9th Annual General Counsel Institute – November 7-8, 2013

The National Law Review is pleased to bring you information about the upcoming 9th Annual General Counsel Institute.

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When

November 7-8, 2013

Where

New York, NY

In today’s rapidly evolving business environment, change is a way of life – in your company, your legal department and your own legal career.

The combined forces of a fluctuating economy, exponential growth in technology, and the constant evolution of both law and corporate culture require a resilient and agile legal workforce. As in-house counsel, your ability to offer practical and deliverable solutions to the complex challenges facing your company will maximize your legal department’s value and solidify your position as a valued business partner.

At GCI, you will be inspired by powerful personal stories of resiliency. You will explore current legal issues and develop best practices to anticipate and respond quickly to your clients’ needs. Through substantive legal workshops and the open exchange of ideas with senior lawyers facing similar challenges, you will improve your skills to address issues head on, drive positive changes in your own legal department, and marshal the strength not just to survive, but to thrive in a world of constant change.

Resilience is the power to understand the challenge and to recognize the opportunities. You will leave GCI with a personal plan to incorporate today’s critical skill of resilience into your role as in-house counsel.

Prior GCI participants have come from throughout the U.S., Canada and Europe and included counsel from large Fortune 100 to small private companies to non-profit organizations.

• Attend plenary sessions with leading general counsel and distinguished
speakers.
• Participate in CLE-eligible workshops led by subject matter experts.
• Enjoy opportunities for informal networking throughout both days.
• Interact with general counsel and other senior corporate counsel in
informal settings and optional evening activities.

The Government Shut Down and Its Impact on Public Health

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In the early morning of October 1, 2013, the U.S. federal government officially went dark. The shutdown came in the aftermath of the Senate’s decisive vote to reject a House plan that would have kept the government funded for several more months but delayed implementation of key portions of the Affordable Care Act (ACA) for one year.

The impact of the shutdown will be felt across all healthcare sectors as many federal employees face furloughs of unknown duration. In particular, the Department of Health and Human Services (HHS) announced in its Contingency Staffing Plan that over half of its employees will be furloughed. HHS’s Plan is based upon federal guidance that allows agency programs to continue only if they either do not rely on annual appropriations, or they involve the safety of human life or the protection of property.[1] According to HHS, the following programs and services will continue:

  • Funding for Medicaid and the Child Health Insurance Program will continue uninterrupted because funding has already been set aside for these programs.
  • Funding for Medicare will likewise continue uninterrupted but only in the short term. If the political impasse stretches beyond several weeks, the program could be disrupted by the reduction in HHS staff.
  • The Centers for Medicare & Medicaid Services (CMS) will continue to implement the ACA, “including coordination between Medicaid and the Marketplace, as well as insurance rate reviews, and assessment of a portion of insurance premiums that are used on medical services.”[2]
  • State and federal health insurance exchange programs will open as planned, though it is not clear how the information technology (IT) that underpins the exchanges will function since they are operated by government contractors.[3]
  • The National Institute of Health (NIH) will continue to provide patient care for current NIH Clinical Center[4] patients
  • The Food and Drug Administration (FDA) will be able to operate only for “vital activities” such as high risk recalls and other “critical public health issues.”
  • Substance Abuse and Mental Health Services Administration will continue programs such as the Suicide Prevention Lifeline using the balance of available grants.
  • Other programs supported through mandatory funding such as the Centers for Disease Control and Prevention (CDC) Global HIV/AIDS Program will continue.

However, several programs important to public health will be disrupted if a congressional compromise cannot soon be reached. For example:

  • Outside of matters related to “imminent threats to the safety of human life or protection of property,” CMS, FDA, NIH and other federal agencies will not publish regulations or other guidance during the shutdown.
  • CMS will not fund task forces that work to prevent healthcare fraud and abuse, and will scale back on Medicare provider audits.
  • The CDC seasonal influenza program, which tracks flu outbreaks and certain infectious diseases, will come to a halt.
  • No new patients will be admitted to the NIH Clinical Center. NIH-funded researchers may continue to work for as long as their money holds out but additional funds will not be released during the shutdown.
  • The FDA will not be able to support much of its food safety activities, such as routine inspections and public notification programs. The FDA’s laboratory research and some compliance and enforcement activities will be suspended.
  • No action will be taken on any grants related to medical research, improvement of the healthcare system, and monitoring of substance abuse programs.

Although providers can take comfort in the fact that Medicare and Medicaid program reimbursement will proceed, a government shutdown for any period of time beyond three or four weeks could impede certain critical administrative functions, such as Medicare claims processing, and therefore impact their pocketbooks. Likewise, while substantial ACA implementation will continue, long term furloughs could affect certain components of the law (such as the exchanges) because they depend on government employees to help run the IT component, among other aspects of the program. Thus, the magnitude of the shutdown’s impact will depend on how long it endures.

*Copyright 2013, American Health Lawyers Association, Washington, DC. Reprint permission granted.

[1]/ Opinion of the Office of Legal Counsel, Department of Justice, Government Operations in the Event of a Lapse in Appropriations, 1995 WL 17216091 (Aug.16, 1995) at pp. 3-4: see also, Effect of Appropriations for Other Agencies and Branches on the Authority to Continue Department of Justice Functions During the Lapse in the Department’s Appropriations, 19 Op. O.L.C. 337, 1995 WL 917146 (Dec. 13, 1995).

[2]/ Contingency Staffing Plan, pp.2-3.

[3]/ CMS has not publicly stated whether the IT contracts are already issued and funded.

[4]/ The NIH Clinical Center is the agency’s research hospital.

Shutdown Closes National Labor Relations Board (NLRB) Operations

Barnes & Thornburg

As a result of the federal government shutdown, yesterday NLRB operations ground to a halt. Many practitioners and employers during the a.m. hours received contact from Board Agents and Board Lawyers indicating that pending investigations, petition processing and the like were on hold until after the shutdown ends.

The Board’s “Shutdown Plan” indicates that 1,600 of the Board’s 1,611 staff have been furloughed. All regional offices are closed and the only remaining staff are located in the Board’s main office in D.C. Even the Board’s website was shutdown and the resources posted online, including all Board cases, memos, and other guidance, became unavailable. Instead, visitors to the Board’s website were redirected to a landing page explaining “The National Labor Relations Board is currently closed due to a lapse in appropriated funds.”

government shutdown NLRB national labor relations board

The full effect of the shutdown on new and on-going NLRB cases is not completely clear.  The Federal Register Notice on the effect of the closure states that an extension of time to file any documents is granted sua sponte for all affected parties through the end of the shutdown.  However, the Board cannot grant extensions of time to the six-month statute of limitations in Section 10(b) of the National Labor Relations Act that applies to unfair labor practice charges.  The Federal Register Notice states that “the operation of Section 10(b) during an interruption in the Board’s normal operations is uncertain” and encourages effected parties to file their charges via fax, although they will presumably not be processed until after the shutdown concludes.  The Board’s website does provide that actions necessary “to prevent an imminent threat to the safety of human life or the protection of property may be undertaken” during the shutdown, although it is not clear what NLRB actions, if any, would fall into this category.

All ALJ hearings scheduled for this week have been postponed indefinitely, as well as all elections and election hearings scheduled through October 11. The Federal Register Notice provides that if the shutdown continues, additional hearings and elections will be postponed as well. Like the rest of the country affected by the shutdown, all practitioners and employers with business in front of the Board can do now is wait it out.

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2nd Annual FATCA Compliance Conference – November 5-7 2013

The National Law Review is pleased to bring you information about the upcoming 2nd Annual FATCA Compliance Conference.

FATCA%20Nov%205-7

When

5-7 November, 2013

Where

New York, NY

The 2nd Annual FATCA Compliance Conference by marcus evans will bring together industry leaders in tax compliance from across the country to sharpen their comprehension of the complexities of FATCA, implement a platform to ensure high-quality, accurate information, develop client management strategies to maintain positive customer experience, and mitigate risks while striving to become fully compliant by July 2014.

This highly anticipated event takes place approximately 8 months prior to the FATCA compliance deadline of July 1, 2014, providing attendees with a unique opportunity to benchmark their practices against their peers and clarify any complexities with which they are still struggling.

Industry leaders attending this conference will benefit from a dynamic presentation format consisting of workshops, panel discussions and industry-specific case studies that provide accurate, real-world knowledge. Attendees will experience highly interactive conference sessions, 10-15 minutes of Q&A time after each presentation, 4+ hours of networking, and exclusive access to speaker presentations post-event.

Promising #1 Rankings is Unacceptable for Legal Online Marketing Vendors

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Every reputable search marketer will tell you that a Web vendor promising number one rankings is blowing smoke. Google’s Matt Cutts warned about vendors that promise number one rankings as far back as 2008, then again in 2012.  Despite these voices, many companies still guarantee number one search engine spots – which raises the question: “Is promising number one rankings really that bad?”

Vendors who promise number one rankings for their law firm clients set unachievable standards for themselves, their clients and the legal marketing profession. Occasionally these damaging black-hat SEO tactics work for a few weeks or months — until Google catches up with them. When that happens, all the money invested into creating your Web presence is wasted.

online marketing rankings google

You can safely bet that Google’s algorithm will constantly change as the search engine giant places increasing emphasis on user experience. Strategies that may secure top rankings today might be the same strategies that hinder a site tomorrow. No company can be certain as to where their client’s site will rank next, and it is misleading for any company to indicate they do.

A legal online marketing vendor must also account for the fact that high rankings for a law firm website do not necessarily equate with an increase in newly signed clients. Websites have a shelf life. Many factors can affect conversions. If your design is dated or stale, you might need an upgrade before users are attracted to your site again. An outdated site conveys a lack of concern for the firm’s Web presence and image, almost as if you hadn’t refurnished your visitor’s lobby in 20 years. Additionally, a website that does not have calls to action and is not designed for conversions will hurt your ability to convert visitors to clients.

A guarantee of a number one ranking may lead a law firm to have unrealistic expectations of its Web marketing company. A vendor that works incredibly hard to stay abreast of search engine marketing trends, takes preemptive measures to protect their client sites and keeps lines of communication open sets the standard. But even that exceptional vendor cannot, and should not, guarantee top search engine spots. What they can and should do is promise to work tirelessly on a campaign to make it the best it can be. All sorts of factors, such as investment levels and client involvement, will affect a site’s ability to outrank other sites. Those factors are not entirely controlled by vendors, even the exceptional ones.

At the end of the day, what you really want is to be able to convert qualified leads into clients and grow your practice. You may not necessarily need number one rankings to accomplish this goal. What you need is a Web marketing vendor who is just as committed to your firm’s success as one of your partners. If the company handling your firm’s Internet marketing campaign is dedicated, then your campaign will be a success – whether your site occupies the first or fourth spot on a search results page.

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Federal Government Shutdown

DrinkerBiddle

For the first time in 17 years, the federal government has officially shutdown.  Late last night, the Administration released a memo to all federal agencies advising them to execute their contingency plans (an agency-by-agency list is available here).

Yesterday the Senate passed a bill that would fund the government through November 15, 2013, but would make no changes to the Affordable Care Act (ACA).  (More information on the Senate vote is available here.)  Last night, by a vote of 228-201, the House passed legislation that would keep the government open through December 15, 2013, but would delay the ACA’s individual mandate requirement and would eliminate health insurance subsidies for Members of Congress, Congressional staff, the President, the Vice President, and political appointees.  By a vote of 54-46 the Senate voted to table, or kill, the legislation.

Following the latest Senate action, the House voted to formally request a conference committee with the Senate.  (Conference committees are joint House-Senate committees that are created to resolve disagreements between the House and Senate versions of a given bill.)  House Speaker Boehner (R-OH) appointed the following members to the conference committee:  House Majority Leader Cantor (R-VA-7), Ways and Means Chairman Camp (R-MI-4), House Budget Committee Chairman Ryan (R-WI-1), House Appropriations Chairman Rogers (R-KY-5), Representative Frelinghuysen (R-NJ-11), Representative Crenshaw (R-FL-4), Representative Carter (R-TX-31), and Representative Graves (R-GA-14).  House Democrats have not appointed conferees.  The Senate voted to table the request for conferees.

While the House and Senate cannot seem to agree on terms to fund the entire government, both chambers have passed H.R. 3210, legislation that would provide payment through the government shutdown for members of the Armed Forces (including reserve personnel) and civilian Department of Defense (DoD) employees and contractors whom the DoD Secretary determines are providing support to members of the Armed Forces.  The legislation passed the House by a unanimous vote, the Senate passed the bill by a voice vote, and was signed into law by President Obama last night.

At this point, both the House and the Senate appear at a stalemate.  Until Members of Congress can reach some agreement, the government shutdown will remain in place.  We will continue to update this blog as events unfold.

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ARMA LIVE! 2013 58th Annual Conference & Expo – October 28 – 30

The National Law Review is pleased to bring you information about the upcoming ARMA LIVE! 2013 Conference.

ARMA

When

Monday, October 28 – Wednesday, October 30, 2013

Where

Las Vegas, NV

The Premier Event in Information Governance brought to you Bigger, Better, and More Colorful! When ARMA International comes to Las Vegas, you should expect the most comprehensive educational and networking experience in information governance. And, you should expect it to happen on the Las Vegas strip.

In a word…VIVA!

ARMA Live! Conference 2013 (ARMA 2013) offers inspiring speakers to motivate, the best in the business to educate, and cutting-edge best practices and technology tools to stimulate your quest for career growth. The knowledge and skills you will take away from ARMA 2013 will push you over the top as an even more valuable asset to your organization.

Recent Americans with Disabilities Act (ADA) Decision Might Signal Broadening of the ADA’s Accommodation Provisions

Poyner Spruill

The United States Court of Appeals for the Fifth Circuit recently held that accommodations under the Americans with Disabilities Act (ADA) are not limited to job modifications that enable an employee to perform essential job functions.  In Feist v. Louisiana, a former assistant attorney general for the Louisiana Department of Justice (LDOJ) sued the LDOJ claiming that it discriminated against her in violation of the ADA by declining to provide her with a free on-site parking space to accommodate her disability (osteoarthritis of the knee).  Siding with the employer, the trial court dismissed the case holding that the plaintiff failed to explain how the denial of on-site parking limited her ability to perform “the essential functions” of her job.

The Court of Appeals reversed the trial court’s decision, holding that the text of the ADA does not indicate that an accommodation must facilitate the essential functions of an employee’s position.  The court also relied on federal regulations (which the LDOJ argued were not entitled to deference) which provide that reasonable accommodations may include modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other employees without disabilities.  The court did not express an opinion on whether the employee’s request for a free on-site parking space was “reasonable” under the ADA, but left that determination to the trial court on remand.

This case may indicate a willingness of courts in future cases to broaden the scope of accommodations beyond what employers currently believe are required by the ADA.  Until more courts weigh in on the question, employers should tread carefully and seek legal counsel when responding to requests for accommodations that seem unrelated to an employee’s ability to perform his or her job functions.

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Cyber Security Summit – October 22-23, 2013

The National Law Review is pleased to bring you information about the upcoming Cyber Security Summit.

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When:

Where:

U.S. Government Shutdown Will Disrupt Many Immigration Processes

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Programs at the Departments of State and Labor are likely to be affected more than others if partial government shutdown occurs on October 1.

The potential U.S. government shutdown on October 1 could have immigration-related consequences, especially for those immigration functions performed by the U.S. Department of State (State) and the U.S. Department of Labor (DOL). These possible implications are set out below.

State Department

Although no official announcements have been made concerning which services would be affected by a shutdown, it is likely that State, which issues visas to foreign nationals at U.S. consular posts abroad, would operate on a severely limited basis. State’s current policy is for consular operations in the United States and abroad to remain 100% operational as long as there are sufficient fees to support operations. Many visa application processes are fee based, so it is possible that some visa issuance could continue based on this separate funding stream. However, a loss of federal funding will likely impact visa processing as fees cover only a portion of the costs associated with visa processing.

In 2011, when there was a similar prospect of a government shutdown, State issued the following advice:

In the consular area, American citizens’ services, emergency visa services (e.g., those for life/death or medical emergencies, humanitarian cases involving minor children, and diplomatic travel) would continue. Basic visa issuance would be severely curtailed.

State also provided the following information:

The Bureau of Consular Affairs, as well as other areas in [State], undertake a combination of excepted and non-excepted activities related to consular services. For the most part, visa and passport functions are not excepted activities, nor do fees entirely cover them. Instead, [State] relies on a mix of fee-funded and appropriation-funded employees and is dependent on support services that would be scaled back or eliminated during a shutdown. Therefore, [State] will not operate these non-excepted functions in the absence of appropriated funding.

In addition, the shutdown of ancillary consular operations, including building support and the employment of local personnel, may impact the delivery of visa services, resulting in cancellation of visa appointments or delays in the processing of visa applications. Accordingly, foreign nationals should be prepared for delays in consular visa processing and, where feasible, may want to consider postponing travel outside the United States if a new visa would be required to reenter the United States.

Processing of immigration visa applications at the National Visa Center will likely continue, as those functions are funded by contract and not a direct federal appropriation. Issuance of the November 2013 Visa Bulletin, which is expected in mid-October, is uncertain and would likely be impacted by a shutdown.

Department of Labor

On September 30, DOL made the following announcement:

Office of Foreign Labor Certification [(OFLC)] functions are not “excepted” from a shutdown and its employees would be placed in furlough status should a lapse in appropriated funds occur. Consequently, in the event of a government shutdown, OFLC will neither accept nor process any applications or related materials (such as audit responses) it receives, including Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification. OFLC’s website, including the iCERT Visa Portal System, would become static and unable to process any requests or allow authorized users to access their online accounts.

PERM applications that need to be filed due to expiring recruitment or the need to preserve H-1B AC21 eligibility could presumably be filed by mail if necessary.

U.S. Citizenship and Immigration Services

U.S. Citizenship and Immigration Services (USCIS) is funded through fee-based petitions and applications and would not likely be affected by the shutdown. In addition, most Customs and Border Protection operations are considered to be essential functions and would not be disrupted. However, if there are staffing cuts, it is possible that there would be some delays in processing applications presented at the U.S. border and at border crossings. There may also be delays in waiver adjudication. We will continue to monitor the situation and will provide updates with any new information.

The E-Verify Program, which is run by USCIS, is not expected to be operational if there is a government shutdown. Employers are advised that a shutdown will not relieve them of their responsibilities; however, as stated in the governing Memorandum of Understanding, “[i]f the automated system to be queried is temporarily unavailable, the 3-day time period is extended until it is again operational in order to accommodate the Employer’s attempting, in good faith, to make inquiries during the period of unavailability.” Should a shutdown occur, the E-Verify public website and the E-Verify log-in page are expected to contain additional guidance for employers.

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