Category: Legislation

Arizona Law Aimed at Curbing Service Dog Fraud May Be All Bark, No Bite (US)

Under federal and Arizona state law, persons with disabilities can bring service animals—all breeds of dog and miniature horses—into places of public accommodation (businesses open to the public) even if the business otherwise excludes pets. No specific training or certification program is required to qualify as a service animal, nor are such animals required to wear any particular vests, leashes, or other identifying gear. Owners are not required to carry any papers proving that their animals are service animals. In fact, business owners are limited to asking persons with disabilities if (1) the dog or miniature horse is a service animal required because of a disability, and (2) what work or task the animal has been trained to perform.

Because there are so few restrictions on individuals bringing animals into places of public accommodation, many business owners report situations when patrons have brought pets or comfort animals into their businesses trying to pass them off as legitimate service animals. But without the ability to inquire further or any meaningful consequence for persons who try to fraudulently represent their pets as service animals, business owners have been limited to excluding such animals only if they present a current threat to the health or safety of others, are not housebroken, or if the animal’s presence fundamentally alters the business’ service, program, or activity or poses an undue burden.

To try to remedy this, Arizona lawmakers recently passed a bill, which Gov. Ducey signed into law, making it illegal to misrepresent a pet as a service animal or service animal-in-training, and creating civil penalties of up to $250 for each violation. Critics say the law will have little practical impact, as it does not expand the type of questions business owners can ask or require that owners carry papers certifying the animal as a service animal. Business owners must still accept patrons at their word that an animal is a service animal that helps them perform a particular task; it is the rare individual who would volunteer that he or she is trying to falsely represent their pet as a service animal. Disability advocates worry the measure will prompt business owners to ask impermissible questions of disabled patrons—particularly those with non-visible disabilities like post-traumatic stress disorder (PTSD) or epilepsy—in an attempt to get them to admit that the animal is not, in fact, aiding them with their disability needs, and that calls to law enforcement to report suspected abuse of service animal accommodations will escalate.

When the law goes into effect this fall, Arizona business owners can take comfort knowing that abusers of animal accommodations may be subject to significant fines, but should still be sure to adhere to restrictions on what they can and cannot ask of patrons bringing animals into their businesses. The law does not permit business owners to demand proof of the person’s disability, the animal’s training, or any form of certification or identification, and the failure or refusal by patrons to produce such information is not a violation of the law, but business owners insisting that patrons produce such proof is a violation of disability law. Business owners still should exclude patrons with service animals only where the animal’s very presence would fundamentally alter the nature of the business or where the animals pose a safety risk.

 

© Copyright 2018 Squire Patton Boggs (US) LLP.

Do You Have To Be Old To Be A Veteran?

On Saturday, the country honored its veterans.  November 11 was originally designated as “Armistice Day” in recognition of the date on which fighting in the First World War ended.  It became a legal holiday in 1938 only a few years before the United States’ entry into the Second World War in 1941.  52 Stat. 351; 5 U. S. Code, Sec. 87a).  Shortly after the end of the Korean War, President Dwight Eisenhower proclaimed November 11 as “Veterans Day” for the first time:

Now, Therefore, I, Dwight D. Eisenhower, President of the United States of America, do hereby call upon all of our citizens to observe Thursday, November 11, 1954, as Veterans Day. On that day let us solemnly remember the sacrifices of all those who fought so valiantly, on the seas, in the air, and on foreign shores, to preserve our heritage of freedom, and let us reconsecrate ourselves to the task of promoting an enduring peace so that their efforts shall not have been in vain. I also direct the appropriate officials of the Government to arrange for the display of the flag of the United States on all public buildings on Veterans Day.

Who qualifies as a “veteran” in California?  It turns out that California’s Military and Veterans Code has multiple, not entirely consistent definitions of the term (See Sections 890, 920, 940, 980, 987.003, 999, and 1010).

The term itself is derived from the Latin word veteres, meaning old.  The Romans, by and large, revered the customs and examples of their elders, especially those of the distant past.  For example, the great Roman lawyer, Marcus Tullius Cicero wrote “maiores nostri, veteres illi, admodum antiqui, leges annales non habebant (our elders, those ancestors of absolute antiquity, had no laws governing the age [for holding public offices])”.  In M. Antonium Oratio Philippica Quinta [the Fifth Oration Against M. Antonius aka the “Fifth Philipic”] § 47.

This post was written by Keith Paul Bishop of Allen Matkins Leck Gamble Mallory & Natsis LLP., © 2010-2017
For more legal analysis, go to The National Law Review  

Death and Taxes: House Bill Eliminates “Death” Tax in 2024

On November 2, 2017, the U.S. House of Representatives’ Ways and Means Committee released its proposal for tax reform via the Tax Cuts and Jobs Act. The House’s draft legislation contains a number of provisions that, if enacted, would significantly change the wealth transfer landscape, including the total repeal of the estate and generation-skipping transfer taxes as of January 1, 2024.

Under the proposal, commencing on January 1, 2018, the individual lifetime gift and estate tax exemption amount will be doubled to $10 million ($20 million for married couples), indexed for inflation—$11.2 million per person in 2018 ($22.4 million for married couples). This increase in the exemption amount also applies to the generation-skipping transfer tax.

The draft legislation calls for a total repeal of the estate and generation-skipping transfer taxes as of January 1, 2024, while preserving the ability of beneficiaries to obtain a basis adjustment as to inherited property. Although the gift tax is set to remain in place, a reduction in the rate from 40% to 35% is provided for. Similarly, the annual exclusion—scheduled to increase to $15,000 per individual in 2018 ($30,000 for married couples who elect to split their gifts)—looks certain to survive.

This post was written by the Tax, Estate Planning & Administration  of Jones Walker LLP., © 2017
For more Family, Estates & Trusts legal analysis, go to The National Law Review

Telemedicine – Are There Increased Risks With Virtual Doctor Visits?

“Telemedicine” or “Telehealth” are the terms most often used when referring to clinical diagnosis and monitoring that is delivered by technology. Telemedicine encompasses healthcare provided via real time two-way video conferencing; file sharing, including transmission of health history, x-rays, films, or photos; remote patient monitoring; and consumer mobile health apps on smart phones, tablets, and devices that collect data and transmit it to a healthcare provider. Telemedicine is increasingly being used for everything from diagnosing common viruses to monitoring patients with serious long-term health issues.

The American Telemedicine Association reports that majority of hospitals now use some form of telemedicine. Two years ago, there were approximately 20 million telemedicine video consultations; that number is expected to increase to about 160 million by 2020. An estimated one-third of employer group plans already cover some type of telehealth.

Telemedicine implicates legal and regulatory issues as licensing, prescribing, credentialing, and cybersecurity. Pennsylvania recently passed legislation joining the Interstate Medical Licensing Compact, an agreement whereby licensed physicians can qualify to practice medicine across state lines within the Compact if they meet the eligibility requirements. The Compact enables physicians to obtain licenses to practice in multiple states, while strengthening public protection through the sharing of investigative and disciplinary information.

Federal and state laws and regulations may differ in their definitions and regulation of telemedicine. New Jersey recently passed legislation authorizing health care providers to engage in telemedicine and telehealth. The law establishes telemedicine practice standards, requirements for health care providers, and telehealth coverage requirements for various types of health insurance plans. Earlier this year, Texas became the last state to abolish the requirement that patient-physician relationships must first be established during an in-person patient/doctor visit before a telemedicine visit.

As telemedicine use increases, there will likely be an increase in related professional liability claims. One legal issue that arises in the context of telemedicine involves the standard of care that applies. The New Jersey statute states that the doctor is held to the same standard of care as applies to in-person settings. If that is not possible, the health care provider is required direct the patient to seek in-person care. However, the standard of care for telemedicine is neither clear nor uniform across the states.

Another issue that arises in the context of telemedicine is informed consent, especially in terms of communication, and keeping in mind that the Pennsylvania Supreme Court recently held that only the doctor, and not staff members, can obtain informed consent from patients. Miscommunication between a healthcare provider and patient is often an underlying cause of medical malpractice allegations in terms of whether informed consent was obtained.

In addition, equipment deficiencies or malfunctions can mask symptoms that would be evident during an in-person examination or result in the failure to transmit data accurately or timely, affecting the diagnosis or treatment of the patient.

Some of these issues will likely ultimately be addressed by legislative or regulatory bodies but others may end up in the courts. According to one medical malpractice insurer, claims relating to telemedicine have resulted from situations involving the remote reading of x-rays and fetal monitor strips by physicians, attempts to diagnose a patient via telemedicine, delays in treatment, and failure to order medication.

A recent Pennsylvania case illustrates how telemedicine may also impact the way medical malpractice claims are treated in the courts. In Pennsylvania, a medical malpractice lawsuit must be filed in the county where the alleged malpractice occurred. Transferring venue back to Philadelphia County, the Superior Court in Pennsylvania found that alleged medical malpractice occurred in Philadelphia — where the physician and staff failed to timely transmit the physician’s interpretation of an infant’s echocardiogram to the hospital in another county where the infant was being treated.

The use of telemedicine will likely have wide-reaching implications for health care and health care law, including medical malpractice.

This post was written by Michael C. Ksiazek of STARK & STARK, COPYRIGHT ©
2017
For more Health Care legal analysis, go to The National Law Review 

Positive Developments – EUTM

Trademark owners should take note of two new types of trademark protection available in the European Community as of October 1, 2017.

1. Certification Marks – although it has always been possible to register certification marks in a few individual EU member states, it was previously not possible to register a certification mark, for certification services, with the EUIPO.  This will change as of October 1, 2017 when it will now it will be possible to register certification with the EUIPO, covering all EU member states.  European Union certification marks are defined as marks that are “capable of distinguishing goods or services which are certified by the proprietor of the mark in respect of material, mode of manufacture of goods or performance of services, quality, accuracy or other characteristics, with the exception of geographical origin, from goods and services which are not so certified.”

2. Marks no Longer Need Graphic Representation – it will now be possible to file for sound, hologram, motion, and multimedia marks; marks can now be represented in any form using generally available technologies.  Unfortunately, it is still not possible to file for tactile, smell, and taste marks in the EU.

This post was written by Monica Riva Talley of Sterne Kessler © 2017
For more legal analysis go to The National Law Review

Cannabis Prop 65 Liability: Lessons Learned from the Dietary Supplement Industry

The cannabis industry appears to be next on the liability “hit list” under California’s notorious Proposition 65 statute. In June 2017, more than 700 Prop 65 notices were served on California cannabis businesses. Companies in this emerging market should start mitigating risk under Prop 65 now. Fortunately, lessons can be learned from the dietary supplement industry’s expensive Prop 65 battles over the past decade.

California’s Prop 65, also known as the Safe Drinking Water and Toxic Enforcement Act, requires a warning on all products that contain chemicals known to cause cancer or reproductive harm, even in amounts a fraction of what is deemed safe by federal standards. Prop 65 has caused havoc within the dietary supplement and herbal product markets over the past decade, led by a cottage industry of “bounty hunter” attorneys who have weaponized the statute, ostensibly in the public interest but in reality as a lucrative for-profit business. These bounty hunters are now turning their attention to cannabis. Though amendments to the statute were adopted in 2016 for the purpose of reducing this abuse, Prop 65 litigation will continue and cannabis companies must stay vigilant.

Many businesses faced with the necessity of using a Prop 65 warning have no concern with the impact that a warning may have on sales or with consumer confidence in the product. After all, who would look twice at a Prop 65 warning on motor oil or insect repellent? Like the dietary supplement industry before them, however, many cannabis businesses will resist including a warning that the product contains a chemical known to cause cancer or reproductive harm. Many cannabis products rely on the consumers’ belief that the product is harmless and even therapeutic. For many, this will be an important business decision that may give rise to expensive mistakes − a decision should be made with an understanding of the basis for Prop 65 liability and exposure.

What Is Prop 65 and What Does It Require?

Prop 65 was passed by California voters in 1986 after an aggressive lobbying campaign by environmental and public health activists. The stated purpose of Prop 65 was to improve public health. The general consensus, however, is that Prop 65 has placed an undue burden on California businesses while achieving no significant impact on public health over the past 30 years.

As noted above, Prop 65 requires a warning on all products that contain chemicals known to cause cancer or reproductive harm. There are more than 900 such chemicals listed, and marijuana smoke has been included on the list since 2009.

For a warning to be acceptable under Prop 65, it must (1) clearly make known that the chemical involved is known to cause cancer and/or birth defects and/or other reproductive harm and (2) be given in such a way that it will effectively reach the person before he or she is exposed. The warnings must be “clear and reasonable,” meaning that the warning may not be diluted by other language. Various means of communicating the warning are allowed, including product-specific warnings on a posted sign or shelf, warnings on the product label or electronic warnings for internet purchases.

Important Exemptions

There are several important exemptions to Prop 65 that make a warning unnecessary. Businesses with nine or fewer employees are exempt from the statute. There also is an exemption involving chemicals that occur naturally in food. Lead, for example, will be considered naturally occurring only if it “is a natural constituent of a food” and is not added as a result of human activity such as pollution or poor manufacturing processes. The burden is on the company to prove the exemption, however, which is typically time-consuming and expensive.

Another important exemption is provided by “safe harbor” exposure levels for many chemicals on the Prop 65 list, below which no warning is required. The listed chemicals include additives or ingredients in pesticides, food, drugs and common household products. Most food contains at least some level of one or more of these substances. Prop 65 safe-harbor levels, however, are in many cases around 1,000 times lower than levels set by the Food and Drug Administration (FDA), Environmental Protection Agency (EPA) and World Health Organization (WHO). The exposure levels established by Prop 65 are often lower than what occurs naturally in fruits, vegetables, grains and even drinking water.

For example, the Prop 65 limit for lead is 0.5 mcg / day, which is below the amount of lead naturally found in many fruits, vegetables and herbs grown in non-contaminated soil. By comparison, the FDA allows 75 mcg / day and the European Union allows 250 mcg / day for lead. The European Food Safety Authority estimates the average adult consumes around 50 micrograms per day, which is 100 times the Prop 65 limit. It is nearly impossible to manufacture herbal products, including cannabis, without trace amounts of lead. Therefore, despite the “naturally occurring” exemption, discussed above, it can be dangerous to simply assume that an herbal product, including cannabis, complies with safe-harbor levels.

Only about 300 of the more than 900 Prop 65 chemicals have specific safe-harbor levels. For those chemicals without a safe-harbor limit, the burden will be on the cannabis business to establish that the subject chemical is within a safe range. This typically requires expensive testing, the results of which may be open to multiple interpretations as to whether a warning is required.

Determining the Exposure Level

Determination of the “exposure level” also is an important consideration. Prop 65 focuses on the level of a chemical to which the consumer is actually exposed. Although a product may have a very low amount of a chemical on the Prop 65 schedule that is below the safe-harbor level, liability under the statute may nevertheless be triggered based on the recommended serving size. It is advisable for companies to work with a laboratory that specializes in Prop 65 testing to determine the cumulative exposure level in order to verify the recommended serving size.

Enforcement of Prop 65

Prop 65 is enforced through litigation brought by the government or by private attorneys that “act in the public interest.” It is the threat of these private lawsuits that causes such consternation among those targeted with Prop 65 liability. After a 60-day notice period, the attorney may file a civil suit against the offending company. Typically, the plaintiff will demand that the defendant provide warnings compliant with Prop 65, pay a penalty, and either recall products already sold or attempt to provide health hazard warnings to those who purchased the products.

Though purportedly brought in the public interest, it is the collection of penalties and attorneys’ fees that in reality drives this litigation. Prop 65 allows individuals who bring suit to recover 25 percent of the penalties awarded, which by statute is calculated at $2,500 per violation per day. Amendments made to Prop 65 in 2016 allow for certain voluntary actions by the defendant – reformulation of the product, for example – in lieu of penalties. The threat of paying the plaintiff’s attorney’s fees makes litigating Prop 65 cases potentially very expensive. The attorney is incentivized to drag out the litigation, and the longer the case goes on, the more difficult it becomes to resolve because of the mounting fees.

This framework has created a cottage industry of Prop 65 “bounty hunter” lawyers who affiliate with “public interest” organizations that bring these cases for profit. According to the California Attorney General, 760 settlements were reported in 2016 with total settlement payments of more than $30 million. Attorneys’ fees accounted for 72 percent of that amount. The 2016 amendments to the statute have attempted to address these abuses to some extent by requiring a showing that the public benefits derived from the settlement are “significant” and by requiring contemporaneous record keeping for fees and costs sought to be recovered. Prop 65 litigation nevertheless continues to burden many industries in California, now including the cannabis industry. For Prop 65 liability, prevention is certainly less costly than a cure.

 

This post was written by Ian A. Stewart of Wilson Elser © 2017

For more legal analysis go to The National Law Review

City of Birmingham Passes Nondiscrimination Ordinance, Creates Human Rights Commission

On September 26, 2017, the Birmingham City Council passed an ordinance that makes it a crime for any entity doing business in the city to discriminate based on race, color, national origin, sex, sexual orientation, gender identity, disability, or familial status. The ordinance passed unanimously and is the first of its kind in Alabama. Enforceable through the municipal courts, the local law applies to housing, public accommodations, public education, and employment. It carves out two exceptions: one for religious corporations and one for employers with bona fide affirmative action plans or seniority systems.

In a separate measure passed during the same meeting, the city created a local human rights commission to receive, investigate, and attempt conciliation of complaints. The commission has no enforcement authority. Citizens who believe they have suffered unlawful discrimination must appear before a magistrate and swear out a warrant or summons. The entity or individual will not receive a ticket but will face a trial before a municipal judge in the city’s courts. Ordinance violations are classified as misdemeanor offenses, and those found guilty of discrimination will face fines of up to $500. Alabama municipalities have no authority under state law to create civil remedies for ordinance violations, therefore, an employer would not be required to reinstate an employee or provide back pay if it were found guilty of violating the ordinance in municipal court.

Because the city’s courts, which are courts of criminal jurisdiction, operate much more quickly than federal civil courts do, one would expect that a guilty verdict under the Birmingham ordinance likely could be used as evidence of discrimination in a federal civil claim that is almost sure to follow.

Although the city’s mayor must sign the ordinance for it to become effective, the mayor has announced he will sign it into law immediately. The city also expects that the Alabama Legislature will challenge the ordinance.

This post was written by Samantha K. Smith of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved. © 2017
For more legal analysis, go to The National Law Review

Revised Travel Ban Coming?

The Trump Administration reportedly may replace the current travel ban with a country-specific set of restrictions.

In June, the Supreme Court allowed the government to begin enforcing the 90-day travel ban against individuals from Iran, Libya, Somalia, Sudan, Syria, and Yemen who had no bona fide relationship to the United States. The 90-day ban will expire on September 24. The 120-day ban on refugees also went into effect in June. The Supreme Court plans to hear the full travel ban case on October 10.

The Department of Homeland Security’s recently finalized classified report on screening foreign travelers may support anticipated changes to the travel ban. Substituting a new ban could change the dynamics, potentially making the case before the Supreme Court moot or leading to a remand of the case for further hearing at the lower court level.

The new restrictions are expected to be open-ended and based upon the DHS review and identification of countries with deficient security standards. More than six countries may have been identified. Additional countries could be added to the banned list, others could be removed, and still others might become subject to certain visa restrictions.

This post was written by Michael H. Neifach of Jackson Lewis P.C. © 2017
For more legal analysis go to The National Law Review

Effects of Insurance Marketplace Uncertainty

Even as Senators continue to consider “Graham-Cassidy,” the latest Affordable Care Act (ACA) repeal legislation, insurance markets are already reacting to uncertainty and instability brought about by persistent GOP efforts to upend the post-ACA insurance landscape. Between the Trump Administration’s ongoing refusal to commit to long-term funding of the ACA’s cost-sharing reductions (CSRs) and legislative overtures to repeal key portions of the ACA, premiums have increased, insurers have exited state exchanges, and access to health care coverage has been compromised.

As the Congressional Budget Office (CBO) recently estimated, insurers are expected to “raise premiums for marketplace plans in 2018 by an average of roughly 15 percent, largely because of uncertainty about whether the federal government will continue to fund CSR payments and because of an increase in the percentage of the population living in areas with only one insurer.” Speaking to the latter factor, CBO notes that a number of insurers have withdrawn from healthcare exchanges established under the ACA, spurred, at least in part, by “uncertainty about the enforcement of the individual mandate, and uncertainty about the federal government’s future payments for [CSRs].” Although ACA proponents’ (and critics’) most dire predictions were narrowly avoided – that some counties would have no insurers offering marketplace plans – there is little doubt that insurer participation has been adversely impacted by market uncertainty, with pocketbook repercussions for policy-holders.

The turbulent political climate is also likely to reduce the number of insured individuals in 2018. CBO and the Joint Committee on Taxation anticipate lower insurance enrollment as a result of reductions in federal-sponsored advertising and outreach. Department of Health and Human Services officials recently indicated that the advertising budget for the open enrollment period commencing in November would be reduced to $10 million, amounting to a 90% reduction when compared to spending in the last year of the Obama Administration. Grants to “navigators” – nonprofit groups that assist people with marketplace insurance plan enrollment – will be reduced from approximately $63 million to $36 million.

Whether or not the worst is yet to come will hinge on the fate of Graham-Cassidy and the presently-stalled efforts to reach consensus on a bipartisan ACA stabilization bill. In what is turning out to be a recurring theme in 2017, we may have to wait several weeks for the dust to settle and reasoned prognostication to be possible.

This post was written by Matthew J. Goldman & Jordan E. Grushkin of Sheppard Mullin Richter & Hampton LLP., Copyright © 2017
For more legal analysis go to The National Law Review 

President Trump Signs the “Securing our Agriculture and Food Act”

President Trump recently signed the “Securing our Agriculture and Food Act” (H.R. 1238). The bill amends the Homeland Security Act of 2002 to direct the Assistant Secretary for Health Affairs for the Department of Homeland Security (DHS) to carry out a program to coordinate DHS efforts related to defending the food, agriculture and veterinary systems of the United States against terrorism and other high-consequence events that pose a high risk to homeland security.

According to Michigan Farm News, the law will:

  • Provide oversight and management of DHS’s responsibilities pursuant to Homeland Security Presidential Directive 9 – Defense of United States Agriculture and Food;
  • Provide oversight and integration of DHS activities related to veterinary public health, food defense and agricultural security;
  • Lead DHS policy initiatives related to food, animal and agricultural incidents and to overall domestic preparedness for, and collective response to, agricultural terrorism;
  • Coordinate with other DHS components on activities related to food and agriculture security and screening procedures for domestic and imported products; and
  • Coordinate with appropriate federal departments and agencies.
This post was written by Aaron M. Phelps of  Varnum LLP© 2017
For more legal analysis go to The National Law Review