Late last week, the Department of Treasury and Small Business Administration (SBA) jointly released a new loan forgiveness application for Paycheck Protection Program loans of $50,000 or less. This new streamlined application removes calculations required on prior forms and simplifies documentation requirements, relieving both borrowers and lenders of the prior compliance burdens present in the older form.

Pursuant to an interim final rule, the simper one-page application form, SBA Form 3508S, does not require borrowers to reduce their forgiveness amount for any reductions in full-time equivalent (FTE) employees or in salaries or wages. Additionally, the new form does not require borrowers to show calculations used to determine their loan forgiveness amount. With that said, the SBA could request additional information and documents as part of its loan review process.

While simpler overall, the application still requires the borrower to make certain certifications regarding the accuracy of the information reported. Further, the application requires the borrower to submit documentation supporting the fact that the use of the loan proceeds was for eligible costs. Borrowers who, together with their affiliates (as determined under SBA rules), received loans of $2 million or more are ineligible to use the new streamlined application. For example, if an entity has a loan of $50,000 and its parent corporation has a loan of $1.95 million, the former would not be able to use Form 3508S to apply for loan forgiveness.

Form 3508S and its accompanying instructions are posted on the SBA’s website.

O’Neil, Cannon, Hollman, DeJong and Laing remains open and ready to help you. For questions or further information relating to the new streamlined application for PPP loans under $50,000, please contact the author of this article, Attorney Britany E. Morrison.

I. Expansion of Telehealth to Meet Clinical Need

Federal and state governments have resolved traditional barriers to telehealth – including  complexity of billing, lower reimbursement and privacy and security concerns – to facilitate the safe provision of medical services during the COVID-19 pandemic.[i]  The first article in this two-part series highlights basic standards for regulatory compliance in the design of telehealth policies.  The second article will address the practitioner’s obligation to minimize patient harm (and thus practitioner liability) with attention to the medical standard of care when assessing when and how telehealth is appropriate for each patient.

II. Mechanics of Telehealth Compliance

A. Minimum Standards for Telehealth Practice

A Wisconsin physician planning to provide treatment recommendations (including a prescription) by use of a website-based platform must observe requirements promulgated by the Wisconsin medical examining board to comply with state law and (when applicable) to receive payment from Wisconsin Medicaid.[ii]  While the requirement that the physician be licensed to practice medicine in the state has been suspended during the COVID-19 emergency,[iii]  the following formalities must still be observed during the pandemic to protect the integrity of the telemedicine encounter:

1. Physician’s name and contact information must be made available to the patient;
2. Informed consent must be obtained;[iv]
3. A documented evaluation (including a medical history) must be performed. If needed to satisfy standards of minimally competent medical practice, an examination, evaluation, and/or diagnostic tests are also required.
4. A patient health care record must be prepared and maintained.[v]

Under permanent Wisconsin telemedicine regulations, a physician-patient relationship may be initially established by use of two-way electronic communications, but not by use of audio-only telephone, email messages or text messages.[vi]  Conditioning treatment of a patient upon the use of telehealth is expressly prohibited.[vii]

B. Reimbursable Telehealth Services

1. Wisconsin Medicaid and Telehealth

Wisconsin lawmakers began expanding the services and communications that may be provided by telehealth prior to the COVID-19 pandemic. The Wisconsin Department of Health Services (“DHS”) continues to broaden the range of medical services covered by the state’s medical assistance program when delivered remotely, both during the public health emergency and beyond.[viii]  DHS is adding Medicaid coverage for currently covered services when provided using a telehealth platform if functionally equivalent to an in-person visit (interactive synchronous technology).[ix]  DHS’s criteria for “face-to-face equivalence” for interactive telehealth services includes the use of “audio, video, or telecommunication technology,” but only if there is “no reduction in quality, safety, or effectiveness.”[x]  Audio-only phone communication that can be delivered with a functional equivalency to face-to-face service will be covered during the COVID-19 pandemic.[xi]  DHS emphasizes that documentation must support the service rendered.[xii]  For further explanation of these policies, visit ForwardHealth, Telehealth, Telehealth Expansion and Related Resources for Providers.[xiii]

Telehealth coverage expansion applies to all services currently indicated in topic (#510) of the FowardHealth Online Handbook (permanent policy), and additional services temporarily allowed for telehealth are published in ForwardHealth Updates.[xiv]  For example, ForwardHealth is expanding coverage to include certain synchronous (real-time) and asynchronous (not real-time) services such as remote patient monitoring and provider-to-provider consultations.  DHS also plans to roll out expansion updates particular to specific services areas, such as therapy and behavioral health.  DHS will use a phased approach to its expansion of telehealth services, keeping providers informed of expansion of coverage via the ForwardHealth website described above.

In addition to coverage criteria relating to the mode of telehealth services, a provider must be mindful of rules governing the logistics of telehealth visits.  Wisconsin Medical Assistance (Medicaid) places no restriction on the location of the provider (permanent policy), which may include physicians, nurse practitioners, Ph.D. psychologists, psychiatrists and others.[xv]  Beginning in March 2020, ForwardHealth began allowing coverage irrespective of the location of the patient (permanent policy).[xvi]  However, only the following sites are currently eligible for a facility fee:  hospitals, including emergency departments, office/clinics, and skilled nursing facilities.[xvii]

2. Federal Medicare and Telehealth

The Centers for Medicare and Medicaid Services (“CMS”) greatly expanded access to Medicare telehealth services based upon the regulatory flexibilities granted under Social Security Act § 1135 waiver authority and the Coronavirus Preparedness and Response Supplemental Appropriations Act.  Currently, Medicare will reimburse both synchronous video visits and also brief communication technology-based services (“CTBS”) for responses to Medicare Part B beneficiaries by telephone, audio/video, secure text messaging or by use of a patient portal.[xviii]  Reimbursement for CTBS is limited to patients with an established (or exiting) relationship with a physician or certain practitioners.  The billing codes for CTBS represent brief, patient-initiated communication services and do not replace full evaluation and treatment services covered under the Medicare benefit and described by existing CPT codes.  To meet the criteria for medical necessity, CTBS must require clinical decision-making and not be for administrative or scheduling purposes.  The patient must verbally consent to these types of services at least annually.

To be covered by Medicare, the CTBS must not be related to a medical visit within the previous seven (7) days and cannot lead to a medical visit within the next twenty-four (24) hours (or soonest appointment available).[xix]  For Medicare reimbursement, providers must confirm that the particular diagnostic benefit falls within the description of CTBS codes.  For example, CTBS codes do not include the audiology diagnostic benefit category.[xx]  DHS applies similar requirements to billing for “telephone evaluation and management services” covered under Wisconsin Medicare.[xxi]

During the COVID-19 pandemic, Medicare will reimburse telehealth services at the same rate as regular, in-person visits.  The level of reimbursement that is approved following the public health emergency will impact the availability of telehealth services.

C. Documentation Requirements

DHS policy (published via ForwardHealth updates available online) is to require that all services provided via telehealth be thoroughly documented in the member’s medical record in the same manner as services provided face-to-face.[xxii]  Providers must develop and implement their own methods of informed consent to confirm that a member agrees to receive services via telehealth.  ForwardHealth considers verbal consent to receiving services via telehealth an acceptable method of informed consent when it is documented in the member’s medical record.[xxiii]  Documentation for originating sites (patient location) must support the member’s presence in order to submit a claim for the originating site facility fee.  In addition, if the originating site provides and bills for services and also the originating site facility fee, documentation in the member’s medical record should distinguish between the unique services provided.[xxiv]

DHS is temporarily allowing supervision requirements for paraprofessional providers to be met via telehealth.  Supervision must be documented according to existing benefit policy.[xxv]

III. Additional Considerations for Telehealth

E-Prescribing – Many states limit the prescribing of controlled substances based solely on telehealth examination.  Generally speaking, the U.S. Drug Enforcement Administration (“DEA”) requires a telemedicine provider to have an in-person medical evaluation of a patient prior to prescribing a controlled substance for the patient, absent an exception.  However, the DEA issued notice in March 2020 that this requirement is waived for the duration of the COVID-19 public health emergency.[xxvi]

Privacy and Security – The Office for Civil Rights announced on March 17, 2020 that they will not impose penalties for noncompliance with the Health Insurance Portability and Accountability Act of 1996 regulatory requirements for remote communications technologies in connection with the good faith provision of telehealth during the national COVID-19 public health emergency.  DHS has issued an update clarifying guidance regarding federal enforcement of the Health Insurance Portability and Accountability Act of 1996 regulatory requirements during the COVID-19 pandemic.[xxvii]

Practicing Telehealth Across State Lines – Wisconsin has adopted the Federation of State Medical Boards’ Interstate Licensure Compact, which aims to expediate physician licenses for uses like telemedicine in states that adopt the compact.  Wisconsin providers serving patients in other states must consult local state laws governing the physician-patient relationship and the use of telemedicine.

When a Wisconsin provider provides telemedicine services to a patient located outside of the state, legal review for choice of law and choice of forum should be undertaken.  For example, the laws of the state in which each patient is located should be evaluated for: (1) statute of limitations; (2) standard of care; (3) limitations of liability; and (4) unique provisions governing the establishment or termination of the physician/patient relationship.  To manage these challenges in a large telemedicine practice, a provider may need to consider establishing different legal entities for the practice of medicine in different states.

OCHDL will continue to monitor changes in regulations and policy impacting telemedicine. Our next blog post will address medical malpractice risk and telemedicine policies. For more information on these topics, contact Marguerite Hammes at 414-276-5000 or marguerite.hammes@wilaw.com.

[i] SR Health, A Complete Guide to Seeing Patients Virtually and Getting Paid for It, available at https://www.srhealth.com/resources/telemedicine-guide

[ii] See WIS. ADMIN. CODE § MED 24.07 (1).

[iii] In the ordinary course, a physician practicing telemedicine in Wisconsin must be licensed to practice medicine and surgery by the medical examining board as required by Wis. Admin. Code § MED 24.04.  See Wis. Admin. Code § MED 24.07 (1). However, Wis. Admin. Code § MED 24.04 (requiring a physician practicing medicine in Wisconsin to be licensed by the medical examining board) and 24.07(1)(a) (applying licensing requirements to medical practice by telemedicine in the state) have been suspended during the COVID-19 emergency.  See Governor Tony Evers Emergency Order #16 Related to Certain Health Care Providers and the Department of Safety and Professional Services Credentialing, dated March 27, 2020.

[iv] WIS. ADMIN. CODE § MED 24.07 (1) (citing WIS. STAT. § 448.30 and Ch. MED. 18).

[v] WIS. ADMIN. CODE § MED 24.07(1) (citing ch. MED. 21).

[vi] See id. § MED 24.03.

[vii] ForwardHealth Update No. 2020-09, “Changes to ForwardHealth Telehealth Policies for Covered Services, Originating Sites, and Federally Qualified Health Centers” (March 18, 2020).

[viii] See WIS. STAT. § 49.45(61)(b); § 49.46(2)(b)(21)-(23).  DHS is expanding the permanent definition of telehealth to encompass the “practice of health care delivery, diagnosis, consultation, treatment, or transfer of medically relevant data by means of audio, video, or data communications that are used either during a patient visit or consultation or are used to transfer medically relevant data about a patient.”  See ForwardHealth, Telehealth, Telehealth Expansion and Related Resources for Providers, available at https://www.forwardhealth.wi.gov/WIPortal/content/html/news/telehealth_resources.html.spage  See also Letter to ForwardHealth Providers from Jim Jones, State Medicaid Director, re: Wisconsin Medicaid Response to the COVID-19 Outbreak; FowardHealth #510.

[ix] See ForwardHealth Update 2020-09, supra note vii (permanent policy); ForwardHealth Update 2020-12, “Temporary Changes to Telehealth Policy and Clarifications for Behavioral Health and Targeted Case Management Providers” (Revised May 8, 2020); ForwardHealth Update 2020-15, “Additional Services to be Provided Via Telehealth” (Revised May 8, 2020) (temporary expansion policy).  See also Brooke Anderson, Benefits Policy Section Chief, Telehealth Expansion:  Acute and Primary Services, available at https://www.dhs.wisconsin.gov/telehealth/telehealth-expansion-all-provider.pdf

[x] See ForwardHealth, Telehealth, Telehealth Expansion and Related Resources for Providers, supra note viii.  See also Brooke Anderson, Benefits Policy Section Chief, Telehealth Expansion:  Acute and Primary Services, supra note ix.

[xi] ForwardHealth Update 2020-12, supra note ix.

[xii] ForwardHealth, Telehealth, Telehealth Expansion and Related Resources for Providers, supra note viii.

[xiii] For further explanation of these policies, visit ForwardHealth, Telehealth, Telehealth Expansion and Related Resources for Providers, supra note viii.  See also Brooke Anderson, Benefits Policy Section Chief, Telehealth Expansion:  Acute and Primary Services, supra note ix.

[xiv] ForwardHealth Update 2020-15, supra note ix.

[xv] ForwardHealth Update 2020-12, supra note ix (permanent policy with respect to provider location but temporary with respect to other policy changes).

[xvi] ForwardHealth Update 2020-09, supra note ix (permanent policy changes).

[xvii] ForwardHealth, Topic 510, Telehealth, available at https://www.forwardhealth.wi.gov/WIPortal/Subsystem/KW/Print.aspx?ia=1&p=1&sa=1&s=2&c=61&nt=Telehealth

[xviii] Centers for Medicare and Medicaid Services, Medicare Telemedicine Health Care Provider Fact Sheet, available at https://www.cms.gov/newsroom/fact-sheets/medicare-telemedicine-health-care-provider-fact-sheet

[xix] See id.

[xx] American Speech-Language-Hearing Association, Use of Communication Technology-Based Services During Caronavirus/COVID-19 (June 6, 2020), available at https://www.asha.org/Practice/reimbursement/medicare/Use-of-E-Visit-Codes-for-Medicare-Part-B-Services-During-Coronavirus/

[xxi] ForwardHealth Update 2020-09, supra note vii.

[xxii] ForwardHealth Update 2020-12, supra note ix (citing Wis. Admin. Code § DHS 106.02(9); ForwardHealth Online Handbook #201 (Financial Records), #202 (Medical Records); #203 (Preparation and Maintenance of Records); #204 (Records Retention); #1640 (Availability of Records to Authorized Personnel)).

[xxiii] See ForwardHealth Update 2020-15, supra note ix.

[xxiv] See ForwardHealth Update 2020-12, supra note ix.

[xxv] See id.

[xxvi] DEA Press Release, DEA’s Response to COVID-19 (March 20, 2020), available at https://www.dea.gov/press-releases/2020/03/20/deas-response-covid-19

[xxvii] See ForwardHealth Update 2020-12, supra note ix.

The IRS has reminded taxpayers who filed an extension that the October 15, 2020 due date to file their 2019 tax return is near. Taxpayers should file their tax returns on or before the October 15, 2020 deadline. Moreover, taxpayers with tax due should pay as soon as possible to reduce any penalties and interest. However, certain taxpayers may have more time to file and pay. Taxpayers with more time to file or pay include the following:

• service members and others serving in a combat zone who typically have 180 days after they leave the combat zone to file returns and pay any taxes due; and
• taxpayers in federally declared disaster areas who already had valid extensions.

Further, taxpayers can make their federal tax payments online through various methods such as a bank account withdrawal or via debit card or credit card. Additionally, taxpayers unable to make full payments can meet their tax obligations in monthly installments by applying for a payment plan. Alternatively, taxpayers can find out if they qualify for an offer in compromise—a way to settle tax debt for less than the full amount or even request a temporary delay on collection until their financial situation improves.

The IRS also reminded those with little or no income who are not required to file a tax return (non-filers) that they could be eligible to receive an Economic Impact Payment.

O’Neil, Cannon, Hollman, DeJong and Laing remains open and will continue to monitor federal and state tax filing deadlines. For questions or further information relating to the upcoming October 15, 2020 deadline, please contact Attorney Britany E. Morrison.

Various estate planning documents require you to appoint someone to act on your behalf. These appointees are your “fiduciaries” and include your personal representative, guardian for minor children, trustee, attorney-in-fact, and health care agent.

Often times, people name certain individuals for these roles without much consideration, or they may consider the wrong criteria. Below is a general description of each fiduciary role and a few suggestions on what to consider when deciding who to appoint to those roles. In general, you should carefully consider the skillset each role requires and whether the person you would like to appoint possesses those skills.

Personal Representative

You name your personal representative in your Last Will and Testament. Your personal representative will be responsible for overseeing the administration of your estate during the probate process. Consider naming someone who lives nearby so they can administer your estate and someone who will have the time to file all the necessary paperwork.

Guardian

You name a guardian for your minor children in your Last Will and Testament as well. This person will be responsible for taking care of your minor children. Consider naming someone who lives close by so your children won’t have to move (or move very far), has similar values as you and will raise your children similar to how you would, and will have the energy to raise young children or children who require extra care and attention.

Trustee

You appoint your trustee in your trust agreement. Your trustee will administer the trust agreement pursuant to its terms, manage and invest the trust assets, and make distributions to your beneficiaries (sometimes at their own discretion). Consider naming someone who will be able to understand the document and its terms, has a financial background and can manage your assets effectively, and will not be placed in an uncomfortable situation if they decide to refuse a beneficiary’s request for a distribution. If you cannot think of someone with the requisite skillset, or if you have complex assets that will need to be managed, consider naming a professional fiduciary.

Attorney-in-Fact

You name your attorney-in-fact in your Financial Power of Attorney. This person will manage your financial affairs in the event you become incapacitated. Consider naming someone who has a financial background, lives nearby and can easily manage your financial affairs, and who is familiar with your financial affairs. If you cannot think of someone with the requisite skillset or someone you completely trust to have these broad powers, consider naming a professional fiduciary.

Health Care Agent

You name your health care agent in your Power of Attorney for Health Care. This person will make medical decisions for you in the event you become incapacitated. Consider naming someone who has a medical background or who will be capable of understanding your medical situation, will respect your wishes regarding medical treatment, and will be able to carry out your wishes regarding medical treatment even if others disagree.

As you can see, there are several things to consider when selecting a fiduciary. If you would like more information on these fiduciary roles, or if you would like to create or update an estate plan, please contact attorney Kelly M. Spott.

Almost every organization in the world collects personal data from individuals, in one form or another. Indeed, most websites collect consumer information automatically. For this reason, every business must become familiar with relevant data protection laws and understand how to collect, store, use, and share data in compliance with these laws. Organizations that fail to comply with data privacy laws could incur substantial fines and other damaging consequences.

This blog post intends to give Wisconsin organizations a basic overview of consumer data privacy laws, their significance, and how such laws may apply to them.

What is Privacy Law?

“Privacy law” refers to laws governing the regulation, storage, sharing, and use of personally identifiable information, personal healthcare information, financial information, and other types of personal information. While both state and federal governments have various laws governing certain types of information privacy, as of now, no federal law exists to protect consumer data.

Given the absence of federal protection and the number of internet companies collecting—and often misusing—consumer data, several states, including Wisconsin, have developed or are beginning to develop state statutes designed to protect residents from data misuse online. Together with international data protection regulations, these state laws create an increasingly complex web of obligations for any organization collecting personal data.

What is Personally Identifiable Information?

The key to understanding and properly complying with consumer data privacy laws is understanding the term “Personally Identifiable Information” (PII). In general, PII is any information that may be used to identify an individual. Such information may include not only names, addresses, and government IDs, but also internet protocol (IP) addresses, cookie identifiers, and other automated identifiers.

Despite their many commonalities, international and domestic privacy laws have subtle differences in their categorization of PII. For example, some privacy laws allow pseudonymized or anonymized data to be excluded from PII. Pseudonymization is a reversible process that substitutes the original personal information with an alias or pseudonym such that additional information is required to re-identify the data subject. In contrast, anonymization irreversibly eliminates all ways of identifying the data subject. Similarly, IP addresses may be either static (i.e., specific to a particular computing device) or dynamic (i.e., the IP address changes over time). Static IP addresses are likely to be considered PII whereas dynamic IP addresses may not, depending on the applicable law.

An Overview of Key Data Protection Laws

Modern consumer data protection laws generally articulate both consumers’ rights to data privacy and the responsibilities of entities that collect and process personal data.

Concerning consumers, most consumer data privacy laws establish that consumers have any combination of five fundamental rights, including the right to:

• be informed that data is being collected;
• access collected data;
• rectify incorrect data;
• erase collected data; and
• object to certain uses of that data.

While these diverse privacy regimes have many similarities, they often have substantial differences, including varying definitions, scope, punishment for violations, and jurisdiction. Therefore, it’s critical to determine which laws apply to you and to thoroughly review those laws to understand your organization’s compliance obligations.

a. The European Union–General Data Protection Regulation (GDPR)

The European Union’s (EU) data protection regulation, known as the GDPR, is the world’s first comprehensive data protection law. Having gone into effect in 2018, the GDPR interprets PII extremely broadly and takes substantial steps to protect such PII. It covers not only IP addresses and cookies but also certain forms of pseudonymized data and metadata. The law is revolutionary in that it applies to all entities possessing or processing the personal data of EU residents, regardless of an entity’s nationality. Therefore, U.S. companies who deal with EU citizens as customers, users, or clients are likely to be subject to GDPR rules and regulations.

It is crucial to determine whether your organization is subject to GDPR rules. Should EU regulators determine that a company subject to the GDPR has violated any of the GDPR articles, the company may be subject to fines for as much as €20 million or 4% of the company’s global turnover, whichever is higher.

b. The California Consumer Privacy Act (CCPA)

Effective as of January 1, 2020, the CCPA is the first significant consumer data protection act in the United States. Like the GDPR, the CCPA defines PII to include any information that could, directly or indirectly, lead to the identification of any user or household.

Also similar to the GDPR, the CCPA is applied broadly to businesses globally should they do business in California. The CCPA includes specific language defining what businesses are subject to the CCPA. The CCPA applies to any for-profit business that collects, possesses, or otherwise handles the PII of California residents AND that meets any of the following criteria:

1) has annual revenues over $25 million;

2) possesses the personal information of 50,000 or more California consumers, households, or devices in any calendar year; OR

3) earns more than half of its annual revenue from selling consumers’ PII.

This statute is intended to be broadly applied to commercial enterprises, regardless of geographical location and whether they explicitly target California residents. Because most businesses operate websites that automatically collect PII, such as cookies or IP addresses, even small non-California businesses risk falling under the CCPA by having a passive online presence.

The California Attorney General may fine companies up to $2,500 per non-willful violation and up to $7,500 per willful violation—amounts that add up quickly if a violation affects thousands (or millions) of users.

c. Other Relevant Consumer Data Protection Laws

Apart from California, 43 other states have made or are in the process of introducing forms of consumer data privacy bills. Wisconsin introduced three separate bills at the beginning of 2020 that would create rights and obligations concerning consumer data privacy similar to those created by the CCPA and the GDPR.

Currently, Maine and Nevada are the only two other states to have signed consumer data privacy protection bills into laws. The Maine privacy law applies only to internet service providers and not to independent businesses that may possess PII of users. The Nevada law is similar to CCPA in many ways, but it doesn’t apply to non-resident companies that do not actively do business in the state.

Additionally, in March 2020 Senator Jerry Moran (R-Kan.), introduced the Consumer Data Privacy and Security Act; however, the federal Congress has yet to take action on the proposed bill. If passed, this federal legislation would create a clear federal standard for consumer data protection and create specific rights of consumers to access, correct, and delete personal information. The proposed bill would also create substantial obligations for businesses, including those in Wisconsin, that use, collect, or otherwise possess PII. Finally, the proposed bill would provide the Federal Trade Commission (FTC) with the specific authority to enforce these rights and obligations.

In conclusion, while there are currently no Wisconsin or federal laws directly governing the regulation, storage, sharing, and use of personally identifiable information, Wisconsin businesses could be subject to the requirements of the CCPA or the GDPR. Additionally, it seems likely that in the near future, either Wisconsin or the federal government will pass a law that directly impacts Wisconsin businesses. Moving forward, it will be very important to understand how your company’s collection of personal data may be impacted.

O’Neil, Cannon, Hollman, DeJong and Laing remains open and ready to help you.

Recently, the Merit Shop Contractor magazine featured Attorney Joseph Gumina’s article entitled “COVID-19 and Liability.” In the article, Attorney Gumina emphasizes methods for construction employers to prevent and control worksite hazards relating to COVID-19. The article also discusses general safety and health mandates a construction employer should follow in order to help protect themselves from possible COVID-19 litigation. This article is a must read for all construction employers.

Read the full article here.

These days, litigators are routinely taking depositions and participating in hearings over Zoom or other videoconferencing apps and software. Frequently, these depositions and hearings are set up using videoconferencing systems chosen, hosted, and controlled by a court, an arbitrator, or a court reporter. There has been significant discussion and administrative guidance about the use of videoconferencing by health care providers since the pandemic began. Health care litigators should also consider the implications of video depositions or hearings on HIPAA security obligations.

Zoom reports that it is HIPAA compliant. However, these features must be requested by the subscriber, typically through a Zoom for Healthcare subscription. Microsoft Teams also reports it is capable of HIPAA compliance, as does Google Meet.

Litigators who anticipate protected health information (PHI) may be discussed or contained in documents shared through a videoconferencing platform for purposes of a deposition or hearing should inquire with the host about the type of subscription and system capabilities. Some court reporters offer special HIPAA-compliant rooms with certain features disabled.

With the rapid transition to videoconferencing to conduct a substantial amount of litigation tasks, guidance in this area is likely to continue to evolve along with videoconferencing system capabilities. Health care providers and their outside litigators should stay informed and be prepared to ask the right questions to ensure they are not overlooking HIPAA obligations.

The attorneys who contribute to the Health Care Law Advisor are available to assist health care providers with a variety of legal matters. Please contact us if you need assistance navigating the pandemic-related changes to health care litigation.

On September 11, 2020, the Department of Labor  issued updated regulations regarding the Families First Coronavirus Response Act  and leave available under that law. These updates were issued in response to a recent federal district court ruling out of the Southern District of New York that invalidated portions of DOL’s original rules under the FFCRA because the agency exceeded its authority in issuing certain portions of its rules. These updated regulations are effective on  September 16, 2020.

Most notably, the new DOL regulations update the definition of “health care providers” that are excluded from the FFCRA. The original definition included anyone employed at a hospital, medical school, and a variety of other places where medical services are provided, as well as individuals employed by a business that produced medical equipment. This definition was criticized as being overbroad and including many more workers than the traditional FMLA definition of health care provider. DOL has revised the definition to include both those who meet the traditional FMLA definition of health care provider who can issue an FMLA certification, as well as individuals capable of providing health care services such as diagnostic services, preventative services, treatment services, or other services that are integrated with and necessary to the provision of patient care. Non-medical personnel such as IT professionals, building maintenance staff, human resources personnel, food services workers, records managers, consultants, and billers are no longer considered health care providers, even if they work at a hospital or other medical service provider.

Employers should take notice that the DOL clarified its stance on intermittent leave under the FFCRA. While intermittent leave is still available only with the agreement of the employer,  the DOL clarified that if a child is going to school under a school-mandated hybrid model (e.g., in person two days per week and remote learning three days per week), an employee’s need for leave only on those days that their child is home engaged in remote learning would not be considered intermittent leave, and, therefore, the employer’s agreement for such a leave schedule would not be necessary.  On the other hand, the DOL explained that if it is the parent’s choice to have the child attend remote learning instead of in person classes, rather than the change being imposed by the school, then the parent would not be eligible for any FFCRA leave because the school is not “closed” due to a COVID-19 related reason. Under those circumstances, the employer could lawfully deny the employee’s request for FFCRA leave.

O’Neil, Cannon, Hollman, DeJong and Laing remains open during this time. We encourage you to reach out with any questions, concerns, or legal issues you may have, including those related to COVID-19.

With the economy still struggling, one bright spot remains for those who are willing to make an investment of time and money in estate planning. The combination of lowered asset values, reduced interest rates, and historically high estate and gift tax exemptions present a unique opportunity to implement estate planning techniques that will yield significant tax savings. But those looking to take advantage of this unique opportunity should act now, because a rebound in asset values and the outcome of the November 2020 election may make this unique opportunity go away.

The Gift, Estate, and GST Tax Exemptions for 2020

The Tax Cuts and Jobs Act of 2017 created a significant opportunity to transfer wealth by effectively doubling the federal estate and gift tax exemption for transfers made after 2017. The current exemption for 2020 allows an individual to transfer up to $11,580,000 (or up to $23,160,000 for a married couple) over the course of his or her lifetime without incurring gift or generation-skipping transfer (“GST”) tax. Any unused amount is available to eliminate estate and GST tax upon the individual’s death. Moreover, a surviving spouse inherits the unused gift and estate tax exemption (but not the GST tax exemption) of the first spouse to die if an election is made on a timely filed estate tax return for the first spouse’s estate.

Any amounts gifted during life or transferred upon death in excess of the federal estate and gift tax exemption (over $11,580,000 for an individual or $23,160,000 for a married couple) are subject to a 40% estate and gift tax rate at death, plus any taxes that may be imposed by the decedent’s state of domicile (Wisconsin has neither an estate nor gift tax). In addition to the gift or estate tax, a separate GST tax of 40% is imposed on transfers in excess of the exemption amount that are made to grandchildren or more remote descendants.

The Scheduled Reduction of the Gift, Estate, and GST Tax Exemptions

Currently, the estate and gift tax exemptions are the highest they have ever been since the modern estate tax was implemented in 1916 (with the single exception of 2010, when the estate tax was briefly repealed). However, effective January 1, 2026, the exemption will be reduced to $5,000,000 (or effectively $10,000,000 for a married couple), adjusted for inflation back to 2010.

This means that while currently a married couple can transfer over $20,000,000 without estate or gift tax, if exemptions are cut in half as scheduled on January 1, 2026, then the same couple can only transfer approximately $10,000,000 without estate or gift tax. At a 40% tax rate, the couple creates an approximate $4,000,000 in savings by making a transfer today at current exemption levels. That is $4 million going to their beneficiaries rather than taxes!

And the good news is that gifts made now utilizing 2020’s record-high exemptions may not be “clawed back” as provided in regulations published by the IRS, even if exemptions are later reduced on January 1, 2026, or eliminated by Congress sooner as explained below. The importance of these “anti-clawback” regulations is that taxpayers can utilize today’s higher exemption amounts without fear of future penalty or “clawback” and should act before the scheduled reduction.

The Presidential Election

While a deadline of December 31, 2025, for the scheduled reduction may seem like plenty of time to take advantage of these high exemptions, the 2020 presidential and congressional elections and the impact of the pandemic may bring about some drastic changes to estate planning as soon as January 1, 2021.

First, there is a real possibility that taxes may be increased to support the massive amounts spent by Congress on COVID-19 relief. The gift, estate, and GST tax rates could be viewed as the easiest taxes to raise because they would impact only the wealthiest of taxpayers, and not those perceived to be struggling the hardest due to the novel pandemic. It is possible for the gift, estate, and GST tax rates to be increased from the current 40% to 55% or even higher.

Second, there is speculation that if the Democratic Party wins the presidency and gains control of Congress following the November 2020 election, the exemption amount might be reduced to an amount as low a $3,500,000 even before the expiration date of January 1, 2026. In fact, such a change could be effective as soon as January 1, 2021, if Congress passes legislation having retroactive effect.

Additionally, while the Democratic Party’s presidential nominee, Joe Biden, has not proposed any specific changes to the estate exemption amounts and tax rates, his recently released economic plan calls for the “wealthiest Americans [to] shoulder more of the tax burden,” including raising federal estate taxes “back to the historical norm.” This seems to indicate that if Biden and the Democratic Party are successful come November, exemptions going forward could be significantly lower than they are under current law, and thus most tax commentators believe that the current exemption amounts are the best we are going to see.

Maximize Higher Gift, Estate, and GST Tax Exemptions Before It is Too Late—Plan Now!

Gifting assets outright or in trust now, while the exemption levels are still at their historic high, allows taxpayers to “lock in” these high exemption amounts without fear of a clawback or an exemption reduction as soon as January 1, 2021. There are several effective estate planning structures that can be used to take advantage of depreciated asset values, record-low interest rates, and record-high exemption amounts, but waiting for official election results come November 3 will likely make it difficult to implement these structures.

Some of these structures require several months to implement. Other than planning to reduce gift and estate taxes, there are many other considerations for taxpayers when transitioning wealth to their family, e.g., how and when to benefit family members; choosing trustees; choosing the state of trust administration for asset protection and income tax planning objectives; considering multi-generational planning; and charitable giving and identifying which assets to gift. Additionally, since certain assets may require professional valuations, these transactions may require more time to implement, so now is the time to act in order to ensure that the transactions can be completed before year’s end.

Conclusion

The current confluence of lowered asset values, reduced interest rates, and historically high estate and gift tax exemptions may make this one of the best times in history to transfer wealth efficiently with minimal estate tax implications, but the time to act is now. Many estate planning techniques take time to implement, so do not wait until November 2020 to consider making changes to your estate plan.

Regardless of which political party stays in power or takes control in November, our team at O’Neil Cannon realizes that there is no one-size-fits-all strategy to address your estate planning goals and objectives. We are prepared and ready to help you build a comprehensive plan tailored to your needs. If you are interested in taking advantage of these unparalleled opportunities for tax savings, please speak to your regular OCHDL contact, or the author of this article, attorney Britany E. Morrison, to discuss how you can strike while the giving is good.

Some of your most significant assets, like your life insurance and retirement accounts, ask you to make beneficiary designations. If you make valid beneficiary designations on these assets, then upon your death they will pass directly to your named beneficiaries without being subject to the probate process. Click here to view our article on probate and why you might want to avoid it.

Many people overlook the importance of beneficiary designations and neglect to name beneficiaries because they think their other estate planning documents will cover those assets. However, beneficiary designations operate independently from other estate planning documents, like a will or trust agreement. Therefore, you should make beneficiary designations because your other estate planning documents will not control how these assets are to be distributed and to whom they should be distributed. If you neglect to name beneficiaries, then these accounts or policies could become part of your estate and be subject to the probate process.

Just as it is important to make beneficiary designations, it is equally as important to review and, if necessary, update those designations. Major life events, changes in circumstances, or even a change of heart can all warrant an update to beneficiary designations. It is good practice to review your estate plan every three to five years, and each time you do so you should be reviewing your beneficiary designations.

Finally, it is important to consider any unintended consequences to naming someone as a beneficiary. For example, if a special needs person receives assets through a beneficiary designation, then he or she may no longer be eligible for government benefits. In these circumstances and in others, you should consult with an estate planning attorney to discuss your options.

Beneficiary designations are an important part of your estate plan and require special attention. If you would like more information on beneficiary designations and estate planning in general, please contact attorney Kelly M. Spott.