Question: It’s a good thing that many patients are becoming more actively involved in their care, but my practice is finding it difficult during the pandemic to keep up with requests to produce copies of patient medical records. May we charge a premium for them? We may have to pay overtime to staff or hire additional staff to handle these requests. What about establishing a schedule for responses, to help us manage our scarce staff resources? Answer: For many years, New York State has had laws establishing a physician’s obligation to provide patient records and how much the physician may charge for them. More recently, the Health Insurance Portability and Accountability Act (HIPAA) and the HITECH Act and regulations promulgated under each of those statutes included provisions that address the right of patients to obtain copies of their medical records and what patients may be charged to get them. The short answer to your first question is that you may not charge a premium for providing copies of patient records. New York law and HIPAA both require that copies must be provided at “reasonable” cost-based charges, capped in New York at not more than $0.75 per page for paper copies. The short answer to your second question is that you may establish a schedule for responding, but it must comply with existing regulatory timeframes. Under the current HIPAA rules, you have 30 days from the date you receive a patient’s request to exercise their right to access their record to act on it. That 30-day period may be extended by an additional 30 days if you inform the patient why you need more time and when you expect to complete the request. The New York Public Health Law requires that you produce copies within a “reasonable” time, which the Department of Health says is between 10 and 14 days. The federal government takes this issue very seriously. The ability of patients to access their medical records is seen as key to the coordination of their care, and delays may contribute to worse health outcomes. In early 2019, the U.S. Office of Civil Rights (OCR), which is charged with enforcing HIPAA compliance, announced its Right of Access Initiative to vigorously enforce the rights of patients to receive copies of their medical records promptly without being overcharged for them. Since September 2019, OCR has settled 14 cases with providers ranging from solo practitioners to NY Spine Medicine and Banner Health System with fines totaling over $900,000 for their failures to provide medical records. The press release on the Banner Health settlement was issued on January 12, 2021. The targets of these enforcement actions all took an inordinate amount of time to supply records to the patients, even after being informed in a few cases that complaints had been filed with OCR. The Department of Health and Human Services (HHS) is now taking this issue to the next step. On December 10, 2020, HHS issued Notice of Proposed Rulemaking (NPRM) to modify the HIPAA Privacy Rule to shorten the 30-day period to 15 days. If more time is needed, a single 15-day extension would be available but only on very limited conditions. The NPRM proposes to mandate that providers may not charge patients to inspect their records in person, and that patients may, using their own resources, make notes about or copies, photos or videos of their records. If the records are readily available at the point of care in conjunction with a care appointment, providers may not delay patients’ rights to inspect them at that time. Patients may not be charged for using an internet-based method to view or print the records using the patients’ own access devices, and/or printers and paper. Providers may only charge reasonable cost-based fees covering labor for copying, and/or supplies for making non-electronic copies, and actual postage or shipping charges for mailing non-electronic copies. These proposed rules would override any more lenient state laws if adopted. It is too early to say whether the modifications in the NPRM will be adopted by HHS as proposed or with changes, or what the incoming Biden administration will do on this issue. Our best advice at this time is develop policies and procedures that will allow you to timely respond to patient requests at the lowest possible cost. Implementing a patient portal that complies with the HIPAA Security Rule may be the best investment you can make to address this issue. If you have any questions regarding the issues discussed above or if you have any other Health Care Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Helen Zamboni, the author of this piece, here or at (585) 258-2844.

On January 14, 2021, New York State Department of Labor Commissioner Roberta Reardon issued an Order Regarding Unemployment Experience Rating Charges. In the Order, Commissioner Reardon utilized the authority granted to her under applicable federal and state law passed in the wake of the COVID-19 pandemic to discontinue the charges to the unemployment accounts of employers when their ex-employees receive unemployment benefits from now until the end of the pandemic. The provisions of the Order apply to 100% of benefits attributable to employers liable for contributions and to 50% of benefits attributable to employers liable for payments in lieu of contributions. The Order also applies retroactively and cancels any charges covered by the Order and previously applied to an employer’s account. The Order is certainly good news for employers, and they should continue to monitor any further communications from the Department of Labor regarding how the Order will be implemented. Later that same week, on January 18, 2021, the Department of Labor issued a new rule that will benefit Unemployment Claimants who work part-time because of job loss or reduction likely caused by the pandemic. The new rule will apply to some of those who work part-time who are able to collect regular Unemployment Insurance and Pandemic Unemployment Assistance benefits. The focus of the new rule will be “hours-based,” as opposed to the current “days-based” approach that sometimes deprived benefits to part-time employees who worked less hours (over more days) than others who did receive benefits. As before, though, employees still must work less than 30 total hours and earn less than $504 in gross pay during the week in order to collect benefits. The hours worked (with partial hours rounded up) will apply as follows: 4 or fewer hours of work = 0 days worked: no reduction in weekly benefit week 5-10 hours of work = 1 days worked: 75% of weekly benefit rate 11-20 hours of work = 2 days worked: 50% of weekly benefit rate 21-30 hours of work = 3 days worked: 25% of weekly benefit rate 31+ hours of work = 4 days worked: 0% of weekly benefit rate Claimants will be able to get assistance from the Department of Labor phone system or website in submitting their paperwork. If you have any questions regarding the issues discussed above or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Paul Keneally, the author of this piece, here or at (585) 258-2882.

Even though a new year is upon us, municipalities are still dealing with the economic fallout of COVID-19 and will for some time. Although vaccines are being made available to certain groups of people, and there is a light at the end of the tunnel, herd immunity is not expected to be reached for a long time. Therefore, federal, state, and local governments may deem prolonged distancing mandates and business restrictions necessary to protect their constituents. Taking this into account, finances for municipalities are expected to experience some significant challenges over the next couple of years as the U.S. pulls itself out of the pandemic and recovers from the economic side effects. A Brookings Institute report estimates that declines in sales and other taxes and fees will remain depressed for some time as consumption trends will not return to pre-COVID levels quickly. The report further states that overall revenue for state and local government is estimated to decline by approximately 5% for each of the next three years. Faced with a decreasing revenue, but increased capital costs, local municipalities will need to work closely with their advisors to navigate these difficult times. For local governments, one means to address revenue shortfalls is the issuance of debt. Given the current interest rate environment, either short-term or long-term debt can address urgent needs without creating an insurmountable debt burden. At Underberg & Kessler, our team of seasoned municipal and tax lawyers are well versed in all aspects of municipal finance including private activity bonds, general obligation bonds, revenue bonds, qualified 501(c)(3) bonds, swaps and other derivative financial products. We can help structure and implement necessary financial planning to weather the next couple of years. For those of you familiar with our posts, you may have noticed our newest team member to the Municipal and Tax Practice Groups, Sarah Bothma, who joined us in 2020. Sarah graduated with a LLM in Tax from New York University, School of Law, which makes her particularly well-equipped to handle such work. If you have any questions regarding the issues discussed above or if you have any other Municipal Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Ed Russell, the author of this piece, here or at (585) 258-2834.

The current federal estate and gift tax exemption amount per individual is $11.7 million dollars ($23.4 million for a married couple). This means that individuals can gift or bequeath this amount without incurring gift or estate tax on the transfer. But nothing lasts forever. In 2018, the Tax Cuts and Jobs Act increased the exemption amount from $5 million to $10 million, indexed for inflation. If no affirmative action is taken to change the law, then it is due to ‘sunset’ on January 1, 2026, wherein the exemption amount will be reduced to $5 million. Note, however, since the Presidency, House and Senate are currently under Democrat control, there is a high probability that the sunset provision will be accelerated (possibly as soon as this year), and the exemption amount be reduced to $3.5 million per person. Adding to the uncertainty is the fact that it is possible that any gift and estate tax law change could be retroactive to January 1, 2021. Regardless, if you believe it to be beneficial to take advantage of the historically high exemption to avoid federal gift and/or estate tax, then you should take action now. A myriad of estate planning techniques exist so that you can both utilize the current exemption amount by gift, and also to create at the very least indirect access to the gifted assets. Implementation of the proper planning techniques now could avoid substantial estate tax in the future. Planning and acting now creates the best opportunity to use the current exemption amount to avoid future significant estate tax on your wealth, and the attorneys at Underberg & Kessler LLP can guide and assist you with all of your planning needs. If you have any questions regarding the issues discussed above or if you have any other Estates & Trust Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Joshua Beisker, the author of this piece, here or at (585) 258-2879.

In addition to the our post in late December, Mandating COVID-19 Vaccinations in the Workplace, there are other important laws and regulations that apply to employers as of January 2021. The new minimum wage for Upstate including the Western New York and Finger Lakes regions is $12.50 per hour, making the minimum overtime rate $18.75 per hour. The new minimum annual salary for the Administrative and Executive exemptions to overtime pay under the Fair Labor Standards Act for Upstate including the Western New York and Finger Lakes regions is $48,750.00. The federal stimulus package just passed by Congress/signed by the President provides an extra $300 per week to those receiving unemployment benefits, extends those benefits for 11 weeks for those who run out of State eligibility, and extends the program that broadens the definition of who qualifies for unemployment benefits to include those such as gig workers and independent contractors. These new provisions expire on March 14, 2021. Employees will begin to be able to take accrued New York State paid sick/safe leave (or PTO in you include paid sick/safe leave within it) as of January 1, 2021. The New York State COVID-19 Leave law continues in effect for those employees who have not already taken the applicable leave amount. The federal Families First Coronavirus Relief Act (“FFCRA”) has expired as of December 31, 2020. However, the federal stimulus package referenced above permits employers to voluntarily provide FFCRA emergency paid sick leave (“EPSL”) and/or emergency paid family and medical leave (“EFMLA”) through March 15, 2021 if the employees would have qualified for those leaves when the law was in effect, and still take the relevant federal tax credits with the appropriate documentation. The FFCRA job protection for the employees taking EPSL and/or EFMLA will still be required. There has been no legislative extension of the amount of leave available for EPSL or EPFMLA, though the federal Department of Labor and/or the Internal Revenue Service may issue regulations regarding the FFCRA in 2021. Also, the caps on the amounts paid for 2/3 or 100% EPSL and the 2/3 EFMLA. All FFCRA records must be maintained for four years, which will be particularly important if there ever is an issue about the propriety of tax credits taken. If you have any questions regarding the issues discussed above or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Paul Keneally, the author of this piece, here or at (585) 258-2882.

This article was published in The Daily Record on December 23, 2020 - Download the Reprint With the Presidential election concluded and a new Biden administration on the horizon in 2021, it’s useful to look ahead to potential environmental policies that may be implemented. Although environmental policy changes from administration to administration, the switch from one party to the other carries the potential for dramatic change and national impacts. While the Trump Administration generally reduced regulation, promoted energy development and opposed international climate change agreements, the Biden administration is likely to take the opposite approach. Although environmental policy and focus will likely change dramatically, the focus on climate change is probably going to cap that list under the new administration in 2021. Vice-president Biden has made a number of comments that signal a new direction. Initially he has indicated that addressing climate change is one of his top priorities and has proposed to sign an executive order on his first day that will put the United States toward a net-zero emissions level by 2050. He has appointed former Secretary of State John Kerry as “climate envoy” to interact with international leaders and re-enter the Paris climate accord. Biden has also said that he will meet with world leaders with high levels of carbon emissions during the first 100 days of his administration to push for more carbon reduction. Noticeably absent from the discussion is what the costs will be to U.S. consumers, businesses and residents or how it will impact U.S. energy independence. Legislation in a new Congress appears uncertain at best, with control of the Senate pending the Georgia Senate run-offs and a relatively narrow level of House control by Democrats. Hence, it is likely that a Biden administration will attempt to do most of its climate action via executive actions, regulation and executive order. Notably, the Biden transition team is receiving recommendations from former Obama administration climate change experts, include an extensive report captioned Climate 21 Project. The recommendations focus on presidential- controlled actions that can be taken in rapid fashion. Among other components of the plan are integrating climate change into federal department and agency decision-making, such as procurement, vehicle purchases and U.S. buildings and facilities. According to the Biden Plan for a Clean Energy Revolution, the new administration will attempt to take numerous steps, including: reducing greenhouse gas emissions from transportation sources using the federal Clean Air Act and development of stringent new fuel economy standards for vehicles; setting aggressive methane emissions limits for new and existing oil and gas operations; adopting appliance and building efficiency standards; mandating that federal permitting decisions consider greenhouse gas emissions and climate change and compelling public companies to disclose climate change impacts in their operations and supply chains. The U.S. Environmental Protection Agency (EPA) has focused on working with states, local governments and tribes during the Trump Administration under a policy termed “cooperative federalism” whereby EPA let the states take the lead and not mandate federal policy preferences. With a Biden administration, it is likely that a switch to the other party will lead to a more federal-lead enforcement approach. Consequently, this is likely to cause increased federal civil and criminal enforcement actions across the environmental regulatory spectrum. Additionally, the dramatic change from a cooperative federal-state approach under the current administration to a EPA lead enforcement strategy is likely to cause significant friction across the country as states that have had discretion on enforcement either lose direct control or are forced through regulatory delegation to be more enforcement focused. A change in presidential administration will also lead to potential re-direction for a number of key environmental regulations and related litigation of high-profile regulatory matters. Although it would be impossible to list all federal environmental regulations under scrutiny, the following highlight a few key areas that are likely to be considered in a Biden administration. National Environmental Policy Act (NEPA) reforms adopted in July 2020 could be re-visited in new regulations or legal challenges to them could be conceded. Clean Air Act (CAA) fuel economy standards implemented in the last 4 years, which relaxed Obama administration targets, could be a focus of new regulation. Similarly, Vice-President Biden has been critical of relaxed aircraft emission standards set under the Trump administration. As reported on in this column previously, regulations addressing the Clean Water Act (CWA) Navigable Waters Protection Rule which became effective in June 2020 could be re-visited to re-assert federal jurisdiction over adjacent streams and wetlands. Another key rule which modified the Endangered Species Act (ESA) to require consideration of economic impact on listing endangered species could be open to review. In the energy and climate change area, it seems likely that a Biden EPA would seek to re-vise the Affordable Clean Energy Rule, that replaced the Obama Clean Power Plan with a program that allowed individual states more discretion to set standards. In addition, EPA’s oil and gas methane rule, which was finalized in September 2020, could be the subject of repeal proceedings by a new EPA direction. One area that received slight coverage leading up to the election was fracking, when Vice-President Biden suggested he would ban fracking on federal lands. Although that lead to a focused campaign issue in Pennsylvania and other Marcellus Shale rich states, that policy is now leading to concern on behalf of western states where a large portion of the federal oil and gas leases are present. Overall, the energy boom and reduced energy prices that the U.S. experienced under the Trump administration are likely to change as the new administration goes back to policy focus areas similar to the Obama administration of climate change, international accords and stringent energy standards. Unfortunately, there was relatively little discussion of detailed environmental policy during the presidential campaign. Climate change, energy policy and federal environmental policy are on the verge of dramatic changes in 2021, so hopefully the national media will focus on many of the policy changes and national impacts that will come from the new administration. For additional information about the issues discussed above, or if you have any other Environmental Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or George S. Van Nest , the author of this piece, here or at (716) 847-9105.

Effective January 1, 2021, Justin P. Alexander and Joshua B. Beisker were elected to the Firm’s partnership. Justin is a member of the Firm’s Real Estate and Banking & Finance Practice Groups. His practice focuses on commercial and residential real estate matters, representing both lending institutions and borrowers in a myriad of transactions. Clients value Justin as an excellent listener and trusted advisor who can expertly guide them toward achieving their business and legal goals. He routinely presents to real estate agents in an effort to provide information they can use to add value to their clients. He is active in the community and serves on the Board of Directors for the Center for Disability Rights / Regional Center for Independent Living and is a member of the Monroe County Bar Association. Justin was recently named to the 2020 class of Upstate New York Super Lawyer “Rising Stars.” Joshua is the Chair of the Firm’s Estates & Trust Practice Group and is a member of the Firm’s Corporate & Business and Tax Law practice groups. His practice focuses on assisting clients in making important decisions which impact their businesses and families. Josh is a counselor and a protector of his clients’ assets, advises clients on estate and income tax planning and fiduciary administration matters, and provides estate and asset protection planning to his clients, including the preparation of Wills and Trusts, Durable Powers of Attorney, Health Care Proxies, and a variety of other estate and asset protection planning documents. Having earned an LLM in Taxation, he provides counsel to businesses on achieving tax efficiencies and succession planning and general corporate governance matters. Josh is also a frequent lecturer at organizations such as the National Business Institute, universities and other educational institutions, and financial planning organizations. He is a member of the Board of Directors of Corn Hill Navigation, a member of the Estate Planning Council of Rochester and of the Monroe County and New York State Bar Associations. He was named a 2017 New York Super Lawyer Rising Star and a 2010 Pennsylvania Super Lawyer Rising Star. Additionally, effective January 1, 2021, Alina Nadir, Jillian K. Farrar, and Jessie Gregorio were promoted to Senior Counsel. To learn more about our attorneys and our Firm click here, or phone us at 585.258.2800.

In addition to Sarah Bothma, this post was authored with input from Edmund Russell. An endowment provides great flexibility for charitable giving, allowing the founding donor to control the class of recipients eligible for grants and which charitable purposes to support. While most people associate endowments with educational and cultural organizations, establish free-standing and unaffiliated endowments can also be created. Endowments are ideal mechanisms for charitable giving by individuals, families or businesses desiring to have a lasting charitable impact. Identifying the donor’s charitable purpose is the first step to forming an endowment. The donor’s charitable purpose largely determines how to define and structure the endowment. A donor may wish to establish an agency fund, in conjunction with a particular organization, for the purpose of providing financial support to such organization. For example, a fund for a local library. If the donor wants to provide support to more than one charitable organization, then a designated funds endowment should be established. Such an endowment allows the donor to specify specific nonprofit organizations for gift giving. For donors who desire a broader charitable giving approach, a field of interest fund endowment makes grants to organizations operating in the field of interest identified by the donor, such as the arts or education. An endowment is not a legal entity, but instead refers to an arrangement whereby assets are invested, managed, and disbursed for the purpose specified by the donor. Endowments are usually organized as a not-for-profit corporation or a trust, which obtain tax-exempt status as a private foundation or public charity. The benefit of obtaining such tax-exempt status is that the fund can grow in a tax free, or tax-advantageous, manner allowing it to make a long-lasting impact. Such tax-exempt status also permits donors to take current tax deductions for assets used to create the fund, even if it does not start making charitable gifts until a later time. Public charity status requires the organization receive a majority of its funding from the public; however, the deductions available to individuals and corporations from donations to public charities are subject to a higher limit than deductions to private foundations. Even though public charities have a higher deductibility that private foundations, most endowments which are not affiliated with an existing public charity are formed as private foundations. The benefit of a private foundation is control. Related parties may control the endowment, and private foundations can be funded by fewer individuals, or even one person. It is common for donors to establish an endowment with a modest investment initially and add additional assets over time as part of retirement and estate plans. Funding an endowment as part of a retirement or estate plan can also be tax-advantageous. Donors who do not need their full IRA required minimum distribution (“RMD”) during retirement or who will be bumped into a higher federal income tax bracket by taking their full RMD can use IRA charitable rollover, to the extent the endowment is not a donor advised fund. The endowment can also be designated a beneficiary of the donor’s estate or their retirement accounts, which can also reduce taxes. Rochester is currently ripe for creating an endowment. Take Mackenzie Scott’s recent giving of $20 million to the United Way of Greater Rochester, which was part of the $4.2 billion she gave to charities and endowments around the country. But, as discussed, creating an endowment is not reserved for billionaires, such as Mackenzie Scott. If you are interested in creating an endowment or if you have any other Corporate & Business Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Sarah Bothma or Edmund Russell, the authors of this piece, here or by phone at (585) 258-2818 for Sarah or (585) 258-2834 for Edmund.

The recently enacted budget legislation (“Act“) includes some important provisions affecting borrowers under the previously enacted Paycheck Protection Program (“PPP“) and allocates funding for a second round of small business PPP loans. We’ve previously written about the Paycheck Protection Program in 2020: Paycheck Protection Program Flexibility Act Does Indeed Provide Flexibility, Update on the Necessity Certification for PPP Loans, Loan Forgiveness Portal Opened by the Small Business Administration for PPP Loans. For existing PPP borrowers and second round borrowers, the Act includes a provision that business expenses paid with PPP loan proceeds are fully tax-deductible, even if the PPP loan is forgiven. This law change overrides a prior IRS position which would have disallowed the deductions. The additional tax relief is welcomed by those businesses that are struggling because of the effects of Covid on their revenues. An additional benefit under the Act is that those PPP borrowers that also received a cash advance through the Economic Injury Disaster Loan program will not have to deduct the cash advance from their PPP loan forgiveness amount. Under the Act qualifying businesses can receive a second round PPP loan. This includes both companies that received a first round PPP loan and those that did not. New to this round is loan eligibility for qualified 501 (c) 6 organizations. To qualify for the second round, a business must have 300 employees or less (down from 500 in the first round) and the business must be able to prove that it’s gross receipts in quarter one, quarter two or quarter three of 2020 decreased by at least 25% compared to the same quarter in 2019. If not operational in 2019, the business must use the first quarter of 2020 for this comparison. The maximum loan amount under the second round is the lesser of $2 million (reduced from $10 million in the first round) or 2.5 times the average monthly payroll costs in the one year period prior to the loan application or in 2019. For restaurants, hotels and other businesses in NAICS class 72, the payroll multiplier is increased to 3.5 from 2.5. These second round PPP loans are available for applications received by March 31, 2021. For second round loans, the covered usage period can be anytime between eight and 24 weeks from the date of disbursement of loan proceeds. For both first round loans (where forgiveness has not yet been applied for) and for second round loans, the Act expands the types of expenses that can be covered by PPP loan proceeds to add certain other operating expenses, certain property damage losses, payment for certain supplier costs and cost for covered workers protection, in addition to payroll, rent, mortgage interest and utility costs. To obtain full forgiveness, at least 60% of loan proceeds must be spent on payroll with the remaining 40% spent on the other eligible expenses just mentioned. The forgiveness process for first and second round PPP loans was simplified in the Act for those loans less than $150,000. For these loans there is a one page certification form rather than a more detailed application. However, borrowers using the simple certification must nevertheless maintain all the backup documentation supporting the forgiveness application because the SBA has the right to audit their files for compliance. If you have any questions regarding the issues discussed above or if you have any other Corporate & Business Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Steven Gersz, the author of this piece, here or by phone at (585) 258-2817.

As we have previously discussed in our post after the New York State (NYS) budget passed earlier in 2020, the New York State Paid Sick Leave law took effect on September 30, 2020 with that being the day that the sick leave must begin to accrue, unless the employer chooses to award all of the required paid sick leave to its employees on January 1, 2020. Otherwise, the requisite sick leave must begin to accrue now in the amount of one hour of sick leave for every thirty hours worked. This new law, passed in April 2020 with the New York State budget, applies to all employees regardless of how often the employee worked or whether he or she is exempt or non-exempt from overtime under the federal Fair Labor Standards Act . However, despite the law’s title reference to paid sick leave, for New York employers with 4 or less employees, they only need to provide forty hours per year of unpaid sick leave. Employers with between 5 and 99 employees must provide 40 hours of paid sick leave per year, and employers with one hundred or more employees must provide fifty-six hours of paid sick leave per year. The new sick leave can be taken beginning on January 1, 2021. The new paid sick leave law provides a dilemma for those employers who currently provide paid time off (“PTO”) for all different types of absences (sick, personal, vacation etc.), as a provision of the law states that such employers who currently provide more PTO than the paid sick leave required by the law, need not provide additional PTO. Many employers have assumed that they could inform the employee that they would be responsible to decide how to use their PTO and thereby the employer would be in full compliance with the new law. The dilemma is that if an employee of such an employer uses up all of his or her PTO in 2021 for non-sick purposes (e.g., vacation or personal time), he or she could then claim a right to take the applicable paid sick leave later in 2021. A logical solution to the dilemma could be that the employer simply track the reasons for PTO usage, and deny PTO requests for non-sick purposes if the usage would cut into the paid sick leave requirement. This of course would present a record-keeping nightmare, and perhaps more importantly, likely infuriate the employees who would rather take paid vacation/personal time than paid sick time. Accordingly, many employers have already come under pressure to provide additional PTO, regardless of how much PTO they provide now. Fortunately, we are told that the New York State Department of Labor is working on regulations regarding the new law which could assist employers in resolving this dilemma. If you have any questions regarding the issues discussed above or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Paul Keneally, the author of this piece, here or at (585) 258-2882.

As discussed in this blog previously (New York Releases Guidance Related to New Paid Sick Leave Law and also NYS Paid Sick Leave Law Now in Effect and Presenting Many Employers with a Dilemma), New York State now has mandatory sick leave for all employers and employees. The accrual of that time began as of September 30, 2020, and employees will be able to start using the sick leave on January 1, 2021. Earlier this week, the New York State Department of Labor “(DOL”) released some additional proposed regulations which will supplement other sick leave regulations previously issued. Interested parties are invited to submit comments about the proposed regulations to the DOL, and we would be happy to facilitate any such submission. The proposed new regulations include definitions of the terms of art used in the Sick Leave law, and are mostly standard. The most important section of the proposed new regulations concerns when employers may require documentation from employees using sick leave. Upon the new proposed regulation, employers may require medical or other verification only if the employee uses sick leave for three or more previously scheduled workdays in a row. Employees will not be required to pay for the medical or other verification, nor will they have to provide confidential information about the “illness, its progress, treated or other related information, nor … any details or information regarding [safe] leave”. Accordingly, the employer request for documentation will be limited to: An attestation from a licensed medical provider supporting the existence of a need for sick leave, the amount of leave needed, and a date that the employee may return to work, or An attestation from an employee of their eligibility to use sick leave. The second section of the new proposed regulations relates to the method of determining the number of employees employed, which governs whether and how much sick leave is required. (For employers with 4 or less employees, 40 hours of unpaid sick leave is required; for employers with 5-99 employees or net income greater than $1M, 40 hours of paid sick leave must be provided; and for employers with 100 or more employees, 56 hours of paid sick leave is required.) The employee count under the new proposed regulation will be determined by counting the highest number of employees employed concurrently at any point during the calendar year to date. For employers increasing in size during a calendar year above one of the thresholds above, the accrual of additional leave begins at that time, though employees will not become entitled to reimbursement for previously used unpaid leave or to the use of more than the required amount of paid leave. Prior accruals of used and unused paid leave, and used unpaid leave, may be credited towards the increased paid leave obligations. Also, employees do retain all existing accrued paid and unpaid leave, regardless of the increase in the number of employees during a calendar year. A reduction in the number of employees does not reduce the paid sick leave requirement until the following calendar year. Other provisions in this section will dictate that all part-time employees, joint employees and employees on leave count, except for those actually terminated/laid off. The final section of the new proposed regulations could be the trickiest for employers who do not have effective time-keeping systems. Even though the sick leave law provides that accrual is 1 hour of sick leave for every 30 hours worked, employers must account for all time worked, even time worked in less than 30 hour increments, in the employee sick leave accrual accounts. For those time-worked increments of less than 30 hours, employers will be required to round accrued leave to the nearest 5 minutes, or to the nearest one-tenth or quarter of an hour, provided that the employee will not be short-changed over time. Please do not hesitate to contact us to submit comments to the DOL on these proposed new regulations, or to discuss how they will impact your business. If you have any questions regarding the issues discussed above or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Paul Keneally, the author of this piece, here or at (585) 258-2882.

Question: I am concerned about the continuing increase in opioid abuse by patients over the last several years. I work hard to counsel and treat these patients. What risks are there to my practice if a patient overdoses while I am treating them? Answer: In response to the public health crisis related to the misuse, abuse, and risk of addiction to opioid-based pain killers, the New York State Department of Health mandated accredited continuing medical education (CME) for all prescribers in 2017. In addition, the Center for Disease Control and Prevention issued opioid-treatment guidelines for health care professionals and patients. Under New York State’s “I-STOP” law, prescribers are required to review the state’s Prescription Monitoring Program Registry within 24 hours of issuing a prescription for a controlled substance. A physician’s failure to complete this CME and follow required guidelines can lead to discipline from the New York State Office of Professional Medical Conduct. Recently, the New York State Court of Appeals held that if misconduct by a physician prescribing opioids results in a patient’s death, the physician can be held criminally liable. At the end of November 2019, the state’s highest court upheld the manslaughter convictions of a physician after two of his patients died from medications he prescribed. In People v. Stan XuHui Li, the Court of Appeals outlined the history leading up to the conviction of Dr. Li, who was board-certified in anesthesiology and pain management.[1] The doctor was “accused of running a ‘pill mill’ at his Queens pain management clinic.” During the jury trial, the prosecution offered evidence that, over a three-year period, “the defendant prescribed medically unnecessary high doses of opioids, alprazolam, as other controlled substances as a first resort.” During that time, the doctor conducted “little or no” physical examination, failed to confirm the source of his patients’ pain, failed to order diagnostic tests to verify the existence of the pain, and failed to implement alternate treatment for pain management. The defendant “often prescribed heavy doses of whatever medication his patients requested to alleviate their complaints of pain.” Furthermore, Dr. Li “required payment in cash and charged extra for, among other things, higher doses of opioids.” At trial, the prosecution presented several of Dr. Li’s former patients who testified that they were opioid addicts and used the prescribed drugs to get high and not for pain management. In fact, the defendant was informed by patients’ family members and other medical practitioners that “several of his patients were addicted to opioids and at the risk of dying from opioid abuse.” In 2009 and 2010, two of the doctor’s patients suffered respective fatal overdoses as the result of taking a combination of oxycodone and alprazolam. Both had recently filled prescriptions with the defendant for the drugs and pills from those prescriptions were with the patients when their bodies were found. Dr. Li was convicted after trial of two counts of manslaughter in the second degree as well as numerous other crimes, including reckless endangerment, criminal sale of a prescription, scheme to defraud, grand larceny, falsifying business records, and offering a false instrument for filing. The doctor only appealed the manslaughter convictions arguing that, as a matter of law, he could not be convicted of a homicide offence for prescribing controlled substances that result in death by overdose and that the manslaughter counts were not supported by legally sufficient evidence. The Court of Appeals dismissed the doctor’s claim that the law did not allow for the manslaughter convictions. The court noted that the homicide statutes in the state’s criminal penal code offer no evidence that the legislature intended to exclude the prosecution of a defendant who, with the required state of mind, “engages in conduct through the sale or provision of dangerous drugs that directly causes the death of a person.” The court also disregarded the doctor’s claim that there was insufficient evidence for the manslaughter convictions by citing the prosecution’s expert physician witness who outlined the defendant’s practice in prescribing opioids. This included Dr. Li’s failure to consider non-opioid pain management treatment for his patients and his disregard of the “warning signs that his patients were abusing their medication and were addicted to opioids, such as early visits, obtaining prescriptions from other doctors, deterioration in physical appearance, and, in some cases, direct warnings from family members and hospitals that defendant’s patients had overdosed.” Furthermore, the defendant did not alter his practices in prescribing medication until 2011 after learning of the law enforcement investigation. Even though Dr. Li was not informed directly that either patient who died was abusing their medication or had previously overdosed, the court found that the victims’ deaths could not be deemed unexpected considering the doctor’s practices. The court underscored the doctor’s failure to order any diagnostic testing of the victims and prescribing anti-anxiety medication to both patients without evidence that either were experiencing anxiety. The court found that, based on the Dr. Li’s reckless prescription practices, a reasonable juror could conclude “that the defendant was aware of and consciously disregarded a substantial and unjustifiable risk” that both victim patients would take more drugs than prescribed and thereby could suffer fatal overdoses. As opioid-related overdoses and abuse have increased in New York State in recent years, prescribers of controlled substances must be aware of and follow the legal requirements in order to keep their patients safe. Therefore, when prescribing opioids, it is essential for care providers to conduct a physical exam and obtain a thorough history from the patient, order the appropriate diagnostic testing to identify the existence and source of the patient’s pain, implement alternate treatment for pain management when indicated, and only prescribe the amount and dosage of medication that is supported by the provider’s exam and testing of the patient. As the Court of Appeals decision in Dr. Li’s case makes clear, a prescribing physician’s failure to do so may result in criminal liability. If you have any questions regarding the issues discussed above or if you have any other Health Care Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or David Fitch, the author of this piece, here or at (585) 258-2840. [1] 34 NY3d 357 (2019)