CGI posts RAC Sample Demand Letter

CGI, the RAC contractor for Ohio, has posted a sample demand letter on its website. All providers should review the letter and become familiar with the time frames. Importantly, providers have 15 days in which to rebut claims, and interest on overpayment begins to accrue on day 31. Providers need to make sure that staff, especially those responsible for the mail, understand what the demand letter means, and that it is immediately delivered to the appropriate department. In addition, providers should continuously monitor CGI's website to review current posted Issues. Once an Issue is posted, CGI can begin auditing records related to that Issue.

CGI’s website is located at: http://racb.cgi.com/ . You can also email CGI with questions at racb@cgi.com or use the call center at 877-316-RACB (7222).

FTC delays Red Flags Rule yet again! http://ping.fm/HuGHz

Red Flags Rule Delayed Again!

The Red Flags Rule has been delayed again.

At the request of Members of Congress, the FTC has delayed enforcement of the “Red Flags” Rule until June 1, 2010 for financial institutions and creditors.

The Red Flags Rule requires “creditors” and “financial institutions” with "covered accounts" to address the risks of identity theft by developing and implementing written prevention programs. Businesses must then respond to patterns, practices, or specific activities – known as “red flags” – that could indicate identity theft.

Enforcement of the Rule has already been delayed a number of times, and the latest delay demonstrates the government is having second thoughts. Despite the good intentions, the Red Flags Rule creates a significant burden for businesses. Even with all of the easy to use tutorials provided by the FTC, businesses will have to devote substantial time, and perhaps attorneys fees, to the preparation and implementation of an appropriate plan. Then, after the plan is developed, the workforce will have to be trained and re-trained over time. In this economic climate, this kind of burden may be too much to ask.

See the FTC's statement for yourself: http://www.ftc.gov/opa/2009/10/redflags.shtm

Mario Fazio, certified tax specialist, gives year-end planning tips on my blog: http://ping.fm/Gs4eE

Year End Planning Tips for Business and Individuals

Mario Fazio, MRFL's Certified Tax Specialist, gives year-end planning tips for businesses and individuals. His client alert is set forth below:

Year-End Planning Ideas for Businesses and Individuals
This Client Alert sets forth a list of year-end planning ideas for both businesses and individuals. We present for your consideration both legal and tax items that may significantly improve your "bottom line." We recommend that you review each of the items to determine its applicability to your particular situation. If you would like to discuss any of these matters in further detail, please feel free to contact one of our attorneys.

Business Items

Company Year-End Records Review – An ounce of prevention is worth a pound of cure. Both corporations and limited liability companies are required to maintain certain legal documentation. Annual meetings, elections of directors, managers and officers and approval or ratification of significant actions are required for almost all companies, big or small. Failure to maintain these records, or to annually update them, may create the risk of personal liability for the owners for the business’ debts and may also invite tax problems. Year-end "housekeeping" also gives business owners a good opportunity to review Bank documents, licenses, leases, contracts, permits, insurance and similar documents to ensure annual compliance.
Intellectual Property. A company’s proprietary information may be one of its most valuable assets if it creates a competitive advantage. Intellectual property may include customer and vendor lists, pricing information, marketing strategies and research, processes and similar trade secrets. Determine if all intellectual property is protected or, if any trademarks, trade names, copyrights, etc. are required to be filed or renewed. Where protection of trade secrets is critical to the continued success of a business, the company should consider adopting a formal Trade Secrets Protection Plan as well as a Records Retention Policy.
Employees. If you have employees, you should consider using employment agreements to protect the company’s trade secrets. Generally these protections can be accomplished through proper confidentiality, non-competition and non-solicitation restrictions.

Employment Handbook. The risk of employment-related law suits can be greatly diminished by having a properly drafted Employment Handbook, which outlines company policies and procedures relating to employment without giving rise to an enforceable "contract."
Employment Law Compliance. Any business with employees is subject to numerous legal requirements, which may include OSHA, EEO, HIPAA, tax and other laws. An annual review of these compliance issues may avoid costly governmental audits in the future.

Incentive Compensation and Succession Planning. Developing and retaining key employees may be critical to the ongoing success of a business, including the period after an owner’s departure. To attract and retain key employees, incentive compensation is frequently used to align the interests of the owners and the key employees. Year-end bonuses, profits interest, stock options, "phantom equity," stock appreciation rights, or stock grants are examples of incentive compensation plans. Any incentive compensation plan should be customized to the particular business and the people involved, so that it properly motivates, but does not over-compensate, the key employees.

Buy-Sell Agreements. A business owner should plan for an untimely death or disability, or his or her retirement from the business. Having in place a comprehensive buy-sell agreement with one or more co-owners, or third parties, will make it more likely that ownership transitions will be successful. Existing buy-sell agreements should be reviewed annually for compliance issues, such as whether a valuation of the business is required or life insurance coverage requirements are being met, or if the terms of the existing agreement still meet the owners’ goals and expectations.

Company–Owned Life Insurance. Life insurance may provide an important cash cushion during the time the business is recovering from the death of an owner or key employee. It can also be used to fund the purchase of an owner’s interest in the business. In 2006, Congress added a notice, consent and reporting requirement for company-owned policies acquired after August 17, 2006. Failure to comply with these requirements will cause the life insurance proceeds in excess of the company’s premium cost to be taxable as ordinary income to the company. The company must report annually its compliance with these requirements on its federal tax return. Life insurance policies owned by individual shareholders to fund "cross-purchase" buyout arrangements are not subject to these requirements.

Favorable Expensing Rule for 2009 Capital Purchases. There is a favorable tax deduction for purchases of new equipment, machinery and other tangible personal property, which are used in a business prior to January 1, 2010. Up to $250,000 of the cost of such property may be deducted in 2009, subject to a phase-out limit if the total of such purchases exceeds $800,000 for 2009. At this time it is unclear whether Congress will extend this provision for 2010 purchases.

Favorable Depreciation Rule for 2009 Capital Purchases. In addition to the first-year expense as outlined above, 50% of the remaining cost of such purchases (new machinery, equipment and other tangible property) may be deducted if the purchase is made, and the business begins to use the property, prior to January 1, 2010. The result of these two tax favorable rules is that all or a substantial portion of the cost of such purchases may be written-off in 2009. At this time it is unclear whether Congress will extend this provision for 2010 purchases.

Leasehold Improvements. 50% of the cost of qualified leasehold improvements, whether made by the tenant or the landlord, is tax deductible in 2009. The remaining cost may be depreciated over 15 years using the straight-line method (instead of the usual 39.5 year rule). At this time it is unclear whether Congress will extend this provision for 2010 leasehold improvements.

DISC for Exporters of US-Made Goods. A DISC is a separate corporation that meets certain requirements and makes a DISC election with the IRS. Owners of businesses that export US-manufactured goods may find it beneficial to establish a DISC to shelter up to 50% (or more) of the net income otherwise earned by the business from the export sales. The sheltered income must be paid to the DISC and is exempt from federal income tax. However, the DISC income is taxable as a dividend to the owner when it is distributed to the owner. For 2009 and 2010,
qualified dividends are taxed at the favorable 15% rate (which is far lower than the top 35% rate that otherwise applies to such income in the absence of the DISC).

Qualified Retirement Plan Contributions. To defer income, business-owners and employees should maximize their qualified retirement plan contributions. A standard 401(k) plan typically allows employees to make annual contributions of up to $16,500 for 2009. For profit-sharing plans, the contribution amount limit is $49,000 for 2009. Certain qualified pension plans may permit substantially higher contributions for the benefit of the owner depending on a variety of factors, including the owner’s age. New or amended plans may be adopted for 2009 on or before December 31, 2009. Deductible contributions for 2009 are due on or before the due date of the business’s tax return (including extensions) for 2009.

2009 Net Operating Losses May Be Carried Back Five (5) Years. Most businesses may elect to carry-back a 2009 net operating loss ("NOL"), either three (3), four (4) or five (5) years, instead of the normal two (2) year carry-back period. This additional carry-back period may allow businesses to convert a 2009 NOL into tax refunds for taxes paid in profitable years back to 2004.

Five to Ten Year Deferral of Tax on Cancelled Debt. Businesses may defer taxable income that arises from the cancellation, satisfaction or retirement of debt at a discount during 2009 or 2010 even though they are solvent and continue to operate. The tax break allows a business to elect to defer the taxable income until the fifth (5th) year following the year in which the cancellation occurs, and then report the income ratably over five (5) years (20% each year). Insolvent businesses whose debt is cancelled may continue to use the so-called "insolvency exception" to completely exclude the cancelled of debt from taxable income.

Individual Items

Roth IRA 2010 Conversion. Starting in 2010, the adjusted gross income (AGI) limitation on individuals electing to roll-over qualified plan assets to Roth IRAs will be eliminated. Thus, in 2010 everyone can consider making Roth conversions of existing traditional IRAs or rolling-over distributions from qualified plans to a Roth IRA. Generally, in making a conversion to a Roth IRA, the roll-over amount will be subject to income tax. For Roth conversions made in 2010, a special rule allows the income to be spread between 2011 and 2012 (half of such income in each year). The important benefit of a Roth IRA is the tax-free growth of the assets and the future tax-free distributions to the owner of both principal and income.

Energy Efficient Improvements to Residence. A maximum $1,500 tax credit is available for individuals who make improvements to their principal residence in 2009 and 2010 that meet certain energy efficiency standards. The credit is equal to 30% of the sum of amounts paid or incurred during the tax year for (1) energy efficiency improvements to the building envelope (for example, windows, exterior doors, roof) and (2) expenditures for qualified energy property.
Suspended Losses for Members of LLCs. Depending on the level of involvement of a member in the business of an LLC, recent judicial decisions may permit that member’s losses that were reported as suspended under the passive activity rules (Section 469 of the Internal Revenue Code) to be recharacterized as non-passive under certain limited circumstances. If you have suspended passive losses from a business in which you had some involvement (other than solely as an investor), you may be eligible to use those losses by treating them as non-passive depending on your circumstances.

Estate Planning. At least every three years or so, every individual should review his or her estate planning documents, including the Revocable Trust, Will and health care documents (living will, appointment of health care agent and HIPAA release). Due to changing family circumstances and changing laws, proper updating to existing documents may be required. For those individuals who own, or who are considering purchasing, life insurance, the use of an irrevocable life insurance trust may be advisable to avoid estate (death) tax on the proceeds.
Annual Gift Planning. Whether making intra-family or charitable gifts, completing the gifts prior to year-end is critical for tax planning. For 2009, an individual may gift up to $13,000 in cash or property to each family member or other persons. For a married couple, this amount may be increased to $26,000 per person. Using a family limited partnership or family limited liability company to facilitate the gifts may increase the size of these gifts by up to 50%, through applicable valuation discounts. Over a two or three decade period, an annual gift program, if properly structured, may pass to the next generation millions of dollars of family wealth without the payment of estate or gift tax.

Life Insurance. We recommend having your life insurance policies reviewed to determine if the death benefit is secure and the life insurance company has maintained its credit rating. In some cases, in addition to relieving your concern, these reviews can result in shopping the policy for a lower premium payment for the same or greater death benefits. If you wish to review your current life insurance, you should contact your life insurance broker, or let us recommend some brokers with whom we have worked. Many brokers will perform the review for little or no charge.

Use of Estate Planning Trusts to Provide Asset Protection. Use of a lifetime irrevocable trust created by a person (grantor) for the benefit of the grantor’s spouse and/or other family members may be designed to provide asset protection for the trust assets against creditors of both the grantor and the family members. A wholly discretionary trust generally provides the maximum amount of asset protection. A wholly discretionary trust is one that is irrevocable, grants the trustee broad discretion to determine the timing and amount of distributions to beneficiaries, and meets other requirements.

Home Buyer Credit Extended and Liberalized. The so-called $8,000 "first time home buyer’s tax credit" has been extended to include purchases of principal residences on or before May 1, 2010. The tax credit also applies to the purchase of a principal residence before July 1, 2010 by any taxpayer who enters into a written binding contract before May 1, 2010 to close on the purchase on or before July 1, 2010. The tax credit is also now available to higher income taxpayers whose modified AGI does not exceed $225,000, with a complete phase-out at modified AGI of $245,000 for joint filers. In addition to first-time buyers, the tax credit is now available to "long-time residents," who are defined as maintaining the same principal residence for any five-year period during the eight-year period ending on the date of the purchase of the new residence. The new law also imposes an $800,000 purchase price limit.

IRS CIRCULAR 230 DISCLAIMER: To the extent that this Client Alert may address certain tax issues, this written communication is not intended or written to be used, and cannot be used, by any persons to avoid any potential tax penalties that may be asserted by the Internal Revenue Service. In addition, this communication may not be used by anyone in promoting, marketing or recommending the transactions or matters addressed herein.
This Client Alert is a summary only, prepared for general informational purposes, and is not an exhaustive description of the complex legal issues addressed herein. Nothing in this Client Alert is intended or is to constitute a legal opinion or legal advice from Meyers Roman Friedberg & Lewis or any of its attorneys. This Client Alert is not intended or written to be used, and cannot be used, by you or any other person to avoid any potential tax penalties that may be asserted by the Internal Revenue Service. To the extent the attached Client Alert mentions federal tax matters, it is not intended or written, and cannot be used, for the purpose of avoiding federal tax penalties. In addition, the attached Client Alert may not be used by anyone in promoting, marketing or recommending the transaction or matter addressed therein.

ODH requires Immediate Notification on Injuries.
http://ping.fm/sKmji

ODH Requires Immediate Notification on Injuries

In a November 6, 2009 letter, ODH has made a clear change in the policy regarding the current Injury of Unknown Source Investigation Guide. ODH has now made it clear:

"All alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source and misappropriation of the resident property be reported immediately to the administrator and to the State survey and certification agency.

Further, CMS states 'CFR 483.13(c)(2) and S&C 05-09 memo does not allow providers 24 hours to investigate and then determine if an incident is reportable. '"

Based on this CMS guidance, [ODH has] removed the injury of unknown source (IUS) investigation guide from the ODH website. " (emphasis in original).

ODH has promised to change its webiste to remove the current flow chart. Facilities should make sure that their policies are updated.

Of course, please post or call with any questions.

Attended the HEDC meeting this morning and heard State Rep. Mike Moran speak. Very informative. Great comments and questions.

How will the RAC Audits work? Read my blog post to find out!
http://ping.fm/oHq0Z

How will the RAC Audit Work?

How with the RAC Audit Work?

RAC audits will NOT be performed by targeting certain practice groups (like hospitals, physicians or nursing homes), or even targeting certain specific "problem" providers. Instead, the RAC audits will review ALL of the claim records contained in the Medicare database. This means that all providers are equally at risk of audit. But, the RAC audits will not extend to all potential billing errors. Instead, the RACs are constrained to review only approved "Issues."

Currently, there are only six approved Issues, all of which appear to relate only to hospitals and physicians. But now that the mandated outreach has been conducted, new issues may be posted at any time. Certainly, speakers at the Ohio Health Care Association's conference alluded to the fact that a number of issues are making their way through the approval process.

These Issues will be listed on CMS' and the RAC contractor's website for each region. The Country was divided into four geographic regions - A, B, C & D -- and each area was assigned a specific RAC contractor. Ohio falls into RAC Area B, and CGI Federal is the assigned contractor. CGI's web address is contained below.

RAC Audits

There will be two types of audits, automated and complex. All audits will be Issue driven. The automated audit will use a computer program to review all claims in the Medicare claims data base from October 1, 2007 to the present (although there was an indication that claims are only fully updated through April, 2009). The computer program will then determine if any of the the identified Issues are found on any of the claims. (e.g., two codes that cannot co-exist = error). CGI will then attempt to identify the over- and underpayments made to providers as a result of those findings.

As with the automated review, complex review will start with a computer algorithmic analysis of the claims in the Medicare Database. And again, these reviews may only be conducted on approved Issues. But the complex review will require a review of medical records by CGI staff. If the provider is identified by the computer program, CGI will request additional documentation from the provider for review. The provider will then have 45 days (plus 10 for mailing) to submit the records. The RAC will have 60 days to review the records and make a determination.

In both kinds of review, there is an "informal period of discussion" where the provider can attempt to resolve the issue. If the matter is not resolved, the RAC will send the claim information to the fiscal intermediary to issue the adjustment in payment and the Remittance Advice to the provider. The normal appeals process follows (including the interest assessment on the 31st day, and the recoupment of any offset on the 41st day).

So what can a provider do? Read my next blog post on actions you can take to prepare for the audits!



Visit the CGI Website and study the issues for yourself:

http://racb.cgi.com/Issues.aspx?st=1

RACs Audits are underway in Ohio -- read my blog post to learn more.
http://ping.fm/ddn0D

RACs rollout is underway - Are you Ready?

RAC AUDITS ARE UNDERWAY


Yesterday, November 4, 2009, I attended the Ohio Health Care Association's Seminar on Medicare's Recovery Audit Contractors ("RACs"). RACs are independent contracting agencies hired by Medicare to assist in the identification and recovery of improper payments made to Medicare Providers. (Improper payments include both overpayments and underpayments made to Providers). The RACs are compensated on a contingent basis -- they will be paid a percentage of the money they identify and which was improperly paid to Providers. In other words, the more improper payments identified, the more money the RAC will earn.

In the Tax Relief and Healthcare Act of 2006, Congress mandated that permanent RAC programs be instituted across the United States by January 1, 2010. As part of the mandate, however, the Centers for Medicare and Medicaid Services (CMS) was required to conduct "outreach" sessions across the country before any audit could be conducted. Ohio received its "outreach session" yesterday as part of the seminar. This means that RAC AUDITS are about to begin.


If you are a Medicare Provider and bill fee-for-service programs you will be affected.


See my next Blog post on how RACs work, and let me know if you have any questions.

New EPA Greenhouse Gas Monitoring and Reporting Requirements

Peter Brosse Shares Client Alert on the

NEW EPA GREENHOUSE GAS MONITORING AND REPORTING REQUIREMENTS

On September 22, 2009, the Administrator of the Environmental Protection Agency (EPA) signed the Final Mandatory Reporting of Greenhouse Gases Rule (the “Rule”), which goes into effect on December 29, 2009 and is designed to assist in the fight against climate change. The Rule requires that, beginning on January 1, 2010, many manufacturing facilities, facilities that emit greenhouse gases (GHGs), and suppliers of fossil fuels and industrial GHGs must begin monitoring their emissions of GHGs. On March 31, 2011, these companies must file their first annual report with the EPA, showing the results of the data collected during the previous year.

Who Must Comply with the Rule?

The Rule applies to many diverse industries and types of facilities, including facilities emitting GHGs, suppliers of fossil fuels, and manufacturers of new vehicles and engines. However, some facilities that produce less than the threshold (i.e., reportable) amount of GHGs may be exempt from the monitoring and reporting requirements.

Facilities Emitting GHGs

There are seventeen (17) types of industrial facilities that must monitor and report GHG emissions regardless of their level of emissions:

• Adipic Acid Production

• Aluminum Production

• Ammonia Manufacturing

• Cement Production

• Electricity-Generating Facilities

• HCFC-22 Production

• HFC-23 Destruction Processes

• Lime Manufacturing

• Manure Management Systems

• Municipal Solid Waste Landfills

• Nitric Acid Production

• Petrochemical Production

• Petroleum Refineries

• Phosphoric Acid Production

• Silicon Carbide Production

• Soda Ash Production

• Titanium Dioxide Production

Additionally, other specific facilities will be required to monitor and report their emissions if they emit GHGs in excess of 25,000 metric tons of CO2 equivalent (CO2e) annually from all stationary fuel combustion devices. These facilities include:

• Ferroalloy Production

• Glass Production

• Hydrogen Production

• Iron and Steel Production

• Lead Production

• Pulp and Paper Manufacturing

* Zinc Production

The Rule excludes from this tonnage calculation any CO2 emitted from the combustion of biogenic fuels. Biomass-related emissions must be independently identified in any report generated by a facility that is subject to the Rule.

Suppliers of Fossil Fuels and Industrial GHGs

All suppliers of fossil fuels, except those that supply solid-based coal, are required to report annual amounts of fuel sold and applicable emissions, regardless of the level of emissions. This includes producers, importers, and exporters of fossil fuels. Suppliers of industrial GHGs which supply more than 25,000 metric tons of CO2e products must report the amount of such products sold and related emissions. “Suppliers”, for these purposes, includes producers, importers, and exporters of industrial GHGs.

Manufacturers of New Vehicles and Engines

Manufacturers of heavy-duty vehicles and engines must report CO2 emissions beginning in model year 2011, and reporting on additional GHGs may be required for subsequent model years. Heavy-duty vehicles and engines includes all vehicles and engines except passenger cars and trucks. Light-duty vehicles and engines (passenger cars and trucks) are not included in the Rule. The EPA, however, has proposed a comprehensive program including monitoring and reporting that may begin in model year 2012. For more information on this pending program, visit the EPA’s Office of Transportation and Air Quality at:

http://www.epa.gov/otag/climate/regulations.htm.

Other Companies with GHG Emissions

In addition to those companies and industries listed above, other companies are required to report their emissions on a facility-by-facility basis. According to the Rule, “facility” means “any physical property, plant, building, structure, source, or stationary equipment located on one or more contiguous or adjacent properties in actual physical contact or separated solely by a public roadway or other public right-of-way and under common ownership or common control.” Those facilities with GHG emissions greater than the threshold amount of 25,000 CO2e, will be required to monitor and report their emissions.

Exiting the Program

Once a company or facility is subject to the Rule for any calendar year, it will continue to be subject to the monitoring and reporting requirements until it meets one of the exit criteria. The exit criteria consist of the following: (i) permanently ceasing all GHG-emitting processes and operations covered by the Rule; (ii) reducing covered emissions to less than 25,000 CO2e per year for a period of five (5) consecutive years; or (iii) reducing covered emissions to less than 15,000 CO2e per year for a period of three (3) consecutive years. If a company or facility stops reporting because it has met one of the above requirements for the appropriate amount of time, it must immediately begin reporting again if its emissions increase to 25,000 CO2e or more.

Requirements of the Rule

What Monitoring is Required by the Rule?

Under the Rule, companies and facilities that are already required to collect data using continuous emissions monitoring systems (“CEMS”) under another air emission program must now also monitor GHGs using the same systems, which could force them to upgrade their systems. Facilities that do not currently use CEMS may use emissions calculations, as specified in the Regulations for each source-category. Depending on the specific category, periodic data collection may be required (i.e., flow rates, fuel use, or heat values).

Facilities and companies should begin to plan for the purchase and installation of required monitoring equipment. In order to give companies sufficient time to acquire and install the necessary monitoring equipment installed and operating, the Rule allows for the use of the “best available” data in lieu of the required monitoring methods for the period from January 1, 2010 to March 31, 2010. Facilities can request an extension beyond March 2010, but extensions beyond December 31, 2010 will not be granted. During this extension period, the facility must use the GHG calculation methods specified for the relevant source category, but it may continue to use the best available monitoring method for any parameter for which it is not reasonable feasible to acquire, install, and operate the required piece of monitoring equipment by January 1, 2010. Requests for extension must be submitted by January 31, 2010. The EPA estimates that the expected cost to the private sector to comply with the Rule will be $115 million in the first fiscal year.

The Rule also provides for calibration requirements for GHG measurement devices. Such devices must be calibrated by April 1, 2010, to an accuracy of five percent (5%). However, devices with an unexpired existing calibration need not be recalibrated until the existing calibration expires. Fuel billing meters are exempt from the calibration requirement, provided that there is no common ownership between the fuel supplier and the fuel combustion source.

What Reporting and Recordkeeping is Required by the Rule?

Reporting will be required on an annual basis, with the first annual report being due on March 31, 2011. If a facility becomes subject to the Rule due to a change in its operations after January 1, 2010, it must begin reporting for the year in which the change occurs, beginning in the first month of the change through December 31 of that year. The Rule requires self-certification of monitoring results and includes an EPA verification process. Each report must contain a signed certification by a “Designated Representative” selected by the company or facility. Only one Designated Representative and an alternate may be specified per reporting company or facility. After a report is submitted, the EPA will conduct a two-step verification process. First, it will conduct a centralized review of the data to ensure its completeness and accuracy. The EPA will then follow up with the facilities if potential errors, discrepancies or questions are identified or arise through the review of reported data. The EPA will conduct on-site audits of the selected facilities; these verifications may be conducted by private firms or by federal, state or local personnel.

Each company or facility that is subject to the Rule must maintain for three (3) years and make available upon request by the EPA the following records:

•

A list of all units, operations, processes, and activities for which GHG emissions are calculated;

•

The data used to calculate the emissions data including, among others: GHG emissions calculations and methods used, analytical results for the development of site-specific emissions factors, any facility operating data, or process information used for the emissions calculations;

•

The annual emissions reports;

•

Missing data computations, including a record of the duration of the missing data event, actions taken to restore malfunctioning monitoring equipment, the cause of the event, and the actions taken to prevent or minimize occurrence in the future;

•

A written GHG monitoring plan containing required information;

•

The results of all required certification and quality assurance tests of monitoring equipment and instruments;

•

Maintenance records for all monitoring equipment; and

•

Any other data specified in any applicable part of the Rule.

These records may be maintained in electronic or hard-copy.

Penalties for Noncompliance

Companies or facilities that fail to monitor or report GHG emissions as required by the Rule may be subject to administrative, civil and criminal penalties. The EPA may seek injunctive relief to compel compliance, and civil or administrative fines of up to $37,500 per day per violation may be assessed.

For more information on the new EPA Monitoring and Reporting Requirements, including answers to Frequently Asked Questions, please visit:

http://www.epa.gov/climatechange/emissions/ghgrulemaking.html

If you would like to discuss how the Rule may affect you or your business, or for a fuller description of the new EPA Monitoring and Reporting Requirements, please contact:

Peter D. Brosse, Esq.

Chair, Business Practice Group and

Green Sustainable Practice Group

Meyers, Roman, Friedberg & Lewis

28601 Chagrin Blvd., Suite 500

Cleveland, Ohio 44122

(216) 831-0042 ext. 144

pbrosse@meyersroman.com

Sarah M. Duffy, Esq.

Meyers, Roman, Friedberg & Lewis

28601 Chagrin Blvd., Suite 500

Cleveland, Ohio 44122

(216) 831-0042 ext. 191

sduffy@meyersroman.com

This Client Alert is a summary only, prepared for general informational purposes, and is not an exhaustive description of the complex legal issues addressed herein. Nothing in this Client Alert is intended or is to constitute a legal opinion or legal advice from Meyers Roman Friedberg & Lewis or any of its attorneys.