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Searching for Articles published in December 2016.
Found 13 Results.

Recent Health Care Legal Developments – Looking Forward to 2017

Posted on December 29, 2016, Authored by John H. Fisher, II, Filed under Health Care

As we are coming close to the end of another year, I thought it might be good to pull together some of the health law articles and blogs we produced during 2016.  Ruder Ware's Health Care Focus Team puts out a lot of information on a variety of different blog sites.  This is in addition to our newsletter and our more comprehensive “Blue Paper” series. With a change in government we will see substantial changes in health law in the upcoming years.  While no single source will be able to cover all of these developments, our coverage tends to bring things down to the “street level” for providers.  You can sign up for our newsletter or go to one or more of our blogs and grab the RSS feed to follow our analysis of what is going on in the industry. Sign up for our Health Law Newsletter (E-Version) Here are some of the articles and information from 2016. 300 Pages of New Regulations Ruining Health Care Attorney Lives Across the Country 60 Day Repayment Rule Affordable Care Act ACO Primary Care Exclusivity Requirement - Not As Broad As Some Believe Ambulatory Surgery Center Advisory Opinions Antitrust Law Application In Rural Areas- Hospital Mergers Antitrust Market Analysis In Provider Integration Antitrust Policies Avoiding Spillover - Clinically Integrated Networks Auditing Physician Payments For Stark Law Bundled Payment Arrangements for Clinically Integrated Networks Certification of Investigation of Individual Wrongdoing Under the Yates Memorandum Clinical Integration Readiness Analysis CINs CMS Releases Final Rules Under Medicare Shared Savings Program CMS Releases the First Comprehensive Overhaul of Nursing Home Conditions of Participation in Over 25 Years False Claims Act Basics – Known Overpayment Becomes False Claim False Claims Act Liability - Conditions of Participation and Conditions of Payment Final Rule Under the Medicare Shared Savings Program Released HHS Releases Inflation Adjusted Federal Civil Penalties How Should Compliance Process Integrate the Yates Memorandum? Incident To Billing Rules Changed In New CMS Regulations Major Revamp of Nursing Home Regulations Proposed By CMS Medicare Shared Savings Program Changes Under 2016 Physician Fee Schedule Regulations Medigap PHO Discount Program Receives OIG Approval New Federal Prosecution Standards Require Revisions to Investigation Policies Off-Campus Provider-Based Departments Neutrality OIG Fraud Alert - Medical Director Compensation Arrangements Outpatient Surgery Article On Using A Safe Surgery Checklist Population Health Management and Clinical Integration President Signs the 21st Century Cures Act Primary Care Integration Strategies - Divisional Group Practice Mergers Provider Self-Disclosure Decisions – Voluntary Disclosure Process Referral Requirements - Can Employed Doctors Be Required to Make Referrals? Reimbursement for Telemedicine and Telehealth Services Telemedicine Credentialing By Proxy When Can Violation of a Condition of Participation Result in False Claims Act Liability? Update on Escobar’s Materiality Standard

Regulators’ Christmas Gift to Banks: 18-Month Examination Cycle

Posted on December 30, 2016, Authored by Ruder Ware Attorneys, Filed under Banking and Financial Matters

Earlier this month, the Office of the Comptroller of the Currency, Board of Governors of the Federal Reserve System, and the Federal Deposit Insurance Corporation issued final interagency rules which will reduce regulatory compliance costs for over 600 banks and savings associations. Section 10(d) of the Federal Deposit Insurance Act (FDI Act) generally requires the appropriate Federal banking agency for an insured depository institution (IDI) to conduct a full scope, on-site examination of the institution at least once during each 12-month period.  However, under the FDI Act, if an IDI has less than $500 million in total assets and meets other requirements, a full scope, on-site examination is only required once every 18-months.  Included in the Fixing America’s Surface Transportation Act (FAST Act) was an amendment to the FDI Act to increase the total asset threshold of a financial institution eligible for an 18-month examination period.  Under the interagency final rules, qualifying well-capitalized and well-managed banks and savings associations with less than $1 billion in total assets are now eligible for an 18-month examination cycle. You might be asking, what does bank regulation have to do with surface transportation? The answer - nothing.  But, small and community financial institutions will take regulatory relief wherever and whenever they can get it.  Congress’ common sense amendment to the FDI Act will help reduce regulatory costs while still ensuring that financial institutions remain well regulated.

Reassignment to a Vacant Position Under the ADA: Eleventh Circuit Concludes the Best Candidate Gets the Job - But What About Wisconsin?

Posted on December 22, 2016, Authored by Ruder Ware Attorneys, Filed under Employment

Earlier this month, the United State's Court of Appeals for the Eleventh Circuit, in EEOC v. St. Joseph's Hospital, Inc., announced that the Americans with Disabilities Act does not, as a reasonable accommodation, require the transfer of a disabled employee into a vacant position without consideration of the qualifications of other candidates competing for the same position. In St. Joseph's Hospital, Inc., a disabled nurse sought an accommodation in the form of a job reassignment to another care unit at the hospital because she required the use of a cane, which posed a safety hazard in the psychiatric ward where she worked. ln response to the nurse's accommodation request, the hospital permitted her to apply for other available jobs, but she was required to compete for these positions. When this nurse failed to obtain a new position, the hospital terminated her employment -- and eventually, the EEOC brought suit on her behalf. On appeal from the District Court's decision, the Eleventh Circuit was asked to consider whether the ADA requires job reassignment without competition as a reasonable accommodation, as the EEOC advocated. Significantly, at least according to the Eleventh Circuit, "the ADA does not require reassignment without competition for, or preferential treatment of, the disabled." To that end, the Court opined, "[r]equiring reassignment in violation of an employer's best-qualified hiring or transfer policy is not reasonable in the run of cases," noting that "[p]assing over the best-qualified job applicants in favor of less-qualified ones is not a reasonable way to promote efficiency or good performance." The Court concluded that the ADA "only requires an employer [sic] allow a disabled person to compete equally with the rest of the world for a vacant position."  In reaching this conclusion, the Eleventh Circuit joined the Fifth and Eighth Circuits. However, at first blush, St. Joseph's Hospital, Inc., appears to be at odds with the Seventh Circuit's 2012 opinion in EEOC v. United Airlines, Inc., which governs the interpretation of the ADA as applied to workplaces located in Wisconsin, Illinois and Indiana. In United Airlines. Inc., the Seventh Circuit reasoned that an employer's deviation from its best-qualified selection policy -- in favor of a disabled candidate -- may indeed be a reasonable accommodation. In reaching this conclusion, the Court repudiated its prior holding on the subject, that the "ADA does not require an employer to reassign a disabled employee to a job for which there is a better applicant, provided it's the employer's consistent and honest policy to hire the best applicant for the particular job in question." The Eleventh Circuit in St. Joseph's Hospital, Inc., points out, however, that instead of "deciding the issue" concerning transfer without consideration of competition from other candidates, the Seventh Circuit "remanded it to the district court for decision in the first instance." The Eleventh Circuit's interpretation of United Airlines, Inc. ¡s certainly inconsistent with the EEOC's public characterization of the case, available here [https://www.eeoc.gov/eeoc/newsroom/release/6-11-15.cfm] and, at a minimum, the Seventh Circuit's opinion clearly signals that even though an employer may prefer to employ the best-qualified candidates and have a policy to that effect, the deviation from such a policy would not necessarily create an undue hardship for the employer. The St. Joseph's Hospital, Inc. decision is the latest in a string of divergent decisions that appear to be headed to the Supreme Court to resolve the split. Until then, notwithstanding St. Joseph's Hospital, Inc., employers in Wisconsin and their legal counsel are wise to consider United Airlines" Inc. in evaluating whether a job transfer, without consideration of the qualifications of other candidates competing for the same position, is appropriate or required under the circumstances.

Be Prepared Before Your Borrower Files a Farm Bankruptcy

Posted on December 15, 2016, Authored by John D. Leary, Filed under Banking and Financial Matters

How prepared are you for a workout or Chapter 12 farm bankruptcy filed by your Borrower?  Make it your New Year’s Resolution to know the answer to these questions about your Borrower. Do you conduct regular file reviews?  Regular loan file reviews can be used as tools to increase certainty as to collateral priority and collateral value.  Increased certainty in your collateral position can reduce transaction costs and mitigate exposure in workouts or in the event your Borrower files bankruptcy.  Often, lenders are surprised in a Chapter 12 that their lien priority and collateral values are not what they expected.  Regular file reviews can help eliminate that surprise. Who owns your collateral?  There is no title for most farm equipment.  So, who owns it?  A LLC?  An individual?  If you have parents and children operating the farm, which individual owns the equipment? In the agricultural setting, there are often multiple individuals and entities involved and Lenders run into collateralization issues such as when the Borrower or one of its owners creates a new entity; changes the name of a current entity; creates a new entity; or when an in-law, sibling, or child now claims to be the owner of collateral pledged to Lender by the Borrower.  Do you obtain updated and signed equipment lists?  An equipment list updated annually and signed by the properly authorized individual or representative of Borrower can mitigate exposure by preserving collateral and deterring erosion or conversion. The equipment list should include:  (a) all major pieces of equipment, (b) any purchase money interest (c) valuation, balances due and payments (d), attached insurance policy schedule listing the owner and when appropriate, updated appraisal, and (e) contain a statement that Borrower understands Lender is relying on the accuracy of the equipment list and an inaccurate or incomplete equipment list will cause Lender harm.   Who signed your security agreement?  The best practice requires that security agreements be signed by all entities and individuals in the farming operation, so that you eliminate the surprise that arises when ownership is claimed by an individual (or an entity) that has not signed your security agreement.  We’ve seen Borrowers claim in financial statements that their LLC owns the equipment, but when the individuals file for bankruptcy, the Borrowers change their stance and assert that the individual owns the equipment. Do you have copies of farm land leases? Many Borrowers in the Ag sector are either Lessors or Lessees of farm land which are often entered after the loan to Borrower has been made.  The leases can be oral or written, can be for cash or crop share, some hybrid of the two, or include barter provisions for labor or equipment. Even written leases often leave out basic provisions such as the land description (tillable acres only?), term, default/remedy, liability insurance, and more specific provisions such as crop prohibitions, tillage restrictions, fall tillage requirements, or fertility levels.  Requiring regular or on demand copies of the leases in the Credit Agreement or as a condition of renewal can help Lender better evaluate loan exposure and determine actual cash flow. Are the heifers being raised offsite by third parties?  Heifer raising contracts where calves are shipped offsite are now commonplace, and can raise lien priority issues and decrease the value of Lender’s collateral.  Other issues such as breeder’s liens, pasture liens, and mechanics liens on equipment, can all affect Lender’s collateral priority and value.  Have you obtained an assignment of important contracts? Easements and contracts for access and hunting/recreation uses remain common, but there are increasing issues related to easements and contracts related to minerals/sand, manure, water/irrigation and tiling.  All can affect the priority of your lien and the valuation of your collateral. Good and current information can strengthen Lender’s position, deter off book transactions, and help provide clarity and certainty as to Lender’s collateral priority and valuation.  Clarity and certainty reduce transaction costs in workouts and bankruptcies for the Lender.  Also, verifying lien priority and valuation before a workout or Chapter 12 can reduce Lender’s exposure and help to increase recovery of the loan. In the current farm economy climate, it pays to be prepared for a workout or farm bankruptcy by your Borrower.

Perceived National Origin Discrimination Can be Pitfall for Employers

Posted on December 12, 2016, Authored by Dean R. Dietrich, Filed under Employment

I have always struggled with the notion of “perceived” discrimination and whether an employer has actually discriminated against an employee because they perceive the employee to be disabled or of a different national origin or something else.  The EEOC recently issued updated Enforcement Guidance on national origin discrimination and concluded that national origin discrimination includes discrimination “because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group.”  The Guidance went on to conclude that an employer is in violation of Title VII if the employer’s actions “have the purpose or effect of discriminating against persons because of their real or perceived national origin.”  See www.eeoc.gov/laws/guidance/national-origin-guidance.cfm.  The Wisconsin Fair Employment Act has the same provisions and strongly suggests that an employer can be accused of discrimination if they perceive an individual employee to be of a certain national origin.  As we look at the variety of persons and actions in the workplace, this can become a very dangerous area of concern.  Managers can perceive an individual to be of a certain race or national origin and then allegations can be made that the employer discriminated against that individual because of the perceived national origin status.  As we strive to avoid any knowledge or background regarding an individual’s national origin, managers are left with little guidance or understanding of a particular national origin of an employee and may make assumptions that should not be made. I am not advocating that we ask each of our employees what their national origin is, but I am suggesting that managers receive training on how to avoid perceiving an individual to be of a particular race or national origin and employers should reaffirm their position that national origin discrimination is not part of the fabric of the company. There are cases in the federal court that limit the employer’s liability for things such as perceived discrimination based upon national origin.  I am not sure these cases will help a Wisconsin employer based upon the language of the Wisconsin Fair Employment Act.  The challenge for employers is to make sure that employment decisions are made based upon the facts and not based upon a perception of an individual’s national origin or even a perceived disabling condition.  Employers should make sure to train their managers to understand and avoid making decisions based upon perceptions rather than facts. 

Christmas Disability?

Posted on December 21, 2016, Authored by Dean R. Dietrich, Filed under Employment

I have written over the year regarding disability discrimination and the notion that an employer can be subject to a discrimination complaint under both state and federal law if the employer “perceives” an individual to be disabled and unable to perform the duties of his/her position.  I often wonder if the public “perceives” Santa Claus to be disabled and unable to perform his duties of delivering gifts to children across the world.  How can Santa swoop down the chimney recognizing that he suffers an obvious condition of obesity? It is not clear whether obesity, in and of itself, constitutes a disability.  The case law regarding the condition of obesity has gone through various iterations.  I believe the current state of the law is that obesity, in and of itself, does not constitute a disability.  An employer may, however, be accused of discrimination if the employer perceives that an individual is disabled because of their excess weight and not able to perform the duties of their position.  These cases are often hard to prove because it involves the need to prove that the employer took some type of adverse employment action because the employer perceived the employee to be unable to perform work for the Company.  Proving this may be very difficult under most circumstances. Would you be accused of considering Santa Claus disabled because of his weight?   Employers thinking about this are reminded that they should not make assumptions regarding the ability of an individual to perform the duties for which they are hired or are being considered for employment.  Perceived disability can be a dangerous area and could result in no presents for Christmas. Merry Christmas and Happy New Year to all our readers.  May 2017 be joyous and fulfilling.

Automobile Dealerships and Part Suppliers: Unintended Consequences in Whistleblower Rules?

Posted on December 15, 2016, Authored by Russell W. Wilson, Filed under Employment

OSHA enforces laws that protect whistleblowers under 22 whistleblower statutes ranging from the Asbestos Hazard Emergency Response Act to the Wendell H. Ford Aviation Investment Reform Act for the 21st Century.  This article focuses on OSHA’s final rule under one of those statutes, the Moving Ahead for Progress in the 21st Century Act (“MAP-21”), as the rule applies to automobile dealerships and part suppliers. On July 6, 2012, Congress enacted whistleblower protection for those who blow the whistle against motor vehicle defects (including noncompliance and violation of applicable reporting requirements) (P.L. 112-141, 49 U.S.C. 30171).  Think ignition systems that burst into flame, engines that override the braking system at highway speed, airbags that injure and kill.  A “dealership” may be liable, but Congress did not directly define that term.  Congress did define the term “dealer” elsewhere in MAP-21 to mean “a person selling and distributing new motor vehicles or motor vehicle equipment primarily to purchasers that in good faith purchase the vehicles or equipment other than for resale.”  In its Interim Final Rule (issued on March 16, 2016) that implements MAP-21, OSHA concluded, quite reasonably, that the terms “dealership” and “dealer” mean one and the same thing.  On December 14, 2016, OSHA issued its Final Rule which adopts the content of the Interim Final Rule exactly as written.  OSHA had received only one comment during the public comment period that followed the issuance of the Interim Final Rule. The statute applies not only to a “motor vehicle” but also to “motor vehicle equipment,” which is defined as;  “(A) any system, part, or component of a motor vehicle as originally manufactured; (B) any similar part or component, or as an accessory or addition to a motor vehicle or (C) any device or an article or apparel, including a motorcycle helmet and excluding medicine or eyeglasses prescribed by a licensed practitioner that (i) is not a system, part, or component of a motor vehicle; and (ii) is manufactured, sold, delivered, or offered to be sold for use on public streets, roads, and highways with the apparent purpose of safeguarding users of motor vehicles against risk of accident, injury, or death.” The statute prohibits the employer (focusing here on dealerships and parts suppliers) from discriminating in any way against an employee who provides the employer with “information relating to” a “defect,” which term “includes any defect in performance, construction, a component, or material of a motor vehicle or motor vehicle equipment” (my emphasis). Has Congress gone further than it really intended?  There is, potentially, the mischief of unintended consequences in these definitions. (Note to regulation hawks:  OSHA’s Final Rule provides procedures and deadlines for processing whistleblower complaints; Congress supplied the definitions.)  Suppose the HR director for an automobile dealership or part supplier is contemplating disciplinary action against an employee.  How broad is the universe of things the HR director should take into account?  What if the employee has made it known that the carpet in a particular make and model is cheap and shoddy (recalling my younger years of working in a textile factory that made automotive carpet).  What if a part supplier employee has expressed negative opinions about the poor quality of certain replacement audio systems?  Or what if a motor cycle dealership sales person has disparaged a particular motor cycle helmet for whatever reason, safety-related or otherwise?  It seems that Congress may have unintentionally added non safety-related values to the whistleblower protections of MAP-21 and its implementing regulations.  HR directors for automobile dealerships of new vehicles and part suppliers should beware of the potential scope of this program.

OSHA’s Final Rule Clarifying (and Confirming) the Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness

Posted on December 20, 2016, Authored by Russell W. Wilson, Filed under Employment

OSHA has always taken the position that the duty to record accurate and complete injuries and illnesses is a continuing duty.  OSHA concedes, however, “that its recordkeeping regulations were not clear with respect to the continuing nature of employers’ recordkeeping obligations.”  OSHA has now issued a Final Rule that clarifies the continuing nature of the recordkeeping requirement.  The Final Rule was published on December 19, 2016. Why does a continuing obligation matter?  It matters because a continuing duty operates to extend the reach of the statute of limitations.  OSHA can reach back further in time to issue citations.  The Final Rule was developed in response to the prior (“not clear”) recordkeeping language that was held to not create a continuing obligation in AKM, LLC v. Sec’y. of Labor, 675 F.3d 752 (D.C. Cir. 2012) (Volks II).  OSHA has perpetuated its disagreement with the interpretation of the U.S. Court of Appeals for the District of Columbia.  OSHA spells out its disagreement in the Final Rule, which is expressly “adopted in response” to the Volks II ruling.  “This final rule is designed to clarify the regulations in advance of possible future federal court litigation that could further develop the law on the statutory issues addressed in the D.C. Circuit’s decision.” The facts in Volks II illustrate why it matters whether the recordkeeping duty is one that is continuing.  The employer had recordkeeping deficiencies during a 54-month period from January 11, 2002, through April 22, 2006.  OSHA began its inspection on May 10, 2006, and issued citations (that reached back to January 11, 2002) on November 8, 2006.  Employers “must save” records for a period of 5 years.  The statute of limitations in which citations must be issued is 6 months.  OSHA argued (unsuccessfully) that the 5-year record retention and access period must be added to the 6-month statute of limitations.  Under that theory the statute of limitations would have expired on November 10, 2006.  According to OSHA’s argument, the citations were issued timely, by a bare two days, so as to encompass all the violations.  The Court of Appeals rejected OSHA’s argument, however, and determined that OSHA’s interpretation would “subvert the Act’s six-months statute of limitations.”  The last violation (April 22, 2006) occurred more than 6 months before the citations were issued (November 8, 2006); none of the violations occurred within 6 months of issuance.  The court, therefore, ordered that all of them be dismissed. Now in this Final Rule OSHA has added language to clarify (and I would say to confirm) its long-held position that employers hold a continuing duty to perform their recordkeeping obligations.  The Final Rule takes effect on January 18, 2017, two days before the presidential inauguration. 

2017 IRS Standard Mileage Rates Reflect Steady Gasoline Prices

Posted on December 13, 2016, Authored by Mary Ellen Schill, Filed under Employment

On December 13, 2016 the IRS issued its standard mileage rates for 2017.  Details can be found here.  Each year (sometimes more frequently than that in times of price volatility) the IRS announces the standard mileage rates for determining the deductible cost for operating automobiles for various purposes, including business, medical, and charitable purposes.  Employers often base their employee reimbursements on the IRS standard mileage rate, which will go from 54 cents per mile in 2016 to 53.5 cents per mile in 2017. Please share this information with your payroll department!

HHS Releases Inflation Adjusted Federal Civil Penalties

Posted on December 1, 2016, Authored by John H. Fisher, II, Filed under Health Care

The Department of Health and Human Services has issued new interim final rules to adjust a variety of Federal Civil Penalties for inflation.  The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 required the agency to promulgate a “catch-up adjustment” in these penalties through an interim final rule.  Additionally, HHS agencies were instructed to update their civil monetary penalty-specific regulations to include a cross-reference to the new adjusted penalty amounts. Many of the upward adjustments in civil penalties were substantial because they had not been updated in a number of years.  For example, maximum “per claim” penalties under the False Claims Act were increased from $11,000 per claim to nearly $25,000 per claim.  Increases of this nature substantially increase the stakes for health care providers and other businesses that make claims to the Federal government.  In areas such as health care, where numerous claims may be submitted every day, the calculation of penalties can quickly become astronomical.  This provides more impetus on providers to actively operate compliance programs to identify potential False Claims Act risks and fashion corrective actions where warranted. Ruder Ware has created a table of revised Federal Penalties which can be downloaded in PDF format.

2017 Standard Mileage Rates

Posted on December 13, 2016, Authored by Mary Ellen Schill,

The Internal Revenue Service has announced the optional standard mileage rates for computing the deductible cost of operating an automobile for business, medical, and moving expenses for 2017, and the reduced rates reflect the continued decrease in gasoline prices. Effective January 1, 2017, the optional standard mileage rates will decrease to 53.5 cents per mile for business transportation, and decrease to 17 cents per mile for travel relating to medical and moving transportation expenses. These mileage rates apply only to those expenses incurred or paid by a taxpayer on or after January 1, 2017 (and if reimbursed by an employer, reimbursed by the employer on and after that date). Expenses incurred prior to January 1, 2017 (whether reimbursed by the employer before or after that date) are still subject to the old 2016 rates (54 cents for business transportation, 19 cents for medical and moving transportation). The standard mileage rate for the deduction for charitable contributions remains unchanged from 2016 at 14 cents per mile. This change in mileage rates is relevant to employers that reimburse employees for business transportation based on mileage. While there is no legal requirement that employees be reimbursed at the IRS standard rate, many employers have a policy of doing so. As a reminder, any payments to an employee based on business travel at a rate in excess of the IRS standard rate generally is taxable income to the employee. If you have questions regarding the above, please contact Mary Ellen Schill, the author of this article, or any of the attorneys in the Employment, Benefits & Labor Relations Practice Group of Ruder Ware.

Cybersecurity Risk: Latest Guidance from Bank Examiners

Posted on December 1, 2016, Authored by Matthew D. Rowe, Filed under Banking and Financial Matters

The Office of the Comptroller of the Currency has indicated in a recent bulletin that its examiners will gradually incorporate a Cybersecurity Assessment Tool into its examinations of national banks and other institutions under its regulatory purview.  At the same time, the Federal Deposit Insurance Corporation issued a Financial Institution Letter informing banks of a Frequently Asked Questions document relating to the Cybersecurity Assessment Tool, which was recently issued by the Federal Financial Institutions Examination Council (FFIEC).  While use of the Cybersecurity Assessment Tool is optional for banks, the recently-issued guidance makes clear that bank examiners will have an increasing level of focus on cybersecurity at banks of all sizes. The Cybersecurity Assessment Tool was issued in June 2015, and, in its overview for chief executive officers and board members, the FFIEC indicated that boards of directors and bank management teams may want to consider, among other things, taking the following steps to address cybersecurity risk at their institution: Developing a plan to conduct a cybersecurity risk assessment using the Cybersecurity Risk Assessment Tool Establishing a target state of cybersecurity preparedness that best aligns to the board of directors’ approved risk appetite for the institution Approving plans to address any cybersecurity risk management and control weaknesses Implementing changes to ensure that the institution has achieved its desired level of cybersecurity preparedness Monitoring cybersecurity risk on an ongoing basis. In its Frequently Asked Questions document, released in October 2016, the FFIEC addressed a number of issues that had been raised by bankers and other interested parties relating to the Cybersecurity Assessment Tool.  The FAQs make clear that use of the Cybersecurity Assessment Tool is voluntary, and that an institution’s management may choose to use the Tool or another risk assessment process to identify inherent risk and evaluate cybersecurity preparedness.  That said, the FAQ’s summarize a number of benefits that an institution might see from using the tool, including the identification of factors contributing to the institution’s overall cyber risk and providing a framework for determining whether or not the institution’s cybersecurity preparedness is aligned with its inherent risk. As is often the case with regulatory guidance like this, bank management teams may want to give strong consideration to using the Cybersecurity Assessment Tool as a means of evaluating cybersecurity risk at their institutions, particularly in an environment where it appears there will be both an increasing level of regulatory scrutiny in this area and, given the continued influence and use of technology, an increasing level of cybersecurity threats.

More Overtime or Not?

Posted on December 13, 2016, Authored by Dean R. Dietrich, Filed under Employment

The table is set for a fight over whether or not more employees will be eligible for overtime pay as a result of the Department of Labor regulation changing the qualifications to be an exempt employee.  President-Elect Trump has nominated Andrew Puzder to serve as Secretary of the Department of Labor.  He has made it clear that he opposes the changes to the overtime exemption requirements that would expand the number of employees eligible for overtime pay.  On the other side, the Fifth Circuit Court of Appeals agreed to accelerate the appeal by the Department of Labor of the injunction blocking the implementation of the revised overtime rule for white collar exemptions.  Briefing on the appeal will be done by the end of January, opening the door for a court decision as Mr. Puzder takes office. Mr. Puzder could order the Department to stop working on a brief to the Fifth Circuit Court of Appeals when he takes office, but that may be after the Department of Labor has submitted its brief in support of the revised overtime rule.  It will be difficult to “unwind” something that has been processed by the Fifth Circuit Court of Appeals.  Of course, the Fifth Circuit Court of Appeals could reverse the Federal District Court decision, but then the new Department of Labor Secretary could take steps to delay any enforcement proceedings against a company that did not comply with the overtime pay requirements and salary adjustments Employers are put in a very difficult position by this anticipated controversy over whether or not the revised overtime rule should be implemented.  Many companies have already proceeded to increase the salary of certain employees based upon promises made during the course of discussions on this topic over the past year.  Other employers have placed everything on hold to see how this controversy unfolds.  There is no correct answer to what steps to take and much depends upon the “culture” that an employer wishes to maintain in their work setting. Everyone needs to continue to monitor this situation as there can be many twists and turns over the next several weeks.