Pierce & Mandell, P.C.

11 Beacon Street, Suite 800
Boston, Massachusetts 02108-3002

Phone: (617) 720-2444
Fax: (617) 720-3693

Pierce and Mandell PC Blog

RSS Grab PAM RSS

Bill Mandell: Faculty at the MCLE Annual Massachusetts Health and Hospital Law Conference 12 years in a Row

Joseph Coupal - Tuesday, December 06, 2016

Pierce & Mandell, PC, Bill Mandell, Boston, MAFor the 12th year in a row Pierce & Mandell, P.C.’s Bill Mandell, was a faculty member at the MCLE Annual Massachusetts Health and Hospital Law, 2-day conference on November 21 and 22, 2016.  Bill co-presented the panel on the law of physicians. He is also a co-author of the related MCLE publication, the Massachusetts Health and Hospital Law Manual. Bill just finished working on an update to the Chapter on Physicians and it will be published sometime next year when MCLE issues the 2017 edition of the Massachusetts Health and Hospital Law Manual. For more information about this publication, click here.

Changes to FLSA, if unimpeded, may have large repercussions for employers

Joseph Coupal - Monday, December 05, 2016

Karen Rabinovici, Pierce and Mandell, PCBy Karen Rabinovici

The Fair Labor Standards Act (FLSA), which applies to all employees employed in the private sector as well as to government employees, establishes the minimum wage, overtime pay requirements, recordkeeping requirements, and child labor standards.  It was the FLSA that first introduced the forty-hour workweek, the concept of minimum wage, and time and a half for overtime work, along with prohibiting “oppressive child labor,” something that was common in 1938 when the FLSA was first drafted.

The Department of Labor has long tried to make changes to the FLSA’s overtime regulations, and the fruits of its labor may be just around the corner, and were set to go into effect December 1, 2016.  The changes, however, are not without opposition, and the fate of the changes is currently on hold.  The changes, should they go forward, may impact dental and medical practice employers in particular, who often find themselves in murky waters when classifying employees as exempt or non-exempt.

The Changes

In determining which employees are exempt from receiving overtime pay and which employees are not exempt, the FLSA takes earned compensation into account.  Under the old rule, if executive, administrative, and professional employees earned less than $455 per week, or $23,660 per year, such employees were not exempt from receiving overtime pay.  The new rule changes those benchmarks to $913 per week, or $47,476 per year, increasing the number of non-exempt employees.  Additionally, under the old rules, employees who are exempt from receiving overtime pay under provisions relating to “highly compensated employees” must be paid $134,004 per year, up from $100,000, again increasing the number of non-exempt employees.

The new rule will prompt employers to make necessary changes to their classification of executive, administrative, and professional employees.  If an employee’s salary no longer meets the new minimum requirements, and another exemption does not apply, reclassification may be necessary, accompanied by overtime pay.  Alternatively, employers may increase salaries to maintain exemptions.

The Challenge

In an 11th hour plot twist, on November 22, 2016 the U.S. District Court in Sherman, Texas issued an order enjoining the Department of Labor from implementing the new rule.  Prior to this, 21 states filed an emergency motion for a preliminary injunction to stop the new rule, arguing that the Department of Labor has exceeded its authority in increasing the salary minimums for exempt employees.  Additionally, the fact that the changes do not take the nature of employee duties into account, which can often determine whether an employee is exempt or non-exempt, has been another argument of the new rule’s opponents.  A date for a full ruling by the Court has not yet been announced.  So, until the Court rules on the Department of Labor’s authority to implement such changes, employers do not need to comply with the new rule and can maintain the status quo.

Pierce & Mandell’s experienced employment law attorneys can guide employers and workers through the classification and employment process.  We encourage employers and workers alike to contact us to ensure that terms of employment are compliant with the relevant laws.

Attorney Curtis Dooling Participates in MCLE Practicing with Professionalism Course

Joseph Coupal - Friday, December 02, 2016

On November 14, 2016, Pierce & Mandell attorney Curtis Dooling participated in a lunchtime roundtable discussion for approximately 100 newly admitted lawyers in a program sponsored by Massachusetts Continuing Legal Education (MCLE).

Pursuant to Supreme Judicial Court Rule 3:16, newly admitted lawyers in Massachusetts must take a one-day professionalism course within 18 months of admission. During the day-long course, new lawyers attended seminars and training on a variety of topics, including ethics, court practice and successful attorney-client relationships. During the lunch session of the program, Dooling and three other experienced attorneys, two of whom practiced civil law and two of whom practiced criminal law, presented for nearly one hour. Dooling and his fellow panel members answered questions from attendees on all manner of practical legal issues like developing good relationships with clients, balancing work and family life and dealing with judges and court personnel.

On participating in the Practicing with Professionalism course, Dooling noted, “I found the discussion to be enlightening and enjoyable. I hope I was able to provide some practical advice to the newly-admitted attorneys. The discussion focused on real-life issues that lawyers must deal with that unfortunately aren’t taught in law school. The MCLE does a great job in running the program.”

Liability Waivers and Releases – Who and What is Being Released - Boston, MA

Joseph Coupal - Thursday, December 01, 2016

Pierce and Mandell, PC. Boston, MAby Curtis Dooling

Superior Court Judge Dennis Curran recently allowed the estate of a man who died at a YMCA facility to proceed with a wrongful death claim against the YMCA even though the decedent signed a liability release. The decedent, who was participating in an elderly exercise program at the YMCA, was found unconscious in a steam room. YMCA employees could not access the control room to shut off the steam heat. The decedent experienced catastrophic burn injuries and died shortly after being transported to the hospital.

The decedent signed a release absolving the Silver Sneakers program from all liability. The Silver Sneakers program was an elderly exercise program that encouraged seniors to join the YMCA to exercise. The program was operated by the YMCA at a YMCA facility. Although the release had broad and somewhat ambiguous release language, it did not specifically mention the YMCA as a released party. Thus, the court held that the plaintiff’s claims against the YMCA and its employees were not barred by the release. The court also held that the release did not bar claims for gross negligence because these claims were not specifically mentioned in the release.

This case demonstrates the importance of the language of a liability release. Liability releases and waivers are ubiquitous in modern society. Businesses often make patrons sign releases to protect against claims and lawsuits. However, as this case makes clear, poorly and vaguely written releases won’t stand up in court. It is vitally important to ensure that liability releases and waivers are carefully drafted to release the numerous potential claims that could be brought and to identify the parties being released as anyone or anything that is involved in any way in owning, managing or working at a business, facility or event.

Pierce & Mandell’s litigators have years of experience advising and representing businesses in risk and claims management and have litigated countless cases involving liability waivers and releases.

Mass HIway likely to see changes in the near future

Joseph Coupal - Thursday, December 01, 2016

By Karen Rabinovici

The state-sponsored Health Information Exchange, known as the Mass HIway, was launched in October 2012, offering doctors’ offices, hospitals, laboratories, pharmacies, skilled nursing facilities, and other healthcare organizations a method by which to securely exchange information electronically with each other.  The aim of the Mass Hiway was to improve care coordination and delivery, avoid readmissions and medical errors, reduce administrative costs and duplicative testing, enhance communication among providers, increase patient engagement, and improve public health reporting and analytics.  One of the Mass HIway’s main functions is secure direct messaging between participating users, and the Mass HIway plans on soon offering “Event Notification Services,” which will allow for the transmission of notifications to a patient’s health care providers when the patient is admitted to any participating hospital in the state.  All providers, regardless of affiliation, location, or differences in technology, may use the Mass HIway.

The Mass HIway is now likely looking at some changes in the near future.  On Friday November 4, 2016 the Executive Office of Health and Information Services released proposed regulations specific to the requirement for all providers to implement a fully interoperable (meaning, having the ability to send and receive HIway direct messages) electronic health record that connects to the Mass HIway, and the establishment of a mechanism that allows patients to opt-in or opt-out of the MassHIway.  The proposed regulations require specific providers (acute care hospitals, medical ambulatory practices with ten or more licensed providers participating in health care delivery, and all community health centers) to connect to the MassHIway between 2017 and 2019, while other types of providers (behavioral health entities, dental clinics, nursing homes) will be required to connect at a date to be specified, with at least one-year notice (and no earlier than January 2018).  Connection requirements will be established through future regulations.  The proposed regulations would require that providers that are required to connect to demonstrate compliance by attesting to implementing at least one “Use Case of HIway Direct Messaging.”  Examples of this are a hospital using the Mass HIway to send discharge summaries to a receiving facility, or a primary care physician practice using the Mass HIway to send referrals.  The proposed regulations require acute care hospitals to send Admission, Discharge, and Transfer messages using the Mass HIway.

Regarding the opt-in or opt-out mechanism, the proposed regulations will require that a provider must provide written notice to patients that it will use the Mass HIway, and must include in this written notice instructions in the event the patient chooses to opt-out.  Thereafter, either the provider will inform Mass HIway of the patient’s decision to opt-out, or will provide the patient with instructions on how to do so.

A public hearing was held by the EOHHS on Monday November 28, 2016, and public comments were accepted until Tuesday November 29, 2016. Additionally, the EOHHS accepted electronic written testimony.

The proposed regulation can found here.

Bill Mandell Appointed Co-Chair of Boston Bar Association’s Health Law Section

Joseph Coupal - Friday, October 28, 2016

Pierce & Mandell, P.C. shareholder Bill Mandell has been appointed by BBA president Carol Starkey as the 2016-2017 Co-Chair of the Boston Bar Association’s Health Law Section. Bill has been a member of the Health Law Section’s Steering Committee for several years and previously served as the BBA’s Solo/Small Firm Section Co-Chair. Bill brings a wealth of knowledge and experience to the work of the Section, which is dedicated to promoting excellence and diversity in the field of health law.

Pierce & Mandell’s Dennis M. Lindgren to Poll Watch in Miami

Joseph Coupal - Friday, October 28, 2016

Pierce & Mandell, P.C. shareholder Dennis M. Lindgren is part of a non-partisan effort to provide poll-watchers for Miami precincts on Election Day. The volunteers will monitor election sites and assist voters who may be turned away from the polls or ordered to cast a provisional ballot. The poll-watchers will also assist in resolving disputes, or pursuing further recourse if necessary. Dennis is quoted about his participation in these efforts in the most-recent edition of Lawyers Weekly, which you can access by clicking here.

Pierce & Mandell Attorneys Recognized as Super Lawyers and Rising Stars 2016

Joseph Coupal - Thursday, October 27, 2016

Pierce & Mandell, P.C. is proud to announce that once again partners Bob Pierce, Bill Mandell, Michael Fee, Tom Kenney, Bob Kirby, and Dennis Lindgren have been selected as Massachusetts Super Lawyers for 2016. Associate Curtis Dooling was designated as a Massachusetts Rising Star for 2016.


Bob Pierce was recognized as a Super Lawyer in the practice area of Civil Litigation/Defense; Bill Mandell in Health Care; Michael Fee, Tom Kenney, and Bob Kirby in Business Litigation; and Dennis Lindgren in Personal Injury/Plaintiff. Curtis Dooling was recognized as a Rising Star in Land Use/Zoning.

Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations, and peer evaluations. Rising Stars are those attorneys under the age of 40 who have been nominated by peers for excellence in their chosen practice area. Candidates are then evaluated utilizing twelve indicators of peer recognition and professional achievement. No more than 2.5 percent of eligible lawyers in Massachusetts are named to the Rising Star list each year.

The Super Lawyers supplement will be published in the November, 2016 issue of New England Magazine and is widely distributed in regional publications and across the country.

Pierce & Mandell Attorneys Sponsor BBA Annual Meeting and Receive President’s Award

Joseph Coupal - Thursday, October 27, 2016

Pierce & Mandell was a proud sponsor of the Boston Bar Association’s (“BBA”) Annual Meeting on October 20th at the Copley Westin Hotel, at which Pierce & Mandell partner, Michael C. Fee received the President’s Award from BBA President Carol Starkey in recognition of his work as a member of the Association’s Amicus Committee.

For more than twenty years, through the work of the Amicus Committee, the BBA has had a voice in some of the most important legal issues of our time. Most recently, the BBA filed an amicus brief in the case of Bridgeman v. District Attorney, urging the Commonwealth’s highest court to vacate all outstanding drug convictions in which disgraced lab employee Annie Dookhan was the primary or secondary chemist. The BBA argued that the SJC should now impose a global remedy that secures access to justice and the fair administration of justice for each of the defendants in these cases and, critically, takes a significant step toward bringing the Dookhan scandal to a final resolution.

Pictured from right to left, at the Annual Meeting, are Fee, Dennis Lindgren, Tom Kenney, Bill Mandell, Jessica Long from the Conference of Boston Teaching Hospitals, and Zachary Badore, Northeastern student and P&M intern.

Pierce & Mandell Attorneys Achieve Defense Verdict

Joseph Coupal - Wednesday, September 21, 2016

Bob Pierce and Lena Finnerty obtained a defense verdict on behalf of their client in a jury trial in Middlesex Superior Court that concluded on September 19, 2016.

The plaintiff in the case claimed that he suffered serious head injuries when he fell on black ice in the parking lot of the office park owned by Pierce & Mandell’s clients.  Plaintiff claimed in excess of $1 Million in lost earning capacity, and asked the jury for an award of over $4 Million.  The firm defended the case on the basis that the property owner client was not negligent, and that if the plaintiff did fall on black ice, the fall was caused by his own negligence.

The case was tried over 7 days, and the jury deliberated for approximately 2 ½ hours.  The jury determined that Pierce & Mandell’s client was not negligent, and the plaintiff was awarded nothing.

Bob Pierce has now achieved complete victory for his clients in well over 80% of the cases he has tried.


Enter your e-mail address below to receive updates on new blog posts!


Recent Posts


Archive


Tags