The New York Brownfield Cleanup Program (BCP) was enacted in 2003 and has provided significant legal and financial incentives for private parties to remediate and re-develop brownfield parcels across New York. Based on the duration of sites in the BCP, time is running out for developers to complete brownfield projects prior to the expiration of the tax credits at the end of 2015. As part of Governor Cuomo’s budget, the administration has submitted a series of sweeping legislative changes to extend and modify the BCP tax credits. Overview of the BCP Changes Definition of “Brownfield” revised to a site with documented contamination at levels above soil cleanup standards for the proposed future site use – will require a Phase II site investigation Makes certain Class 2 New York Superfund eligible for the BCP Creates a BCP-EZ program similar to the old VCP program for expedited remediation of sites without tax credits Only participants, and not volunteers, in the BCP would have to pay State costs Site Preparation and Remediation Credits Site preparation tax credits remain: ranging from 22% to 50% of costs depending on cleanup level For sites admitted into the BCP after July 1, 2014, any Certificate of Completion needs to identify the entities eligible for tax credits and percentage of credits available Site preparation costs specifically include remediation of asbestos, lead and PCB Only site preparation costs identified in DEC approved remedial work plan would qualify – exclusion of site investigation, Phase I, and IRM costs Key New Deadlines and Criteria to Obtain Tangible Property Tax Credits Sites admitted into the BCP after July 1, 2014 would be restricted from obtaining tangible property tax credits for the value of on-site construction Sites where a Brownfield Cleanup Agreement is entered after July 1, 2014 need to seek and obtain approval of the tangible property tax credit at the time of the application by documenting that the site meets one of the following: Vacancy: the site property and buildings have been vacant for 15 years or more, or have been both vacant and tax delinquent for 10 years or more; or Financially underwater: the estimated cost of the investigation or remediation for the proposed future use of the site exceeds the appraised value of the property without construction; or Priority economic development project: the project has been determined a PED by the Department of Economic Development, which include locating specific types of businesses at the parcel and the creation of significant jobs of 50, 100, or 300 net new jobs based on the type of business. The proposal would remove sites from the BCP if they were accepted in prior to June 23, 2008 and no COC is issued by December 31, 2015 Sites admitted after July 23, 2008 but prior to July 1, 2014 would be removed if no COC is issued by December 31, 2017 Sites accepted into the program after July 1, 2014 must obtain a COC by December 31, 2025 to apply for tax credits No sites accepted into the BCP after December 31, 2022 would be eligible for tax credits No tangible property tax credits for sites where contamination is from off-site source or DEC determines that prior remediation permits site development for proposed use If a site qualifies for the tangible property tax credit, it will be capped at 24% and the individual components have been adjusted based on the type and location of site Other New York Brownfield Programs The municipal Environmental Restoration Program (ERP) is slated to receive $10 million under the budget Despite new funding source, the ERP sites currently in the program account for all of the new funding – significant additional funding is necessary to allow municipalities to put new sites into the ERP program Funding is removed for the Brownfield Opportunity Area (BOA) Program administered by the Department of State Without BOA funding, municipalities will not be able to progress area-wide BOA planning in the multi-step program or identify sites that might fit into the BCP for re-development If you have questions about the BCP program or the application to specific development sites, please contact us. Based on the proposed deadlines, we strongly encourage you to evaluate potential sites for BCP applications prior to any legislative changes to the program. Download this Legal Alert As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Thomas F. Knab has been named to the 2013 Buffalo Business First/Buffalo Law Journal’s "Legal Elite of Western New York".  The Legal Elite is a peer-nominated and reviewed listing of Buffalo-area attorneys. Tom is the partner-in-charge of the firm's Buffalo office, and is a member of our Litigation, Labor & Employment and Municipal Practice Groups. As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Does your company have a plan if one of your competitors files for bankruptcy protection? If a bankrupt competitor is liquidating assets to pay creditors (a "Chapter 7 Bankruptcy"), your attorney can advise you about how to acquire customer lists and attractive assets, and negotiate terms with key employees or staff of the failed business. If your competitor obtains protection from the bankruptcy court in a reorganization (a "Chapter 11 Bankruptcy"), it will be relieved of certain debt repayment obligations, which will immediately reduce its burden to generate cash to satisfy creditors. The result, in short, is that the business will not have to be as profitable during the reorganization. In either scenario, the major issue for your competitor in bankruptcy is a cash shortage. Your bankrupt competitor is likely to engage with customers to renegotiate contracts and lower its operational costs. Smart business owners should consider opportunities to gain strategic advantages when competitors file for bankruptcy. Your company may be able to win over your competitor’s customers, pick-up key employees (including high-level sales personnel) and/or acquire key assets through a purchase in the bankruptcy proceeding. When your competitor goes bankrupt, you may be able to force it to yield market share or limit its service offerings. Consider the following tactics if your industry competitor is facing financial trouble: Capture your bankrupt competitor's best customers to gain market share. In a liquidation, this may involve the purchase of a debtor entity's customer list. If your competitor is reorganizing, you should consider increasing advertising to gain market share. Your rival will have to spend to keep up or it will risk losing customers. Research and pursue the sales of your competitor’s attractive assets. If a competitor is selling a portion of its business, it may be doing so at a discount. Make sure your business is at the table for the sale of your competitor's valuable assets. Advantages of acquiring assets in bankruptcy include: (a) elimination of unwanted liabilities (assets are usually bought free and clear of liens or encumbrances), (b) the expectation of owners and creditors are usually lowered after the bankruptcy filing, and (c) federal bankruptcy court approval provides finality, reducing the chance of future legal attack or fraudulent conveyance action. Leverage angst among your rival’s staff by pursuing its top sales talent and strong vendors or suppliers. Of course, as with many business decisions, there are risks when dealing with a competitor in bankruptcy. Contact a lawyer in Underberg & Kessler's Creditors’ Rights Practice Group to discuss strategies for minimizing these risks when acquiring customer lists, key personnel and assets when a competitor declares or is about to declare bankruptcy. Download this Legal Alert As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

On August 14, 2013, the U.S. Department of Health and Human Services (HHS) announced an agreement with Affinity Health Plan, Inc. (Affinity) to settle potential HIPAA violations whereby Affinity will pay HHS $1,215,780. The case arose from Affinity’s failure to “wipe” the memories of its leased photocopiers when surrendering the copiers at the end of their lease terms. The Columbia Broadcasting System later bought one of these copiers and, upon discovering patient protected health information (PHI) in the copier’s memory, alerted Affinity. Affinity then reported the breach to HHS as required by HIPAA, estimating that as many as 344,579 individuals may have been affected by the breach. HHS took Affinity to task for the breach itself, and for Affinity’s failure to recognize that photocopiers could be the source of an unauthorized disclosure of PHI and to adopt policies to mitigate the risk. In order to avoid capital costs and to remain current with technology, many health care providers lease photocopiers from third parties and elect to return them rather than purchase them at the expiration of the lease term. Today’s copiers are essentially computers, and are often used in a network environment for printing, scanning and faxing, as well as copying. They are capable of storing thousands of images. Providers need to understand how these machines can put their practices at substantial risk. The Affinity case was based on breaches occurring following lease expiration. However, while in provider custody, copiers are regularly serviced by third parties whose personnel may be able to access copier memory while performing maintenance and repairs. Providers should assure that their service contracts contain “Business Associate Agreement” clauses, permitting access to PHI in the course of maintenance and repair but restricting the use or disclosure of PHI except as needed to perform contractual obligations. Further, providers should know how to erase the memories of these machines before they are surrendered at lease expiration, and document the responsibility for assuring that this is done. Modern fax machines function in much the same way as photocopiers, in that they store images before transmitting them. Similar precautions should be taken with respect to these devices. Download this Legal Alert As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

Our primary care practice is considering adding either a nurse practitioner or physician assistant. What are some of the legal considerations that would apply? As Americans focus on health care reform, physician practices continue to strive to provide quality primary care to their patients, in a timely and cost effective manner. Increasingly, patients are becoming more comfortable with seeing mid-level providers for their care. Primary care practices have found that using physician extenders can allow them to provide high quality patient care, treat patients in a timely manner, improve patient satisfaction and enhance the financial profitability of the practice. Nurse Practitioners The scope of practice of a nurse practitioner includes the diagnosis and treatment of illness. In the office setting, nurse practitioners may perform physical examinations, administer immunizations, write prescriptions, order and interpret laboratory tests and make referrals to other health care providers. Nurse practitioners have the time to address the patient’s health concerns while providing education regarding healthy choices and overall coordination of health care services. A nurse practitioner must practice under a written practice agreement with a collaborating physician. A collaborating physician may not supervise more than four nurse practitioners who are not located at the same premises as the physician. The practice agreement will establish practice protocols which reflect current medical and nursing practice, and set forth the scope of supervision. The practice agreement must address the referrals to and consultations with the collaborating physician, coverage for absence of either the nurse practitioner or collaborating physician, resolution of disagreements between the collaborating physician and nurse practitioner and periodic review of patient records by the collaborating physician. The review of patient records by the collaborating physician must occur on a timely basis, but no less often than every three months. The law does not require any specific numbers or ratios of patient charts to be reviewed by the collaborating physician. That decision is left to professional judgment and will vary based on the nurse practitioner’s experience and the collaborating physician’s knowledge of the nurse practitioner’s abilities and judgment. Our office recommends that the physician countersign and date the chart notes at the time of the supervisory review. While subject to the supervision of the collaborating physician, nurse practitioners practice independently. New York law does not require that medical orders, prescriptions or laboratory orders be countersigned by the collaborating physician. Physician Assistants New York law allows a physician assistant (PA) to perform medical services under the supervision of a physician, so long as the duties assigned to the PA are within the scope of practice of the supervising physician. Thus, in a primary care private office setting, the scope of practice for a PA is substantially similar to that of the nurse practitioner as discussed above. While the PA must be “continuously” supervised, unlike the case with the nurse practitioner, there is no requirement for a written practice agreement with practice protocols. The continuous supervision standard does not require that the supervising physician be physically present at the office while the PA is rendering medical services. However, the supervising physician must be immediately available to consult with the PA about patient matters, by telephone or other reliable means of communication. The supervision requirement for PAs differs from nurse practitioners in that there is no requirement for Continued on page 30... 30 The Bulletin chart review. From a risk management perspective, our office recommends that the supervising physician nevertheless periodically review and countersign selected patient charts to evidence professional supervision of the PA. New York law does not require that the supervising physician countersign medical orders, laboratory orders or prescriptions. Prescriptions must be written on the supervising physician’s prescription form and be signed by the PA first by printing the name of the supervising physician, then printing the name of the PA and then signing the prescription form followed by the designation “RPA” and the PA’s registration number. Note that a PA does not have the authority to write prescriptions for certain controlled substances. Additional Considerations Primary care practices that choose to employ nurse practitioners or PAs should have a thorough understanding of rules, regulations, policies and procedures for billing Medicare, Medicaid and the various private medical insurance companies. Doing so will allow the practice to maximize collections and profitability from these physician extenders, while minimizing the risk of claims denial or audits. Supervising or collaborating physicians should also be aware that they are personally liable for claims of malpractice against those physician extenders that they supervise. Even in the setting of a professional corporation, professional limited liability company or registered limited liability partnership, the supervising physician has the same liability as if he or she had personally committed the claimed act of malpractice. However, such claims may be covered by the physician’s available malpractice insurance coverage. In addition, the practice should consider separate malpractice insurance coverage for the physician extender. Download the Reprint from The April 2010 Edition of 'The Bulletin' by MCMS As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

New York Labor Law § 193 and New York Compilation of Codes, Rules and Regulations Title 12, § 195.1 govern employer deductions from employee’s wages. Until now, § 193 generally prohibited employers from making deductions from employees’ wages, with two exceptions: First, when the deductions were authorized by law, such as income tax withholdings and court ordered garnishments; and second, when the deductions were authorized in writing and for the benefit of the employee, such as health insurance premiums, pension or health and welfare benefits, contributions to labor organizations and charitable organizations, and/or similar types of payments. The regulations provided that permissible deductions for all non-enumerated items must not exceed 10 percent of the gross wages due to the employee in a payroll period. Initially, the law was interpreted to mean that employers could make deductions from employees’ wages provided the deduction was authorized in writing by the employee, for the benefit of the employee, and were for purposes that were “similar” to the purposes authorized by the statute. However, in recent years the New York State Department of Labor changed its interpretation of § 193 and drastically reduced the types of deductions an employer could make. The Department of Labor interpreted the old law as prohibiting deductions for accidental overpayment of wages or payment advances on vacations or loans because the deductions were not considered as being “for the benefit of the employee,” even in cases where the employee specifically consented. The New York State Department of Labor’s interpretations were so strict that even obvious and gross overpayments to an employee could not be deducted, again, even where the employee agreed to the deduction. The recent interpretation also prohibited employers from requiring employees to repay the employer by means of a separate transaction by threat of discipline. This left employers with no recourse but to sue current and former employees when they refused to voluntarily repay an overpayment or an advance. Because of the narrow interpretation, the legislature recently amended the provision, and the new law became effective on Nov. 6. New York Labor Law § 193 now gives employers greater leeway in making deductions from employee paychecks. Under the amended legislation, employers are permitted to deduct from employees’ paychecks to repay advances of salary or wages, and to recoup overpayments stemming from clerical or mathematical errors, subject to regulations promulgated by the New York State Department of Labor. It is presently unclear if overpaid “Paid Time Off” and vacation would be subject to inclusion under the amendments. The amended law also permits employers to take deductions out of the paychecks of employees who consent in writing for certain categories of payments, including: Tuition, room, board, and fees for pre-school, nursery, primary, secondary, and/or post-secondary educational institutions; Day care, before-school and after-school care expenses; Fitness center, health club, and/or gym membership dues; Discounted parking or discounted passes, tokens, fare cards, vouchers, or other items that entitle the employee to use mass transit; Events sponsored by charitable organizations; Cafeteria and vending machine purchases made at the employer’s place of business and purchases made at gift shops operated by the employer, where the employer is a hospital, college, or university; Pharmacy purchases made at the employer’s place of business; and Similar payments for the benefit of the employee. Prior to making these deductions, employers will be required to provide employees with written notice detailing the purpose of the deductions and the manner in which they will be made. The new provisions specify that the notice must be updated whenever there is a substantial change in the manner of the deduction, the amount or the terms of the conditions of the payment for which the deduction is being made. Employers must comply with the notice requirements in addition to obtaining written employee authorizations. A word of warning to employers. Although the new law took effect Nov. 6, the New York Department of Labor has yet to issue its regulations. The regulations will likely deal with the timing and frequency of deductions, the amounts that may be recovered, as well as notice requirements and a requirement that employers implement a procedure that employees can use to dispute the amount of overpayment or salary/wage advance. Employers are cautioned to wait for the regulations before acting in accordance with the amended provisions. Finally, the law has a sunset provision stating that it expires in three years, so if the legislature does not renew the amendments, it will revert back. Download the Reprint from The Daily Record As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.

New York’s Domestic Workers Bill of Rights will take effect Nov. 29. The law is the culmination of a six year organizing campaign by Domestic Workers United, an organization of nannies, housekeepers and elderly caregivers in New York. The law makes New York the first state in the country to provide extensive workplace protection to domestic workers, and amends New York Labor Law, in addition to other statutes. The legislation defines a domestic worker as “a person employed in a home or residence for the purpose of caring for a child, serving as a companion for a sick, convalescing or elderly person, housekeeping or for any other domestic service purpose.” The law subjects individual households that employ domestic workers to potential liability for unlawful harassment and failure to observe maximum hours and overtime pay requirements. The law excludes from coverage casual workers such as ad hoc babysitters; those who engage in companionship services as defined under the Fair Labor Standards Act and who are employed by an employer or agency other than the family or the household and those who are a relative through blood, marriage or adoption of the employer or the person for whom the worker is delivering services under a program funded or administered by federal, state or local government. Harassment and discrimination provisions It will be unlawful discriminatory practice under the state Human Rights Law for an employer to engage in unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature to a domestic worker when submission to such conduct is made a term or condition of employment, or used as the basis for employment decisions, or when it creates an intimating, hostile or offensive work environment. It will be unlawful to subject a domestic worker to unwelcome harassment based on gender, race, religion or natural origin where such harassment unreasonably interferes with his or her work performance by creating an intimidating, hostile or offensive work environment. The Bill of Rights opens the door for harassment suits by nannies, caregivers and other domestic workers based not only on the conduct of the employer, but also on alleged conduct by the children, elderly or infirm persons for whom they provide care, without regard to their maturity or mental stability. Unlike other protections under the state Human Rights Law that apply only to employers of four or more employees, protections for domestic workers apply to employers who employ one or more domestic workers. Wage and hour requirements The new Law also creates a new section of Labor Law, §170, which prohibits an employer from requiring domestic workers to work more than 40 hours in a week, or 44 if they reside in the home of their employer, unless they receive compensation at an overtime rate of at least one and one-half times the worker’s normal rate. Domestic workers will be entitled to one full day of rest, defined as “24 consecutive hours,” in each calendar week; however, domestic workers may waive the full day requirement voluntarily if the employee is compensated at the overtime rate for all hours worked on such day of rest. After one year of work with the same employer, all domestic workers shall be entitled to at least three paid days of rest in each calendar year. Other provisions The legislation also amends New York’s Worker’s Compensation Law and extends the rights to statutory disability benefits to domestic workers to the same degree as other workers. The law requires a study to be performed by the state’s Commissioner of Labor on the practicality of extending collective bargaining rights to domestic workers. What does it for employers? Individuals and families employing domestic workers should keep accurate records of the terms and conditions of employment for all domestic workers. Employers should maintain records concerning hours worked, break time, meals and rest periods, sleep time, frequency of pay straight and overtime rate of compensation, gross wages, any amounts deducted from those wages and the net compensation received by the domestic worker for at least six years. All complaints of discrimination received by domestic workers should be documented, investigated and remedied if there is any merit to the complaint. As New York law permits claims to be brought for unpaid overtime and other wages up to six years after they were earned, employers who fail to provide domestic workers with the requisite overtime pay may be sued several years after the employment relationship has ended. In addition to unpaid overtime or other wages, employers could be held liable for a domestic worker’s attorney’s fees, costs, interest and a penalty equal to 25 percent of the unpaid wages, as well as potential civil fines and criminal penalties. Employers should consult an employment attorney before Nov. 29 to ensure compliance with the new law. Download the Reprint from The Daily Record As always, if you have any questions, please feel free to contact us here or call us at 585.258.2800.