INSIDE COMPLIANCE – Page 48 – Loyola University Chicago School of Law

A Practical Approach to Post-Schrems II Remediation of Cross-Border Data Transfers to the U.S. and Other “High Risk” Third Countries

March 26, 2021The Art of Compliance

On July 16, 2020, the Court of Justice of the European Union (“CJEU”) issued its deafening decision that summarily and immediately invalidated the EU-US Privacy Shield. The regulatory program established between the European Council and the U.S. Dept. of Commerce allowed for the transfer of personal data of EU residents to be sent from the EU to the US without violating the data transfer restrictions of the General Data Protection Regulation (“GDPR”). The decision went on to cast serious doubt on the sufficiency of standard contractual clauses to adequately protect data transferred to any third country, not just the US. Several months later, data exporters in the EU are still sorting through the wreckage of their privacy programs and waiting for practical advice on the way forward.

compliancecompliance programdata privacydata securityJournal of Regulatory CompliancePrivacy & Security

The Freedom to Retire Sustainably: Biden takes on Trump-era rules regarding ESG funds

March 26, 2021Finance & Banking

In the last days of the Trump administration, the Trump Department of Labor (“DOL”) finalized a rule that made it more difficult for socially conscious investments to be included in retirement plans. The Trump-era rule discouraged employer 401(k) and other retirement plans from offering funds from managers that consider Environmental, Social and Governance (“ESG”) factors over investment returns or risk in their due diligence. Despite this, ESG funds continue to gain in popularity, and the new Biden administration has stated that it will not enforce the Trump-era rule as it considers reversing it.

401kBiden AdministrationDepartment of Laborenvironmental regulationESGJournal of Regulatory ComplianceRetirement

Can Nursing Homes be Sued for COVID-19 Deaths?

March 26, 2021Uncategorized

Nursing homes have been devastatingly impacted by the COVID-19 pandemic. As of February 26, 2021, as many as 34% (172,000+) of all COVID-19 deaths in the United States have been nursing home residents and employees. While COVID-19’s lethality in older adults and likelihood of transmission in congregate facilities are to blame, plaintiffs’ attorneys specifically question sweeping legislation among various states regarding nursing home restrictions on refusing COVID-19 positive residents and immunity protections. A look at the Public Readiness and Emergency Preparedness (“PREP”) Act and recent federal cases sheds light on the future of plaintiff suits related to COVID-19 deaths in nursing homes.

COVID-19Executive OrdersGovernor Andrew CuomoGovernor JB PritzkerHealth and Human ServicesJournal of Regulatory ComplianceliabilityNursing HomesPREP Act

The “Particularity” With Which Relators Need to Plead Under The False Claims Act

March 25, 2021Fraud & Abuse

The False Claims Act (“FCA”) is one of the United States Government’s most powerful tools for fighting fraud. In fact, the Department of Justice recovered nearly $1.8 billion under the FCA for health care fraud and $1.6 billion in FCA qui tam relator cases in the 2020 fiscal year. Keeping the enforcement of fraud in mind, underlying all FCA qui tam suits is successfully pleading with particularity under Federal Rule of Civil Procedure 9(b). This requirement has led many U.S. District Courts to dismiss qui tam cases at the pleading stage and U.S. Courts of Appeals to affirm those decisions. The upshot is that amid changes to the Stark Law and Anti-Kickback law, the continuation of COVID-19 related fraud, and the continuing splits in the Federal Circuit regarding pleading standards, the ground may begin to shift for compliance officers, attorneys, and general counsels in health care organizations.

false claims actfraud and abusequi tam

The Cash Crop King: How U.S. Federalism Makes It Difficult to Insure the World’s Most Lucrative Crop

March 25, 2021Finance & Banking

On June 25, 2019, Governor Pritzker signed the Illinois Cannabis Regulation and Tax Act, legalizing cannabis for adult use in Illinois. Cannabis is the most lucrative crop globally and the cash-making abilities of cannabis have been proven true in Illinois. Sales in the state exceeded $1 billion in the first full year of legalization, resulting in a $205.4 million tax windfall for Illinois. This success, however, is no small feat for cannabis companies considering the banking and insurance obstacles they must overcome to start this type of business. Federalism is at the heart of many of these hurdles.

Journal of Regulatory Compliancetax

Nursing Home Staff Turnover Rates Partially Explains Disproportionate Number of Deaths during COVID-19 Public Health Emergency

March 25, 2021Uncategorized

The COVID-19 pandemic has impacted residents and staff of nursing homes and long-term care facilities more than any other demographic, accounting for nearly 40 percent of the total mortality rate from the virus in the United States. According to Centers for Medicare & Medicaid Services (“CMS”), at least 132,000 residents and employees have died from complications of the COVID-19 across 31,000 facilities, although some estimates place the death count closer to 200,000. One factor aggravating the number of deaths in nursing homes is the extraordinarily high rate of staff turnover each year.

CDCCenters for Medicare and Medicaid ServicesCMScompliance programCOVID-19healthcareHHSIllinoisJournal of Regulatory ComplianceMedicaidmedicareNurse StaffingNursing HomesStaff Turnover

Developments Surrounding ERISA Preemption

March 24, 2021Uncategorized

The Employee Retirement Income Security Act (“ERISA”) regulates the administration of employee benefit plans. ERISA aims to protect the interest of employee-beneficiaries by setting minimum standards for employee benefit plans and voluntarily established pensions. The Act’s preemption clause works to prevent states from regulating these same plans. Initially, a state statute was considered to violate the preemption clause when it possessed, “a connection with, or reference to, covered employee benefit plans.” A few years later the standard was modified, states were considered to have violated ERISA preemption if the state, “mandates employee benefit structures or their administration.”

ERISAfederal preemptionHealth Carehealth care complianceHealth InsuranceInsuranceJournal of Regulatory ComplianceRegulation

Colorado’s New Employment Regulations Provide More Protections to Employees During the Pandemic

March 24, 2021Uncategorized

Colorado Overtime and Minimum Pay Standards Order (“COMPs Order”) #37 has replaced COMPS Order #36 (2020), which substantially expanded coverage in meals and break requirements, minimum wage and overtime requirements to almost every private employer in Colorado. The changes are designed to provide consistency between minimum wage, overtime and paid sick leave standards under the new Colorado Healthy Families and Workplaces Act (“HFWA”). Some changes include increasing Colorado’s minimum wage, making exemptions to COMPs #37 more stringent, and continuing paid sick leave benefits through 2021 due to the pandemic. These new employee-friendly adjustments have been adopted and became effective on January 1, 2021.

EmploymentEmployment LawJournal of Regulatory ComplianceRegulation

Will the Silver Lining Fade? The Pros and Cons of Teletherapy & Behavioral Telehealth

March 24, 2021HIPAA & Health Information

Joanna Shea Associate Editor Loyola University Chicago School of Law, JD 2022 A common topic of COVID-adjacent conversation these days is the ‘silver lining’ – unexpected positives resulting from the dark grey cloud that has claimed over half a million lives in the United States. Emergency adaptation measures taken by industries otherwise slow to modernize …
Read more

Health InsuranceJournal of Regulatory Compliance

McKinsey Reveals Management Issues in Rejecting Top Partner’s Bid for Reelection

March 23, 2021Finance & Banking, Fraud & Abuse

In February 2021, McKinsey and Company’s 650 global partners turned down Kevin Sneader’s bid for a second three-year term as the firm’s lead partner. The rejection marked the first time in 40 years the storied consulting firm has opted not to offer its leader a second term. The vote came as McKinsey struggles to reconcile its lucrative business model with a series of ethical lapses that have been widely reported in the press, litigated in the courts, and questioned by some of the firm’s next generation of leaders.

EmploymentJournal of Regulatory ComplianceRegulation