Client Alerts, News Articles & Blog Posts

Everything you need to know about BMD and the industry.

CLIENT ALERT: Construction Law Update: Communication is Key! And Other Lessons Learned From A Recent Public Project Court Decision

In a recent decision, the Ohio Court of Claims entered a $2.2 million judgment in favor of the general trades contractor, and against a public university, in connection with an on-campus renovation project. Mid American Construction, LLC v. Univ. of Akron, Ct. of Cl. No. 2016-00685JD, 2018-Ohio-4513.

CLIENT ALERT: Ohio Incentivizes Cybersecurity Measures

On November 2, 2018, Ohio’s Data Protection Act (“DPA”) went into effect. The DPA incentivizes Ohio businesses to proactively address cybersecurity and data protection by providing an affirmative defense/safe harbor for claims related to data breach. However, the safe harbor is only applicable if the organization can prove “reasonable compliance” to the DPA.

Employment Based First Preference (EB1)

BMD has a team of experienced immigration attorneys with a collective knowledge of over fifty years to assist and guide U.S. banks, companies, individuals, universities, colleges, hospitals and institutions obtain the appropriate work visa or employment based permanent residency.

CLIENT ALERT: Update on Discrimination

The “#metoo” presence and the recent Kavanaugh confirmation hearings have brought sexual discrimination issues to the forefront of the American mind. Always an incendiary and confusing topic, it also includes various permutations of issues involving sex, sex stereotyping, sexual orientation, and transgender situations.

CLIENT ALERT: Ohio Supreme Court Rules that a Subcontractor's Construction Defects are Not a Covered "Occurrence" Under a CGL Policy

Although a growing number of states have held that CGL policies provide coverage for damages caused by the defective work of subcontractors, the Ohio Supreme Court has refused to join the national trend. In Ohio N. Univ. v. Charles Constr. Servs., Inc., 2018-Ohio-4057, the Ohio Supreme Court recently ruled that a subcontractor’s faulty workmanship is not a covered “occurrence” under a typical CGL policy.

Amanda Waesch Weighs in on Leasing v. Buying Medical Office Space

Amanda Waesch weighs in on leasing v. buying medical office space

CLIENT ALERT: Taxpayer Passport Application will be Denied Due to Unpaid Taxes

In late 2015, Congress passed The Fixing America’s Surface Transportation Act (FAST) into law. This law allows the IRS and State Department to refuse to issue a Passport if the taxpayer has a seriously delinquent tax debt. The law also permits the IRS and State Department to revoke a taxpayer’s Passport for these same delinquent tax debts. To be considered a seriously delinquent tax debt, the tax debt must total more than $51,000.

BMD's 2018 Florida Rising Stars

BRENNAN, MANNA & DIAMOND is proud to announce ALESSANDRO A. APOLITO, MATTHEW T. JACKSON and JOSHUA R. La BOUEF, have been selected as 2018 Florida Rising Stars for Business Litigation.

CLIENT ALERT: New Opportunity Zone Incentives Promise to Spur Economic Development

Created as part of the recently passed Tax Cuts and Jobs Act, “Opportunity Zones” are designed to encourage long-term investments in underserved communities. By offering tax benefits to private investors who choose to invest their capital at the nexus of need and opportunity, the program supports a broad array of investments and offers opportunity for creative problem-solving strategies to address community needs. The program offers investors tiered tax benefits depending on the term of the investment, including a temporary deferral and partial reduction of unrealized capital gains, as well as the potential to exclude all future appreciation on the investment. The program is designed to tap into the estimated $6T+ of unrealized capital gains held by U.S. individuals and companies by incentivizing investors to re-invest that capital in low-income communities to spur economic development and job creation.

How bringing baseball to Akron launched a career of dealmaking

Baseball changed Tony Manna’s life. More specifically, bringing minor league baseball — and a new stadium — to Akron. “When I completed that deal, I remember a guy told me, ‘Your whole life is going to change because of this deal and the notoriety that comes with it,’” recalls the CEO of real estate developer Signet LLC. “He was absolutely right about that.” In this week’s Master Dealmaker, Tony shares his approach to dealmaking, the team he’s built and how pillow talk can play in the success or failure of a business deal.

CLIENT ALERT: Medicare Trust Fund to Run Out of Funding Beginning in 2026, Likely to See an Increase in Audits, Overpayment Demands and Extrapolations

Pursuant to a Medicare Trustee Report released on June 5, 2018, the Medicare trust fund will run out of funding beginning in 2026, which is three years earlier than previously expected. Although the Trustee’s report requests that Congress and the President act with urgency to remedy this problem, in the short term, we expect to see an increase in government payer audits, overpayment demands, and extrapolations.

CLIENT ALERT: The European Union's New Data Privacy Law Goes Into Effect

On May 25, 2018, the European Union’s (“the EU”) new data privacy law went into effect. The General Data Protection Regulation (“GDPR”) concerns the processing of personal data that can be searched according to specified criteria such as geographical scope.

CLIENT ALERT: Class Action Waivers in Employment Contracts Upheld by Supreme Court

On May 21, 2018, in a 5-4 decision and a major win for employers, the United States Supreme Court upheld the legality of waivers in employment contracts that prohibit employees from grouping claims together in collective or class actions in favor of individual arbitration proceedings. See Epic Sys. Corp. v. Lewis, ___U.S.___ (2018).

CLIENT ALERT: Prohibition on Recoupment Prior to Exhaustion of Administrative Remedies

In April, the Fifth Circuit Court of Appeals, in Family Rehabilitation, Inc. v. Azar No. 17-11337 (5th Cir. 2018), held that district courts are authorized to enjoin the Centers of Medicare & Medicaid Services (“CMS”) and its contractors from recouping alleged overpayments prior to the completion of the administrative appeal process.

CLIENT ALERT: Low Volume Appeals Settlement for RAC Appeals

In April, the Centers for Medicare & Medicaid Services (“CMS”) issued a new settlement proposal to providers with outstanding appeals at the Office of Medicare Hearings and Appeals (“OMHA”) and the Medicare Appeals Council (“MAC”). Essentially, CMS is offering to pay up to 62% of the claim to the provider for qualifying claims that are currently in the appeal process. Interested providers may submit an Expression of Interest (“EOI”) to CMS by June 8, 2018. Providers should explore this settlement opportunity and submit an EOI to receive an offer of settlement. Providers may decline the offer after the EOI is submitted. Brennan, Manna & Diamond, LLC’s Provider Relations, Audit, and Appeals Unit, a division of its Healthcare Department, is able to assist providers with filing the EOI, analyzing the outstanding claims subject to the settlement, and reviewing the Administrative Agreement that is offered by CMS.

CLIENT ALERT: Ohio Managed Care Organization (MCO) Open Enrollment

Open Enrollment started April 30, and will continue through May 25, 2018, for your MCO (Managed Care Organization). Every State Fund Ohio employer can select their MCO for the coming policy year. The MCO is responsible for helping to manage Ohio Workers’ Compensation claim costs. All State Fund employers will begin to receive correspondence urging them to select that particular MCO, or urging them not to make a switch.

BMD Partnering with Community Legal Aid to Help Low Income Akron Residents

Legal Aid, a nonprofit law firm, is teaming up with Brennan, Manna & Diamond, LLC (“BMD”), to take legal help into the community. The demand for Legal Aid services continues to grow and the need for quality legal counsel is great. BMD understands and appreciates the challenges faced by Legal Aid and proudly stands ready to help meet the needs of those in the community.

Medical Marijuana Rules and You

The Ohio Medical Board has adopted regulations in conjunction with the Ohio Pharmacy Board that would govern physicians who may elect to participate under the Ohio Medical Marijuana statutes.

Social Enterprises Show Us that Business with a Purpose is Possible

On Feb. 17, the Young Lawyers Section of The Jacksonville Bar Association held its Ninth Annual Young Lawyers Section Chili Cook-Off at the Riverside Arts Market, which benefited Rethreaded, a local nonprofit.

BMD's Daphne Kackloudis Drafting Legislation Seeking Additional Funding for Children Born Addicted to Opioids

BMD's Daphne Kackloudis has been working with her client, Brigid's Path, to help them gain access to additional federal funds for their mission. She has drafted legislation which would do just that. The CRIB Act would amend the Social Security Act to allow Medicaid reimbursement for residential pediatric recovery centers such as Brigid's Path. Congressman Turner is going to ask Sen. Portman to amend his opioid bill (CARA 2.0) to include the CRIB Act.

NLRB Reverses its Reversal of 2015 Browning-Ferris Joint Employer Decision

NLRB Reverses its Reversal of 2015 Browning-Ferris Joint Employer Decision

Scott Sandrock Awarded the Outstanding Eagle Scout Award

BMD is proud to recognize its member Scott P. Sandrock being awarded the Outstanding Eagle Scout Award by the Boy Scouts of America. This award recognizes Eagle Scouts who have later achieved distinction in their professional careers and leadership through community service. A limited number of these awards are presented annually. The Award was presented at the Annual Eagle Scout Recognition Dinner in January.

BMD Obtains Dismissal of ADA Title III Suit Against National Outlet Mall Chain

On January 12, 2018, Brennan, Manna & Diamond obtained the dismissal of an Americans with Disabilities Act (“ADA”) lawsuit filed against Tanger Factory Outlet Centers, Inc. in the U.S. District Court for the Western District of Michigan. The suit, which was brought under Title III of the ADA, alleged that Tanger’s Byron Center, Michigan outlet mall contained barriers to access in violation of the ADA’s accessibility requirements. The plaintiff demanded prospective injunctive relief, including a retrofit of the entire mall, as well as expert witness and attorneys’ fees.

Highlights from the BMD Healthcare Leadership Summit Held in Orlando, FL, January 11, 2018 - January 13, 2018

BMD's 2nd Annual Healthcare Leadership Innovation Summit theme focused on entrepreneurism in healthcare as we sought to reach various specialties and stakeholders within the healthcare industry. There were 3 days of insightful programming and exclusive networking

Ohio’s Statute of Repose: Is it Really a Bar to All Construction Claims?

In response to the increase in common-law claims against architects and contractors brought by third parties who lacked “privity of contract”, many states enacted a construction statute of repose. A statute of repose is intended to forever bar claims for certain injuries or damages after a set period of time following substantial completion. Subject to certain exceptions, the primary distinction between a statute of repose and statute of limitations is that a statute of repose begins to run regardless of whether one is aware of a defect.

BMD Seeking Recovery for Opioid Losses on behalf of Summit County and its Political Subdivisions

As the opioid epidemic continues to take its toll on our community, its resources and straining the already tight budgets, Brennan Manna & Diamond, on behalf of Summit County and its political subdivisions, filed a complaint against those companies that make or distribute prescription opioids seeking recovery of the County's losses as a result of the opioid crisis.

CLIENT ALERT: Bureau of Workers' Compensation Budget Amends Law

Bureau of Workers' Compensation Budget Amends Law As we head into 2018, you should be aware of some recent changes made in Ohio’s laws concerning Workers’ Compensation. These changes became effective September 29, 2017. Some will affect business more than others, but these are changes you should really know about.

Client Alert: NLRB Reverses 2015 Browning-Ferris Joint Employer Decision

The NLRB issued a 3-2 decision reversing the Board’s standard for joint employment in collective bargaining that it issued in the 2015 Browning-Ferris decision. That controversial decision by the liberal leaning Board overturned years of precedent and significantly expanded the definition of joint employment. The decision spurred legislation (H.R. 3441, the Save Local Business Act) to overturn the expansive definition, and replace it with a far more narrow and proper definition of joint employment.

BMD 2018 OHIO SUPER LAWYERS AND OHIO RISING STARS

BMD 2018 Super Lawyers and Ohio Rising Stars

Ohio Court of Appeals Upholds Sanctions for Attorney’s Frivolous Conduct

On August 28, 2017, the Ohio Court of Appeals for the Eleventh District upheld a trial court’s order imposing frivolous conduct sanctions in the amount of $22,926.72 on a plaintiff’s attorney and his law firm in the case of Keith-Harper v. Lake Hosp. Sys., Inc., --- N.E.3d ----, 2017-Ohio-7361 (11th Dist. Lake).

BMD an Early Adopter of the City of Columbus' "Pay Equity Pledge"

BMD an Early Adopter of the City of Columbus "Pay Equity Pledge"

Supreme Court Upholds "Apology" Statute Protection

Supreme Court Upholds "Apology" Statute Protection

The Impact of the 2008 ADA Amendments on the Definition of "Substantial Limitation" Under the Ohio Civil Rights Act

The Impact of the 2008 ADA Amendments on the Definition of “Substantially Limitation” Under the Ohio Civil Rights Act

Daphne Kackloudis Helps Celebrating Opening of Newborn Facility Center in Dayton, Ohio

Daphne Kackloudis Weighs in on Ohio's Issue 2

Ohio's Issue 2 is on the ballot.

The Truth about ZPICs - Why Oversight is Needed

6 Reasons Akron, Ohio Should Be On Your Radar

6 Reasons Akron, Ohio Should Be On Your Radar

According to Research Some of the Smartest People Reside in Akron, Ohio

Smartest People Reside in Akron, Ohio

Martin Pangrace and Catherine McCain Presenting at AIA Contract Document Workshop - September 26, 2017

Daphne Saneholtz Discusses ACA Repeal and Effects on Ohioans

The latest roadblock in efforts to dismantle the Affordable Care Act has many Ohioans living with HIV and AIDS relieved, but still concerned about what's next.

Robert A. Hager Awarded the John Carroll University 2017 Alumni Medal

Robert A. Hager awarded the John Carroll University 2017 Alumni Medal

EFFECTIVE April 3, 2017: USCIS Will Temporarily Suspend Premium Processing for All H-1B Petitions

Starting April 3, 2017, USCIS will temporarily suspend premium processing for all H-1B petitions. This suspension may last up to 6 months. While H-1B premium processing is suspended, petitioners will not be able to file Form I-907, Request for Premium Processing Service for a Form I-129, Petition for a Nonimmigrant Worker which requests the H-1B nonimmigrant classification.

Ohio Court of Claims Explains Surety’s Obligations After Contractor Default

A surety thinking of funding its bankrupt principal for the purpose of completing a project should take notice of the recent decision in Jutte Elec., Ltd v. Ohio Facilitates Constr. Comm.

New Akron Legislation Aims to Increase Income Tax Revenue Through Construction Contractor Registrations

The City of Akron recently passed three new pieces of legislation aimed at boosting city coffers by requiring contractors to take additional steps prior to performing work in the city.

BMD Recognized for Health Law Practice

“Ever since its founding in 2000, attorneys at Brennan, Manna & Diamond have focused on offering a full range of services to all the firm’s clients, including developing industry-specific practice areas like healthcare,” said Matt Heinle, co-managing partner at the firm.

President Trump’s Effect on the Workplace

When President-elect Trump takes office, what can employers expect? What will be the effect of his presidency on the workplace and workforce? The probabilities and possibilities range from minor to major changes, with both short and long-term effects.

Defining Concierge and Boutique Medicine

Amanda L. Waesch, Partner at Brennan, Manna & Diamond, LLC, Akron, Ohio, shared with the Stark County Medical Society Membership alternative physician practice structures, pros and cons of each structure, and the differences between Institutional Providers and Concierge Medicine.

How artificial intelligence relates to the legal profession

Legal research has changed. An attorney who started his career dredging through books can now instantly consult vast databases, saving countless man hours. Soon, however, it may need not involve the man at all.

NLRB Ruling re: Private University Labor Update

Graduate students employed by private universities are permitted to unionize under federal law.

Urine Drug Testing Best Practices

The purpose of this suggested compliance plan is to provide guidance and best practices for prescribers of opiates and benzodiazepines. Compliance with OARRS is required. In addition, urine drug testing (UDT) among pain management physicians, OBGYNs, psychiatrists, and orthopedics is a useful tool that can not only assist in diagnostic and therapeutic decision making, but can also be used as a personal risk reduction tool for those physicians prescribing pain medications.

Duty to Preserve ESI: The Stakes Just Got Higher

A recent federal court decision highlights the potentially severe consequences for companies that do not take the proper steps to preserve electronically stored information (“ESI”) in anticipation of or in connection with litigation.

Affordable Care Act Nondiscrimination Final Rule

On May 13, 2016, the U.S. Department of Health and Human Services (“HHS”) issued a final rule implementing Section 1557 of the Affordable Care Act (“Section 1557”) protecting individuals from discrimination in health care on the basis of race, color, national origin, age, disability, and sex, including discrimination based on pregnancy, gender identity, and sex stereotyping (the “Rule”).

It Is Time To Update Your Compliance Plans

In 1997, the Office of the Inspector General (“OIG”) began to actively promote that health care providers adopt written compliance plans to assist providers to follow government rules and regulations regarding health care.

Ohio Supreme Court Liquidated Damages Analysis: Hindsight is not 2020!

In a case decided on February 24, 2016, the Ohio Supreme Court construed the enforceability of a liquidated damages provision in a public works construction contract. The Court held that when evaluating the enforceability of a liquidated damages provision in a construction contract, the court must conduct its analysis prospectively, based on the per diem amount of the liquidated damages at the time the contract is executed, and not retrospectively, based on the total amount of liquidated damages that ultimately accrue.

Holy Toledo! Claims Waived Under Article 8

In a February 2, 2016 decision, the Tenth District Court of Appeals in Franklin County affirmed the Court of Claims and upheld the decision to deny an electrical contractor’s claims against the University of Toledo because they were not timely asserted.

HIPAA Compliance Update

HIPAA compliance has been a part of the regulatory landscape of healthcare since the privacy rules became effective in 2003. Since that time, most providers have taken steps to develop their compliance plans, including distributing notices of privacy practices, obtaining authorizations for release of information as needed, and obtaining business associate agreements from third parties.

Alessandro Apolito Making a Difference – Helping Curb Teen Violence

Nineteen people under the age of 20 were killed in Jacksonville in 2016 by violent crime. Already in 2017, two young men were killed in a drive-by shooting on New Year’s Day.

Bar Bulletin: Young lawyers, it’s never too early to start building your future

Regardless of whether you are just out of law school or an attorney who has been practicing for five years, you can start taking steps toward building your future as a well-rounded lawyer.

Changes to Physician Assistant Requirements Under SB 110

On July 16, 2015 Governor Kasich signed Senate Bill 110 into law, which will become effective October 15, 2015. This bill seeks to modernize physician assistant practices.

U.S. Supreme Court Reed Decision: Direct Impacts on Local Sign Regulation

Speaking at today’s Northeast Ohio Law Directors Association monthly meeting, Robert A. Hager, member of the firm Brennan, Manna & Diamond in Akron, will be participating on a panel of experts presenting and analyzing the recent U.S. Supreme Court decision in Reed v. Town of Gilbert, wherein the Court struck down as unconstitutional under the First Amendment the Town’s sign ordinance based on it not being content neutral and, therefore, not surviving strict scrutiny under the Court’s test for non-content neutral regulations.

The National Labor Relations Board “Joint Employer” Ruling

On August 27, 2015, the National Labor Relations Board (NLRB) released a ruling in the Browning-Ferris Industries of California, Inc. case, in which the NLRB revised its standard for determining joint employer status under the National Labor Relations Act (NLRA).

Brunell Chapter 11 ‘sign of the times’

Former Jacksonville Jaguars quarterback Mark Brunell’s Chapter 11 bankruptcy reorganization isn’t the first, and very likely won’t be the last, higher-income person seeking protection from creditors.

River health rates high on new Jacksonville City Council president’s list

River health rates high on new Jacksonville City Council president’s list Jack Webb said his year as Jacksonville City Council president will focus on the health of the St. Johns River, fiscal reform and revising the city charter. Webb acknowledged during his installation speech Thursday that leading the council through another tough financial year will be a challenge. “This is one of, if not, the most difficult times to be a public servant,” he said.

Changing Employers? Keep Your Tail Covered!

A common question regarding employment, and particularly changes in employment, revolves around the idea of tail insurance coverage. As such, this issue’s legal column explores what tail coverage is, why you need it, and who pays for it.

HIPAA Changes Alert – 2009

Just when you and your staff are finally getting comfortable with compliance with HIPAA and the Security Standards in your offices, the government has adopted new rules which will require you to make changes to your plans with the first changes to go into effect in September, 2009.

So You Want to Own Your Own Practice

Many practitioners hold the dream of one day owning their own practice. While hanging your own shingle and being your own boss may seem simple, the success of your practice will depend largely on the strength of the foundation you lay prior to opening your doors for business. As such, I have put together a simple checklist of items to consider prior to embarking on your professional dream of independent practice.

Employment Contracts 101: Paving the Path before Walking Down It

One of the most common adventures I navigate with my advanced practice nurse (APN) clients is the negotiation of employment contracts. Long before an APN signs an employment contract, it is important to consider the interaction of personal and professional goals. To examine these areas, the APN may ask questions such as: (1) Is this geographic location desirable for me (and my family)? (2) What type of work environment is attractive? (i.e., hospital, clinic, private practice with a physician, an APN practice, etc.) (3) Is the monetary compensation adequate to meet my needs? (4) What is the employee retention rate at this practice? Is there high employee turnover?

Physicians Obtain New Contract Rights – Ohio House Bill 125

The Ohio Health Care Simplification Act (House Bill 125) was signed into law on May 25, 2008. This Bill is the result of almost two years of legislative action promoted by the Ohio State Medical Association to provide some level of protection to physicians as they contract with managed care plans.

The FACTA Is…Are You in Compliance

In response to the growing number of identity thefts Congress enacted the Fair and Accurate Credit Transactions Act of 2003 (FACTA). FACTA was enacted to help prevent identity theft, both personal and medical, and was designed to supervise the personal confidential financial information that is generated in consumer transactions.