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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.

 

Revised Department of Labor FFCRA Guidance, Effective September 16, 2020

In response to attacks on the legality of the Department of Labor’s (“DOL”) Final Rule regarding the Families First Coronavirus Act (“FFCRA” or the “Act”), which took effect in April 2020, the Department of Labor issued new guidance on Friday, September 11th to formally address ongoing questions and concerns related to the COVID-19 legislation.

FCC Adds $198 Million to Strengthen Telehealth for Rural Healthcare Providers

The Federal Communications Commission (“FCC”) has added an additional $198 million in funding to its Rural Health Care Program. These funds will be used to increase broadband services and telecommunications to bolster telehealth/telemedicine services for rural healthcare providers. Funding for rural healthcare providers was initially capped at $605 million in 2020, but the added funds will now allow the FCC to provide over $800 million to eligible providers.

Finding Opportunity in Adversity: Optimism for the Construction Industry

Looking for good news? If so, you are not alone. Aside from the collective mental, physical and emotional human toll imposed by the COVID-19 pandemic, entire sectors of the economy have been ravaged, and old, familiar ways of doing business have been disrupted. Although deemed essential, the construction industry has not been immune to interruption and uncertainty during these unprecedented times. Amid new health and safety concerns, coupled with financial uncertainty, progress on projects has slowed, and the start dates for a number of new projects slated to begin in 2020 have been deferred. However, resilience has always been a trademark of contractors, subcontractors and other industry professionals. Reports indicate that while the construction industry lost more than one million jobs February through April, at least 600,000 of those jobs had been gained back by the end of June.

Yard Sign Do’s and Don’ts: How to Avoid Legal Challenges to Municipal Sign Codes this Election Season

As the nation heads into the tail end of the 2020 general election, municipalities will inevitably face challenges as they seek to regulate the seasonal proliferation of yard signs on residential property. While the matter may seem trifling, a seemingly benign yet content-based sign ordinance can result in significant legal exposure for municipalities that have not heeded recent Supreme Court decisions on content neutrality.

Time to Update Your HIPAA Compliance Plan for Telehealth Policies and Procedures

The delivery of healthcare in this country may be forever changed following the COVID-19 pandemic. Providing services through telehealth technologies initially allowed providers to connect with patients in a safe and socially distant manner and helped keep vital hospital beds free for COVID-19 care. Now, while still a safe, socially distant option, telehealth allows patients to access healthcare services in an efficient manner, decreases the likelihood of cancellations, and expands access to services that do not require an in-person encounter (i.e., surgery, procedure, or test). Telehealth is now widely reimbursed by both federal and commercial payors and more provider types are able to provide telehealth services within their licensed scope of practice.