Sexy Fork Party a Great Success!

Wow! Thank you all so much for making our Sexy Fork networking event a huge success. It was such a privilege to share the room and enjoy the evening with such interesting and accomplished women. And you all looked fabulous!!!

Thanks especially to Mary Wills of the Good Fork. The food was just wonderful and we all enjoyed the presentation.

I will be posting more pictures on my facebook page. Please friend me on facebook or link in on LinkedIn. We should absolutely stay in touch so that we can plan another get together soon.

Thanks again for a great evening.

Mary Louisa

Ohio Chautauqua coming to Hudson

I am so excited that Hudson will be hosting a Chautauqua presentation, bringing the lives of six 1930s personalities to life under the big tent! From July 6 - 10, we have the opportunity to interact with trained scholars who assume the costume and character of historical figures including W.C. Fields, Paul Robeson, Eleanor Roosevlet and Orson Welles. The event will take place on the Hudson High School Grounds, and there will also be programs at the Hudson Library each day.

I hope to see you there!

New Proposal for testing Independent Contractor Status

Ohio will be cracking down on the misclassification of workers as independent contractors. Ohio Attorney General Richard Cordray estimates that Ohio has lost hundreds of millions of dollars in potential unemployment compensation and workers' compensation premiums and in state income.

Recent legislation has been introduced to create a uniform definition of "employee." If passed, it would replace the current independent contractor analysis with a statutory, seven-point test to determine whether a worker is an employee. Under the proposal, independent contractor status can be established only by meeting all of the following factors:

1. The individual has been and continues to be free from control and direction in connection with the performance of the service.

2. The individual customarily is engaged in an independently established trade, occupation, profession, or business of the same nature as the trade, occupation, profession, or business involved in the service performed.

3. The individual is a separate and distinct business entity from the entity for which the service is being performed or, if the individual is providing construction services and is a sole proprietorship or partnership, the individual is a legitimate sole proprietorship or a partner in a legitimate partnership.

4. The individual incurs the primary expenses and has continuing or recurring business liabilities related to the service performed.

5. The individual is liable for breach of contract for failure to complete the service in the time and manner prescribed.

6. An agreement, written or oral, express or implied, exists describing the service to be performed, the payment the individual will receive for performance of the service, and the time frame for completion of the service.

7. The service performed by the individual is outside of the usual course of business of the employer.

This test will certainly change the independent contractor landscape. Even if the new law does not pass, it is clear that the Attorney General is ready to challenge the status.

Is is time to review your independent contractor agreement?

High Risk Pools Set to Start

5,000 Ohioans May Benefit From High-Risk Pool.

In a June 26th article, the Cleveland Plain-Dealer reported "Health coverage could be a step closer in Ohio for more than 5,000 people whose pre-existing medical conditions or diseases made insurance unavailable or highly unaffordable. While this will help Ohio reduce its uninsured, it still could represent only a fraction of the state's eligible population."

But, "in serving about 5,000 residents, it will do so without incurring any state debt, because it will rely entirely on new federal health care reform money, officials said." Ohio "has picked Medical Mutual of Ohio to run the temporary program, called a high-risk insurance pool."

Law for the Masses: the Estate Plan

Today I spent some time with my partner, Scott Geneva, and I learned that everyone should be reviewing their estate planning documents this year. Typically, attorneys recommend that you should, at the very least, review your plan every 3-5 years. But this last year has seen some major changes in both Federal Estate Tax Law and in Ohio Law. Because it was so painful to go through the process the first time (not with Scott!), I told him I needed a tangible example to force me to move on this. So, he told me about a plan he reviewed last week.

As it turns out, most estate planning documents use formulas, not dollar figures when describing what money will go to whom. Instead of saying: "Leave $500,000 to my kids' trust, and the remainder of my property to my husband," the plan document Scott reviewed said: "Leave whatever can pass tax free to my kids’ trust, and the remainder to my husband." Since the client signed the plan ten years ago, the law has gone through a number of changes.

Ten years ago, a person could pass about $675,000 dollars tax free. But since then, the amount has steadily increased to 3.5 million dollars. This year a person may pass an unlimited amount of money tax free (at least under the current law). So, under the plan above, the client left "whatever would pass tax free" to her children (now an unlimited amount), and in the process, she has disinherited her husband.

Thankfully, it is a quick fix. But only if you have someone look at the documents!

Dr. Berwick nominated as Administrator for CMS

On Monday, President Obama nominated Dr. Donald Berwick for administrator of the Centers for Medicare & Medicaid Services.

If confirmed by the Senate, Berwick, president and CEO of the Institute for Healthcare Improvement, will succeed Dr. Mark McClellan. Since McClellan stepped down, there have been interim appointees. Charlene Frizzera is the current interim administrator.

April NEO-BOM Meeting a Great success!

I attended a great meeting this morning with NEO-BOM --a group for Northeast Ohio Business Office Managers in the long term care industry. Many thanks to Carolyn Lookabill and Jennifer Richter for hosting the event and inviting us to attend.

Today we talked about the New Health Care Act and the immediate and long term changes for businesses, as well as the Governments increased efforts to combat fraud and abuse, including the Recovery Audit Contractors.

Let me know if you would like a copy of our powerpoint.

Health Care Act Update

Small Businesses May See Some Relief in the
New Health Care Act
by Mary Louisa by L’Hommedieu, Esq.

The new Health Care Act will affect nearly every small business. The main provisions of the Act roll out over the next four years, with the major changes occurring in 2014. Most notably, beginning in 2014, businesses with more than fifty employees (or full-time equivalents) must provide affordable health insurance for their employees or face penalties. Businesses with fewer than one hundred employees will be permitted to participate in insurance exchanges, to be set up in each state, where a pooling of resources should drive the costs of insurance down. And while small businesses are not required to offer insurance for their employees, the Act provides strong incentives for them to do so.

Until the Small Business Health Options Programs - or SHOP insurance exchanges become operational in 2014, states are required to create federally funded programs to offer affordable insurance. During this period, there are a number of incentives for small businesses to participate:

Immediate Tax Credit for Small Businesses. From 2010 to 2013 (before the implementation of insurance exchanges in 2014), small businesses can receive a tax credit for providing health insurance for employees if the business contributes at least half of the cost of the health insurance premiums. Eligibility depends on the number of employees and the average salaries. In general the credit will only be available for those businesses with twenty five or fewer employees and where the employees earn an average of $50,000 or less. For the purpose of the tax credit, owners and their close relatives are not counted as employees for meeting eligibility requirements, and their health care expenses cannot be offset by the credit. The credit will go up to 50% of premiums paid in 2014 if the company buys its insurance through the SHOP insurance exchanges.
Immediate Access to Health Coverage for the Uninsured with Pre-existing Conditions. In June, 2010 the Act will create federal funding for state programs to offer affordable coverage to uninsured Americans with pre-existing conditions. This program will last until the SHOP insurance exchanges become operational in 2014. In addition, the Act prohibits your existing health plan from excluding coverage for children with pre-existing conditions. Starting in 2014, this provision will apply to adults as well.

Health Care Exchanges. Starting in 2014, the SHOP insurance exchanges will begin operations allowing smaller companies, those with 100 or fewer employees, to participate. This pooling of resources should offer members greater buying power, and thus, greater savings. In addition, businesses buying insurance through an exchange will also be eligible for a tax credit of fifty percent of premiums paid, on a sliding scale. The full credit will be available to businesses with the equivalent of ten or fewer full-time workers, where those workers are paid, on average, less than $25,000. The benefit phases out as the payroll grows to twenty-five full time workers and wages rise to $50,000 on average. Seasonal workers are not included in these calculations.

Insurance for the Self-Employed. Also starting in 2014, a self-employed person whose business earns under $50,000 per year (net) may purchase insurance through SHOP exchange, where they will not be subject to discrimination based on pre-existing conditions. In the meantime, by June 21, 2010, each state is required to create and implement a new, temporary program to provide coverage to people with pre-existing conditions at a “standard rate.”

The new law will be paid for, in part, by a payroll tax increase on individuals earning more than $200,000, and families earning more than $250,000. But the law specifically exempts income earned by individuals running small, closely held businesses. The success of the plan will be largely dependent on the implementation, which will require coordination between the State and Federal governments. As a number of States have already filed lawsuits to halt the implementation, that coordination may be difficult to accomplish.

Mary Louisa L’Hommedieu is a partner in the Health Care and Business & Corporate Practice Groups at Meyers, Roman, Friedberg & Lewis, a law firm in Cleveland, Ohio.

More Fraud issues with health care! http://ping.fm/2tADr

Great event this morning hosted by Meyers, Roman, Nawbo & the Cleveland Women's Journal. We have uploaded the powerpoint to our site: http://meyersroman.com

Great Article! Mitigating the Increased Risks of Personal Injury Claims on Green Construction Projects - http://ping.fm/JNrBh

NEW LOCATION for Women in Business Seminar!

We has such a wonderful response to the Women in Business Seminar scheduled for 3/18/2010, that we have changed the location! We will now be meeting:

Hilton Cleveland East/Beachwood
3663 Park East Drive
Beachwood, Ohio
216-464-9262

The program begins at 8:00am

Call me if you have any questions!

We hope to see you there.

Hudson Chamber's Executive Education Series to begin on 3/19

I will be attending the first in the Hudson Chamber's Executive Education series on 3/19 at 7:30am. focusing on Finance, Accounting & Taxes. Speakers will include Steve Chiarappa, CPA, owner of Chiarappa & Associates Ltd. Steve will address the burgeoning problem of employee theft and steps your business can take to eliminate risk. Learn how your business can better manage its money.

Liz Kuonen, CTP, Market Manager, VP Business Banking & Treasury Management at National City Bank, will present on Fraud Prevention with an overview of activities every business should be doing (separation or outsourcing of the payables and reconciliation functions, requiring dual authority and tokens for all electronic disbursements, etc).

There will also be a speaker form Skoda Minotti. I am really looking forward to this session.

For more information, see the Hudson Chamber of Commerce Website -- http://explorehudson.com or go directly to the sign up: http://208.206.15.32/news/anmviewer.asp?a=79&z=5

Are Non-Compete Provisions in Physician Employment Contracts Invalid as a Matter of Law?

No, but where a physician is involved, it may be much more difficult to enforce them. Ohio law permits non-competition covenants in employment contracts, but these covenants are disfavored under the law because they act to restrain trade. Where covenants not to compete involve a physician, they may also interfere with a paitent's right to choose his or her own doctor. The Court generally disfavors covenants not to compete involving professionals because restrictions limiting the ability of a physician to practice may affect the public’s ability to obtain medical care. In fact, some courts will not enforce a covenant that will restrict a patient’s right to choose his or her physician.

Generally, the purpose in allowing non-competition agreements is to foster commercial ethics and to protect an employer's legitimate interests by preventing unfair competition. Therefore, Ohio courts must balance the legitimate interests of the employer against, the potential harm to the community or the physician. Courts have held that a covenant restraining a physician employee from competing with his former employer are unreasonable when it imposes undue hardship on the physician and is injurious to the public, the physician's services are vital to the health, care and treatment of the public, and the demand for the physician's medical expertise is critical to the people in the community. If there is no legitimate interest of the employer to protect, then a noncompete agreement is unreasonable.

Ohio follows the reasonable alteration approach, under which trial courts have the discretion to modify an overbroad covenant to make it reasonable and enforceable. If the court does modify the provisions (e.g., to reduce the geographic or time restriction), the burden of proof remains on the Plaintiff to prove breach of the contract. In modifying covenants overbroad as written, courts applying Ohio law should go no further than required to protect a former employer’s legitimate interest.

If you have any questions on non-competition agreements, please feel free to contact me.

Defense verdict for our client in a covenant not to compete case! http://ping.fm/l4eGf

Defense Verdict for our Client in a Non-Competition case

Defense Verdict for our Client!

I am pleased to report that my partner, Ronald P. Friedberg and I won a defense verdict on behalf of our client, a physician, in a covenant not to compete case in the Cuyahoga County Court of Common Pleas. The plaintiff was a Michigan corporation providing attending physician and nurse practitioner staffing services to several nursing homes in Northeast Ohio. The Defendant was Cleveland area physician, and former employee of the Plaintiff.

The plaintiff sought 1.3 million dollars in damages, arguing it was unlawfully deprived of business and business opportunities when the defendant treated nursing home patients in facilities covered by the non-competition clause. The jury found the defendant technically breached the non-compete provision, but determined there was no causal connection between the defendant’s actions and the plaintiff’s alleged damages. Accordingly the jury returned a verdict in favor of the defendant.

If you have questions about covenants not to compete or other restrictive covenants, please feel free to me or Ron.

Women's Business Seminar Scheduled for March 18th

Please join us on March 18, 2010, on the 2nd Floor of the Eaton Tower, 28601 Chagrin Blvd., in Woodmere, Ohio, for a unique presentation created especially for women in business. This breakfast seminar, from 8am-9:30am will provide practical information on "Protecting Yourself from the People You Trust." Join us, NAWBO, and the Cleveland Women's Business Journal for this informative seminar. Anne Meyers, Barbara Roman, Debra Horn, Jennifere Singleton and I will all be part of the presentation! We look forward to seeing you. Visit our website for more information, or see the flyer, attached.

Mike Moran announces his re-election campaign. Moran is our State Rep and a real leader. http://ping.fm/3h4CT

HUD's Chicago 232 Lean Conference was a success. Call us with questions. http://ping.fm/Wcbfl

HUD LEAN 232 Program

Mark McGrievy, Chair of Meyers Roman's Health Care Group, just returned from Chicago where he attended HUD “LEAN 232” Lender’s Training put on by the Eastern Lender’s Association. The LEAN Program is administered through the HUD Office of Insured Health Care Facilities (OIHCF). The new program was developed two years ago to process requests for HUD insured loans of health care facilities, which are more complicated than the traditional multi-family requests. Over 400 attendees, including OIHCF staff, Lenders, Legal Counsel, Appraisers and Insurers participated in the three day program.

If you have any questions on the HUD LEAN program, please contact Mark at mmcgrievy@meyersroman.com.

Scott Geneva gives us the tax law update! http://ping.fm/RzrHA

CMS requests public comment on Electronic Health Record Regulation

The Centers for Medicare & Medicaid Services (CMS) and the Office of the National Coordinator for Health Information Technology (ONC) encourage public comment on two regulations issued on 12/30/2009 that lay a foundation for improving quality, efficiency and safety through meaningful use of certified electronic health record (EHR) technology. The full press release is included here. Just let me know if you need assistance in providing your comments:

FOR IMMEDIATE RELEASE Contact: HHS Press Office (202) 690-6343

CMS and ONC Issue Regulations Proposing a Definition of ‘Meaningful Use’ and Setting Standards for Electronic Health Record Incentive Program

Public Encouraged to Comment on New Regulations

The Centers for Medicare & Medicaid Services (CMS) and the Office of the National Coordinator for Health Information Technology (ONC) encourage public comment on two regulations issued today that lay a foundation for improving quality, efficiency and safety through meaningful use of certified electronic health record (EHR) technology. The regulations will help implement the EHR incentive programs enacted under the American Recovery and Reinvestment Act of 2009 (Recovery Act).

A proposed rule issued by CMS outlines proposed provisions governing the EHR incentive programs, including defining the central concept of “meaningful use” of EHR technology. An interim final regulation (IFR) issued by ONC sets initial standards, implementation specifications, and certification criteria for EHR technology. Both regulations are open to public comment.

“Widespread adoption of electronic health records holds great promise for improving health care quality, efficiency, and patient safety,” said, National Coordinator for Health Information Technology David Blumenthal, M.D., M.P.P. “The Recovery Act’s financial incentives demonstrate Congress’ and the Administration’s commitment to help providers adopt and make meaningful use of EHR technology so they can give better care and their patients’ experience of care will improve. Over time, we believe the EHR incentive program under Medicare and Medicaid will accelerate and facilitate health information technology adoption by more individual providers and organizations throughout the health care system.”

“These regulations are closely linked,” said Charlene Frizzera, CMS Acting Administrator. “CMS’s proposed regulation would define and specify how to demonstrate ‘meaningful use’ of EHR technology, which is a prerequisite for receiving the Medicare incentive payments. Our rule also outlines the proposed payment methodologies for the Medicare and Medicaid EHR incentive programs. ONC’s regulation sets forth the standards and specifications that will enhance the interoperability, functionality, utility and security of health information technology.”

CMS and ONC worked closely to develop the two rules and received input from hundreds of technical subject matters experts, health care providers, and other key stakeholders. Numerous public meetings to solicit public comment were held by three Federal advisory committees: the National Committee on Vital and Health Statistics (NCVHS), the Health IT Policy Committee (HITPC), and the Health IT Standards Committee (HITSC). HITSC presented its final recommendations to the National Coordinator in August 2009. These recommendations, along with all other input were considered to help inform the development of the regulations announced today.

The IFR issued by ONC describes the standards that must be met by certified EHR technology to exchange healthcare information among providers and between providers and patients. This initial set of standards begins to define a common language to ensure accurate and secure health information exchange across different EHR systems. The IFR describes standard formats for clinical summaries and prescriptions; standard terms to describe clinical problems, procedures, laboratory tests, medications and allergies; and standards for the secure transportation of this information using the Internet.

The IFR calls for the industry to standardize the way in which EHR information is exchanged between organizations, and sets forth criteria required for an EHR technology to be certified. These standards will support meaningful use and data exchange among providers who must use certified EHR technology to qualify for the Medicare and Medicaid incentives.

Under the statute, HHS is required to adopt an initial set of standards for EHR technology by Dec. 31, 2009. The IFR will go into effect 30 days after publication, with an opportunity for public comment and refinement over the next 60 days. A final rule will be issued in 2010. “We strongly encourage stakeholders to provide comments on these standards and specifications,” Dr. Blumenthal said.

The Recovery Act established programs to provide incentive payments to eligible professionals and eligible hospitals participating in Medicare and Medicaid that adopt and make “meaningful use” of certified EHR technology. Incentive payments may begin as soon as October 2010 to eligible hospitals. Incentive payments to other eligible providers may begin in January 2011.

The proposed rule would define the term "meaningful EHR user" as an eligible professional or eligible hospital that, during the specified reporting period, demonstrates meaningful use of certified EHR technology in a form and manner consistent with certain objectives and measures presented in the regulation. These objectives and measures would include use of certified EHR technology in a manner that improves quality, safety, and efficiency of health care delivery, reduces health care disparities, engages patients and families, improves care coordination, improves population and public health, and ensures adequate privacy and security protections for personal health information.

The proposed rule would define meaningful use for the Medicare EHR incentive programs. It proposes one definition that would apply to eligible professionals participating in the Medicare fee-for-service and the Medicare Advantage EHR incentive programs as well as a proposed definition that would apply to eligible hospitals and critical access hospitals. These definitions also would serve as the minimum standard for eligible professionals and eligible hospitals participating in the Medicaid EHR incentive program. The rule proposes that states could request CMS approval to implement additional meaningful use measures, as appropriate, but could not request approval of fewer or less rigorous meaningful use measures than required by the rule.

This rule proposes a phased approach to implement the proposed requirements for demonstrating meaningful use. This approach would initially establish reasonable criteria for meaningful use based on currently available technological capabilities and providers’ practice experience. CMS will establish stricter and more extensive criteria for demonstrating meaningful use over time, as anticipated developments in technology and providers’ capabilities occur.

CMS provides a 60-day comment period on the proposed rule. “The definition and requirements for demonstrating meaningful use of EHR technology are proposals. CMS welcomes and will give serious consideration to comments that improve our proposal while achieving the goals Congress established for the EHR incentive programs,” Frizzera said.

The CMS proposed rule and fact sheets may be viewed at http://www.cms.hhs.gov/Recovery/11_HealthIT.asp

ONC’s interim final rule may be viewed at http://healthit.hhs.gov/standardsandcertification. In early 2010 ONC intends to issue a notice of proposed rulemaking related to the certification of health information technology

Additional Website resources:

The Recovery Act Health IT Page is: http://www.cms.hhs.gov/Recovery/11_HealthIT.asp.

DIRECT Link to CMS Regulation: http://www.federalregister.gov/OFRUpload/OFRData/2009-31217_PI.pdf.

A copy of the ONC Regulation is available at: http://healthit.hhs.gov/standardsandcertification.

The HHS Press Release is available at: https://www.cms.hhs.gov/apps/media/press_releases.asp.

The CMS Fact Sheets are available at: https://www.cms.hhs.gov/apps/media/fact_sheets.asp.