the Food and Drug Administration (“FDA”) Commissioner, to promulgate regulatory standards for medical diagnostic equipment used in physician offices, clinics, emergency rooms, hospitals, and other medical settings to accommodate the needs of individuals with disabilities. Particularly, the standards are intended to ensure that individuals with disabilities (a) have access to and use of the equipment, and (b) will independently be able to enter, use, and exit the equipment to the maximum extent possible. The medical diagnostic equipment explicitly mentioned in this provision includes examination tables and chairs, weight scales, and radiological equipment.

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What It Takes to Be a Winner

Please CLICK HERE to read about PowerPlay NYC’s exciting, upcoming event–“What It Takes to Be a Winner”–which will be held on July 6, 2010, from 11 a.m. to 1 p.m., at The Yale Club (50 Vanderbilt Avenue in Manhattan).  The event will feature a conversation with Venus Williams, who is celebrating the publication of her new book entitled Come to Win: How Sports Can Help You Ace Your Goals and Top Your Profession, and lunch and leadership conversations with PowerPlay’s Summer Leadership Academy participants.

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Corporations Cannot Appear in Court Without an Attorney

The current economy may cause corporations to try to cut costs by having a non-attorney such as a corporate officer appear in court on their behalf.  After all, individuals can appear in court pro se (representing themselves without an attorney).  Foregoing legal representation is not a good strategy in Washington State, however, because the state’s […]

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ARB Clarifies Burden Whistleblowers Bear for Equitable Extension of SOX Statute of Limitations

On the heels of its 2-1 decision in Hyman v. KD Resources, allowing equitable estoppel to extend the Sarbanes-Oxley (SOX) statute of limitations (noted in our blog posting of April 20, 2010), the Department of Labor Administrative Review Board (ARB) has issued a unanimous decision clarifying the burden for whistleblowers to survive dismissal of complaints that are not filed within the explicit 90-day statute of limitations. Daryanani v. Royal & Sun Alliance, ARB No. 08-106, ALJ No. 2007-SOX-79 (ARB May 27, 2010).

Adhering to the principle that equitable estoppel may apply when certain employer conduct interferes with a whistleblower-employee’s exercise of rights, the ARB nevertheless refused to extend the SOX statute of limitations on the basis of alleged inaction by an employer. Holding equitable estoppel would not be available in the circumstances, the ARB observed that the employer had no affirmative obligation to:

  • inform the employee of potential causes of action,
  • inform the employee of time limitations applicable under statutes creating a cause of action, or
  • counter-sign a severance release agreement within the statute of limitations deadline.
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Vermont Gift Ban and Disclosure Laws Amended to Require Drug and Device Manufacturers to Report Product Samples

Recently enacted Vermont Senate Bill 88 (“S.B. 88“)[1] amends Vermont’s existing gift ban law, Vt. Stat. Ann. tit. 18, § 4631a (“§ 4631a“), and disclosure law, Vt. Stat. Ann. tit. 18, § 4632 (“§ 4632“).[2] Significantly, S.B. 88 requires manufacturers of pharmaceuticals, medical devices and biological products[3] to report annually to the Vermont Office of the Attorney General certain information related to “free samples of prescribed products provided to health care providers during the preceding calendar year.”[4] “Sample” is defined as “a unit of a prescription drug, biological product, or medical device that is not intended to be sold and is intended to promote the sale of the drug, product, or device,” including starter packs and coupons or vouchers that allow an individual to receive a prescribed product for free or at a discounted price. The first report is due by April 1, 2012, for the reporting period of January 1, 2011, through December 31, 2011.

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Executive Order 13496 Requires Federal Contractors and Subcontractors to Notify Employees of Their Rights Under the National Labor Relations Act

On May 20, 2010, the U.S. Department of Labor’s Office of Labor-Management Standards published its final rules implementing Executive Order 13496. See 29 CFR Part 471 (Notification of Employee Rights Under Federal Labor Laws) As a result, beginning on June 19, 2010, federal contractors and subcontractors that enter into new federal contracts, subcontracts, or modifications to existing contracts on or after that date will be required to post a detailed government notice (“Notice”) informing employees of their rights under the National Labor Relations Act (“NLRA” or “the Act”). These rights include not only the right to obtain union representation and to engage in collective bargaining but also, for example, the right to share wage and benefit information with co-workers and others. As the regulations make clear, Executive Order 13496 and the Notice are intended to promote collective bargaining, and along with it, union organizing activity. The regulations also provide direction on how and where the Notice is to be posted and communicated to employees, and explain how the Department of Labor (“DOL”) will enforce the posting requirements.

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BC Clean Energy Act Becomes Law

On June 3, 2010, the Clean Energy Act (the “CEA”) received Royal Assent in the BC Legislature. The Province of British Columbia now has a dedicated piece of renewable energy legislation, rather than a set of well intentioned plans and policies.

The CEA is a progressive law and the product of the government’s long standing commitment to clean energy and reducing greenhouse gases. In essence, the CEA puts into law, key objectives of the government’s two Energy Plans (from 2002 and 2007) and its 2008 Climate Action Plan. The CEA lays the foundation for the renewable energy industry to be the economic driver in the Province for years to come.

The CEA also came to be, in part through the efforts of the Green Energy Advisory Task Force, of which I was privileged to be a member. The comprehensive Task Force report can be found here. It’s a must read for any one interested in British Columbia energy policy.

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HEALTH REFORM: New Regulations Implement Dependent Child Medical Coverage to Age 26

The Patient Protection and Affordable Care Act1 and Health Care and Education Reconciliation Act2 (together, the “Act”) added the requirement that group health plans that cover dependents now cover them through the age of 26. In the first joint guidance issued from all three of the responsible government agencies, Interim Final Rules (the “Regulations”)3 have clarified and applied the requirement. However, employers may be surprised by some of the details added by the Regulations.

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ARB Adopts Iqbal and Dismisses Whistleblower Complaint Lacking Factual Link to Statute Invoked

Employers bewildered by ambiguous whistleblower complaints have a newfound ability to win dismissal where the facts pleaded do not show protected activity and articulate an entitlement to relief. The decision by the Administrative Review Board (ARB) in Evans v. United States Environmental Protection Agency (ARB Apr. 30, 2010) (pdf) adopts and applies the U.S. Supreme Court’s ruling in Ashcroft v. Iqbal (pdf), which holds that a complaint is subject to dismissal if it fails to plead sufficient facts to state a claim.

A 2-member majority of the ARB upheld dismissal of a complaint about “compliance issues”, because it did not articulate factual allegations showing that the underlying action was within the reach of federal whistleblower statutes.  Having failed to ground his complaint in the environmental laws he invoked, the whistleblower was not able to survive dismissal of his retaliation claims. 

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Proposed Regulations Expand the D.C. Family and Medical Leave Act to Include Employees Outside the District of Columbia

On May 7, 2010, the D.C. Office of Human Rights (“OHR”) issued its notice of intent to amend the current regulations for the D.C. Family and Medical Leave Act (“DCFMLA”). In large part, the proposed regulations comport with the federal regulations for the FMLA. However, the proposed regulations contain several additional and more burdensome requirements for D.C. employers, including expanding the DCFMLA’s coverage to include employees outside the District. Thus, if these regulations are enacted, D.C. employers will need to revise their current family and medical leave practices and procedures to ensure compliance with the law.

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