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NEPA Overhaul? CEQ Proposes Significant Changes to Federal Environmental Review

The Council on Environmental Quality (CEQ), a division of the Executive Office of the President, today published in the Federal Register a Notice of Proposed Rulemaking that would make significant changes to its regulations implementing the National Environmental Policy Act (NEPA).

CEQ’s efforts spring from a 2017 Executive Order that directed it to “enhance and modernize the Federal environmental review and authorization process” by, among other initiatives, ensuring “that agencies apply NEPA in a manner that reduces unnecessary burdens and delays as much as possible, including by using CEQ’s authority to interpret NEPA to simplify and accelerate the NEPA review process.”  Today’s publication, the first comprehensive update of the CEQ NEPA regulations since their promulgation in 1978, proposes noteworthy reductions in the scope of and timeline for federal environmental review.

Key proposed changes include:

  • Limiting the scope of the NEPA review.  CEQ proposes to exclude from NEPA review non-federal projects with minimal federal funding or minimal federal involvement such that the agency cannot control the outcome on the project, reasoning that “[i]n such circumstances, there is no practical reason for an agency to conduct a NEPA analysis because the agency could not influence the outcome of its action to address the effects of the project.”  The impact of this change on privately-funded (i.e., non-federal) projects is unclear, however, because major federal actions subject to NEPA review under the proposed rule include “actions approved by permit or other regulatory decision as well as Federal and federally assisted activities.”
  • Eliminating cumulative impact analyses.  CEQ proposes to change how to address cumulative impacts, such that analysis of cumulative effects is not required under NEPA, finding that “categorizing and determining the geographic and temporal scope of such effects has been difficult and can divert agencies from focusing their time and resources on the most significant effects,” and “can lead to encyclopedic documents that include information that is irrelevant or inconsequential to the decision-making process.”
  • Requesting comments on GHGs.  The effect that elimination of cumulative impact analyses will have on NEPA review of the greenhouse gas (GHG) impacts of a proposed project is unclear.  Just last summer, in its proposed draft guidance on how NEPA analyses should address GHG emissions, “Draft National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions,” CEQ stated that “the potential effects of GHG emissions are inherently a global cumulative effect.” CEQ has invited comment on this issue, noting that if it finalizes its proposed rulemaking, it would review the draft GHG guidance for potential revisions consistent with the regulations.
  • Establishing time limits of two years for completion of Environmental Impact Statements (EISs) and one year for completion of Environmental Assessments.  Currently, the average time for federal agencies to complete an EIS is four and a half years.  A two-year presumptive time limit, measured from the date of the issuance of the notice of intent to the date a record of decision is signed, would bring the majority of EISs within the timeline achieved by only a quarter of EISs prepared over the last decade, according to the CEQ’s report on EIS Timelines.

Because the rulemaking proposes sweeping changes to NEPA, these changes likely will be challenged in court.  Nevertheless, the changes are indicative of a federal push to reduce the scope and time of environmental review, particularly related to highway and energy infrastructure projects.  In an op-ed piece, CEQ Chairwoman Mary B. Neumayr stated that the proposed changes “would modernize, simplify, and accelerate the NEPA process in order to promote public involvement, increase transparency, and enhance the participation of states, tribes, and localities. These changes would also reduce unnecessary burdens and delays and would make important clarifications to improve the decision-making process.”

Public comments are due March 10, 2020.  CEQ will host two public hearings on the proposed rule: in Denver, CO, on February 11, 2020 and in Washington, DC, on February 25, 2020.

©2020 Pierce Atwood LLP. All rights reserved.

More from The Council on Environmental Quality in the National Law Review Environmental, Energy & Resources legal articles’ section.

SEC Proposes Changes to Market Data Plans

On January 8, the Securities and Exchange Commission (SEC) released a proposed order to improve the governance of National Market System (NMS) data plans that produce consolidated equity market data and disseminate trade and quote data. Currently, the equities exchanges and the Financial Industry Regulatory Authority (the Participants) together collect, consolidate and disseminate information regarding trades and quotes in NMS stocks pursuant to three separate national market system plans. According to the press release, “the current governance structure of these plans perpetuates disincentives to enhance consolidated equity market data feeds, which are often slower and contain less information than the proprietary market data feeds offered by the participants that control much of the voting power for the NMS plans.” The proposed order would direct the Participants to create a single equity data plan that would address these conflicts of interests between the exchanges’ commercial interests and their regulatory obligations to produce and provide consolidated market data.

The SEC also published for comment amendments to the existing NMS data plans to require mandatory disclosure policies with respect to conflicts of interest and to institute a confidentiality policy for certain data and information. Comments on the proposals must be submitted on or before 45 days from publication in the Federal Register.

The SEC’s press release regarding the proposed order is available here. The proposed order is available here.

©2020 Katten Muchin Rosenman LLP

More SEC regulation updates via the National Law Review SEC & Securities law page.

Pennsylvania Liquor Control Board Tackles Wine Slushie Sales by Restaurant Licensees

Ever since beer distributors in Pennsylvania were permitted to sell growlers for off-premises consumption, which is loosely interpreted as a closed container by the Pa.L.C.B., there has been an influx of beer distributors installing slushie machines and selling malt beverage slushies. Now, are wine slushies fair game?

In a recent Legal Advisory Opinion from the Pa.L.C.B., a question was presented as to whether Pennsylvania restaurant licensees that hold an additional Wine Expanded Permit (“WEP”) can sell wine to go in a container with a sealed lid.

Specifically, the question related to whether a WEP permits the sale of wine slushies to go in a sealed container.

As a bit of background, a WEP can be obtained by any restaurant licensee in Pennsylvania and permits the sale of wine, or wine-based drinks, for off-premises consumption. The sales of wine cannot exceed 3,000 milliliters in a single transaction (typically 4 bottles of wine), similar to the 192-fluid ounce (two six-packs) limitation for off-premises beer sales by a restaurant licensee. The sale of wine and beer can occur during the same transaction so long as the respective volume limitations are met for each product. Interestingly, the statute authorizing the issuance of the WEP to restaurant licensees does not have any limitations on the sale of wine to go, other than that the sale prices must not be less than what the licensee paid for the product from the Pa.L.C.B.

Now that we have covered the law related to a WEP, what was the Pa.L.C.B.’s response to the question in the Legal Advisory Opinion?

The Pa.L.C.B. stated that, because there are no other limitations for a WEP other than selling 3,000 milliliters or less in a single transaction, a WEP holder can sell wine slushies to go in any container, and are not limited to sales of wine in the container it was purchased by the WEP holder. This would permit wine, or any other wine-based drinks without any other alcohol mixed in, to be poured in a cup with or without a lid and sold for off-premises consumption as long as the volume does not surpass 3,000 milliliters in a single transaction.

It is important to note, however, that your local municipality may have open container rules that the licensee or its consumers must follow. With the proliferation of malt beverage slushie sales at beer distributors, I have to imagine this is something the municipalities have dealt with and are aware of. As far as Pennsylvania state law, this legal opinion clearly permits WEP holders to serve wine or wine cocktails (without liquor) in “to go” containers.

Additionally, the Pennsylvania Liquor Code generally prohibits the fortification or adulteration of any liquor, which includes wine.

The Pa.L.C.B. will permit the mixing or infusing of liquor or wine, but such mixtures or infusions, which are mixed in large volumes, must be discarded at the end of the business day. The Pa.L.C.B. has issued numerous advisory opinions stating that adding ice or water to create malt beverage slushies in the slushie machine would be adulterating the original product, but it appears this Legal Advisory Opinion permits WEP holders to serve wine-based drinks for off-premises consumption. In fact, there have been previous opinions that Distributor licensees were not permitted to mix because they are not permitted to have on-premises sales, which restaurant licensees are permitted to do. Therefore, if a WEP holder must add ice or water to the slushie machine to freeze the wine to make wine slushies, it must be discarded daily at the end of the business day (11 p.m. for WEP sales). To the extent that the slushie, or wine cocktail, is a single-serve preparation, those products can be sold in any container for off-premises consumption to the extent permitted by local ordinance.

Finally, because slushie machines have been determined to be “dispensing systems” (like a malt beverage draft system) they must be cleaned in conformance with the Pennsylvania Liquor Code, which requires weekly cleaning depending on the system you are operating.

©2020 Norris McLaughlin P.A., All Rights Reserved

For more liquor licensing updates, see the National Law Review Biotech, Food & Drug law page.

U.S.- Iran Tensions Raise Concerns for International Travel

On January 4, 2020, U.S. Customs and Border Patrol (CBP) detained and questioned more than 60 individuals of Iranian descent at a Washington State border crossing as they attempted to return to the United States from Canada. According to news reports, CBP officers questioned a number of the travelers about their families, military backgrounds, and ties to Iran.

In response to concerns expressed by immigration advocates that CBP was singling Iranians out due to tensions between the United States and Iran, CBP issued a statement stating:

Social media posts that CBP is detaining Iranian-Americans and refusing their entry into the U.S. because of their country of origin are false. Reports that [Department of Homeland Security]/CBP has issued a related directive are also false.

According to CBP, processing times were slow due to staffing shortages and the volume of people seeking to enter the United States. News reports indicate that most of the travelers were released after being questioned and were admitted to the United States.

Moving Forward

The Department of Homeland Security (DHS) recently updated the National Terrorism Advisory System to warn against potential threats against the United States from Iran. In its January 4, 2020 Bulletin, DHS stated that while there are currently no credible threats, the agency will be working to detect and defend against potential threats and will enhance security measures as needed. Since it is unclear what these security measures may entail, out of an abundance of caution, individuals with Iranian heritage, including those who are U.S. citizens, may want to remain in the United States. Those who travel internationally may risk being subjected to additional scrutiny upon their return to the United States.

© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

For more U.S. Customs and Border Patrol updates, see the National Law Review Immigration Law section.

Can an Employer Implement a Nicotine-Free Hiring Policy?— It Depends on State Law (US)

Nicotine products are highly addictive and have been linked to a variety of serious health issues, including lung cancer and other respiratory illnesses.  In addition to the numerous health risks associated with nicotine use, there is also a causal connection between employee nicotine use and lower productivity in the workplace, as well as higher healthcare costs for employers.  In response to these issues, and in an effort to promote and empower a healthy workforce, more employers are enacting health-conscious workplace policies and anti-smoking/vaping initiatives.

In fact, over the last decade, employers—particularly hospitals and businesses in the medical field—have adopted anti-smoking/vaping policies in those states in which it is lawful to do so, with the goal of encouraging a more healthy work environment, as well as to increase worker productivity and reduce healthcare costs.  As the health risks associated with nicotine use become increasingly apparent (particularly with the recent wave of vaping-related illnesses), it is likely that more employers will consider their policies toward these important health issues. For example, on December 30, 2019, U-Haul International announced a new nicotine-free hiring policy that will go into effect in 21 states on February 1, 2020.  Although U-Haul subsidiaries operate in all 50 US states and 10 Canadian provinces, due to legal restrictions in some jurisdictions, the policy will be implemented only in the following 21 US states: Alabama, Alaska, Arizona, Arkansas, Delaware, Florida, Georgia, Hawaii, Idaho, Iowa, Kansas, Maryland, Massachusetts, Michigan, Nebraska, Pennsylvania, Texas, Utah, Vermont, Virginia, and Washington.  Prospective employees in those states will see statements regarding the nicotine-free hiring policy on application materials and will be questioned about nicotine use. Further, to be considered for employment in states where nicotine testing is allowed, applicants will be required to consent to submit to nicotine screening in the future.  U-Haul employees hired prior to February 1, 2020 will not be affected by the new policy.

U-Haul will be the first major company in its field to refuse to hire applicants who are nicotine users, and the new policy has caused some to question whether companies which, like U-Haul, are deeply invested in the well-being of their employees, are allowed to enact such policies.  The answer to that question depends on the jurisdiction in which the company operates.  Nicotine users are not a “protected class” under any federal anti-discrimination law, and thus state law governs this issue.  In each of the 21 states in which U-Haul companies will implement its policy, there are no laws that protect the rights of nicotine-users or prohibit employers from declining to hire applicants due to their engaging in otherwise lawful conduct outside the workplace.  Therefore, a policy refusing to hire nicotine users is perfectly legal in those jurisdictions, and employers in those states are free to enact nicotine-free hiring policies if they so choose.

However, employers who are considering implementing such nicotine-free hiring policies should tread carefully.  The rest of the 29 states where U-Haul subsidiaries are not implementing its policy (and the District of Columbia) have various anti-discrimination or employee privacy laws preventing employers from enacting such policies.  These states provide varying degrees of protection to employees.  For example, some states broadly forbid employers from discriminating against applicants or employees based on the use of “lawful products” or for “lawful conduct,” whereas other state laws specifically protect an applicant’s or employee’s right to smoke or use other tobacco products.  Although these states are generally more employee-friendly in this context, in some of these jurisdictions, employers can require smokers to pay higher health insurance premiums, so long as the additional amount reflects the actual differential cost to the employer.  Further, employers can still regulate and limit an employee’s on-site smoking, and can typically offer financial incentives for employees who participate in wellness programs to help them quit smoking.

Given the state-specific nuances associated with this issue, employers thinking about implementing a nicotine-free hiring policy should consult with an attorney before implementing such a policy to ensure it may lawfully do so.

© Copyright 2020 Squire Patton Boggs (US) LLP

For more on employers’ healthy-workplace initiatives, see the National Law Review Labor & Employment law section.

Sustainability: Environmental, Social, and Governance (ESG)

Understanding the environmental, social, and governance (ESG) issues of today’s business world are key to understanding the discussion of sustainability and climate change (a sub-topic of each ESG and sustainability).  For example, a sustainable business that demonstrates strong ESG planning, will often include climate change risk management.

Today’s press informs that mounting pressure from the United Nations participants continues to build a focus on reducing greenhouse gas emissions.  The UN’s 25th Session of the Conference of the Parties (COP25) to the UN Framework Convention on Climate Change was held in Madrid from December 2 – 13.  The U.S. filed a notification of withdrawal from the Paris Agreement on November 4, 2019.  The U.S. State Department has announced it will continue to participate in ongoing climate change negotiations and meetings, such as COP25, to ensure a level playing filed that protects U.S. interests.  Also, the UN released its report noting the emissions gap they observe that demonstrates the difference between amounts of carbon dioxide emitted now and lower levels predicted as necessary to stop global warming.  The question being asked is whether there are missed opportunities to achieve GHG reduction goals.

Domestic and international companies are in the process of reviewing their ESG reports to assess last year’s accomplishments and in setting goals and action items for the new year of 2020 and beyond.  Climate change and other sustainability concerns like waste management are clearly on the minds of many.  There is no single formula for a well-developed ESG strategy and report, since each is as unique as the individual company about which the report speaks.  There are common ESG themes, however.  The UN Sustainability Goals provide a convenient list of well-refined issues against which a company (or individual) can assess their opportunities and vulnerabilities.  The goals set forth a number of environmental, social, and governance topics worthy of note to include: poverty, hunger, good health, education, gender equality, clean water, affordable and clean energy, decent work and economic growth, industry/innovation/infrastructure, reduced inequality, sustainable cities/communities, responsible consumption and production, climate action, life below water, peace and justice, and partnership to achieve the goal.  These are the types of issues to consider when exploring ESG and sustainability.  Consultation of the Global Reporting Initiative (GRI) and the Sustainability Accounting Standards Board (SASB) can also assist.  Keep in mind that there is no one gold standard metric against which to measure ESG ratings or accomplishments.  The reason for that is simple, each company has a different complement of skills, talents, and opportunities or stated differently, ESG risks and solutions.

If you were to review a few ESG reports found on corporate websites, it will become apparent the differences and unique qualities of each reporting company.  Geographic locations of operations can define the ESG goals.  If operating in major metropolitan cities as opposed to emerging countries, the corporate responsibilities are quite varied.  If manufacturing consumer products, packaging is an attractive target for reduction in waste.  However, if manufacturing items used in the value chain, perhaps an ESG goal is managed through energy consumption during manufacturing or delivery of products.  If providing medical services, the ESG goals can be energy, water, supply chain, waste, etc.  Just as each of us possess capabilities and assets we can use to invest in our future, the same is true for companies.  We must acknowledge the unique accomplishments and actively invite the benefits gained from a collective effort.

The final item listed by the UN Sustainability goals is partnership, meaning the efforts and benefits should be shared.  We all must work together to achieve the change we need.  All contributions must be welcomed to build the sense of common good.

© Steptoe & Johnson PLLC. All Rights Reserved.

For more on global sustainability efforts, see the National Law Review Environmental, Energy & Resources Law section.

Legal Marketing and SEO Trends for 2020 Part 2: Dwell Time, EAT and Law Firm Branding

John McDougall discussed creating Deep Content, LSI (Latent Semantic Indexing) and topic clusters with us yesterday, detailing how these SEO concepts present great opportunities for law firms who are looking to position their attorneys as subject matter experts.  John explained how Google’s recent algorithm changes such as BERT, which is designed to help users find true topic experts, provide a bounty of opportunities for legal marketers who properly position their lawyers’ expertise to achieve top search results. Today John is going into more detail on the concepts of webpage dwell time, expertise, authority and trustworthiness (EAT), and law firm branding.

NLR:  In your book, you talk about the intersection of “dwell time” and the idea of the “long click” as ways Google is using AI (Artificial Intelligence) to try to figure out the relationship between the search term and the webpage that term led the user to.  Do you see any other areas AI will impact SEO on the horizon?  

JM:  Google has been modifying its search engine, to improve its ability to understand complex queries for some time.

Hummingbird in 2013 was a rebuild of their main “engine” partially in response to there being more searches via voice.

RankBrain in 2015 added more machine learning to improve Hummingbird even further (for searches they had never seen before and complex long-tail queries). They said it was the 3rd most important factor with content and links.

Now with BERT in 2019/2020, they can already understand the intent of a search much better.

Considering they keep increasing the ability to provide relevant results that match the searcher’s intent, I would assume it will change SEO, yet again…

I would expect writing tools to get much more robust. This might be based on “big data” from social profiles, and through analyzing massive volumes of the world’s information written by experts that can be given to a writer/attorney on a silver platter. That might help in one part of SEO.

It is exciting to watch as long as you can stay nimble, follow the “algorithm weather channel” and adjust quickly when new updates are released.

NLR:  Another core theme of your book is the role of brands, and the idea of EAT, or expertise, authority, and trustworthiness. How do these ideas enter into a keyword strategy for law firms?

JM:  As an expert in a particular field of law, you should be associated with certain keywords which show you are a thought leader in that topical area. With SEO being MUCH more competitive and complex than ever, you may need to be more realistic and pick keywords that better match what you can write about comprehensively.

This can also affect the design of law firm websites and brand positioning. If you have fifty practice areas on your home page, you might consider featuring ones where you will be doing extensive writing and SEO work.

NLR:  Can you explain the idea behind the Eric Schmidt quote: “Brands are how you sort out the cesspool,” which you discuss in your book?

JM:  There are “black hat” SEO people that are the cesspool. They do sketchy things to try and trick Google into “liking” websites. Those tactics used to work on small law firm’s websites that did not deserve rankings. Thankfully, using brand signals like how many times people search for your brand and mention/link to your brand, Google is better able to rank sites that have a real-world value beyond SEO tactics.  The book, Content Marketing and SEO for Law Firms, offers several examples of brand signals and how they apply in a law firm context.

NLR:  What audience did you write your book for and who do you think will be the best audience for your January 15th webinar? 

JM:  Anyone trying to improve their law firm website and marketing will benefit greatly from Content Marketing and SEO for Law Firms, but firms that take action on it will get the most out of it. These content and SEO actions can be small to start but the key is to be consistent.

The content marketing and SEO guide is primarily written for law firm marketers, but it’s also for attorneys because they need to have an idea of how marketing strategy can directly affect the growth of their firm. The sections the attorneys should consider as “must-reads” are marked with a gavel icon.

This webinar will have enough insight on strategy that both law firm marketers and attorneys/department heads should attend.

 

Thanks, John for your time and insight.  For those who haven’t had the opportunity to hear John speak at various legal marketing events or read his previous publications to gain insight from his 20+ years of experience, the following webinar and his new book are great opportunities to get actionable advice on how to build an SEO roadmap for legal marketers in 2020:

Register for the January 15th complimentary webinar:  How to Develop an Effective Law Firm Content Marketing and SEO Action Plan for 2020.

Receive a sample chapter of John’s new book: Content Marketing and SEO for Law Firms.

 

Copyright ©2020 National Law Forum, LLC

ARTICLE BY Jennifer Schaller of The National Law Review / The National Law Forum LLC.
Read more about marketing for law firms in the Law Office Management section of the National Law Review.

Health Law Section Report – September-December 2019

  • On September 16, 2019, at 51 N.J.R. 1462(a), the Department of Human Services, Division of Medical Assistance and Health Services, published an adoption of a correction to an error in the text of the definition of “nurse delegation” in the definitions set forth in N.J.A.C. 10:60-1.2. During the comment period, Disability Rights New Jersey (DRNJ) submitted a comment pertaining to the definition of nurse delegation. As part of the comment, DRNJ requested DMAHS to add “pursuant to N.J.A.C. 13:37-6.2” after “selected nursing tasks” to clarify what selected nursing tasks referred to (see Comment 16). DMAHS agreed to the change; however, in making the addition upon adoption, DMAHS inadvertently added the cross-reference as “N.J.A.C. 10:37-6.2.” The adoption corrects the error and inputs pursuant to N.J.A.C. 13:37-6.2.
  • On October 7, 2019, at 51 N.J.R. 1493(a), the Department of Human Services, Division of Medical Assistance and Health Services, published a rule proposal for a new chapter, N.J.A.C. 10:52B, to implement The County Option Hospital Fee Pilot Program. The purpose of the pilot program is to increase financial resources through the Medicaid/NJ FamilyCare program to support local hospitals in providing necessary services to low-income residents. The pilot program shall be in effect for a period of five years from April 30, 2019 and will end on April 30, 2024.
  • On October 7, 2019, at 51 N.J.R 1514(a), the Department of Law and Public Safety, Division of Consumer Affairs, Board of Medical Examiners, adopted an amendment to the athletic trainer continuing legal education requirement at N.J.A.C. 13:35-10.21, to require one credit in topics concerning prescription opioid drugs, including the risks and signs of opioid abuse, addiction, and diversion, commencing with the biennial renewal period beginning on February 1, 2019.
  • On October 7, 2019, at 51 N.J.R 1546(a), the Commissioner of the Department of Health published a notice of petition for rulemaking submitted by the New Jersey Hospital Association to make certain amendments to N.J.A.C. 8:43G Hospital Licensing Standards, Subchapter 14 Infection Control, N.J.A.C. 8:43G-14.9, Sepsis protocols, as recommended by CMS and the Surviving Sepsis Campaign, known as Sepsis-1.
  • On October 21, 2019 at 51 N.J.R. 1568(a), the Department of Law and Public Safety, Division of Consumer Affairs, Board of Physical Therapy Examiners, published a proposal to amend rules for supervision of licensed physical therapy assistants to clarify the record keeping regulations (N.J.A.C. 13:39A-7.2 and 7.3) in a manner that in the event patient records are maintained on computer recordkeeping systems that do not permit a supervising licensed physical therapist to sign a licensed physical therapist assistant’s notes, the supervising licensed physical therapist will be able to enter a separate note in the record indicating that he or she reviewed the licensed physical therapist assistant’s notes or the plan of care with the physical therapist assistant. This is meant to avoid a de facto dual signature requirement.
  • On November 4, 2019 at 51 N.J.R. 1597(a), the Department of Law and Public Safety, Division of Consumer Affairs, Board of Medical Examiners proposed amendments to its existing rules concerning graduate medical education programs in order to update the eligibility requirements for graduates of international medical schools who seek licensure or authorization to engage in the practice of medicine as residents. The proposed amendments would replace outdated restrictions on graduates of international medical schools pursuing licensure or authorization in New Jersey and allow the Board to rely on recognized accrediting bodies for international medical schools that adhere to standards substantially similar to the bodies that accredit domestic medical schools. By expanding eligibility, the proposed amendments may positively affect the supply of physicians practicing in the State. The proposal seeks to amend N.J.A.C. 13:35-1.5, 3.11, and 3.11A.
  • On November 4, 2019 at 51 N.J.R. 1600(a) the Department of Law and Public Safety, Division of Consumer Affairs, Audiology and Speech-Language Pathology Advisory Committee (Committee) proposes new rules to effectuate the provisions of the telemedicine and telehealth statute for licensed audiologists and/or speech-language pathologists. The proposed new rules would be codified at N.J.A.C. 13:44C-11.
  • On November 18, 2019, at 51 N.J.R. 1638(a), the Department of Law and Public Safety, Division of Consumer Affairs, State Board of Dentistry, proposed amendments, repeals, and new rules to: 1) implement new laws; 2) update rules, terminology, citations, website addresses, and the names of the licensure examinations; and 3) clarify and codify current standards of practice and licensure and registration requirements. The rulemaking reflects updates related to statutory changes, additions to enhance the safety of patients receiving dental services and those working in the profession, and identifies continuing education courses that must be completed in each renewal period. In response to adverse incident reports and news articles from across the country, the Board is proposing amendments to the sedation rules to enhance the safety of patients receiving dental services. Because the Board is seeing incidents of trained individuals achieving a deeper level of sedation than intended, the Board wants to provide more guidance to the regulated community as to what is expected so as to enhance patient safety. See N.J.A.C. 13:30. Comments due January 17, 2020.
  • On November 18, 2019, at 51 N.J.R. 1664(a), the Department of Law and Public Safety, Division of Consumer Affairs, State Acupuncture Examining Board (Board) proposed to amend N.J.A.C. 13:35-9.20 to require licensed acupuncturists to hold current certification in cardiopulmonary resuscitation (CPR), first aid, and the use of an automated external defibrillator (AED) as part of continuing education required to renew licensure. The certification must be from the American Heart Association, or a substantially similar course approved by the American Red Cross, National Safety Council, Coyne First Aid, Inc., American Safety and Health Institute, EMP International Inc., or EMS Safety Services Inc. In recognition of the hours required to obtain the certification, the Board proposes to reduce the number of required continuing education hours from 30 to 26. The Board is changing the total credits that could be obtained by certain methods to reflect that half of the total required hours will be 13 rather than 15. The Board also proposes to allow licensees who complete more than the continuing education hours required to renew licensure to apply those additional hours to the immediately succeeding biennial license renewal period. See N.J.A.C. 13:35-9.20.
  • On November 18, 2019, at 51 N.J.R. 1666(a), the Department of Law and Public Safety, Division of Consumer Affairs, Board of Massage and Bodywork Therapy proposed amendments that would require applicants for licensure and licensed massage and bodywork therapists to physically attend CPR, first aid, and use of an automated external defibrillator (AED) courses, would require licensed massage and bodywork therapists to complete continuing education in laws and rules pertinent to the practice of massage and bodywork therapy, and would end recognition of continuing education courses provided by schools, colleges, or universities. See N.J.A.C. 13:37A-2.1, 2.2, 2.3, 4.1, and 4.2.
  • On November 18, 2019, at 51 N.J.R. 1674(a), the Department of Law and Public Safety, Division of Consumer Affairs, State Board Of Marriage And Family Therapy Examiners, Art Therapists Advisory Committee adopted new rules at N.J.A.C. 13:34D requiring licensure of art therapists and providing rules governing licensed art therapists. The new rules require licensed art therapists to preserve the confidentiality of information obtained from a client in the course of professional treatment unless disclosure is required by Federal law and requires an art therapist whose client has explicitly waived the art therapist-client confidentiality privilege to release client information to a third-party payor whose benefit plan is qualified under the Federal Employee Retirement Income Security Act (ERISA). In addition, the new regulations provide that failure to comply with Federal laws related to the practice of art therapy will be deemed professional misconduct. See N.J.A.C. 13:34D.
  • On November 18, 2019, 51 N.J.R. 1688(a), the Department of Law and Public Safety, Division of Consumer Affairs, Board of Massage and Bodywork Therapy readopted rules with amendments, adopted repeals and new rules regarding licensure, reinstatement and reporting of misconduct, record keeping and business registration. See N.J.A.C. 3:37A.
  • On November 18, 2019, 51 N.J.R. 1691(a), the Department of Law and Public Safety, Division of Consumer Affairs, Orthotics and Prosthetics Board adopted a new rule regarding the abandonment of license applications due to incomplete information on the application or a one year lapse in submission of information requested by the Board. See N.J.A.C. 13:44H-3.5A.
  • On November 18, 2019, 51 N.J.R. 1691(b), the Department of Law and Public Safety, Division of Consumer Affairs, Orthotics and Prosthetics Board adopted a new rule to implement the telemedicine statute and to permit the use of telemedicine and telehealth by licensed orthotist, orthotist assistant, pedorthist, prosthetist, prosthetist assistant, prosthetist-orthotist, or prosthetist-orthotist assistant. See N.J.A.C. 13:44H-11.
  • On December 2, 2019, at 51 N.J.R. 1761(a), the Department of Law and Public Safety, Division of Consumer Affairs, State Board Of Marriage And Family Therapy Examiners, Alcohol & Drug Counselor Committee adopted amendments to the rules regarding who may provide clinical supervision to interns and counselors. See N.J.A.C. 13:34C-6.2, 6.2A, and 6.3.
  • On December 2, 2019, at 51 N.J.R. 1806(a), the Commissioner of the Department of Health published a notice of action on rulemaking by announcing that more time is required for deliberating on the adoption of new sepsis protocols for hospitals, as proposed on October 7, 2019 at 51 N.J.R 1546(a).
  • On December 16, 2019, at 51 N.J.R. 1841(a), the Department of Law and Public Safety, Division of Consumer Affairs, State Board of Physical Therapy Examiners proposed an amendment and new rule recognizing the provisions of the Compact privileges that would require physical therapists and physical therapist assistants working in New Jersey, under Compact privileges, to comply with Board rules, except for those governing credentialing of applicants, license renewal, and continuing education. The proposed amendment and new rule require those seeking to work in New Jersey, pursuant to Compact privileges, to pass the State jurisprudence examination and to pay the Compact privilege fee ($40).
  • On December 16, 2019, at 51 N.J.R. 1849(ab), the Department of Law and Public Safety, Division of Consumer Affairs, State Board of Medical Examiners adopted amendments to the rules regarding continuing medical education that would permit up to 10 hours volunteer medical service to uninsured low income patients to count towards the required CME requirement. See N.J.A.C. 13:35-6.15.

© 2020 Giordano, Halleran & Ciesla, P.C. All Rights Reserved

For more health care developments in New Jersey and other states, see the National Law Review Health Law & Managed Care section.

 

Escalated Tension with Iran Heightens Cybersecurity Threat Despite Military De-Escalation

The recent conflict between the United States and Iran has heightened America’s long-time concern of an imminent, potentially lethal Iranian cyber-attack on critical infrastructure in America.   Below, is the latest information including the United States Government’s analysis on the current standing of these threats as of January 8, 2020. 

CISA Alert

The U.S. Department of Homeland Security’s (DHS) Cybersecurity and Infrastructure Security Agency (CISA) issued Alert (AA20-006A) in light of “Iran’s historic use of cyber offensive activities to retaliate against perceived harm.”  In general, CISA’s Alert recommends two courses of action in the face of potential threats from Iranian actors: vulnerability mitigation and incident preparation.  The Alert specifically instructs organizations to increase awareness and vigilance, confirm reporting processes and exercise organizational response plans to prepare for a potential cyber incident.  CISA also suggests ensuring facilities are appropriately staffed with well-trained security personnel who are privy to the tactics of Iranian cyber-attacks.  Lastly, CISA recommends disabling unnecessary computer ports, monitoring network, and email traffic, patching externally facing equipment, and ensuring that backups are up to date.

Iranian Threat Profile

CISA asserts that Iranian cyber actors continually improve their offensive cyber capabilities. These actors are also increasingly willing to engage in destructive, kinetic, and even lethal cyber-attacks.  In the recent past, such threats have included disruptive cyber operations against strategic targets, including energy and telecommunications organizations. There has also been an increased interest in industrial control systems (such as SCADA) and operational technology (OT).  Refer to CISA’s Alert and the Agency’s “Increased Geopolitical Tensions and Threats” publication for specific Iranian advanced persistent threats to the nation’s cybersecurity.

Imminence of an Iranian Cyber-attack

While CISA urges vigilance and heightened prudence as it pertains to cybersecurity, DHS has been clear that there is “no information indicating a specific, credible threat to the Homeland.”  Nevertheless, the same National Terrorism Advisory System Bulletin publication (dated January 4, 2020) warns that Iran maintains a robust cyber program. This program can carry out attacks with varying degrees of disruption against U.S. critical infrastructure. The bulletin further states that “an attack in the homeland may come with little to no warning.”  There is also a concern that homegrown violent extremists could capitalize on the heightened tensions to launch individual attacks.  With the ongoing tension, it is unlikely that the imminence of an Iranian cyber-attack will dissipate in the near term.

Implications

It is vital for businesses, especially those deemed critical infrastructure, to stay apprised of new advances on these matters.  Given that the Alert calls for organizations to take heightened preventative measures, it is imperative that critical infrastructure entities revisit their cybersecurity protocols and practices and adjust them accordingly.  A deeper understanding of the organizational vulnerabilities in relation to this particular threat will be imperative.

© 2020 Van Ness Feldman LLP

For more on cybersecurity, see the Communications, Media & Internet section of the National Law Review.

Illinois House Bill Requires Corporations to Report to Secretary of State

House Bill 3394, approved by the Governor on August 27, 2019 and effective immediately (Public Act 100-589), amends the Business Corporation Act of 1983 (“BCA”) to add new Section 8.12 and amend Section 14.05.

New BCA Section 8.12 provides that domestic and foreign corporations, as soon as possible but not later than January 1, 2021, to report to the Secretary of State, on its Annual Report:

  1. Whether the corporation is a publicly held domestic or foreign corporation with its principal executive office located in Illinois
  2. Data on specific qualifications, skills and experience that the corporation considers for its board of directors, nominees for the board of directors and executive officers
  3. Whether each member of the corporation’s board of directors self-identifies as a minority person and, if so, which race or ethnicity to which the member belongs
  4. Other information

New BCA Section 8.12 also requires the Secretary to State to make the information public and report the information to the University of Illinois which is to review the reported information and publish, on its website, a report that provides aggregate data on the demographic characteristics of the boards of directors and executive officers of corporations filing an annual report for the preceding year along with an individualized rating (establish by the University of Illinois assessing the representation of women and minorities on corporate boards)  for each such corporation. The University of Illinois’ is also required to identify strategies for promoting diversity and inclusion among boards of directors and corporate executive officers.

BCA Section 14.05 as amended adds new Sections 14.05(k) and 14.05(l).  New BCA Section 14.05(k) requires each corporation or foreign corporation to state on its Annual Report whether the corporation has outstanding shares listed on a major United States stock exchange and is thereby subject to the reporting requirements of new BCA Section 8.12.  New BCA Section 14.05(l) requires corporations subject to new BCA Section 8.12 to provide the information required by new BCA Section 8.12.

It is our understanding that Form 14.05, Illinois Annual Report, is currently being amended to reflect these changes.

© Horwood Marcus & Berk Chartered 2020. All Rights Reserved.

For more on corporate reporting requirements, see the National Law Review Corporate & Business Organizations law page.