BrachEichler LLC Blogs Feed Jan 2018firmwise Announces Adoption of New Ground Water Remediation Standards Jan 2018Blogs<p>The New Jersey Department of Environmental Protection (NJDEP) replaced the interim specific Ground Water Quality Standards with amendments to the Ground Water Quality Standards, which were published in the New Jersey Register this week. The new amendment provides specific ground water quality standards for 23 constituents and more stringent standards for three of them. NJDEP also amended Appendix A of the Discharge of Petroleum and Other Hazardous Substances rule to add perfluorononanoic acid (PFNA) as a hazardous substance. This amendment comes less than one month after the Appellate Division struck down NJDEP&rsquo;s interim standards for PFNA.</p> New Jersey Appellate Division Invalidates NJDEP’s ISGWQC for PFNA Dec 2017Blogs<p>In 2014, the New Jersey Department of Environmental Protection (&ldquo;NJDEP&rdquo;) determined that perfluorononanoic acid (&ldquo;PFNA&rdquo;) was a &ldquo;toxic&rdquo; substance and posted Interim Specific Ground Water Quality Criteria (&ldquo;ISGWQC&rdquo;) describing PFNA as a perfluorinated compound with harmful human health effects. NJDEP did not follow the requirements for the issuance of a rule or regulation wherein the NJDEP action would be subject to public comment and posting in the New Jersey Register.&nbsp; The NJDEP cited <u>N.J.A.C.</u> 7:9C-1.7(c), as its authority for this action, which provides that the NJDEP can establish interim specific criteria for ground water constituents, but also provides that the criteria must be replaced by specific criteria or a rule as soon as possible.&nbsp; On March 14, 2017, NJDEP posted the ISGWQS on its website.&nbsp; This was the first guideline or groundwater criteria related to PFNA that the NJDEP had issued.</p> <p>In response to NJDEP&rsquo;s attempted rule-making, the plaintiffs, Chemistry Council of New Jersey, Solvay Specialty Polymers USA, LLC, and Arkema, Inc., challenged the NJDEP&rsquo;s reliance on <u>N.J.A.C.</u> 7:9C-1.7(c), arguing that the NJDEP violated the Administrative Procedure Act (&ldquo;APA&rdquo;).&nbsp; The plaintiffs also argued that the ISGWQC was not supported by credible scientific evidence, thus the ISGWQC was &ldquo;arbitrary, capricious, and unreasonable,&rdquo; but the Appellate Division did not make a decision on that claim.</p> <p>In its decision, the Appellate Division decided that pursuant to the APA, an administrative agency must &ldquo;proceed in accordance with traditional rule-making requirements for a rule proposal, including provisions of notice and an opportunity to comment.&rdquo;&nbsp; The Appellate Division highlighted that the ISGWQC adopted by NJDEP was identified as an &ldquo;interim criteria&rdquo; and was posted on the NJDEP&rsquo;s website on March 14, 2014, yet the measures remain in effect today.&nbsp; Thus, the question for the Court was whether this is a valid exercise of authority or agency action in violation of the APA.&nbsp; The Appellate Division, citing <u>Metromedia, Inc. v. Div. of Taxation</u>, found that the ISGWQC has all of the &ldquo;earmarks of rule-making&rdquo; as&nbsp; it is a new standard for water quality, intended to apply universally, uniformly, and prospectively to the regulated community.&nbsp; The Court considered that this was the first time NJDEP singled out PFNA as a constituent of ground water requiring attention and that the ISGWQC was in form and effect an administrative regulatory policy.&nbsp; <u>N.J.A.C.</u> 7:9C-1.7(c)(2)(ii) limits the NJDEP&rsquo;s authority and requires that any &ldquo;specific criteria&rdquo; shall be replaced as soon as reasonably possible by a rule.&nbsp; The Court found that the interim criteria have become a <i>de facto</i> permanent regulatory scheme without complying with the APA, thus they are invalid.</p> <p>The Appellate Division has provided the NJDEP with 30 days to seek Supreme Court review of its decision or to begin complying with the APA.</p> Qualified Plan Limits Nov 2017Blogs<p>Qualified retirement plans, such as Internal Revenue Code sections 401(k) and 403(b) plans, pension and profit sharing plans, individual retirement accounts (IRAs), and health flexible spending accounts (Health FSAs) are subject to various dollar limits on the amount of contributions that can be made or benefits that may accrue under such arrangements. Most of these dollar limits are adjusted annually by the IRS for changes in the &ldquo;cost of living.&rdquo;<br /> <br /> For 2018, some of the key dollar limits affecting the above plans, IRAs and Health FSAs are as follows:<br /> &nbsp;</p> <table border="1" cellspacing="0" cellpadding="0" width="80%" align="center" style="margin: 0 auto"> <tbody> <tr> <td width="319" valign="top"> <p align="center"><b><u>Plan/IRA Benefit</u></b></p> </td> <td width="319" valign="top"> <p align="center"><b><u>2018 Dollar Limit</u></b></p> </td> </tr> <tr> <td width="319" valign="top">1.&nbsp;&nbsp; Elective Deferral Contributions (for 401(k) and 403(b) Plans)</td> <td width="319" valign="top">$18,500 ($500 increase from 2017)</td> </tr> <tr> <td width="319" valign="top">2.&nbsp;&nbsp; Annual Contribution Limit (for defined contribution plans)</td> <td width="319" valign="top">$55,000 ($1,000 increase from 2017)</td> </tr> <tr> <td width="319" valign="top">3.&nbsp;&nbsp; Annual Benefit Limit (for defined benefit plans)</td> <td width="319" valign="top">$220,000 ($5,000 increase from 2017)</td> </tr> <tr> <td width="319" valign="top">4.&nbsp;&nbsp; Annual Compensation Limit (for all qualified retirement plans)</td> <td width="319" valign="top">$275,000 ($5,000 increase from 2017)</td> </tr> <tr> <td width="319" valign="top">5.&nbsp;&nbsp; Catch-Up Deferral Contributions (for plan participants age 50 or older under 401(k) and 403(b) plans)</td> <td width="319" valign="top">$6,000 (no change from 2017)</td> </tr> <tr> <td width="319" valign="top">6.&nbsp;&nbsp; Highly Compensated Employee definition-compensation threshold (for nondiscrimination testing under all qualified plans, especially 401(k) and 403(b) plans)</td> <td width="319" valign="top">$120,000 (no change from 2017)</td> </tr> <tr> <td width="319" valign="top">7.&nbsp;&nbsp; Traditional IRA Contribution Limit (IRA contribution deduction amount subject to income based phase-out)</td> <td width="319" valign="top">$5,500 (no change from 2017)</td> </tr> <tr> <td width="319" valign="top">8.&nbsp;&nbsp; Catch-Up Traditional IRA Contribution (for individuals age 50 or older)</td> <td width="319" valign="top">$1,000 (no change from 2017)</td> </tr> <tr> <td width="319" valign="top">9.&nbsp;&nbsp; Health FSA Contributions (via employee salary deferrals)</td> <td width="319" valign="top">$2,650 ($50 increase from 2017)</td> </tr> </tbody> </table> <p><br /> While the above benefit and contribution limits should be, as applicable, reflected in the plan documents for such plans and accounts, and in the operation of such arrangements, it is important to remember that the elective deferral and, as applicable, related catch-up contribution limits apply on an individual basis.&nbsp; Thus, if you change jobs during calendar year 2018 and participate in two or more employer-provided 401(k) and/or 403(b) plans, you are entitled to a maximum aggregate elective deferral and catch-up contribution limit under all such plans for 2018 of $18,500 in elective deferrals and $6,000 in catch-up contributions (i.e., one set of elective deferral and catch-up contribution limits apply per individual per calendar year).</p> Thanksgiving! Nov 2017Blogs<img style="padding-left: 29px;" src="" hspace="0" vspace="0" align="absmiddle" alt="" border="0" width="551" height="648" /><br /> <br type="_moz" /> <br /> Jersey Approves Constitutional Amendment to Earmark Monies for Environmental Clean-Up Nov 2017Blogs<p>Nearly 70 percent of New Jersey voters approved a ballot measure on Tuesday that will ensure that monies paid by polluters will be used to actually clean-up contamination and that future governors will not be able to redirect the funds. This issue was on the ballot as the result of New Jersey&rsquo;s settlement with ExxonMobil.&nbsp; Governor Christie settled with ExxonMobil for more than $225 million but a cap of funds for natural resource damages meant that the majority of the damages collected would not be used for the restoration and remediation of contaminated land.&nbsp; The outcome of the ballot question and the resulting constitutional amendment will cause controversy in determining if and how much money will be allocated to a particular site, if any, &nbsp;for remediation and restoration but the money will have to be used for environmental restoration and not directed to the general funds.</p> Reform Bill Puts Alimony Deductibility on the Chopping Block Nov 2017Blogs<p>Hidden deep within the proposed Republican tax bill entitled the &ldquo;Tax Cuts and Jobs Act&rdquo; (Sec. 1309, Pages 122-126) published yesterday is a scarcely publicized provision that eliminates the long-standing tax deductibility of alimony payments. While this prospective provision will impact agreements/judgments entered after January 1, 2018, the provision, if adopted, amounts to a significant paradigm shift in the way that alimony payments have been treated by both the payor and payee. Those individuals currently in negotiations and practitioners should be aware of this possible legal landscape change.&nbsp; If adopted, it is unknown how this would impact alimony and child support calculations going forward. To view the entire bill, please click on the attached hyperlink: <a href="" target="_blank"></a></p> Reform Bill Eliminates Tax Benefits Related to Adoption by Taxing Employer Assistance and Eliminating Tax Credit Nov 2017Blogs<p>Under the proposed Republican tax bill entitled the &ldquo;Tax Cuts and Jobs Act&rdquo; (Sec. 1406, Page 142) published yesterday, families seeking to adopt a child will suffer two significant cuts. First, the employer assistance credit for adoption will be eliminated.&nbsp; Currently, if an employer provided assistance to a worker adopting a child up to $13,750, the employee pays no taxes on that assistance.&nbsp; The proposed bill eliminates that provision and the assistance would be taxed as income.&nbsp; Second, the adoption credit of up to $13,750 per eligible child will be repealed.&nbsp; Currently, the credit is applicable for taxpayers with adjusted gross income of between a range of approximately $200,000 to $240,000.&nbsp; To view the entire bill, please click on the attached hyperlink: <a href="" target="_blank"></a></p> Eichler Files Suit Against Aetna, Inc. For Breach Of Privacy Related To Patient Hiv-Medication Status Oct 2017Blogs<p>Brach Eichler LLC has filed a law suit against health insurer Aetna, Inc. and others, alleging breach of privacy relating to mailings the company sent as part of the settlement of previous privacy-based lawsuits against the insurer relating to patient HIV-medication status. Members Lani M. Dornfeld, Esq. and Edward P. Capozzi, Esq. and Associate Dennis Shlionsky, Esq. represent the plaintiffs in the action.<br /> <br /> The suit was submitted to the Superior Court of New Jersey, Essex County, last week. Aetna&rsquo;s privacy breach is believed to have involved the private HIV medication information of more than 12,000 Aetna insureds. The New Jersey suit, John Smith and Richard Becker (Fictitious Designations) vs. Aetna, Inc.; Aetna Health Inc.; Aetna Specialty Pharmacy, LLC; ABC Corporation (1-10) and Doe Vendor, may be the first suit related to the Aetna breach to be filed in the State of New Jersey. <br /> <br /> The New Jersey suit filed by Brach Eichler alleges violation of the New Jersey AIDS Assistance Act, as well as invasion of privacy and negligence on the part of Aetna and the other defendants. (ABC Corporation is a class of fictitiously named individuals or entities responsible for the disclosure and/or presentation of private medical information regarding the plaintiffs, and Doe Vendor is a class of fictitiously named individuals and/or entities representing the unidentified vendor that Aetna used to send its mailing.) The complaint alleges the case is about &ldquo;Aetna&rsquo;s repeated failure to respect the privacy rights of people who are taking HIV medications.&rdquo; <br /> <br /> Dornfeld, a member in Brach Eichler&rsquo;s health law practice who devotes a significant portion of her practice to HIPAA and privacy-related matters, said, &ldquo;The allegations demonstrate an egregious violation of the New Jersey AIDS Assistance Act, as well as extreme negligence on the part of the defendants. The AIDS Assistance Act was passed by the New Jersey legislature to place strict privacy safeguards around HIV and HIV-related information in order to protect individuals from the very type of harm and stigmatism suffered by these plaintiffs.&rdquo; Dornfeld noted that the act provides for punitive damages, which the plaintiffs are seeking in this case.<br /> <br /> Pursuant to the complaint, the background to the suit relates to two separate class actions against Aetna in 2014 and 2015 alleging Aetna jeopardized the privacy of people taking HIV medications by requiring its insureds to receive their HIV medications through the mail and not allowing them to pick up their medications in-person at their chosen pharmacy. Those cases are Doe v. Aetna, Inc., No. 14-cv-2986 (S.D.Cal) and Doe v. Coventry Health Care, Inc., No 15-cv-62685 (S.D. Fla.). The Doe lawsuits were never certified as class actions, but rather were settled by Aetna and the individual plaintiffs in those cases. As a condition of those individual settlements and in addition to payment of damages, Aetna agreed to send notice to its insureds who had been required to mail-order their HIV medications, informing them they were no longer required to do so. <br /> <br /> In sending out the notices, which occurred in or about July 2017, the Brach Eichler complaint alleges that &ldquo;Aetna again failed to recognize the dangers associated with sending information about HIV medications through the mail.&rdquo; Rather than sending the notices in an opaque envelope, the envelope used for the notices contained a large window, covering almost half of the front of the envelope, in which &ldquo;instructions about how individuals could obtain their HIV medications were visible from the outside of the envelope.&rdquo; <br /> <br /> According to Capozzi, who chairs Brach Eichler&rsquo;s personal injury practice, &ldquo;The plaintiffs in the New Jersey action allege, among other things, severe and disabling emotional distress and insult, embarrassment, humiliation, increased stress and anxiety.&rdquo;<br /> <br /> In Pennsylvania, the AIDS Law Project of Pennsylvania and Berger &amp; Montague filed a class action on August 28th of this year, in the U.S. District Court for the Eastern District of Pennsylvania. Almost simultaneously with Brach Eichler&rsquo;s filing, a California man filed suit against Aetna in California stemming from Aetna&rsquo;s privacy breach and alleging Aetna violated state and federal privacy laws.</p> Proposes Medicare for All Act of 2017 Oct 2017Blogs<p>Senator Bernie Sanders recently proposed Senate Bill 1804, which seeks<br /> to expand Medicare into a universal health insurance program. The bill would replace America&rsquo;s health care system with a public system funded by higher taxes.<br /> <br /> <strong>Expected Benefits.</strong> Enrolled individuals would be entitled to certain<br /> essential health benefits, including hospital services; ambulatory patient services; primary and preventive services; prescription drugs, medical devices, and biological products; mental health and substance abuse treatment services (including inpatient care); laboratory and diagnostic services; comprehensive reproductive, maternity, and newborn care; pediatrics; oral health, audiology, and vision services; and short-term rehabilitative and habilitative services and devices.<br /> <br /> <strong>Rollout.</strong> Children would immediately receive universal Medicare cards. Adults not currently eligible for Medicare would be phased in over four years based on age. In the first year, the plan would cover Americans over 55. By year two, everyone over 45 would be covered. In year three, the plan would cover those over 35, and in year four, all Americans would be covered.<br /> <br /> <strong>Funding. </strong>The bill is projected to require significantly more revenue,<br /> but there is no plan for how to fund the bill. Senator Sanders released a number of funding proposals, including a 7.5 percent payroll tax on employers, a 4 percent income tax, and additional taxes on wealthier Americans and corporations. Critics say that even the proposed methods would fall far short of funding the plan.<br /> <br /> <strong>Support.</strong> The bill is backed by at least 16 Democratic senators, which is an unprecedented level of support for this type of proposal. In the House, a single payer bill introduced by Rep. John Conyers has the support of more than 60 percent of Democrats.<br /> <br /> <strong>Insurance Response. </strong>Insurance industry representatives criticize the bill, indicating it will eliminate choice, undermine quality, stymie innovation, and place a heavier burden on taxpayers.</p> Update - Ransomware Attack Puts 33,000 Patients at Risk Sep 2017Blogs<p>St. Mark&rsquo;s Surgical Center in Fort Myers, Florida was the target of a ransomware attack earlier this year that prevented access to patient data, including protected health information (PHI), such as names, dates of birth, and Social Security numbers. A ransomware attack will infiltrate a company&rsquo;s data, encrypt it and only offer the release of the data upon payment of a ransom. It is possible a ransomware attack also could cause the breach of PHI outside the organization.<br /> <br /> The Department of Health and Human Services, Office for Civil Rights (OCR), the HIPAA enforcement agency, reports that ransomware attacks are on the rise with over 4,000 daily attacks since early 2016, a 300% increase compared to 2015. HIPAA requires covered entities and business associates to have in place security measures that can help prevent ransomware attacks, including, among other measures, (1) a security management process, which includes a risk analysis to identify threats and vulnerabilities; (2) procedures to guard and detect against malicious software; (3) staff training to educate staff to identify, assist in detecting, and report malicious software; and (4) implementation of access controls to limit access to PHI to only those necessary.<br /> <br /> <br /> The OCR has issued guidance stating that ransomware attacks are presumed to result in a breach of PHI unless the affected covered entity or business associate can prove, through an investigation and risk assessment, that there is a low probability PHI was compromised. Covered entities have a maximum of 60 days following the discovery of a breach to report the breach to affected individuals and, in certain circumstances, to the OCR and other authorities. In this matter, St. Mark&rsquo;s was assessed a monetary penalty for late notification.<br /> <br /> If you need assistance with your organization&rsquo;s HIPAA policies and procedures, risk management plan, or investigating and responding to a breach or suspected breach incident, including a ransomware attack, please contact a member of our Health Care Practice Group.</p>