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CLIENT ALERT: HB 159 - Regulatory Indemnity Provisions in Public Works Design Contracts

Representative Louis W. Blessing III (R-Colerain Township) recently introduced HB 159 to regulate the use of indemnity provisions in professional design contracts related to public improvements.  The purpose of the proposed legislation is to prohibit public agencies from requiring design professionals to indemnify them from claims which are not attributable to negligent or other wrongful conduct on the part of the design professional.

Under certain existing state and local contracts, design professionals may be required to defend public entities against third party claims before there is a determination that the design professional has committed an error.  These “broad-form” indemnification requirements may also include a “duty to defend” where the design professional is similarly required to retain an attorney to defend the public agency against third party claims before any legal liability for the claim has been established.  These types of indemnification requirements impose obligations which are typically not covered by professional liability insurance which only applies to claims caused by the engineer or architect’s negligent conduct.

H.B. 159 attempts to bring indemnity obligations in line with principles of fairness and the availability of insurance coverage.  The bill acknowledges that while design professionals are legally responsible for damages caused by their own professional negligence, they should not be required to indemnify and/or defend a public agency for losses that he or she did not cause and which are uninsurable.

BMD will continue to follow this proposed legislation as it moves through the legislative process.

Additionally, you may reach out to your local representative to share your support for or opposition to this bill.

If you have questions or need more information regarding the potential impact of HB 159, please contact BMD's Construction Law Group, or contact:  Robert A. Hager, Justin M. Alaburda or Martin J. Pangrace.

 

Update: President Trump Signs Paycheck Protection Program Flexibility Act of 2020

On June 3, 2020, Congress updated the CARES Act by passing the Paycheck Protection Program Flexibility Act of 2020 (“FA”). The legislation, which has not yet been signed into law by President Trump, would provide more flexibility to small businesses who received loans under the Paycheck Protection Program (“PPP”).

Workers’ Compensation Claims and COVID-19

Can one of my employees file a workers’ compensation claim if they claim that they contracted coronavirus at work? We get that question a lot. Yes, they can, but you should oppose any application for coverage if you receive one. Generally, the claim will not be granted unless the employee has a job that poses a special hazard or risk of exposure to the virus and the employee can prove that he or she contracted the virus at work.

Ohio State Dental Board Implements Teledentistry Rules

Ohio law defines “teledentistry” as the delivery of dental services through the use of synchronous, real-time communication and the delivery of services of a dental hygienist or expanded function dental auxiliary pursuant to a dentist’s authorization.[1] The law requires a dentist who desires to provide dental services through teledentistry to apply for a teledentistry permit from the Ohio State Dental Board (“OSDB”).[2] Pursuant to the mandate under Ohio Revised Code 4715.436, the OSDB is implementing the following teledentistry permit rules and requirements (to be set forth under Ohio Administrative Code Chapter 4715-23). These regulations, which were subject of a public hearing on February 19, 2020, are effective on May 30, 2020.

HHS Addresses Drug Manufacturer Coupons on Out-of-Pocket Limits

On May 7, 2020, the US Department of Health and Human Services (“HHS”) announced their Notice of Benefit Parameters for 2021 in which HHS addressed the application of prescription drug manufacturer copay coupons towards a patient’s out-of-pocket limit. Under this guidance, HHS will permit, but not require, plans and insurers to count direct support offered to enrollees by drug manufacturers (i.e., coupons) for specific prescription drugs toward the annual limits on cost-sharing, regardless of whether a generic equivalent is available.

Important Updates, Deadlines, and Clarifications for the HHS Provider Relief Funds

On May 20, 2020, HHS made important updates and clarifications regarding the General Distribution payments to providers. Between April 10, 2020 and April 24, 2020, HHS distributed an initial $30 billion to providers based on the provider’s 2019 Medicare fee-for-service receipts. These funds were distributed automatically and providers did not need to submit an application in order to receive these funds. The funds were originally touted as a “no strings attached” stimulus payment reserved for healthcare providers. But HHS issued a 10-page Terms and Conditions and required that providers sign an attestation confirming receipt of the funds and agreeing to the Terms and Conditions.