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

Client Alert

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.

 

New York, Kansas, Massachusetts, and Delaware Become the latest States to Adopt Full Practice Authority for Nurse Practitioners

While the COVID-19 pandemic certainly created many obstacles and hardships, it also created many opportunities to try doing things differently. This can be seen in the instant rise of remote work opportunities, telehealth visits, and virtual meetings. Many States took the challenges of the pandemic and turned them into an opportunity to adjust the regulations governing licensed professionals, including for advanced practice registered nurses (APRNs).

Explosive Growth in Pot of Gold Opportunity for Bank (and Other) Cannabis Lenders Driving Erosion of the Barriers

Our original article on bank lending to the cannabis industry anticipated that the convergence of interest between banks and the cannabis industry would draw more and larger banks to the industry. Banks were awash in liquidity with limited deployment options, while bankable cannabis businesses had rapidly growing needs for more and lower cost credit. Since then, the pot of gold opportunity for banks to lend into the cannabis industry has grown exponentially due to a combination of market constraints on equity causing a dramatic shift to debt and the ever-increasing capital needs of one of the country’s fastest growing industries. At the same time, hurdles to entry of new banks are being systematically cleared as the yellow brick road to the cannabis industry’s access to the financial markets is being paved, brick by brick, by the progressively increasing number and size of banks that are now entering the market.

2021 EEOC Charge Statistics: Retaliation & Impact of Remote Work

The U.S. Equal Employment Opportunity Commission (EEOC) released its detailed information on workplace discrimination charges it received in 2021. Unsurprisingly, for the second year in a row, the total number of charges decreased as COVID-19 either shut down workplaces or disconnected employees from each other. In 2021, the agency received a total of approximately 61,000 workplace discrimination charges - the fewest in 25 years by a wide margin. For reference, the agency received over 67,000 charges in 2020, and averaged almost 90,000 charges per year over the previous 10 years.

Ohio’s Managed Care Overhaul Delayed – New Implementation Timeline

At the direction of Governor Mike DeWine, the Ohio Department of Medicaid (ODM) launched the Medicaid Managed Care Procurement process in 2019. ODM’s stated vision for the procurement was to focus on people and not just the business of managed care. This is the first structural change to Ohio’s managed care system since the Centers for Medicare & Medicaid Services' (CMS) approval of Ohio’s Medicaid program in 2005. Initially, all of the new managed care programs were supposed to be implemented starting on July 1, 2022. However, ODM Director Maureen Corcoran recently confirmed that this date will be pushed back for several managed care-related programs.

Laboratory Specimen Collection Arrangements with Contract Hospitals - OIG Advisory Opinion 22-09

On April 28, 2022, the Department of Health and Human Services, Office of Inspector General (“OIG”) published an Advisory Opinion[1] in which it evaluated a proposed arrangement where a network of clinical laboratories (the “Requestor”) would compensate hospitals (each a “Contract Hospital”) for specimen collection, processing, and handling services (“Collection Services”) for laboratory tests furnished by the Requestor (the “Proposed Arrangement”). The OIG concluded that the Proposed Arrangement would generate prohibited remuneration under the federal Anti-Kickback Statute (“AKS”) if the requisite intent were present. This is due to both the possibility that the proposed per-patient-encounter fee would be used to induce or reward referrals to Requestor and the associated risk of improperly steering patients to Requestor.