300-135 400-051 101 adm-201 1z0-808 CCA-500 1v0-621 mb2-707 70-980 70-483 2v0-621 nse4 1z0-434 9l0-012 101-400 300-085 og0-093 1z0-061 70-488 1z0-062 mb5-705 102-400 PEGACPBA71V1 70-463 mb2-704 PR000041 IIA-CIA-PART1 700-037 PEGACSA71V1 1z0-144 2v0-621d 1z0-051 070-461 a00-211 jn0-102 1z0-804 640-875 API-580 3002 400-151 98-365 712-50 9l0-066 ns0-506 156-215.77 70-466 lx0-104 9a0-385 642-980 og0-091 74-678 700-260 70-494 c_tfin52_66 lx0-103 m70-101 pmi-001 DEV-401 1z0-067 1K0-001 220-801 TB0-123 700-038 IIA-CIA-PART2 cwna-106 070-487 hp0-y50 070-483 mb2-708 C2010-595 1z0-883 c_tadm51_731 pk0-003 700-039 jn0-633 98-364 300-080 74-343 1z0-133 70-465 c_tscm62_66 PRINCE2-PRACTITIONER mb6-704 1v0-605 API-571 500-007 and-401 c_taw12_731 AX0-100 070-463 70-981 1z0-052 070-488 c_hanatec_10 010-111 mb6-700 700-270 600-455 600-460 1z0-533

Accountable Care Organizations and the Admissibility of Guidelines in Malpractice Cases

By Joseph C. Vitale

The fundamental purpose of the Patient Protection and Affordable Care Act (the ACA) is to “increase the number of Americans covered by health insurance and decrease the cost of health care.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S.Ct. 2566, 2580 (2012). Accordingly, the ACA has expanded a program for Accountable Care Organizations (ACOs), which are organizations of health care providers responsible for the quality, cost, and overall care of the whole patient. Federal law requires that ACOs establish and implement guidelines to promote “evidence-based medicine” and “patient engagement.” 42 C.F.R. § 425.112.

The Threat of ACO Guidelines in Malpractice Litigation

Without limitations in place, ACOs and their federally-mandated guidelines may prove problematic for health care providers in malpractice cases. Of primary concern is that medical guidelines could be used to actually establish the standard of care. Moreover, these guidelines present a potential Catch-22 for ACOs and their physicians. Guidelines may expose physicians to liability for failure to comply. Yet if the physician comports with the guidelines, a plaintiff might argue that cost savings were prioritized over the medical needs of the patient, as guidelines are implemented in part to cut costs. The financial benefit to ACOs may cause physicians to become hesitant of cost-saving guidelines. Guidelines can be particularly concerning when they entail a deviation from a physician’s current practice, as physicians may be ultimately held negligent in adhering to the guidelines.

Limited Admissibility of Guidelines

On April 16, 2015, President Obama signed into law the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA). Under MACRA, federally-required guidelines cannot be used to establish the standard of care owed by a health care provider in a malpractice claim. 114 P.L. 10, 129 Stat. 87 (2015).

Conclusion

MACRA does not entirely prevent the use of guidelines in malpractice claims. For example, the law does not expressly prohibit plaintiffs from (1) using other guidelines not adopted by ACOs as evidence pertaining to standards of care; (2) using adopted guidelines to buttress or rebut expert testimony regarding the standard of care; or (3) using guidelines to demonstrate cost-cutting measures. While these questions remain unanswered, MACRA resolves the most significant concern of ACOs by ensuring that professional liability cannot be determined simply by assessing outlined metrics, rather than by treating patients according to their specific needs.

 

Employee or Independent Contractor? The Pitfalls of Worker Misclassification

By Jason W. Kinser

The challenge of properly classifying workers as “employees” or “independent contractors” is drawing increased attention as of late, as both state and federal agencies have been more focused on investigation and enforcement.

Advantages of Independent Contractors

There are certainly financial incentives for organizations to classify workers as independent contractors rather than employees. Typically, independent contractors are reported to the IRS on a Form 1099 instead of a Form W-2. Consequently, employers are not required to withhold taxes, make Medicare or Social Security contributions, or pay unemployment and workers’ compensation premiums for independent contractors. Further, employee benefit plans—including group health insurance, paid leave, and 401(k) plans—only cover employees and do not typically extend to independent contractors.

The Expense of Misclassifying Workers

Unfortunately, misclassifying workers as independent contractors can end up costing an employer plenty. Therefore, it is so important to properly classify workers and avoid hefty fines, penalties, and potential litigation and reputation issues related to noncompliance.

Factors for Properly Classifying Workers

It can be difficult for an employer to properly classify a worker as an employee or independent contractor. The determination is fact intensive, and no single factor is dispositive. Perhaps the most important factor in the determination is the element of control — does the employer retain control over the manner in which the work is being performed? The more control the employer exerts over how the work is performed, the more likely the worker will be deemed an employee and not an independent contractor. Other examples include monitoring, training, and exclusivity. Does a manager typically direct the individual’s work? Does the employer provide training, tools, or other assistance to the worker? Is the individual prohibited from performing similar work for other companies? If the answer to these questions is yes, it is more likely the worker is an employee and not and independent contractor.

Conclusion

Because of increased federal and state enforcement activity, and the severity of the fines and penalties associated with misclassifying workers, it is important to talk to a skilled employment attorney who can analyze the relevant factors and assist in the proper classification of workers to avoid potentially significant risks and liabilities to the organization.

 

Do You Need to Form a Limited Liability Company?

By Brandon A. DeWitt

Today, the most popular form of business entity is the limited liability company (LLC). LLCs have become the entity of choice because LLCs offer numerous benefits to its owners. Such benefits include personal liability and asset protection, credibility, tax savings, anonymity, the ease of raising capital, creating a separate legal entity for personal protection, separate liability for corporate debts, and perpetual duration. If you are starting a company or currently operating an unincorporated business, this article will provide you with a basic understanding of whether you would benefit from forming an LLC.

Brief History

LLCs were first recognized in the United States in 1977. Today, LLCs are recognized as a form of business entity in all 50 states and the District of Columbia. An LLC is a form of business entity designed to combine the corporate attribute of limited liability for its owners with the partnership attribute of “pass-through” tax treatment. By combining the most attractive attributes of corporations and partnerships, the LLC has become a popular alternative to the more traditional corporate and partnership forms.

Personal Liability and Asset Protection

When you form an LLC, you create a separate “person” under the law. Most importantly, forming an LLC provides personal liability protection to the LLC owners. The LLC can provide a strong shield to protect the personal assets of the owners. Those who choose not to form an LLC put themselves at significant risk of personally liability.

Tax Advantages

An LLC can also offer several tax benefits. For example, an LLC can choose how it will be taxed. An LLC is typically taxed at the same rate as a sole proprietorship. An LLC can, however, elect to be taxed as a corporation if it so chooses. Also, many tax deductions are available after forming an LLC.

Conclusion

Selecting the right type of business entity is important to maximizing the financial and operational success for your business. If you are currently operating an unincorporated business or starting a new business, we strongly recommend that you contact an attorney and accountant to discuss the costs and benefits of forming an LLC.

The Hidden Dangers of Unsolicited Fax Messages

By:  Brandon A. DeWitt

Any Company or individual that uses a fax machine to send advertisements should be aware of the Federal Telephone Consumer and Protection Act (TCPA) and the Junk Fax Prevention Act (JFPA) (collectively referred to as the “Rules”).  The Rules state that it is unlawful to send unsolicited advertisements to any fax machine, including those at both businesses and residences, without the recipient’s prior express invitation or permission.  Under these Rules, any entity that sends an unsolicited fax to a business or individual without their permission is subject to a fine of $500.00 for every junk fax sent, which is increased to $1,500.00 if the recipient can show knowledge and intent on behalf of the sender.  In addition to these penalties, a recipient is often entitled to recover their attorney’s fees from the sender.

Under very limited circumstances, a company or individual is allowed to send unsolicited fax messages without violating the Rules.  Under the Rules, unsolicited fax messages are lawful if there exists both (a) an established business relationship and (b) an opt-out notice meeting the requirements of 47 U.S.C. § 227(b).  While this exception seems straight forward, it has been highly scrutinized by both the Federal Communications Commission and the Federal Courts, and, as a result, complex body of law has developed which requires fact intensive analysis to determine whether a sender falls under the exception.  In order to fall under the protection of this exception, a sender must be careful to follow these strict guidelines that have been set forth in numerous FCC and Federal Court Opinions.

One must also be aware that insurance policies typically exclude coverage for any violations of these Rules.  Therefore, unless you purchased a special policy from your insurance agent that specifically applies to violations of these Rules, it is very likely that you do not currently possess any applicable insurance coverage.  As a result, if you are sued for violating the Rules, your insurance carrier will decline to defend you and will decline to pay any judgment entered against you.  Many companies have been forced into bankruptcy as a result of such judgments.

For further information we recommend that you review the Rules and the FCC Advisory Opinions which can be found at http://www.fcc.gov/guides/fax-advertising.  If your company regularly sends unsolicited faxes, we would strongly recommend that you consult with your attorney before sending any further unsolicited faxes so that you can determine whether you are complying with the Rules and whether you have sufficient insurance coverage to protect you in the event you violate these Rules in some way.