Primmer Piper Eggleston & Cramer PC Blog
The 2017 Best of Business Awards (BOB Awards) winners have been announced by Vermont Business Magazine. This awards program celebrates the best Vermont companies in more than 100 business-to-business categories, as chosen by VBM readers. Starting in January 2017 and closing on March 1st, VBM surveyed its magazine and digital subscribers.
Our law firm Primmer Piper Eggleston & Cramer PC received the distinct honor of best tax law firm in Vermont as voted by the Vermont business community.
To learn more about our Taxation services, please visit: http://www.primmer.com/practice-areas/taxation/
To read the entire list of winners, please visit: http://vermontbiz.com/news/april/2017-best-business-vermont-recipients-announced?
Kevin Henry is set to present at the Vermont Bar Association‘s mid-year meeting on March 31, 2017. Kevin will be presenting on probate litigation.
Although many estate planning arrangements are implemented without controversy, those who are dissatisfied with an estate plan or the administration of a trust, may resort to court proceedings. This program will cover the essential concepts of probate litigation, including will and trust disputes, contests, and fiduciary litigation. We will discuss procedural aspects of litigating these types of cases, as well as the substantive issues. In addition, we will discuss potential ways to avoid litigation.
To view Kevin’s upcoming presentation, please click here:
DRI member Gary M. Burt a shareholder with Primmer Piper, Eggleston & Cramer, PC, in Manchester, New Hampshire, recently convinced the Massachusetts’ Business Court that James Hardie Building Products, a manufacturer of high-end siding products, was entitled to summary judgment on a third-party claim filed by general contractor, Nauset Construction. The initial suit, brought in Suffolk County Superior Court by the Board of Trustees of the Residences at Atlantis Marina Condominium Trust, asserted numerous claims of building deficiencies at the multi-unit, multi-million dollar condominium project. Among the claims were construction defects leading to water infiltration, as well as delamination of the siding, among other problems. The Board of Trustees opted not to sue James Hardie, but the general contractor brought a third-party action, claiming James Hardie’s siding was defective, and that warranties were breached. James Hardie denied the claims, and maintained that the subcontractor had failed to follow installation instructions.
After extended discovery, the matter was transferred to the Massachusetts Business Litigation section, and Judge Kaplan scheduled serial hearings on various motions for summary judgment. As to James Hardie’s motion, he agreed that the three-year statute of limitations for warranty claims barred the general contractor’s claim, as it was brought three years and one month after the initial suit. He further agreed that because any claim that the Board of Trustees could have brought against James Hardie was now barred by the Massachusetts six-year statute of limitations, James Hardie could not be considered a joint tortfeasor, thus barring the remaining claim contribution. The matter is expected to proceed to trial in April.
For more information, please visit: DRI
By Lauren Layman
On March 21, 2017, the Substance Abuse and Mental Health Services Administration (“SAMHSA”)’s Final Rule on the Confidentiality of Substance Use Disorder Patient Records (“42 CFR Part 2” or “Part 2”) took effect. The new final rule revises requirements for consent forms and medical record security policies and procedures for Part 2 Substance Use Disorder Programs and other recipients of Part 2 information. Part 2 consent forms currently being used may continue to be used until the forms expire. Despite hopes that this revision of Part 2 (the first in thirty years) would bring Part 2 privacy regulations more in line with HIPAA privacy and security regulations, there are still significant differences between the confidentiality requirements of HIPAA and those pertaining to Part 2 patient identifying information. Programs and recipients should be aware of the new regulations and revise consent forms and policies accordingly. Our bulletin below describes the required elements of the new consent forms and policies, as well as some of the continued challenges posed by the Part 2 regulations.
The new regulations revise the requirements for disclosure consent forms. Previously, a patient could designate an individual or an entity to receive Part 2 information (i.e. information held by a Part 2 program, including the name, address, social security number, fingerprints, photograph or similar information, that could be used to identify a patient as having or having had a substance use disorder either directly, by reference to publicly available information, or through verification of such identification by another person). The recipient of the Part 2 information would then be prohibited from redisclosing the Part 2 information without an additional consent from the patient. This consent requirement made it practically impossible to include Part 2 patient information in health information exchanges and placed an obstacle in the way of fully integrating patient care. The new final rule attempts to address this challenge by permitting recipients of Part 2 information to redisclose said information to a patient’s treating providers pursuant to a “general designation” on a consent form.
Under the new final rule, patient consent forms for disclosure of Part 2 information are required to be in writing (electronic or paper) and to include the following information:
- The name of the patient;
- The date on which the consent is signed;
- The specific name(s) or general designation(s) of the Part 2 program(s), entity(ies), or individual(s) permitted to make the disclosure;
- How much and what kind of information is to be disclosed, including an explicit description of the substance use disorder information that is to be disclosed to each individual or entity;
- The purpose of the disclosure (the amount of Part 2 information disclosed must be limited to that information which is necessary to carry out this purpose);
- The name of the individual or entity that is to receive the information (multiple authorizations can be included on one form);
- A statement that a patient, when authorizing disclosure of his or her Part 2 information to a “general” recipient (e.g., “all future treating providers”), has a right to obtain, upon request, a list of the disclosures made of his or her Part 2 information;
- A statement that the consent is revocable at any time, except to the extent that the Part 2 program or other lawful holder of the Part 2 information has acted in reliance on the consent;
- The date, event or condition on which the consent will expire (if not revoked before this), ensuring that the consent form will last no longer than is necessary to serve the purpose for which the consent is provided; and
- The patient’s signature or, if the patient is a minor or lacks legal capacity, the patient’s guardian (electronic signatures are permissible).
Under element 6, a patient can designate the following individuals and entities (an expansion from the previous rule) to receive his or her Part 2 information:
- An entity that has a “treating provider relationship” with the patient;
- A “treating provider relationship” is defined in the final rule as when a patient is being, agrees to, or is legally required to be diagnosed, evaluated and/or treated, or agrees to accept consultation for any condition by an individual or entity, and the individual or entity undertakes the same or agrees to do so. A treatment provider relationship can exist regardless of whether there has been an actual in-person encounter. The determination of whether a “treating provider relationship” exists if fact specific.
- Specifically named individuals; and/or
- (New under this Final Rule) A third-party entity with whom the patient does not have a treating provider relationship (e.g., a health information exchange) and, on the same consent form, the patient can permit this third-party entity to redisclose his or her Part 2 information to other named individuals or entities with whom the patient does have a treating provider relationship (e.g., “I consent to disclosure of my Part 2 information to the Vermont Health Information Exchange, and agree to permit the VHIE to redisclose my information to my current provider and all future providers with whom I have a treating provider relationship.”).
Additional provisions in the new rule, however, continue to make the exchange of Part 2 information difficult and, in some cases, impossible. For example, a patient is entitled to receive a list of all entities to which his or her information has been disclosed pursuant to a general designation, including disclosures for treatment and health care operations purposes. Third-party entities without a treating provider relationship with the patient that have redisclosed Part 2 information pursuant to a “general designation” on a consent form, including health information exchanges, will need to be able to provide this list of disclosures to the patient before the entity can begin accepting and acting based on a “general designation” consent form.
Another challenge posed by the new final rule is that providers must give a patient the option on the consent form to choose specific subsets of his or her Part 2 information to be disclosed. The level of granularity that providers must offer to a patient in selecting what information is to be disclosed could be prohibitive since many electronic health records do not have the capacity to parse Part 2 patient information into specific subsets. Providers are still permitted to include an option for the patient to consent to “all my substance use disorder-related information”, as long as the more granular options with “explicit descriptions” are also included on the form.
Security Policies and Protocols
The new rule also requires Part 2 programs or other lawful holders of Part 2 information (e.g., payers, health information exchanges) to have in place formal policies and procedures to protect against unauthorized uses and disclosures of Part 2 information, and to protect against threats or hazards to the security of Part 2 information. These formal policies and procedures must address the following elements:
- Paper records
- Transferring and removing such records;
- Destroying such records (including sanitizing the hard copy media associated with the paper printouts);
- Maintaining such records in a secure room, locked file cabinet, safe or other similar container, or storage facility when not in use;
- Using and accessing workstations, secure rooms, locked file cabinets, safes or other similar containers and storage facilities; and
- Rendering patient identifying information non-identifiable in a manner that creates a very low risk of re-identification.
- Electronic records
- Creating, receiving, maintaining, and transmitting such records;
- Destroying such records, including sanitizing the electronic media on which such records are stored, to render the patient identifying information non-retrievable;
- Using and accessing electronic media containing patient identifying information; and
- Rendering the patient identifying information non-identifiable in a manner that creates a very low risk of re-identification.
If you have questions on the Part 2 Final Rule or other health law issues, please contact the Primmer Health Law Team.
Our own Jon Eggleston has received the Sponsor in Perpetuity award from Ducks Unlimited. The award was a result of Jon’s pro-bono efforts over several years in multiple estate proceedings which resulted in a significant recovery for Ducks Unlimited.
Ducks Unlimited is the world’s leader in wetlands and waterfowl conservation. Ducks Unlimited’s mission is to conserve, restore, and manage wetlands and associated habitats for North America’s waterfowl. These habitats also benefit other wildlife and people.
PRIMMER PIPER EGGLESTON & CRAMER PC ELEVATES NINE ATTORNEYS TO SHAREHOLDER; MOVING TO NEW BURLINGTON OFFICE
Primmer Piper Eggleston & Cramer PC, one of New England’s leading law firms announced the recent appointment of nine new shareholders in its VT and NH offices as well as the relocation to a new office space in Burlington, VT.
Gary F. Karnedy, Managing Shareholder for the firm, stated: “We are extremely proud of this group of outstanding professionals and their ascension to shareholder recognizes their hard work for our clients. Our move ‘around the block’ to 30 Main in Burlington will provide us with a beautiful office and convenient parking for our clients. It will also allow us room for continued growth to better serve our clients.”
The 2017 new shareholders are:
Nicole M. Bodoh concentrates her practice in corporate, securities and tax law. Bodoh’s experience is rooted in a diverse range of areas such as mergers and acquisitions, captive insurance, federal and state securities regulatory compliance, debt and equity financings, executive compensation, corporate governance, and ERISA compliance matters. Bodoh also advises clients with respect to federal and state taxation of partnerships, corporations and captive insurance companies. She received her LL.M. from Temple University, her J.D. from the University of Pittsburgh, her M.A. from the University of Düsseldorf in Germany, and her B.A. from John Carroll University.
Alexandra H. Clauss counsels employers on laws affecting the workplace and best practices related to a wide range of employment issues, with the intention of avoiding litigation before it occurs. Clauss provides legal trainings on employment practices and policies and is a frequent speaker on such topics. She also conducts and provides guidance during workplace investigations. Clauss received her J.D. from Tulane University Law School and her Bachelor of Commerce from McGill University.
Alexandra E. Edelman is an experienced litigator and commercial attorney. Edelman focuses her litigation practice on bankruptcy, real estate and commercial litigation matters. She also advises financial institutions on regulatory compliance and operational issues. Alex litigates matters in state and federal courts throughout Vermont and New York, handling matters at the trial and appellate level as well as before administrative agencies. She received her J.D. from Fordham University School of Law and her B.A. from Wesleyan University.
Shireen T. Hart is a seasoned member of the firm’s Healthcare Group; she draws upon her more than 15 years of experience in the field to provide pragmatic counsel to hospitals, long term care facilities, community mental health agencies and pharmacies, laboratories, individual practitioners and healthcare related vendors on a broad range of matters. Hart received her J.D. from William & Mary Law School and her B.A. from Middlebury College.
Kevin M. Henry is an experienced litigator, with wide-ranging experience in complex business and estate and trust litigation, domestic relations, and government enforcement actions. He has a successful track record in court and is well experienced in problem-solving and pre-litigation counseling to try and resolve issues without court intervention. For the entire course of a case, he is an effective advocate from pre-trial, to trial, to appeal. He received his J.D. from University of Michigan Law School and his B.S. from West Virginia Wesleyan College.
Ralphine N. O’Rourke concentrates her practice in corporate law and commercial lending matters. She is experience in managing debt and equity financings and mergers and acquisitions. She frequently advises corporations and financial institutions on contract and governance issues and individuals in connection with shareholder and LLC agreements. She has more than 25 years of experience representing business entities in transactional and commercial real estate matters. She received her J.D. from Suffolk University School of Law and her B.A. from Wheaton College.
John F. Griffin, Jr. concentrates in the general practice of law with an emphasis on commercial and residential real estate transactions, as well as real-estate related litigation, landlord/tenant issues, condominium and subdivision law, zoning and zoning appeals. He is admitted to practice in NH and MA and has more than 30 years of experience with real estate issues enabling him to efficiently provide insightful guidance and comprehensive transactional assistance to clients. He received his J.D. from New England School of Law and his B.A. from St. Michaels College in Colchester, Vermont.
Jaime Gillis centers her practice around insightful counsel for clients and families who are often anticipating or undergoing a transition in their lives. Gillis blends her focus in elder law, estate planning, probate and business issues with an understanding that the discussions to her field of expertise are difficult for many clients. When clients have an existing advisory structure in place, she collaborates with CPAs, insurance professionals, financial advisors, corporate counsel and other trusted family advisors to provide integrated approaches. She often works with other attorneys to provide specialized expertise on Qualified Domestic Relations Orders (QDROs). Gillis received her J.D. from Suffolk University School of Law and her B.S. from Simmons College.
Polly L. Hall concentrates her practice around client-centered counsel to resolve a wide range of family matters, with an emphasis on complex divorce cases for high net-worth individuals. Certified as a collaborative law attorney, Hall places a priority on resolving issues through mediation, negotiation and direct settlement workouts. She has extensive experience involving the valuation of businesses, professional practices, trust interests and diverse real estate holdings. She handles a variety of disputes relating to parenting rights, support, and modification matters. She received her J.D. from the University of Denver College Of Law and her B.A. from State University of New York at Buffalo.
Primmer, Piper, Eggleston & Cramer PC is a full service law firm with offices in Vermont, New Hampshire, Maine and Washington, DC, employing experienced legal professionals who deliver insightful legal guidance and solution-based representation to its clients. For more detailed information, please visit our website at www.primmer.com.
STARTUP TIPS FOR INTELLECTUAL PROPERTY PROTECTION
Protecting your intellectual property (IP) is crucial to the success of your business. When you are ready to take your idea to the next level, here are some tips for creating a strong business foundation by creating an effective IP strategy to protect your IP:
- Maintain Good Records of Creation Dates. Keep good records of the dates of creation of your product or invention, including all iterations of the product or invention. Good record-keeping will help your business establish and assert your IP rights and help defend against potential infringement accusations down the road.
- Develop Foundational Documents. Create and execute proper documentation with co-founders, employees, contractors, and suppliers, which clearly defines the terms governing the relationship, including ownership of the product or invention. Having these contracts and agreements in place to demonstrate your ownership rights will promote investor confidence in your brand. It will also reduce the likelihood of costly disputes or delays when patenting or commercializing the product or invention. IP counsel can help you develop a set of standard foundational documents for your startup business.
- Be Mindful of Timing. Timing is everything. Do not foreclose your ability to patent that product or invention by publicly sharing too much information about how the product or invention works and/or by releasing the product or invention to the public before filing for protection. If you wish to patent your invention, you have one year from the date of such a public disclosure to file for a patent.
- Consider Alternatives for IP Protection. Explore your options. There may be a more cost-effective alternative to protect your IP than seeking patent protection for your invention. Your IP counsel can guide you to the alternative that is right for your business goals and objectives.
- Establish Clear Licensing Requirements and Restrictions. Protect your investment by developing and enforcing licensing requirements and restrictions when releasing your product or invention to the public for commercial use, including:
- The scope of the license;
- License restrictions;
- The term of the license and termination rights;
- Delivery, acceptance, testing and remedies;
- License fee; and
- Maintenance and support obligations and related fees.
As a full-service law firm, Primmer Piper Eggleston & Cramer PC is ready to assist you with all aspects of your startup, including protecting your IP to secure a solid foundation from which to build your business. For more information on our corporate and IP services, please contact Linda M. Peruzzi, Esq. at (603) 626-3300 ext. 1505.
Gary Karnedy presented at the Essentials of Employment Law seminar hosted by Sterling education on Thursday, January 26, at the Hilton Hotel; Burlington, VT.
The seminar took a look a different aspects of of the changing landscape in Employment Law.
As Mark Twain once said: The secret to getting ahead is getting ahead. If you have a great idea and are looking to take the next step, here are 5 key elements to “getting ahead” in 2017 by turning your idea into a successful start-up business:
- Agreement with Co-Founders. A written agreement outlining the percentage ownership, transferability of ownership interest, roles and responsibilities of founders, decision-making authority and other material aspects of the management and operations of the business will help to avoid disputes by ensuring that all parties are entering into the business relationship with a complete understanding of the terms governing the relationship.
- Form an Entity. By creating a corporation or limited liability company (LLC) you can structure your start-up to achieve liability protection from business creditors, tax savings through deductions and other treatment only available to corporations or LLCs. Formation of an entity may also aid in capital fund raising efforts.
- Compliance with Securities Laws. The sale of stock or LLC interests may be subject to federal and state securities laws. By ensuring compliance with these laws, founders can avoid significant financial penalties, including the requirement to repurchase stock or interests at the original issuance price even though the company has lost money.
- Standard Form Contracts. Every company should consider having standard form contract templates for suppliers and customers, which are tailored to your business and include terms favorable to your business interests. A clear and concise contract can help you close the deal sooner, provide you will more control of and help avoid disputes.
- Standard Employment Documents. A core group of standardized employment documents to be signed by most, if not all, employees can help establish and enforce obligations of confidentiality, intellectual property ownership, and other key terms for competing in your industry. It will also help clarify the terms of employment and expectations for a successful employment relationship.
As a full-service law firm, Primmer Piper Eggleston & Cramer PC is ready to help you turn your great idea into a successful start-up. For more information on our corporate services, please contact Linda M. Peruzzi, Esq. at (603) 626-3300 ext. 1505.
Our law firm was a proud sponsor of the “Go Red for Women” luncheon presented by the American Heart Association at the Sheraton Hotel.
The luncheon is the largest fundraiser for Vermont’s chapter’s AHA and aims to create knowledge and awareness around cardiovascular disease and the effect it holds on women’s health.
Ten of our team members attended the luncheon and learned more about the American Heart Association’s efforts in combating cardiovascular disease. For more information on the AHA’s efforts, please visit: American Heart Association