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Eleventh Circuit Rejects Expert Challenge to Clinical Judgment Decision in Hospice False Claims Act Litigation
Dykema, September 2019

On September 9, 2019, the U.S. Court of Appeals for the Eleventh Circuit issued an important decision for health care providers, especially those in the hospice industry. InU.S. v. AseraCare, Inc.,No.16-13004, Slip. Op. (11thCir. September 9, 2019), the Court held that a “reasonable disagreement between medical experts” about prognosis for a terminally ill patient, without more, cannot establish falsity. Slip. Op. at 3...

The QOZ Clock is Ticking
Dykema, August 2019

As the first of several deadlines under the Qualified Opportunity Zone (“QOZ”) program rapidly approaches, investors still on the sidelines are discovering that time is running out on the ability to take advantage of the full suite of tax benefits under the program. December 31, 2019 marks the last day in which investors may roll over capital gains into Qualified Opportunity Funds (“QOF”) and obtain a 15% reduction in the amount of the deferred gain...

Chicago Adopts “Fair Work Week Ordinance”
Dykema, July 2019

Expansive Law Aimed at Predictive Scheduling for Workers, Limiting Employers’ Ability to Unilaterally Change Work Hours On July 24, 2019, the City of Chicago enacted the “Fair Work Week Ordinance,” requiring that many businesses provide workers with up to two-weeks advance notice of their work hours and schedules...

Illinois Municipalities Begin Debate on Recreational Cannabis Businesses
Dykema, July 2019

With the State of Illinois’ recent legalization of recreational cannabis, municipalities have started to debate whether to “opt in” to allow such businesses. While municipalities cannot prohibit the use of recreational cannabis, they can decide whether recreational cannabis businesses are allowed to operate within their boundaries. Local officials are just starting to consider the pros and cons of recreational cannabis businesses in their communities...

Lawsuit Filed to Stop August 1 Effective Date of San Antonio Paid Sick Leave Ordinance
Dykema, July 2019

UPDATE III: Judge Agrees to Delay San Antonio Paid Sick Leave Ordinance At a hearing this morning, Judge Sol Casseb entered the Agreed Order submitted by attorneys for the City and the businesses that filed suit regarding their agreement to delay the effective date of the PSL ordinance from August 1 to December 1...

USPTO to Require U.S. Counsel for Foreign-Domiciled Trademark Owners Effective Aug 3. Foreign Applicants & Registrants should take steps to ensure compliance.
Dykema, July 2019

On July 2, 2019, the PTO announced it will implement a rule requiring U.S. counsel for foreign-domiciled trademark applicants and registrants. The new rule is effective August 3, 2019, and applies to all trademark owners with a foreign address. We discussed the rule in ourFebruary Alert. For any new filings after the effective date, licensed U.S. counsel must be designated...

Lawsuit Filed to Stop August 1 Effective Date of San Antonio Paid Sick Leave Ordinance
Dykema, July 2019

Effective August 1, employers with more than five employees working in the City of San Antonio must provide to all such employees paid sick leave (“PSL”) of up to 64 hours per year (for employers with more than 15 employees) or 48 hours (for employers with 15 or fewer employees) for a variety of reasons related to themselves or family members; employers with five or fewer employees are not required to comply with the PSL ordinance until August 1, 2021...

Kaestner: States Cannot Tax Trusts Based Solely on Residency of Beneficiaries
Dykema, July 2019

The U.S. Supreme Court recently released its opinion inNorth Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust, largely vindicating the understanding of most estate planners: A state cannot tax the income of a trust where the only connection to the state is the presence of the trust’s discretionary beneficiary. Facts inKaestner The facts inKaestner, in brief, are as follows...

Michigan Opens the Door for Expanded Solar Development on Farmland
Dykema, June 2019

On Monday, June 3, Governor Gretchen Whitmer and the Michigan Department of Agriculture and Rural Development (MDARD) announced MDARD’s decision to allow for commercial solar energy development on land currently enrolled in the Farmland and Open Space Preservation Program, commonly known as PA 116. PA 116 was established in 1975 and is designed to preserve farmland and open space in Michigan...

Do You Know What the Capital Gains Rate Will Be in 2026?
Dykema, June 2019

Among the many benefits of investing in a qualified opportunity fund (QOF) is the deferral of tax on current capital gains. Specifically, if an amount equivalent to a current capital gain is invested in a QOF within 180 days of the realization event, the tax generally will not come due until the earlier of the year in which the QOF investment is disposed of or 2026...

Illinois Tax Amnesty—A Limited Time Opportunity for Significant Benefits
Dykema, June 2019

The Illinois legislature has approved and Governor Pritzker has signed into law significant revisions to the Illinois Tax Delinquency Amnesty Act (35 ILCS 745/10). The new amnesty program is the first in Illinois since 2010 and is an important opportunity for noncompliant taxpayers to resolve both known and previously unknown Illinois tax obligations. The amnesty program will run from October 1, 2019, through November 15, 2019, and is generally open to all taxpayers...

Is Growing and Dispensing Cannabis a Sin?
Dykema, June 2019

In mid-May, Treasury Secretary Mnuchin told the Subcommittee on Financial Services and General Government of the Senate Appropriations Committee that cannabis businesses would not be eligible for Opportunity Zone (“OZ”) tax benefits...

DOJ’s New Civil Division Cooperation Guidelines For False Claims Act
Dykema, May 2019

On the heels of the DOJ Criminal Division’s revisions to itsCorporate Enforcement Policyto encourage cooperation, the Civil Division’s Commercial Litigation Branch has issued its owncooperation guidelinesthat identify a non-exhaustive list of types of cooperation that may entitle entities or individuals to cooperation credit...

Supreme Court Exposes FCA Defendants To Decade-Old Relator Suits
Dykema, May 2019

When the Supreme Court accepted the cert petition to resolve a Circuit split regarding the False Claims Act’s statute of limitations when the government does not intervene, it created thepotential that the Court would extend the limitations periodfor private relators’ FCA actions. That is exactly what happened...

Does Your Corporate Compliance Program Meet the DOJ’s Expectations? New Guidance Serves as a Roadmap for Assessment.
Dykema, May 2019

The Criminal Division of the U.S. Department of Justice recently issued an updated guidance document on theEvaluation of Corporate Compliance Programs. The new document, which significantly expands on the prior version issued in early 2017, largely follows the structure of its predecessor but provides much more detail than ever before. Indeed the new version is more than double the length of the prior version...

Court Limits Authority of DOJ to Dismiss Relator Claims
Dykema, April 2019

  Court Limits Authority of DOJ to Dismiss Relator Claims April 23, 2019 TheGranston Memoraised concerns that the U.S. Department of Justice (DOJ) would employ its authority under 31 U.S.C. § 3730 tounderminequi tamrelator actions. Since the Memo was issued, the DOJ moved to dismiss 11 Anti-Kickback Statute cases brought by a professional relator, the National Health Care Analysis Group (“NHCAG”)...

DOL Proposes Another Major FLSA Rule Change: This Time on Calculating the “Regular Rate of Pay” for Overtime
Dykema, March 2019

Earlier this month, the DOL published a Notice of Proposed Rulemaking (“NPRM”) to increase the minimum salary level most exempt employees must be paid in order for them to be deemed exempt from the FLSA’s overtime pay requirements. For a summary of that proposal,click here. The comment period for the proposed changes will close in late May, and it is anticipated that the salary level rules will be finalized and implemented in early 2020...

Community Solar 101
Dykema, March 2019

Texas LawyerMarch 14, 2019By Rodrigo Figueroa According to ERCOT, the entity that oversees 90 percent of the State’s grid, as of January 2019 there was nearly 1,500 megawatts of installed utility-scale solar capacity in the ERCOT region, with that number expected to almost triple to 4,300 megawatts by the end of 2020 (one megawatt is enough to power about 200 homes in Texas during times of high-peak demand)...

DOL Finally Proposes New White Collar Exemption Regulations
Dykema, March 2019

The much awaited revised new regulations governing who qualifies for the FLSA white collar exemption has finally been revealed by the Department of Labor. It did so on March 8 by publishing anNPRM(“Notice of Proposed Rule Making”). In December of 2016, a Texas federal court entered a nationwide injunction halting the implementation of new regulations which would have dramatically increased the salary threshold for exempting most white collar employees from overtime...

All Stop: Ruling on the Applicability of Exclusion to BIPA Claims Delayed
Dykema, March 2019

The fallout from the Illinois Supreme Court’s January 25, 2019, opinion in Rosenbach v. Six Flags Entertainment Corp., 19 IL 12316, continues.Rosenbach settled the dispute of who qualifies as an “aggrieved person” under the Illinois Biometric Information Privacy Act (“BIPA”), and in doing so opened the floodgates for this litigation to proliferate...

Biometrics and Search Warrants: The Intersection of Your iPhone and the Fourth and Fifth Amendments
Dykema, March 2019

On January 19, 2019, federal Magistrate Judge Kandis Westmore of the Northern District of California denied the Government’s application for a search warrant that sought: “all digital devices” present at a California residence; (Order at 3), and “any individual present at the time of the search to press a finger (including thumb) or utilize other biometric features…for the purposes of unlocking the digital devices found in order to permit a search of

PTO Proposes U.S. Counsel Requirement for Foreign Domiciled Trademark Applicants And Registrants
Dykema, February 2019

Goal Is to Improve Accuracy and Reduce Potentially Invalid Registrations On February 14, 2019, the United States Patent and Trademark Office (PTO) issued aNotice of Proposed Rulemaking(“NPRM”) to require foreign domiciled trademark applicants and registrants to be represented by a licensed U.S. attorney at the PTO. The comment period on the NPRM is open until March 18, 2019...

The Supreme Court Remains Steadfast in Favor of Arbitration
Dykema, February 2019

Justice Kavanaugh’s first authored opinion as a Supreme Court Justice inHenry Schein, Inc. v. Archer and White Sales, Inc., No. 17-1272, 586 U.S. ____ (2019) further cements the Supreme Court’s stance on arbitration. Over the years, the Supreme Court has consistently held in favor of arbitration and rejected attempts by parties and the lower courts to ignore binding arbitration clauses. For instance, inAT&T Mobility LLC v. Concepcion, 131 S. Ct...

Win Your Lender-Liability Lawsuit and Enforce Your Loan Documents with this 342-Year-Old Statute
Dykema, January 2019

Long before eMortgages, electronic signatures, and mobile apps hit the secured lending scene, Lord Nottingham proposed that the English Parliament pass An Act for Prevention of Frauds and Perjuries in 1677 to prevent nonexistent agreements from being “proved” through false testimony. That statute and its progeny remain an important resource in today’s financial services industry...

USCIS Announces Changes to Selection Process for Cap-Subject H-1B Petitions
Dykema, January 2019

The U.S. Department of Homeland Security (DHS) has announced it will issue a new Final Rule on January 31, 2019, reversing the order by which the USCIS will select H-1B applications submitted under the statutory/numerical cap and introducing an electronic registration requirement for employers filing H-1B cap-subject petitions. The reverse-selection provisions of the rule will go into effect on April 1, 2019...

Different Viewpoints Represented at the Latest California Attorney General’s Office Public Forum on the California Consumer Privacy Act
Dykema, January 2019

On Friday, January 25, 2019, California Attorney General Xavier Becerra’s Office held the fourth of its six public forums in connection with its rulemaking process for the California Consumer Privacy Act (“CCPA”). The purpose of the open forum, which was held in Los Angeles at the Ronald Reagan State Building, was to provide an initial opportunity for the public to participate in the CCPA rulemaking process...

Illinois Supreme Court’s Rosenbach Ruling Likely to Expand BIPA Litigation
Dykema, January 2019

Last Friday, the Illinois Supreme Court delivered the highly anticipatedRosenbach v. Six Flags Entertainment Corp., 2019 IL 123186, opinion. Businesses and consumers alike watched for the Court’s opinion regarding whether mere technical violations of the Illinois Biometric Information Privacy Act (“BIPA”) gave plaintiffs the requisite standing to seek damages under the statute...

An Open Door to Greater Development Opportunities: Chicago City Council Approves New Transit Served Location Legislation
Dykema, January 2019

The Chicago City Council recently approved a significant amendment to the transit-oriented development provisions of the Zoning Ordinance. Prior to the change, the Chicago Zoning Ordinance, through increases and reductions of certain development standards, allowed for larger, more dense buildings on properties in close proximity to CTA or Metra train stations...

Pathways to Success ACO Model
Dykema, January 2019

The U.S. Centers for Medicare and Medicaid Services (CMS) issued a final rule redesigning the Medicare Accountable Care Organization (ACO) program via a new Pathways to Success ACO model. [1]See83 FR 67816 (Dec. 31, 2018). CMS stated five goals for this redesign: ACO Accountability, Competition, Engagement, Integrity, and Quality...

Medicare Coverage for Ambulance Services – Physician Certification Will Not Be Enough
Dykema, January 2019

A physician certification for Medicare coverage for ambulance services is not the final word. An ambulance service also must demonstrate the beneficiary’s condition and establish medical necessity when transporting the Medicare beneficiary...

Bona Fide Prescriber-Patient Relationship Requirement for Controlled Substance Prescribing Effective January 4, 2019
Dykema, January 2019

Bona Fide Relationship Requirement Law. Public Act 247 of 2107, MCL § 333.7303a(2), requires that except as provided in exceptions detailed in administrative rules, a prescriber must be in a bona fide prescriber-patient relationship with a patient before prescribing a schedule 2-5 controlled substance (“CS”)...

If You Have Suggestions for Improving the HIPAA Privacy or Security Rule, Now Is the Time to Speak Up
Dykema, January 2019

On December 14, 2018, the U.S. Department of Health and Human Services’ Office for Civil Rights (OCR) published a Request for Information (RFI) about ways to modify the HIPAA Privacy and Security Rules[1]to promote the transition of the health care industry to a value-based Medicare payment model and improve care coordination for patients. See “Request for Information on Modifying HIPAA Rules to Improve Coordinated Care,” 83 FR 64302 Page:64302-64310...

Best Practices For Sellers in The Evolving DSO Marketplace
Dykema, January 2019

The tsunami of consolidation activity in the dental services industry has created remarkable financial opportunities for dentists and investors. Primarily, these opportunities play out in the form of Dental Services Organizations formed by entrepreneurial dentists and/or private financial interests through the acquisition of established, profitable practices...

Michigan Changes Medical Marihuana Licensing Process to Facilitate Investment, Provide Path for Publicly Traded Companies
Dykema, December 2018

As one of the final acts of its 99th Legislative Session, the Michigan Legislature passed amendments to the Medical Marihuana Facilities Licensing Act (MMFLA), as well as changes to the Marihuana Tracking Act. These amendments were signed by outgoing Governor Rick Snyder on December 28, 2018, with the MMFLA amendments effective January 1. The Tracking Act amendments took effect immediately...

Unlicensed Michigan Medical Marihuana Facilities Must Close December 31
Dykema, December 2018

CLOSE OR BE DENIED! In a major year-end development, the Michigan Court of Claims today dismissed the last of the cases that allowed unlicensed Michigan medical marihuana facilities to operate...

CMS Continues to Enhance Oversight of Accrediting Organizations
Dykema, December 2018

The U.S. Centers for Medicare and Medicaid Services (CMS) has once again stepped up its oversight of Accrediting Organizations (AOs).[1] On December 18, 2018, CMS issued a Request for Information (RFI) seeking to determine whether AOs have a conflict of interest between their governmental contract and their private business. See “Medicare Program: Accrediting Organizations Conflict of Interest and Consulting Services; Request for Information,” 83 FR 65331...

Michigan Passes New Industrial Hemp Law, Sets Up Statutory Conflict
Dykema, December 2018

On the last day of the legislative session, the Michigan Legislature passed House Bills 6330, 6331, and 6380 to create the Industrial Hemp Research and Development Act (IHRDA). If signed by the Governor, IHRDA will require the registration of industrial hemp growers and processors as a prerequisite to grow or sell industrial hemp. Oversight authority is given to the Michigan Department of Agriculture and Rural Development (MDARD)...

New Owner Through Foreclosure Must Perfect Title to Property Before Serving a Three-Day Notice to Quit to Tenant
Dykema, December 2018

In December of 2018, the California Supreme Court issued its ruling in Dr Leevil, LLC vs Westlake Health Care Ctr, No S241324, 2018 LEXIS 9546 that an owner acquiring title to real property under a power of sale contained in a deed of trust must perfect titlebeforeserving the three-day written notice to quit required by California Code of Civil Procedure section 1161a(b). Westlake Village Property, L.P., owned real property in Thousand Oaks...

Community Banks Disappointed with Federal Regulators' Proposed Community Bank Leverage Ratio
Dykema, December 2018

One of the key provisions of the Dodd-Frank Act rollback law signed by President Trump on May 24, 2018, hasn’t met its early promise for U.S. community banks. Recently proposed rules to implement simplified capital requirements have fallen short of the industry’s expectations when the bank deregulation law was enacted in May...

A New Year’s Resolution for Illinois Employers: Update Policies and Procedures to Comply with New Law Requiring Broad Expense Reimbursement Duties
Dykema, December 2018

Beginning on January 1, 2019, Illinois employers will—for the first time—have to reimburse employees for “all necessary expenditures or losses incurred by the employee within the employee’s scope of employment and directly related to services performed for the employer...

Tax Planning for the End of 2018 and Beginning of 2019
Dykema, December 2018

Before 2018 comes to a close, it may be worthwhile to review the state of your tax, estate, and charitable giving plans. Along with the typical end-of-year considerations, this year it is crucial also to pay careful attention to the effects of the 2017 tax act (P.L. 115-97, signed into law on December 22, 2017, and informally called the “Tax Cuts and Jobs Act of 2017,” herein the “2017 Tax Act”) that altered many longstanding rules and assumptions...

Bringing Back Discretion: DOJ Announces Revisions to Current Policy Concerning Corporate Misconduct
Dykema, December 2018

In 2015, the Department of Justice (“DOJ”) announced a more aggressive stance requiring individual accountability in civil and criminal investigations of corporate misconduct...

Crumpets, Congress, Cannabis and Crypto: Top 10 Issues for Financial Services in 2019 – Part 2
Dykema, December 2018

Continuing froma previoiuspost, here is the second half of our “Top 10 List” of key issues U.S. financial institutions, non-banks providing financial services, and financial technology (fintech) entities should plan for and watch throughout 2019...

PBJ: The Sandwich that Bites Back
Dykema, December 2018

Several years ago the U.S. Centers for Medicare and Medicaid Services (CMS) required skilled nursing facilities (SNFs) to report nurse staffing levels using the SNF’s payroll records, in an effort to obtain more accurate information about actual daily nurse presence in SNFs. CMS has collected this Payroll Based Journal (PBJ) information for a few quarters now...

Industrial Hemp - Now Legal and Unregulated in Michigan
Dykema, December 2018

Michigan voters approved Proposal 1 and made Michigan the twelfth U.S. jurisdiction to legalize recreational marijuana. The Michigan Regulation and Taxation of Marihuana Act (MRTMA) went into effect December 6. What has been lost in all the smoke from the past several weeks is how MRTMA impacts the regulation of industrial hemp...

Michigan Legislature Amends State Minimum Wage and Paid Sick Leave Acts
Dykema, December 2018

On December 4, 2018, the Michigan Legislature pared back the minimum wage and paid sick leave laws it passed last September in an effort to preclude those issues from being on the November ballot. Had the Legislature not adopted the language of the ballot initiatives legislation, the measures would have been on the November ballot and it would have needed a vote of three-fourths of each house to amend the law if adopted by the voters...

Crumpets, Congress, Cannabis and Crypto: Top 10 Issues for Financial Services in 2019 (Part 1 of 2)
Dykema, December 2018

As an eventful 2018 comes to a close, we look ahead to 2019 and our “Top 10 List” of key issues U.S. financial institutions, non-banks providing financial services, and financial technology (fintech) entities should plan for and watch throughout the upcoming year. The first five items on the list are discussed below, and the remainder of our list will follow shortly in another post...

Illinois' BIPA's Rollercoaster Ride to the Illinois Supreme Court
Dykema, December 2018

Over the last several years, the emphasis on privacy and data protection has grown significantly. With the amount of data collected by companies and technology skyrocketing, the need to protect personal information has been at the forefront of states’ legislative agendas. While all 50 states now have breach notification statutes, states are now taking a closer look at issues such as tracking online behavior and the use of biometric data...

Are You at Risk of Having Electronic Data Seized When Traveling Abroad?
Dykema, December 2018

Executives and in-house counsel should be aware that traveling with sensitive data can lead to its seizure—with potentially severe consequences worldwide. Recently, Parliament in the United Kingdom seized from a traveling executive a USB drive containing data that had been produced in a United States lawsuit between Six4Three, a software company, and Facebook. Put simply, that data was in the wrong place at the wrong time...

Where Does the Money Go?
Dykema, December 2018

Medicare and Medicaid certified nursing homes are frequently required to pay fines (called “civil money penalties” or “CMPs”) to the U.S. Centers for Medicare and Medicaid Services (“CMS”) when government surveyors find them out of compliance with the Requirements for Participation for Long-Term Care Facilities. It is not uncommon for CMS to assess CMPs in the hundreds of thousands of dollars...

 

 

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