Term Limits and Financial Disclosure Requirements will be on the November Ballot in Michigan

In 1992, Michigan voters voted in favor of a constitutional amendment for term limits. Since then, Michigan House members have been limited to three two-year terms and Michigan Senate members to two four-year terms— a maximum of 14 years between the two chambers.

Those limits may change in light of a vote by the Michigan legislature on May 10 to put the issue of term limits on this year’s November ballot. The plan would permit lawmakers to serve 12 years in Lansing, and all of that time could be spent in the House or Senate, or it could be divided between the two chambers.

Voters will also be asked to approve or reject a requirement that state-level office holders submit annual financial disclosures to address conflicts of interest. If approved by voters, elected officials would have to disclose their assets, income and liabilities, and their involvement in any businesses, nonprofits, labor organizations or educational institutions.

No discussion or debate of the plan took place in either the House or the Senate.

According to reports, the Michigan Legislature worked with the advocacy group Voters for Transparency and Term Limits to bring these issues before Michigan voters in November. The resolution passed 76-28 in the House, and by a 26-6 vote in the Senate.

We will continue to keep you informed about these developments, as well as other issues in the lead up to the November elections.


Fraser Trebilcock attorney and former Michigan State Legislator Klint Kesto has nearly two decades of experience working in both the public and private sectors, including serving as Co-Chair of the CARES Task Force. You can reach him at kkesto@fraserlawfirm.com or 517.377.0868.

Michigan Cannabis Regulatory Agency Abandons Plan to Allow Hemp to be Synthetically Converted to THC

Citing safety concerns and the lack of scientific and public health data, on April 15, 2022, the Michigan Cannabis Regulatory Agency (CRA) dropped its plan to allow hemp to be synthetically converted to THC.

The decision was handed down just days after the regulatory body was renamed from the Marijuana Regulatory Agency and assumed authority over hemp-derived products, pursuant to Governor Whitmer’s Executive Order No. 2022-1.

According to draft rules proposed earlier this year, hemp growers would have been permitted to sell hemp to marijuana processors, who could then convert it to THC for use in edibles, vaping cartridges, and other products being sold in the licensed marijuana market.

While safety was cited as the primary reason for dropping the proposal, issues related to business and competition likely also influenced the CRA’s decision. Specifically, hemp growers, including out-of-state growers, could have posed a new competitive threat to the state’s existing marijuana industry.

Currently, licensed businesses are permitted to extract THC oil from marijuana. If the CRA’s plans to allow hemp to be synthetically converted to THC were to proceed, it could lead to the existing producers going out of business.

If you have any questions about the impact of this decision by the CRA, or the cannabis industry in general in Michigan, please contact Klint Kesto or your Fraser Trebilcock attorney.


Fraser Trebilcock attorney and former Michigan State Legislator Klint Kesto has nearly two decades of experience working in both the public and private sectors, including serving as Co-Chair of the CARES Task Force. You can reach him at kkesto@fraserlawfirm.com or 517.377.0868.

$400 Car Insurance Refunds – Will the Estates of Your Deceased Relatives Miss Out?

If you had a vehicle insured at 11:59 p.m. on October 31, 2021, you are eligible to receive a $400 refund if the insurance met the minimum insurance requirements for operating a vehicle on Michigan roads.

This refund is part of 2019 bipartisan auto reform legislation that requires the Michigan Catastrophic Claims Association to issue refunds of $400 per eligible vehicle no later than May 8, 2022.

Many Michigan drivers have already received their refunds by check or automatic deposit from their insurer. However, recently deceased individuals with qualifying vehicles are also eligible. Insurance companies may have mailed checks to an invalid address or directly deposited funds into a closed checking account.

If you are the personal representative of a decedent’s estate, contact the decedent’s insurance company to ensure that the refund is mailed to the personal representative’s address or deposited to the estate’s bank account.

If you require assistance, the experienced probate attorneys at Fraser Trebilcock can provide the guidance you need. Please contact us.

This alert serves as a general summary and does not constitute legal advice. Please contact us with any specific questions.


Heidi L. Pierce is a paralegal at Fraser Trebilcock focusing on estate planning and trust administration. You can contact her at 517.377.0858, or at hpierce@fraserlawfirm.com.

Client Alert: Transparency Rules Are In Full Force – Be Sure You Are Ready!

As you know, both the Affordable Care Act from 2010 (ACA) and the Consolidated Appropriations Act of 2020 (CAA, 2021) contain various transparency rules and requirements upon group health plans. Some of the rules are similar; others vary and have different effective dates.

Thankfully, the Departments of Labor, Treasury, and Health and Human Services (collectively, the Departments) issued FAQ Part 49 to reconcile some of these issues.

BACKGROUND

In November of 2020, the Departments promulgated numerous rules to create greater transparency in health coverage requirements as required under the ACA. The rules disseminate price and benefit information directly to consumers and to the public, enabling consumers to evaluate health care options and to make cost-conscious decisions. The Departments rely on the legal authority provided in 2715A of the Public Health Service Act (42 USCA § 300gg-15) and section 1311(e) of the Patient Protection and Affordable Care Act (42 USCA 18031(e)(3)). While the rules went into effect January 11, 2021, the Departments were set to begin enforcement January 1, 2022.

Meanwhile, on December 27, 2020, the Further Consolidated Appropriations Act, 2021 (PL 116-260) (CAA, 2021) was signed into law. The CAA, 2021, in part, provides protections against surprise billings and also contains numerous transparency rules. These rules are similar to the ACA transparency in coverage rules, but have varying terms and effective dates.

The Departments have decided to delay enforcement of certain provisions to reconcile contradictions between the ACA’s transparency in coverage rules and those provided under CAA, 2021. See FAQ Part 49.

Below is a summary of the Departments’ guidance as well as new dates by which plans and issuers must comply.

DEPARTMENTS’ GUIDANCE

Machine Readable Files

As it pertains to public disclosure, the ACA rules require that certain non-grandfathered group health plans and health insurance issuers offering non-grandfathered coverage in the group and individual markets disclose in three machine readable files on a public website:

  • their in-network provider rates for covered items and services (enforcement begins July 1st, 2022);
  • out-of-network allowed amounts and billed charges for covered items and services (enforcement begins July 1st, 2022); and
  • negotiated rates and historical net prices for covered prescription drugs (enforcement deferred until further notice).

See 85 FR 72158 (Nov. 12, 2020). Machine-readable files are defined as: a digital representation of data or information in a file that can be imported or read by a computer system for further processing without human intervention, while ensuring no semantic meaning is lost. The files must be accessible free of charge, without having to establish a user account, password, or other credentials, and without having to submit any personal identifying information such as a name, email address, or telephone number. Plans and issuers have flexibility to publish the files in the locations of their choosing based upon their superior knowledge of their website traffic and the places on their website where the machine-readable files would be readily accessible by intended users.

Generally, the machine-readable files must contain the following content elements:

FOR ALL FILES

– name and identifier for each coverage option (Ex: EIN or HIOS ID)

– billing codes or other common payer code identifiers (Ex: a CPT code, HCPCS code, DRG or NDC)

– national provider identifiers (NPI), tax identifier numbers (TIN) and place of service codes

FOR IN-NETWORK RATE FILES

– rates that apply to each item or service that is associated with the last date of the contract term or the contract expiration date for each provider as identified by NPI, TIN, and Place of Service Code

– For contractual arrangements under which a plan or issuer agrees to pay an in-network provider a percentage of billed charges and is not able to assign a dollar amount to an item or service prior to a bill being generated, plans and issuers may report a percentage number, in lieu of a dollar amount.

– In situations in which alternative reimbursement arrangements are not supported by the schema, or in instances where the contractual arrangement requires the submission of additional information to describe the nature of the negotiated rate, plans and issuers may disclose in an open text field a description of the formula, variables, methodology, or other information necessary to understand the arrangement.

FOR ALLOWED AMOUNT FILES

– historical out-of-network allowed amounts for covered items and services

FOR PRESCRIPTION DRUG FILES

– negotiated rates for prescription drugs (rates for prescription drugs should not be included in the other two files)

– historical net prices of prescription drugs (the retrospective average amount a plan or issuer paid for a prescription drug, inclusive of any reasonably allocated rebates, discounts, chargebacks, fees, and any additional price concessions received by the plan or issuer with respect to the prescription drug)

PRACTICE NOTE: While the ACA rules do not apply to grandfathered plans, the CAA, 2021 transparency rules do!

Price Comparison Tools

Plans and issuers are required to develop price comparison information for a list of health-related items and services and make it available to plan participants, beneficiaries, and enrollees through an internet-based self-service tool, and in paper form upon request. See 26 CFR 54.9815-2715A2(b), 29 CFR 2590.715-2715A2(b), and 45 CFR 147.211(b).

  • Departments have provided a list of 500 items and services that plans and insurers must include in their self-service tools. Enforcement will begin January 1, 2023. A list of the items can be found in table 1 of the preamble of the final rule.
  • By January 1, 2024, plans and insurers must include the price information for all items and services in their self-service tool.

To fulfill the requirements of the cost-sharing rules, several items of content are required, including: an estimate of the cost sharing liability; a participant’s, beneficiary’s, or enrollee’s accumulated amount; in net-work rates (including negotiated rates, underlying fee schedule rates and prescription drug rates); out of network allowed amounts; items and services content list; notice of prerequisites of coverage; and a disclosure notice.

PRACTICE NOTE: The CAA, 2021 added price comparison tool requirements as well (by telephone or Internet website) of the plan or issuer with respect to plan year, geographic region and participating providers to compare the amount of cost-sharing  required for a specific item/service.  See PHSA 2799A-4; IRC 8919; ERISA 719.

Insurance Identification Cards

Plans and issuers are required to include applicable deductibles, applicable out-of-pocket maximum limitations, and telephone numbers and web addresses for individuals to receive consumer assistance on plan ID cards issued to participants, beneficiaries and enrollees. This requirement has been in effect since January 1st, 2022. The Departments have not issued further guidance on an enforcement date but expresses that plans and issuers are expected to implement the ID card requirements using a good faith, reasonable interpretation of the law. See Code section 9816(e), ERISA section 716(e), and PHS Act section 2799A–1(e), as added by section 107 of division BB of the CAA.

Good Faith Estimates

Providers and facilities, upon an individual’s request or scheduling of items or services, are required to inquire if the individual is enrolled in a health plan or health insurance coverage, and to provide a notification of the good faith estimate of the expected charges for furnishing the scheduled item or service and any items or services reasonably expected to be provided in conjunction with those items and services, including those provided by another provider or facility, with the expected billing and diagnostic codes for these items and services. See PHS Act section 2799B–6, as added by section 112 of division BB of the CAA.

Providers and facilities must provide this good-faith estimate information to the plans of individuals who have coverage. And for those who don’t have coverage or who don’t wish to make an insurance claim with their coverage, this information must be provided to the individual. As of now, enforcement is deferred.

Advanced Explanation Of Benefits

When plans and issuers receive a good faith estimate from a provider or facility regarding a covered individual’s request or scheduling of an item or service, the plan or issuer must send the participant, beneficiary, or enrollee an advanced explanation of benefits. The explanation must contain:

  1. the network status of the provider or facility;
  2. the contracted rate for the item or service, or if the provider or facility is not a participating provider or facility, a description of how the individual can obtain information on providers and facilities that are participating;
  3. the good faith estimate received from the provider;
  4. a good faith estimate of the amount the plan or coverage is responsible for paying, and the amount of any cost-sharing for which the individual would be responsible for paying with respect to the good faith estimate received from the provider; and
  5. disclaimers indicating whether coverage is subject to any medical management techniques.

Note: The last content element for the explanation is a disclosure advising recipients that the information provided based on the good faith estimate is only an estimate of costs and that all items and services are subject to change. See Code section 9816(f), ERISA section 716(f), and PHS Act section 2799A-1(f), as added by section 111 of division BB of the CAA.

As of now, enforcement is deferred.

Prohibition on Gag Clauses on Price and Quality Information – CAA, 2021

The CAA, 2021 prohibits group health plans and issuers from entering into agreements with health care providers, networks or association of providers, TPAs, or other services providers which offer access to a network of providers if that agreement directly or indirectly restricts a group health plan or insurer from:

  • Providing provider-specific cost or qualify of care to referring providers, the plan sponsor, participants or beneficiaries, or individual eligible to become participants or beneficiaries under the plan;
  • Electronically accessing de-identified claims data, including financial information, provider information, service codes, or other data included in claim or encounter transactions; or
  • Sharing such information or data with a business associate.

Group health plans must annually submit to the Secretary an attestation that such plan is in compliance with these rules.

However, in FAQ Part 49 Q/A-7, the Departments indicated that they will not be issuing regulations on this issue. Instead, plans and issuers are expected to implement these requirements using a good faith and reasonable interpretation of the statute. Additionally, the Departments to intend to issue guidance explain how plans should submit their attestation starting in 2022.

Accurate Provider Directory Information – CAA, 2021

The CAA, 2021 also added the requirements that plans must provide accurate provider directories and update them regularly. See new Code section 9820(a) an d(b), ERISA section 720(a) and (b), and PHSA section 2799A-5(a) and (b). Plans must respond to participant and beneficiary requests about provider network participation status. If a participant, beneficiary, or enrollee receives services or is furnished an item from an out-of-network provider but was incorrectly given information that the provider was in-network, only in-network levels can be charged by the plan and the plan must count these cost-sharing amounts toward any in-network deductible or in-network out-of-pocket maximum. This is effective for plan years beginning on or after January 1, 2022.

In FAQ Part 49, Q/A-8, the Departments indicate that they will not be providing regulations prior to the effective date. Plans must use good faith efforts to comply. Plans will not be penalized if the plan sponsors limit cost-sharing to in-network amounts if wrong information is given as above.

Balance Billing Disclosures – CAA, 2021

Code section 9820(c), ERISA section 720(c), and PHS Act section 2799A-5(c) were added by CAA, 2021 and require plans to make certain disclosures regarding balance billing protections to participants, beneficiaries, and enrollees. In general, plans must make publicly available, post on a public website of the plan, and include on each Explanation of Benefits information regarding the No Surprise Billing law including relevant state laws and contact information for state and federal agencies in case of violations. The Departments issued a model notice to assist with the disclosure requirements. These rules are effective for plan years beginning on or after January 1, 2022.

FAQ Part 49 Q/A-9 similarly states that regulations were not to be issued prior to the effective date and plans must use a good faith, reasonable interpretation of the law.

Continuity of Care – CAA, 2021

Continuity of care protections are set forth in CAA, 2021. These ensure continuity of care in cases of an individual with benefits under a group health plan when termination of certain contractual relationships result in change in provider or facility network status. See Code section 9818, ERISA section 718, and PHSA sections 2799A-3 and 2799B-8.

FAQ Part 49, Q/A-10 states that while these requirements are also effective January 1, 2022, regulations won’t be issued until later. Such guidance will include prospective applicability date to afford plans and other entities with a reasonable amount of time to comply with any new requirements. Plans are again expected to use a good faith, reasonable interpretation of the law.

Grandfathered Health Plans – CAA, 2021

While certain provisions of the ACA are not applicable to grandfathered health plans, the CAA, 2021 does not include such an exception. Therefore, while transparency rules under the ACA were not applicable, grandfathered plans must be prepared to comply under the CAA. See FAQ Part 49, Q/A-11.

Prescription Drug Pricing – CAA, 2021

Under the CAA, 2021, Plan sponsors must submit numerous information regarding prescription drug expenses to Departments including:

  • Plan year beginning and ending dates;
  • Enrollment census information, including the number of enrollees and each state where the plan is offered; and
  • Specific information regarding the 50 most frequently dispensed brand drugs (and the total number of paid claims for each), the 50 most expensive drugs annually (and the annual amount spent for each), and the 50 drugs with the greatest yearly increase in expense from one plan year to the next (and the change in cost for each drug per year).

Plans must also report other information, including the average monthly premiums, prescription expenditures and impact of drug manufacturer rebates on expenditures.

In FAQ Part 49, Q/A-12, the Departments state that the intend to issue regulations to address these pharmacy benefit and drug cost reporting requirements. Until such guidance is issued, the Departments strongly encourage plans to start working to ensure they are in a position to report the 2020 and 2021 plan year data by December 27, 2022.

PRACTICE TIPS AND TAKEAWAYS…

Undeniably, plan sponsors will not have the detailed information to comply and must rely on their insurers and TPAs. However, this regulatory guidance makes clear thatplan sponsors are ultimately responsible and must ensure the transparency rules are followed!

The transparency rules do set forth protections for insured arrangements when the group health plan requires the insurer to provide such information via a written agreement. If insurer fails to comply, then the insurer violates transparency disclosure requirements, not the group health plan.

It’s a bit more difficult for self-funded arrangements. The group health plan here too can enter into a written agreement requiring the TPA to provide the information. However, the plan is still responsible if the TPA fails to comply.Therefore, it is imperative to have an indemnification agreement with the TPA.

Plans failing to comply with the transparency rules could be subject to an enforcement action under ERISA and to the $100 per day excise tax penalty under Section 4980D of the Code (which applies to any failure to comply with the ACA’s market reforms).

Therefore, plan sponsors should immediately ensure their insurers and/or TPAs are prepared to comply with these rules and should enter into written agreements with each, as well as add indemnification language to protect themselves from potential penalties due to noncompliance.

This alert serves as a general summary, and does not constitute legal guidance. Please contact us with any specific questions.


Lauren  D.  Harrington is an associate attorney at Fraser Trebilcock focusing on Employment Law. You can reach her at 517.377.0874, or email her at lharrington@fraserlawfirm.com.


Elizabeth H. Latchana, Attorney Fraser TrebilcockElizabeth H. Latchana specializes in employee health and welfare benefits. Recognized for her outstanding legal work, in both 2019 and 2015, Beth was selected as “Lawyer of the Year” in Lansing for Employee Benefits (ERISA) Law by Best Lawyers, and in 2017 as one of the Top 30 “Women in the Law” by Michigan Lawyers Weekly. Contact her for more information on this reminder or other matters at 517.377.0826 or elatchana@fraserlawfirm.com.

City of Detroit Votes to Approve Licensed Adult-Use Recreational Cannabis Sales

The Detroit City Council recently voted to allow adult-use cannabis sales in the city, following a preliminary injunction issued by U.S. District Judge Bernard Friedman in June 2021 that halted Detroit’s controversial recreational marijuana licensing program indefinitely.

On April 5, 2022, the Detroit City Council members voted to approve the revised ordinance that will go into effect beginning April 20, 2022. Under the ordinance, a limited 100 recreational marijuana licenses will be made available, half of which will be set aside and reserved for “social equity applicants.”

The revised ordinance also now allows for licenses of microbusinesses and consumption lounges. Separately, licenses issued for growers, processors, or secured transporters are not limited under the ordinance.

In November 2020, the City of Detroit announced its rules for allowing licensed adult-use recreational marijuana sales, which included controversial provisions aimed at giving preferential treatment to applicants if they fit into the criteria. These rules gave rise to a lawsuit filed on March 2, 2021, in Wayne County Circuit Court. In April 2021, Detroit officials were barred from receiving any more marijuana business applications, followed by the licensing program’s total suspension in June 2021.

At Fraser Trebilcock we have a strong litigation department that has handled multiple lawsuits in the cannabis field and are able to assist you if you believe you are entitled to relief. If you have any questions or require assistance, please contact Paul Mallon or your Fraser Trebilcock attorney.


mallon-paulPaul C. Mallon, Jr.  is Shareholder and Chair of Fraser Trebilcock’s cannabis law practice. You can reach him at pmallon@fraserlawfirm.com or (313) 965-9043.

Third Circuit Court of Appeals Rules that University can be Held Liable Under Title IX for On-Campus Murder by Nonstudent Guest

Following the on-campus murder of a student by her non-student boyfriend at Millersville University in 2015, the victim’s parents filed a Title IX claim against the university. The claim was rejected in a lower court, but, in a significant and consequential decision, the U.S. Court of Appeals for the Third Circuit reversed and held that the school could be held liable for the actions taken by a non-student guest on its campus.

This case serves as an important reminder for colleges and universities to pay close attention to their obligations under Title IX, and revisit and revise their policies as appropriate.

Case Background

The student-victim, Karlie Hall, was murdered in her dorm room by her boyfriend Gregorio Orrostieta.

Orrostieta was not a student, but he was a frequent visitor to the campus. In 2014, Hall was injured by Orrostieta in a domestic violence incident in her dorm room. Police responded, and Orrostieta was removed from campus, but no incident report was completed at the time. A resident advisor created an incident report, but the university’s administration failed to forward it to the school’s Title IX coordinator as required by school policy.

These and other facts were used to argue that the school acted with deliberate indifference to known harassment of a student.

The Court’s Analysis

Millersville University argued that it could not be held liable for the actions of a non-student guest on campus because it lacked notice that deliberate indifference to harassment, if perpetrated by a non-student guest, could result in Title IX liability.

In rejecting this argument, the Third Circuit cited the 1999 U.S. Supreme Court case, Davis v. Monroe County Board of Education. According to the Third Circuit:

“The Supreme Court made clear in Davis that a funding recipient may be liable for acts of sexual harassment by individuals other than students. Though Davis concerned only deliberate indifference to known student-on-student harassment, the Court’s holding was not based upon the classification of the harasser as a student, guest, or other type of third party … Instead, the Court’s focus was on whether the funding recipient had control over the harasser and the context of the harassment since the funding recipient can only ‘subject’ students to discrimination under Title IX if it has control over the harasser and remains deliberately indifferent to the harasser’s actions.”

The Third Circuit also stated the university’s Title IX policies in place at the time the incident occurred “contemplated Title IX liability could result from the actions of third parties such as ‘visitors’ like Orrostieta.”

While this decision was made by the Third Circuit, and therefore does not have precedential effect in the Sixth Circuit where Michigan colleges and universities are located, it nonetheless should serve as an important reminder to pay close attention to Title IX policies. The decision also comes shortly before the Biden administration is expected to release a Title IX notice of proposed rulemaking.

If you have any questions about this case, or Title IX issues in general, please contact Ryan Kauffman.


Fraser Trebilcock Attorney Ryan Kauffman

Ryan K. Kauffman is a Shareholder at Fraser Trebilcock with more than a decade of experience handling complex litigation matters and representing higher education institutions. You can contact him at rkauffman@fraserlawfirm.com or 517.377.0881.

Client Alert: Federal Worker Vaccination Requirement Reinstated!

On April 7, 2022, the United States Circuit Court of Appeals for the Fifth Circuit reinstated President Biden’s executive order (EO-14043) requiring the COVID-19 vaccination of federal employees.

Executive Order 14043 was issued September 9, 2021 mandating all agencies as defined by 5 U.S.C. 105 (excluding the Government Accountability Office) to implement programs requiring COVID-19 vaccination for all of its Federal employees (those defined by 5 U.S.C. 2105), with the exceptions of religious and medical accommodations. Employees were expected to have been fully vaccinated by November 22, 2021 – meaning having received all doses of a vaccination series by November 8th. If employees failed to comply, employer agencies were directed to implement disciplinary action up to and including removal or termination.  

Nonetheless, months after many federal employees had already complied with the vaccination requirement, on January 21, 2022 the United States District Court for the Southern District of Texas ordered a nationwide preliminary injunction prohibiting the enforcement of the Order finding that the public’s interest could be better served through less restrictive measures. See Feds for Med Freedom v Biden, No. 3:21-CV-356, 2022 WL 188329 (SD Tex, January 21, 2022), vacated and remanded No. 22-40043, 2022 WL 1043909 (CA 5, April 7, 2022).

Yesterday, the District Court’s Order was overturned by the Fifth Circuit in Feds for Med Freedom v Biden, No. 22-40043, 2022 WL 1043909 (CA 5, April 7, 2022). The question at issue was whether the Civil Service Reform Act of 1978 (“CSRA”), 5 U.S.C. § 1101 et seq., deprived the District Court of jurisdiction and whether Plaintiffs were required to pursue their dispute through the administrative procedure set-out in the CSRA. The Court answered in the affirmative.

For background, the court provided in part:

Under the CSRA, certain federal employees may obtain administrative and judicial review of specified adverse employment actions, such as removals, suspensions for more than fourteen days, pay or grade reductions, and furloughs lasting thirty days or less. Once an employing agency finalizes an adverse action, the aggrieved employee may appeal to the Merit Systems Protection Board (“MSPB”). If the employee prevails on appeal, the MSPB can order the agency to comply with its decision and award “reinstatement, backpay, and attorney’s fees.” 5 U.S.C. §§ 1204(a)(2), 7701(g)). “An employee who is dissatisfied with the MSPB’s decision is entitled to judicial review in the United States Court of Appeals for the Federal Circuit” under § 7703. The Federal Circuit’s jurisdiction over such appeals is “exclusive.” 28 U.S.C. § 1295(a)(9). If an employee appeals to the Federal Circuit, then that court must “review the record and hold unlawful and set aside any agency action, findings, or conclusions” that are “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c)(1)–(3).

Feds for Med Freedom v Biden, at *3 (CA 5, April 7, 2022). Nowhere within the CSRA is there an opportunity for judicial review by a US District Court. After an evaluation of whether Plaintiff’s would have succeeded on the merits, the Court vacated the District Court’s preliminary injunction and ordered dismissal of the case.

As of today, Executive Order 14043 is reinstated nationwide, and federal employees are required to be fully vaccinated. The Safer Federal Workforce Task Force, designated to provide guidance on enforcement, has yet to publish new information. It is expected that new guidance with new deadlines is forthcoming, but as of now, all federal employers can review currently available information here: 

For assistance with implementing the requirements of EO 14043, please contact your Fraser Trebilcock attorney.

This alert serves as a general summary, and does not constitute legal guidance. Please contact us with any specific questions.


Lauren  D.  Harrington is an associate attorney at Fraser Trebilcock focusing on Employment Law. You can reach her at 517.377.0874, or email her at lharrington@fraserlawfirm.com.


Elizabeth H. Latchana, Attorney Fraser TrebilcockElizabeth H. Latchana specializes in employee health and welfare benefits. Recognized for her outstanding legal work, in both 2019 and 2015, Beth was selected as “Lawyer of the Year” in Lansing for Employee Benefits (ERISA) Law by Best Lawyers, and in 2017 as one of the Top 30 “Women in the Law” by Michigan Lawyers Weekly. Contact her for more information on this reminder or other matters at 517.377.0826 or elatchana@fraserlawfirm.com.

CBD Likely to Receive Stricter Regulatory Scrutiny in Michigan Following Governor’s Executive Order

Significant changes in Michigan’s cannabis regulatory framework go into effect on April 13, 2022, following Governor Whitmer’s Executive Order No. 2022-1.

Pursuant to the Executive Order, the Marijuana Regulatory Agency, which oversees marijuana growing, processing, and sales, will become the Cannabis Regulatory Agency (the “Agency”).

And the authorities, powers, duties, functions, and responsibilities of the Department of Agriculture and Rural Development to license and regulate processor-handlers under the Industrial Hemp Research and Development Act are being transferred to the Agency to be administered by the Agency. While the Agency will begin overseeing the processing, distribution and selling of hemp products, such as CBD, the Department of Agriculture and Rural Development will continue to oversee hemp cultivation.

An article in Crain’s Detroit Business which discusses the changes wrought by the Executive Order, also speculates about the possibility of more stringent regulations on CBD products. Andrew Brisbo, executive director of the Michigan Regulatory Agency, is quoted as saying “nothing will change” in the short term, and that “changes that will potentially come will be through a legislative process.”

Brisbo suggests that changes will focus on CBD products meant for human consumption, and that such products will “likely…be put through some kind of testing regime.”

We will continue to monitor these developments and keep you informed about other changes impacting Michigan’s cannabis industry. If you have any questions, please contact Paul Mallon or your Fraser Trebilcock attorney.


mallon-paulPaul C. Mallon, Jr.  is Shareholder and Chair of Fraser Trebilcock’s cannabis law practice. You can reach him at pmallon@fraserlawfirm.com or (313) 965-9043.

U.S. House of Representatives Passes MORE Act to Decriminalize Cannabis

On Friday, April 1, 2022, the U.S. House of Representatives voted to decriminalize cannabis on the federal level, allow for the expungement of certain marijuana convictions, and offer loan opportunities to cannabis businesses. The House passed The Marijuana Opportunity Reinvestment and Expungement (“MORE”) Act by a vote of 220-204, and would have the following changes:

  • Remove marijuana from the list of scheduled substances so that growing, selling, or possessing the drug would no longer carry criminal penalties;
  • Allow the federal government to offer loans to cannabis businesses and impose a tax on cannabis products, which the revenue would be used for grant programs focused on helping disadvantaged small businesses get into the marijuana industry; and
  • Create an expungement process for non-violent cannabis convictions and review criminal sentences for offenders.

While the MORE Act was passed by the House, the bill must still be passed by the U.S. Senate, and signed by President Biden. If you have any questions, please contact Paul Mallon or your Fraser Trebilcock attorney.


mallon-paulPaul C. Mallon, Jr.  is Shareholder and Chair of Fraser Trebilcock’s cannabis law practice. You can reach him at pmallon@fraserlawfirm.com or (313) 965-9043.