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Vaccinating Against Design and Construction Risk: A COGENCE Alliance Momentum Recap

Last month, COGENCE Alliance hosted a four-day conference, attended by owners, affiliates, construction managers, trades, engineers, and architects. David Scott presented and other BMD team members hosted breakout discussions on how to “vaccinate against design and construction risk.” Groups discussed new and developing risks, how to mitigate those risks, and qualities of those who best adjusted to the new and developing risks.

Aggregated Risks in 2019. In 2019, COGENCE gathered information from the six industry segments (owners, affiliates, construction managers, trades, engineers, and architects) to first identify risks from each discrete group’s perspective. Next, COGENCE ranked the identified risks to determine which risks were most significant. Finally, COGENCE worked together across industry segments to identify habits to help mitigate risks and improve projects. The ten greatest risks aggregated across industry segments included: (1) communication; (2) contracts; (3) leadership; (4) schedule; (5) budget; (6) team members; (7) changes; (8) financial; (9) quality; and (10) due diligence.

Changing Risks with COVID-19. With the onset of the COVID-19 pandemic in March 2020, some of the risks identified by the various industry segments in 2019 quickly changed. Reports from breakout rooms indicated that new and different risks were resultant of the pandemic. For example, industry segments identified new risks associated with an elevated standard of care with heightened expectations and design for occupant safety, as well as new safety and sanitation protocols. Other risks included those related to cybersecurity due to increased remote work, as well as the evolution and need (or lack thereof) for space, such as physical offices.

New Risks with COVID-19. The breakout rooms also discussed how existing risks had morphed. For example, communication, the greatest risk identified pre-pandemic, posited new challenges including Zoom fatigue, complex logistics with site visits, as well as an increase in difficulty to collaborate due to a loss of “serendipitous” communications. Other changes to existing risks included budgetary concerns, particularly relating to the cost of PPE, HVAC improvements, and WELL certifications.

Mitigating New and Changing Risks. To address the new and developing risks, the breakout rooms discussed how to mitigate certain risks, which included more frontend planning, running through project stress tests (e.g. check technology and remote access), and developing more robust onboarding protocols to integrate new team members. Other mitigation plans revolved around communication, specifically ensuring consistent communication, standardizing how teams communicate (email, videoconference, phone call, text), following up after meetings, and identifying issues early and often.

Adapting to New and Changing Risks. The breakout rooms concluded by discussing those who have been most effective in adapting to the new and developing risks of the pandemic. Groups identified that those who demonstrate care and concern for their team members, as well as those willing to seek information and consequently learn and adapt had best weathered the new challenges in design and construction.

If you have questions or need more information regarding design and construction risk, please contact Construction Law Member David Scott at dmscott@bmdllc.com (614.246.7514).

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.