Five Stories That Matter in Michigan This Week – May 3, 2024

  1. Michigan CRA Plans to Open State-Run Testing Laboratory

Crain’s Detroit Business reported this week that Michigan’s Cannabis Regulatory Agency plans to open a new testing lab by January of next year in order to promote and enforce safety standards. While funds have been allocated for the establishment and operation of a testing lab, CRA regulators reportedly are asking Michigan legislators to pass a bill that would give the agency more explicit authority to take this action.

Why it Matters: Having an independent, state-run lab would, according to regulators, help establish trust in products and root out potential corruption in the legal cannabis industry.

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  1. Fraser Trebilcock Attorney Robert D. Burgee Recognized as a ‘Michigan Go To Lawyer’ for Business Transactions by Michigan Lawyers Weekly

Fraser Trebilcock attorney Robert D. Burgee has been recognized by Michigan Lawyers Weekly as a ‘Michigan Go To Lawyer’ in 2024 for business transactions. “I am honored to have been recognized by Michigan Lawyers Weekly as a ‘Michigan Go To Lawyer’ for business transactions,” said Bob.

Why it Matters: Mr. Burgee serves as Co-Chair of the firm’s Business & Tax Department and Chair of the firm’s Employee Benefits Department. He has over a decade of experience assisting business clients and entrepreneurs with startups, acquisitions, succession, and growth planning, as well as more general legal guidance, including navigating civil matters, regulatory compliance, employee benefits, and human relations. Read more.

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  1. June Business Education Series

Most entrepreneurs and business leaders face similar frustrations – employee conflicts, lack of sales, profit woes and inadequate growth. Decisions never seem to get made, or, once made, they fail to be properly implemented. There is a solution, and it is not complicated or theoretical.

Why it Matters: The Entrepreneurial Operating System (EOS) is a practical method for achieving the business success you have always envisioned. More than 100,000 companies have discovered what EOS can do. Learn more and to register.

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  1. Marijuana to be Rescheduled by DEA

It was announced this week that the DEA is planning to reclassify marijuana from a Schedule I drug to a Schedule III drug, following a recommendation from the Health and Human Services Department.

Why it Matters: While this move is still subject for review by the White House Office of Management and Budget, this clears a significant regulatory hurdle. Marijuana will still not be legal on the federal level for recreational use following this reclassification.

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  1. FTC Issues Final Rule Banning Non-Compete Agreements Nationwide

On April 23, 2024, in a 3-2 vote, the Federal Trade Commission (FTC) issued a final rule banning non-compete clauses in most employment agreements nationwide. The rule is scheduled to go into effect 120 days after it is published in the Federal Register.

Why it Matters: Under the final rule, “Non-compete clause” is defined as “a term or condition of employment that prohibits a worker from, penalizes a worker for, or functions to prevent a worker from: (i) seeking or accepting work in the United States with a different person where such work would begin after the conclusion of the employment that includes the term or condition; or (ii) operating a business in the United States after the conclusion of the employment that includes the term or condition.” Read more from your Fraser Trebilcock attorneys.

Related Practice Groups and Professionals

Cannabis Law | Sean Gallagher
Business & Tax | Robert Burgee
Labor, Employment & Civil Rights | David Houston
Business & Tax | Andrew Martin

Five Stories That Matter in Michigan This Week – March 15, 2024

  1. Michigan Senate Passes Bill to Require Dyslexia Screening in Schools

On March 12, the Michigan Senate overwhelmingly (37-1) passed a bill that would require schools to screen all students for signs of dyslexia. It would also require programs to educate prospective teachers on dyslexia’s characteristics.

Why it Matters: This bill is part of a larger effort to improve reading in Michigan. In spring 2023, one-third of Michigan third grade students scored not-proficient in reading.

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  1. Michael E. Cavanaugh Selected as a Member of Michigan Lawyers Weekly “Hall of Fame Class of 2024”

Fraser Trebilcock attorney Michael E. Cavanaugh has been selected as a member of Michigan Lawyers Weekly “Hall of Fame Class of 2024.” This special award recognizes esteemed members of the legal profession who have been in practice for at least 30 years. “I am extremely honored to be recognized by Michigan Lawyers Weekly as a member of their Hall of Fame Class of 2024,” said Mr. Cavanaugh.

Why it Matters: Michigan Lawyers Weekly’s annual “Hall of Fame” award recognizes Michigan’s legal leaders who have been in practice for 30 years, highlighting their successful careers and valuable contributions to the community. These legendary lawyers have made their mark, either in the courtroom or the boardroom, in their law firms or legal departments, with community organizations, and with local, state and national bar associations. Read more.

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  1. Fraser Trebilcock Attorneys Secure Summary Disposition for Firm Client

Fraser Trebilcock attorneys Danielle Lofton and Gary C. Rogers have obtained summary disposition and dismissal of a lawsuit in favor of the firm’s client in a personal injury case pending before the Kalamazoo County Circuit Court.

Why it Matters: Attorney Lofton successfully argued the motion, convincing the trial court that the plaintiff’s injuries did not rise to the level of serious impairment of body function, following mediation in which the plaintiff, who was represented by a prominent plaintiff’s personal injury firm, rejected the settlement recommended by a mediator, and wanted to proceed to trial before a jury. Instead of accepting the mediator’s recommended settlement amount, the plaintiff will now receive nothing. Learn more.

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  1. Can an Out-of-State Patent Attorney Represent Me?

Securing a patent for an innovative idea involves maneuvering through a complex, multifaceted process. And having the right guide—patent legal counsel—is an essential part of the process. A common misconception is that a party hoping to secure a patent must turn to a local attorney for help. This belief, while understandable considering that many legal matters require local expertise and licensing, overlooks the dynamics of how things work with patent law.

Why it Matters: The truth is, in the digital age, the geographical location of your patent attorney matters less than their expertise, experience, and ability to navigate the United States Patent and Trademark Office’s (“USPTO”) requirements. Learn more from attorney Andrew Martin.

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  1. Corporate Transparency Act ‘Unconstitutional’ says Federal District Judge

A U.S. District Court in Alabama has determined that Congress overstepped its constitutional authority in passing the Corporate Transparency Act (“CTA”) (see National Small Business United v. Yellen, No. 5:22-cv-01448 (N.D. Ala.)). The CTA requires the disclosure of the Beneficial Ownership Information (“BOI”) of millions of American corporations, limited liability companies, and other entities.

Why it Matters: In the wake of this decision, FinCEN seems to have accepted the decision but only insofar as it affects its enforcement of the CTA against the named plaintiffs. The reporting obligations for the remaining 30 million or so entities is unchanged. Time will tell if FinCEN will appeal the decision and/or how it will deal with the seemingly inevitable series of similar cases that will start filling up courts across the country. Read more from attorney Bob Burgee.

Related Practice Groups and Professionals

Labor, Employment & Civil Rights | Michael E. Cavanaugh
Insurance Law | Danielle Lofton
Insurance Law | Gary Rogers
Intellectual Property | Andrew Martin
Business & Tax | Robert Burgee

Five Stories That Matter in Michigan This Week – March 8, 2024

  1. CDC Says Five Days Isolation No Longer Necessary for COVID-19

The CDC recently updated its COVID-19 guidelines, stating that Americans who test positive for COVID-19 no longer need to stay in isolation for five days. The new guidelines provide that that people can return to work or regular activities if their symptoms are mild and improving and it’s been a day since they’ve had a fever.

Why it Matters: The change will impact COVID-19-related policies of employers who still adhere to CDC guidance for their return-to-work rules.

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  1. Fraser Trebilcock Adds Cavanaugh to Firm Name

Law firm Fraser Trebilcock Davis & Dunlap, P.C. is pleased to announce that its legal name has been changed to Fraser Trebilcock Davis Dunlap & Cavanaugh, P.C. This name change reflects the addition of the surname of member Michael E. Cavanaugh, in recognition of his long tenure and significant contributions to the firm. The firm’s trade name will continue to be Fraser Trebilcock.

Why it Matters: Mr. Cavanaugh’s list of accolades is as long as it is well-deserved. Perhaps at the very top, is recognition of his leadership in the Lansing legal community. Mike has been a trusted member of Fraser Trebilcock’s Board of Directors, and he is heavily involved in the State Bar of Michigan and the Ingham County Bar Association, for which he has served as a past-president. Read more.

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  1. Corporate Transparency Act ‘Unconstitutional’ says Federal District Judge

A U.S. District Court in Alabama has determined that Congress overstepped its constitutional authority in passing the Corporate Transparency Act (“CTA”) (see National Small Business United v. Yellen, No. 5:22-cv-01448 (N.D. Ala.)). The CTA requires the disclosure of the Beneficial Ownership Information (“BOI”) of millions of American corporations, limited liability companies, and other entities.

Why it Matters: In the wake of this decision, FinCEN seems to have accepted the decision but only insofar as it affects its enforcement of the CTA against the named plaintiffs. The reporting obligations for the remaining 30 million or so entities is unchanged. Time will tell if FinCEN will appeal the decision and/or how it will deal with the seemingly inevitable series of similar cases that will start filling up courts across the country. Read more from attorney Bob Burgee.

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  1. A Health Professional’s Guide to Navigating the Disciplinary Process: What to Expect if You Are Facing a Professional Licensing Investigation or Administrative Complaint

Health professionals are committed to caring for patients with expertise, compassion, and integrity. However, in the heavily regulated healthcare field, those professionals can sometimes find themselves navigating not just the medical challenges of their patients but licensing issues of their own as well. Licensing issues can arise unexpectedly, and, when they do, they can cause tremendous stress and uncertainty.

Why it Matters: As an attorney with years of experience handling professional licensing matters for health professionals, Robert J. Andretz has witnessed firsthand how professional licensing investigations and Administrative Complaints can disrupt health professionals’ careers and their ability to provide patient care. He will explore how to navigate the disciplinary process in Michigan so that you can know what to expect if you are ever faced with a threat to your license. Learn more.

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  1. Navigating the Cost and Process of Hiring a Trademark Attorney

In the fast-paced world of business, protecting your brand is paramount. Whether you’re a startup or a large corporation, safeguarding your trademarks is essential for maintaining your identity and reputation in the market. However, navigating the legal intricacies of trademark registration and enforcement can be complex and overwhelming. This is where a skilled trademark attorney can be your greatest ally.

Why it Matters: Without adequate protection, your trademarks are vulnerable to infringement, dilution, and misappropriation, which can result in lost revenue, brand erosion, and legal disputes. By securing federal trademark registration and enforcing your rights, you establish a legal foundation that empowers you to safeguard your brand and its value. Read more from attorney Andrew G. Martin.

Related Practice Groups and Professionals

Labor, Employment & Civil Rights | Michael E. Cavanaugh
Business & Tax | Robert Burgee
Professional Licensing | Robert Andretz
Intellectual Property | Andrew Martin

Five Stories That Matter in Michigan This Week – March 1, 2024

  1. Growing Marijuana in Michigan – No Matter the Amount – is a Misdemeanor

Late last week, the Michigan State Police shut down an illegal marijuana growing facility in Highland Park, seizing 4,000 marijuana plants and processed weed worth $6.3 million. It may surprise readers to know that, pursuant to a Michigan Court of Appeals ruling in October, 2023, the unlicensed growers may only face misdemeanor charges. In another case involving an illegal growing operation, the court ruled that violations that previously were subject to felony punishments should now be prosecuted under the Michigan Regulation and Taxation of Marijuana Act (the “Act”).

Why it Matters: Under the Act, it’s legal to store up to 10 ounces of marijuana, possess 2.5 ounces and grow up to 12 plants. Violations for exceeding those amounts range from civil infractions to misdemeanors. It will be interesting to see if these provisions will be revisited given that black market sales have been blamed for increased competition and falling prices for legal sales.

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  1. Navigating the Cost and Process of Hiring a Trademark Attorney

In the fast-paced world of business, protecting your brand is paramount. Whether you’re a startup or a large corporation, safeguarding your trademarks is essential for maintaining your identity and reputation in the market. However, navigating the legal intricacies of trademark registration and enforcement can be complex and overwhelming. This is where a skilled trademark attorney can be your greatest ally.

Why it Matters: Without adequate protection, your trademarks are vulnerable to infringement, dilution, and misappropriation, which can result in lost revenue, brand erosion, and legal disputes. By securing federal trademark registration and enforcing your rights, you establish a legal foundation that empowers you to safeguard your brand and its value. Read more from attorney Andrew G. Martin.

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  1. Fraser Trebilcock Attorney Michael E. Cavanaugh Named in Michigan Lawyers Weekly Class of 2024 Hall of Fame

Fraser Trebilcock attorney Michael E. Cavanaugh has been selected as a member of Michigan Lawyers Weekly “Hall of Fame Class of 2024.” This special award recognizes esteemed members of the legal profession who have been in practice for at least 30 years.

Why it Matters: Michigan Lawyers Weekly’s annual “Hall of Fame” award recognizes only twenty-one lawyers each year. These lawyers truly are legends, making their mark in the courtroom or the boardroom, in their firms and with community organizations, and with local, state and national bar associations. With their guidance and mentorship, they have launched hundreds of thriving legal careers and have left an indelible imprint on the profession through precedent-setting cases, high dollar outcomes and successful resolutions for their clients.

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  1. A Health Professional’s Guide to Navigating the Disciplinary Process: What to Expect if You Are Facing a Professional Licensing Investigation or Administrative Complaint

Health professionals are committed to caring for patients with expertise, compassion, and integrity. However, in the heavily regulated healthcare field, those professionals can sometimes find themselves navigating not just the medical challenges of their patients but licensing issues of their own as well. Licensing issues can arise unexpectedly, and, when they do, they can cause tremendous stress and uncertainty.

Why it Matters: As an attorney with years of experience handling professional licensing matters for health professionals, Robert J. Andretz has witnessed firsthand how professional licensing investigations and Administrative Complaints can disrupt health professionals’ careers and their ability to provide patient care. He will explore how to navigate the disciplinary process in Michigan so that you can know what to expect if you are ever faced with a threat to your license. Learn more.

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  1. Increase in the Small Business Property Tax Exemption

Eligibility for the so-called “Small Business Property Tax Exemption” has expanded. Legislation passed last October 2023, expands the exemption by increasing the eligibility limit to from the $80,000 true cash value limit to $180,000.

Why it Matters: The exemption is only for commercial and industrial personal property (residential/individuals are not subject to personal property taxes). Once filed, and if granted, the exemption will remain as long as the small business still qualifies. In other words, there is no need to file an exemption claim every year. Read more.

Related Practice Groups and Professionals

Cannabis Law | Sean Gallagher
Intellectual Property | Andrew Martin
Labor, Employment & Civil Rights | Michael E. Cavanaugh
Professional Licensing | Robert Andretz
Business & Tax | Paul McCord

Navigating the Cost and Process of Hiring a Trademark Attorney

In the fast-paced world of business, protecting your brand is paramount. Whether you’re a startup or a large corporation, safeguarding your trademarks is essential for maintaining your identity and reputation in the market. However, navigating the legal intricacies of trademark registration and enforcement can be complex and overwhelming. This is where a skilled trademark attorney can be your greatest ally.

The Importance of Trademark Protection

Before delving into the process and costs of hiring a trademark attorney, let’s underscore the significance of trademark protection. A trademark is more than just a logo or a slogan; it’s the embodiment of your brand’s goodwill and reputation. Trademarks are source identifiers that distinguish your products or services from competitors and help consumers identify and trust your brand.

Without adequate protection, your trademarks are vulnerable to infringement, dilution, and misappropriation, which can result in lost revenue, brand erosion, and legal disputes. By securing federal trademark registration and enforcing your rights, you establish a legal foundation that empowers you to safeguard your brand and its value.

The Role of a Trademark Attorney

Trademark law is a specialized field that requires expertise and experience to navigate effectively. An attorney who specializes in trademark matters can provide invaluable guidance throughout the trademark lifecycle. Their services often include:

  1. Trademark Search and Clearance: Conducting comprehensive searches to ensure your proposed trademark is available for use and registration, minimizing the risk of conflicts with existing trademarks.
  2. Trademark Application: Assisting with the preparation and filing of trademark applications with the United States Patent and Trademark Office (USPTO) or relevant authorities in other jurisdictions, ensuring compliance with legal requirements and maximizing the chances of successful registration.
  3. Prosecution and Responses: Handling communications with trademark examiners, responding to office actions, and overcoming objections to secure trademark registration.
  4. Trademark Enforcement: Monitoring for potential infringement, sending cease-and-desist letters, and pursuing legal action against infringers to protect your trademark rights.
  5. Trademark Portfolio Management: Advising on trademark maintenance, renewal, licensing, and assignment to optimize the value of your trademark assets.

The Cost of Hiring a Trademark Attorney

The cost of hiring a trademark attorney can vary depending on several factors, including the attorney’s experience, the complexity of the matter, and the scope of services required. Trademark attorneys typically offer various fee structures, such as hourly rates, flat fees for specific services, or retainer arrangements.

For trademark registration, the fees may range from a few hundred to several thousand dollars, depending on factors such as the number of classes of goods/services, the complexity of the mark, and whether any office actions or objections are encountered during the process.

While hiring a trademark attorney entails upfront costs, it’s an investment in protecting your brand’s intellectual property rights and mitigating the risk of costly disputes and legal challenges down the line. Moreover, engaging a knowledgeable attorney can streamline the process, enhance the likelihood of successful outcomes, and provide invaluable peace of mind.

Conclusion

In the competitive landscape of modern business, safeguarding your brand is non-negotiable. Hiring a trademark attorney is a strategic decision that empowers you to navigate the complexities of trademark law with confidence and expertise. By enlisting the support of a skilled attorney, you not only protect your trademarks but also lay the foundation for long-term brand success and resilience in the marketplace. If you have any questions, contact attorney Andrew G. Martin or your Fraser Trebilcock attorney.

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


Andrew G. Martin is an experienced registered patent attorney with history working in the automotive, electrical, and agricultural industries. He regularly advises startups and small businesses on the patent and trademark prosecution process, assisting clients from start to finish. You can reach him at 517.377.0834 or at amartin@fraserlawfirm.com.

Five Stories That Matter in Michigan This Week – February 9, 2024

  1. Reinstatement of Michigan’s Prevailing Wage Act Takes Effect February 13

On March 24, 2023, Governor Whitmer signed into law a bill reinstituting Michigan’s Prevailing Wage Act (the “Act”). The new Act, which takes effect February 13, 2024, will require every contractor and subcontractor in Michigan to pay the prevailing wage and benefit rates to employees working on most state funded construction projects.

Why it Matters: Contractors that fail to pay prevailing wages may have their contract terminated, be required to pay any excess costs incurred by the state for contracting with a new employer, and be fined up to $5,000.

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  1. A Health Professional’s Guide to Navigating the Disciplinary Process: What to Expect if You Are Facing a Professional Licensing Investigation or Administrative Complaint

Health professionals are committed to caring for patients with expertise, compassion, and integrity. However, in the heavily regulated healthcare field, those professionals can sometimes find themselves navigating not just the medical challenges of their patients but licensing issues of their own as well. Licensing issues can arise unexpectedly, and, when they do, they can cause tremendous stress and uncertainty.

Why it Matters: As an attorney with years of experience handling professional licensing matters for health professionals, Robert J. Andretz has witnessed firsthand how professional licensing investigations and Administrative Complaints can disrupt health professionals’ careers and their ability to provide patient care. He will explore how to navigate the disciplinary process in Michigan so that you can know what to expect if you are ever faced with a threat to your license. Learn more.

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  1. Fraser Trebilcock Welcomes Robert J. Andretz to the Firm

We are pleased to announce the hiring of attorney ​Robert J. Andretz who will work primarily in the firm’s Lansing office.

Why it Matters: Helping clients for more than two decades, Rob is an experienced criminal defense and professional licensing attorney who has successfully represented clients in both state and federal courts in felony and misdemeanor cases in more than 50 counties across the state of Michigan. He is passionate about what he does, and, understanding the direct and collateral consequences that a criminal conviction or professional licensing sanction can bring, he compassionately works with his clients to focus on what matters most to them. Learn more.

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  1. Understanding How Trademarks, Copyrights, and Patents Protect Your Business

Copyright is the exclusive legal protection that covers an original work of authorship. Copyrights vest upon creation of the work, which means placing the work onto a tangible medium.

Why it Matters: Similar to trademark law, it can be difficult to enforce your copyright if the work is not registered with the U.S. Copyright Office. Learn more on this series about trademarks, copyrights, and patents from Fraser Trebilcock attorney Andrew Martin.

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  1. Client Alert/Reminder: Form W-2 Reporting Due for Employer-Provided Health Care / Disclosure Due to CMS for Medicare Part D

Unless subject to an exemption, employers must report the aggregate cost of employer-sponsored health coverage provided in 2023 on their employees’ Form W-2 (Code DD in Box 12) issued in January 2024. Please see IRS Notice 2012-09. Additionally, group health plans offering prescription drug coverage are required to disclose to all Part D-eligible individuals who are enrolled in or were seeking to enroll in the group health plan coverage whether such coverage was creditable.

Why it Matters: The filing deadline is 60 days following the first day of the plan year. If you operate a calendar year plan, the deadline is the end of February. If you operate a non-calendar year plan, please be sure to keep track of your deadline. Contact your Fraser Trebilcock attorney for any questions.

Related Practice Groups and Professionals

Labor, Employment & Civil Rights | David Houston
Professional Licensing | Robert Andretz
Intellectual Property | Andrew Martin
Employee Benefits | Bob Burgee
Employee Benefits | Sharon Goldzweig

Five Stories That Matter in Michigan This Week – January 12, 2024

  1. Cannabis Regulatory Agency Announces $1 Million Social Equity Grant Program

Michigan’s Cannabis Regulatory Agency (CRA) announced a $1 million grant program to applicants who have a recreational marijuana license, have eligible Social Equity Program participants, and participate in the CRA’s “Social Equity All-Star Program.”

Why it Matters: The program is intended to encourage participation in the industry by people from communities that have been disproportionately impacted by marijuana prohibition and enforcement.

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  1. Fraser Trebilcock Welcomes Danielle Lofton to the Firm

We are pleased to announce the hiring of attorney Danielle Lofton who will work primarily in the firm’s Lansing office, focusing her practice on insurance defense.

Why it Matters: Ms. Lofton represents clients with personal injury claims including no-fault cases for several years. She has routinely secured early dismissals through successful motions and negotiated favorable settlements for her clients. Learn more.

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  1. Department of Labor Issues New Rule on Independent Contractors

This week, the US Department of Labor issued a new rule modifying its analysis for determining whether a worker is an employee, or an independent contractor under the Fair Labor Standards Act. The final rule is effective on March 11, 2024.

Why it Matters: We previously reported on the Department of Labor publishing a Notice of Proposed Rulemaking regarding classification of employee or independent contractor under the FLSA. Under this final rule effective on March 11, 2024, it will provide clearer guidance for employers and how they determine their workers’ classifications, and further protect employees from misclassification.

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  1. Fraser Trebilcock Attorney Andrew J. Moore Elected to Board of Directors of Catholic Bar Association

We are pleased to announce that attorney ​Andrew J. Moore has been elected to the Board of Directors for the Catholic Bar Association, a national bar association with members in all 50 states. “I am honored to be elected to the Board of Directors, and I look forward to continuing the mission of the Catholic Bar Association,” said Andrew Moore.

Why it Matters: Andrew focuses his practice on general litigation matters, insurance defense, estate and trust administration, real estate transactions, family law, and criminal defense. His experience covers a range of practice areas, from out of court matters such as assisting clients in estate planning and business and tax matters to representing clients at trial in insurance, divorce, and criminal defense proceedings. He also serves on the Board of Directors of the Lansing Catholic Lawyers Guild. Read more.

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  1. Independent Citizens Redistricting Commission Required to Redraw Seven House Districts

A three-judge panel ordered this week that the Independent Citizens Redistricting Commission redraw seven state House districts by February 2nd, after it was ruled unconstitutional.

Why it Matters: Last year, a group of voters sued the Independent Citizens Redistricting Commission alleging that the Commission had violated the federal Voting Rights Act by drawing maps that impacted black voters’ opportunity to elect their preferred candidates.

Related Practice Groups and Professionals

Cannabis Law | Sean Gallagher
Insurance Law | Danielle Lofton
Labor, Employment & Civil Rights | David Houston
Litigation | Andrew Moore
Election Law

Patient Advocate Designations During COVID-19

Issues not typically thought about or discussed are now at the forefront of many people’s minds. During Michigan’s COVID-19 Stay at Home Executive Orders, discussions about life and death are common with friends, family, and loved ones. I recently had this conversation with my husband, Jim:

Me: Do you remember that I designated you as my patient advocate?

Jim: Yes.

Me: If I get COVID-19 and need a ventilator, I want one.

Jim: Why are you telling me this?

Me: I just want you to be clear on what my Patient Advocate Designation means. It states that if there is no reasonable expectation of my recovery, then I don’t want certain things, including a ventilator.

Jim: So, you don’t want a ventilator?

Me: No, I do. Two things are important here. First, if I get COVID-19, I do want to be put on a ventilator if it will help me survive, and second, if I get COVID-19, I do have a reasonable expectation of my recovery so the statement in the Patient Advocate Designation that I don’t want a ventilator won’t even apply. I just wanted you to be very clear as to my wishes.

Jim: Ok, I get it. But to be sure my directions to doctors and hospitals are followed on this, don’t you need to redo your Patient Advocate Designation?

Me: No, the law says I can give you, as my patient advocate, both written and oral instructions, guidelines, and desires for my care, custody and healthcare treatment.

Jim: That’s surprising.

Does Your Patient Advocate Designation Reflect Your Wishes?

It’s a good time to look at your Patient Advocate Designation and be sure its terms are consistent with your current wishes. If not, it’s easy to update the document. However, if updating right now is not possible, you can instruct your patient advocate, orally, with your current instructions.

If your Patient Advocate Designation is like mine, and provides that no ventilator, or respirator, should be used if “there is no reasonable expectation of my recovery,” explain to your designated patient advocate and successors that this language does not mean you don’t want a ventilator if you get COVID-19. Inform them that you if you get COVID-19, you do expect to recover from it, as the odds of survival far surpass the chances of death, and that you want all treatment needed to enable your survival, including being placed on a ventilator.

Is the Right Person Named as Your Patient Advocate?

If the designated patient advocate and successors are not the individuals you want making your healthcare decisions, you should update the document. Changes should be made if those you previously designated have died, or are no longer in your life, or, if your children are old enough to be your patient advocate and you prefer them serving over a sibling or friend.

Talk with Your Patient Advocate About Your Wishes

Now is a good time to talk with your patient advocate and designated successors so they are aware of your current wishes. Knowing what you want will enable your patient advocate to confidently and effectively communicate your wishes to healthcare providers, family members and friends. Knowing your current wishes also reduces the emotional toll on your patient advocate as they implement your wishes.

Remote Witnessing and Signing Is Possible

Michigan Executive Order 2020-41 was very important for the execution of Patient Advocate Designations. Unlike other documents, Patient Advocate Designations must be witnessed by two individuals who are not your patient advocate, heirs, beneficiaries, or employees of a healthcare facility where you are a patient, among others. Remote signing gives you the ability to have two independent individuals as your witnesses so that your Patient Advocate Designation will be effective when needed.

Executive Order 2020-41 made remote witnessing of estate planning documents possible until 11:59 p.m. on May 6, 2020. Many effective dates in Executive Orders are being extended as “Stay at Home” orders are extended. Contact us to confirm availability of remote witnessing if needed after May 6th.

Zoom Meetings

Our office is currently conducting Zoom meetings to discuss and execute Patient Advocate Designations and other estate planning documents remotely. It’s free to use the Zoom meeting platform. Our client checklists make the process easy to understand and Zoom allows us to execute the documents without face-to-face contact.


We have created a response team to the rapidly changing COVID-19 situation and the law and guidance that follows, so we will continue to post any new developments. You can view our COVID-19 Response Page and additional resources by following the link here. In the meantime, if you have any questions, please contact your Fraser Trebilcock attorney.


Teahan, Marlaine

Chair of Fraser Trebilcock’s Trusts and Estates Department and serving as Secretary/Treasurer of the firm, attorney Marlaine C. Teahan is a Fellow of the American College of Trust and Estate Counsel, and is the past Chair of the Probate and Estate Planning Section of the State Bar of Michigan. For help with your estate planning needs, contact Marlaine  at 517-377-0869 or mteahan@fraserlawfirm.com.

Planning Strategies and Divestments in Medicaid Planning: A Workshop

Navigating through the many rules and regulations of Medicaid can often be a stressful time for families. The application process itself can be one of the biggest hurdles to overcome, as well as the post-planning that occurs after Medicaid eligibility is obtained. It’s with these difficulties in mind that Fraser Trebilcock attorney Melisa Mysliwiec recently shared key insights with other attorneys in Michigan on how to help families maneuver through the challenging aspects of Medicaid. The presentation, titled “Hands-On Medicaid Part II: Planning Strategies and Divestment”, a follow-up to last year’s workshop, was delivered following the Institute for Continuing Legal Education’s 4th Annual Elder Law Institute, on Friday, September 14.

The seminar provided attendees with a case study about a husband and wife, second marriage for both, navigating the post-planning that is required during the presumed asset eligibility period after the husband obtained Medicaid eligibility to help pay for his long-term nursing home care. Subsequently, attendees were face with a change in circumstances; the husband died and the wife requires long-term nursing home care. Sample income and financial statements were provided and the attendees worked through a sample spend down and completed a Medicaid Application.

ICLE 4th Annual Elder Law Institute

Melisa, along with attorneys Rosemary Howley Buhl, Howard H. Collens, Erin L. Majka, and Terrence G. Quinn, answered questions and provided thorough advice on each step in the process. The well over 100 attendees were able to walk away with a completed sample Medicaid Application and supporting documents.

In addition to presenting on this topic on Friday, Melisa also moderated the plenary sessions of ICLE’s 4th Annual Elder Law Institute on Thursday, September 13. These sessions covered a broad range of topics that allowed attendees to walk away with critical updates and detailed insights in the area of guardianships and conservatorships, government benefits, and use of protective orders in the realm of disabilities planning and elder law.


Attorney Melisa Mysliwiec

 

If you would like to talk with an attorney about putting legal plans in place, contact attorney Melisa M. W. Mysliwiec. Melisa focuses her work in the areas of Elder Law and Medicaid planning, estate planning, and trust and estate administration. She can be reached at mmysliwiec@fraserlawfirm.com or 616-301-0800.

Client Alert/Reminder: Form W-2 Reporting Due / Disclosure Due to CMS for Medicare Part D

FB - FinalTreeUPCOMING DEADLINES: (1) FORM W-2 REPORTING; AND

(2) MEDICARE PART D NOTICES TO CMS

Reminder:  Form W-2 Reporting on Aggregate Cost of Employer Sponsored Coverage

Unless subject to an exemption, employers must report the aggregate cost of employer-sponsored health coverage provided in 2016 on their employees’ Form W-2 (Code DD in Box 12) issued in January 2017. Please see IRS Notice 2012-9 and our previous e-mail alerts for more information.

The following IRS link is helpful and includes a chart setting forth various types of coverage and whether reporting is required: http://www.irs.gov/Affordable-Care-Act/Form-W-2-Reporting-of-Employer-Sponsored-Health-Coverage.  Please note this is a summary only and Notice 2012-9 should also be consulted.

If you have questions regarding whether you or your particular benefits are subject to reporting, please feel free to contact us.

Deadline Coming Up for Calendar Year Plans to Submit Medicare Part D Notice to CMS

As you know, group health plans offering prescription drug coverage are required to disclose to all Part D-eligible individuals who are enrolled in or were seeking to enroll in the group health plan coverage whether such coverage was “actuarially equivalent,” i.e., creditable. (Coverage is creditable if its actuarial value equals or exceeds the actuarial value of standard prescription drug coverage under Part D.) This notice is required to be provided to all Part D eligible persons, including active employees, retirees, spouses, dependents and COBRA qualified beneficiaries.

The regulations also require group health plan sponsors with Part D eligible individuals to submit a similar notice to the Centers for Medicare and Medicaid Services (“CMS”).  Specifically, employers must electronically file these notices each year through the form supplied on the CMS website.

The filing deadline is 60 days following the first day of the plan year.  If you operate a calendar year plan, the deadline is the end of February.  If you operate a non-calendar year plan, please be sure to keep track of your deadline.

At a minimum, the Disclosure to CMS Form must be provided to CMS annually and upon the occurrence of certain other events including:

1) Within 60 days after the beginning date of the plan year for which disclosure is provided;
2) Within 30 days after termination of the prescription drug plan; and
3) Within 30 days after any change in creditable status of the prescription drug plan.

The Disclosure to CMS Form must be completed online at the CMS Creditable Coverage Disclosure to CMS Form web page at:

https://www.cms.gov/Medicare/Prescription-Drug-Coverage/CreditableCoverage/CCDisclosureForm.html

The online process is composed of the following three step process: (1) Enter the Disclosure Information; (2) Verify and Submit Disclosure Information; and (3) Receive Submission Confirmation.

The Disclosure to CMS Form requires employers to provide detailed information to CMS including but not limited to, the name of the entity offering coverage, whether the entity has any subsidiaries, the number of benefit options offered, the creditable coverage status of the options offered, the period covered by the Disclosure to CMS Form, the number of Part D eligible individuals, the date of the notice of creditable coverage, and any change in creditable coverage status.

For more information about this disclosure requirement (instructions for submitting the notice), please see the CMS website for updated guidance at:

https://www.cms.gov/Medicare/Prescription-Drug-Coverage/CreditableCoverage/CCDisclosure.html

As with the Part D Notices to Part D Medicare-eligible individuals, while nothing in the regulations prevents a third-party from submitting the notices (such as a TPA or insurer), ultimate responsibility falls on the plan sponsor.

 

This email serves solely as a general summary of the Form W-2 reporting requirements and CMS disclosure for Medicare Part D.

This correspondence is intended to provide general information only, does not constitute legal advice, and cannot be used or substituted for legal or tax advice.

Questions? Contact us to learn more.


Elizabeth H. Latchana, Attorney Fraser TrebilcockElizabeth H. Latchana specializes in employee health and welfare benefits. Recognized for her outstanding legal work, in both 2018 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.

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