Labor and Employment
OSHA Reopens After Government Shutdown: What Employers Should Expect
The Occupational Safety and Health Administration (OSHA) is officially back to full operations, now that the government shutdown has ended. With staff fully restored, employers need to recognize that agency activity previously paused is now resuming — and, in many cases, accelerating. As OSHA re-engages inspections, rulemaking, and policy initiatives, organizations that assumed a “wait-and-see” stance during the shutdown may find themselves playing catch-up. During the funding lapse, OSHA’s enforcement was largely limited to imminent danger situations, workplace fatalities and catastrophes, and high-gravity serious violations that could not wait. Programmed inspections, outreach, cooperative-program activity, and some informal conferences were suspended. Yet despite that pause, employers did not gain any regulatory holiday: many deadlines continued to run. For example, the six-month statute of limitations for OSHA to issue citations remained in force, as did the 15-working-day deadline for filing a Notice of Contest once a citation is issued. Because of that, businesses must now review and respond to any enforcement activity that may have been initiated during the shutdown period but did not proceed in a typical manner. With the shutdown behind us, OSHA will begin clearing the backlog of work that accumulated, and that means employers should expect increased activity. Complaints filed during the shutdown may lead to inspections, email inquiries, or phone contact, and cited cases may be pushed toward litigation or settlement as the agency’s Office of the Solicitor resubmits matters to the Occupational Safety and Health Review Commission (OSHRC). The new leadership at OSHA and OSHRC, confirmed during or immediately following the shutdown, signals a renewed policy push: new priorities, new enforcement emphasis, and perhaps fresh interpretations of the rules. On the regulatory side, rulemaking initiatives that were paused are now reactivated. For example, OSHA recently closed its post-hearing comment period for a proposed heat exposure standard, and staff will resume review of comments now that appropriations have returned. Other dockets — related to chemical respiratory protection, changes to the general duty clause, lighting in construction, and workplace violence/infectious disease standards — are also moving forward. Employers should remain alert because while final rules may not be imminent, the path is now open. Given this environment, it is imperative for employers to revisit their safety, health, and compliance programs—and do so with urgency. While the shutdown may have created a temporary lull, it did not suspend employer obligations. During the pause, many firms may have held off on site audits, deferred training programs, delayed record-keeping cleanup, or postponed internal corrective actions. Now is the time to address those gaps. Reporting requirements remain in effect: for example, employers must report work-related fatalities within eight hours and serious injuries (such as amputations, loss of an eye, hospitalization) within 24 hours of occurrence. Furthermore, even in states under federal OSHA plan coverage, the same rules apply: while federal inspectors may have been limited, many state-plan jurisdictions continued inspections and enforcement. Another significant factor: backlog and delay do not mean indefinite delay. When inspections resume in earnest, the accumulation of complaints and deferred cases may result in a surge of agency activity, meaning firms that assumed “no one is watching during the shutdown” could find themselves under scrutiny. In other words, the quiet period is essentially over. Employers should confirm that abatement deadlines, informal conference windows, and contest deadlines have not expired during the shutdown. If citations were issued, the 15-working‐day contest deadline is jurisdictional: missing it means losing the right to challenge the citation. Even if informal conferences were unavailable during the shutdown, the contest deadline continued to run. That means many firms may need to act even before the agency shows up. Documentation of abatement actions, corrective steps, and safety program updates will be vital. In terms of regulatory posture and leadership, the era ahead may bring changed enforcement priorities. With a new assistant secretary for OSHA and a newly confirmed solicitor of labor now in place, OSHA will likely clarify its strategic focus and resume formal rulemaking. Employers should anticipate possible shifts in emphasis — for instance in the areas of musculoskeletal disorders, infectious disease in healthcare, workplace violence protections, and emerging hazard exposures. The agency’s restart also triggers renewed activity at the Mine Safety and Health Administration (MSHA) and its review commission. For employers in mining and heavy industry, that means you should not assume continued dormancy. For practical steps, employers should immediately conduct a legal-compliance health check. Review outstanding citations, confirm whether any deadlines have run or are about to run, track complaints filed with OSHA during the shutdown, and review your injury/illness reporting and record-keeping for accuracy. Update or re-launch training and internal auditing efforts that may have been deferred. Check the status of rulemaking efforts that may affect your industry (for example, the heat stress standard) and monitor whether state-plan jurisdictions are adopting or adapting state-specific rules in response. If your firm operates in multiple states, especially with state-plan OSHA programs, coordinate your multi-state compliance posture now because state enforcement may not have had the same suspension. Finally, ensure your safety culture remains robust: a period of reduced government oversight is not grounds to reduce employer vigilance. In short, OSHA’s return means business as usual — and then some. Employers who treat the shutdown as a pause rather than a break may find themselves at a disadvantage. Now is the time to engage proactively, refresh your compliance strategy, reinforce your safety programs, document your actions, and stay alert.
November 20, 2025
Commercial Litigation
Enforcing Guaranties Quickly in New York Courts
New York law provides creditors with a powerful tool to pursue collection on a written guaranty on an expedited track. CPLR 3213 allows a creditor to serve a summons along with a motion for summary judgment — bypassing the requirement for a written complaint and asking the court to enter a judgment against the debtor. The creditor must be seeking to enforce an instrument that is “based upon an instrument for the payment of money only.” CPLR 3213. Courts have varied in interpreting that phrase in that a written guaranty may contain monetary and nonmonetary obligations. Still, if the instrument imposes nonmonetary obligations on the guarantor, a court may conclude that the instrument is not “for the payment of money only” and deny the motion on that basis. Therefore, it is important that creditors carefully craft their written guaranties. New York courts have held that a prototypical guaranty is “an unconditional promise to pay a sum certain, signed by the maker and due on demand or at a definite time.” Weissman v. Sinorm Deli, Inc., 88 N.Y.2d 437, 444 (1996). In 2021, the First Department Appellate Division held that a guaranty including “an unconditional obligation to pay all rent and additional rent owed under the sublease” qualified as “an instrument for the payment of money only” because “it required no additional performance” of an obligation other than the promise to pay. iPayment Inc. v. Silverman, 192 A.D.3d 586, 587 (1st Dept. 2021). In the creditor’s motion for summary judgment, it must show “the existence of the guaranty, the underlying debt, and the guarantor’s failure to perform under the guaranty.” Pearl River Campus, LLC v. Readyscrip, LLC, 240 A.D.3d 610, 611 (2d Dept. 2025). In that case, the Appellate Division held that the lower court properly denied the creditor’s motion for summary judgment because there was insufficient proof. Specifically, because the Supreme Court “would have been required to examine material outside the lease agreement and make calculations that were not shown by the [creditor]” in its supporting documents, the proof was insufficient to grant summary judgment. Id. In situations like that, when the creditor’s motion is denied, CPLR 3213 states that the papers filed in support of the motion and opposing the motion become the complaint and answer for the case. However, a court could order otherwise — such as requiring the parties to file a separate complaint and answer. Regardless, when the court denies the motion for summary judgment in lieu of a complaint, the creditor then can only proceed with the case and seek its judgment against the guarantor at a later stage of litigation. Creditors seeking to maximize collection in New York courts stand to benefit from reviewing and revising their guaranties to conform with the standard that CPLR 3213 imposes and to pursue motions for summary judgment in lieu of complaints when filing collection actions.
November 19, 2025
Labor and Employment
Increasing Minimum Wages: Emerging Trends Across the U.S.
The conversation around minimum wage in the United States has gained renewed momentum in recent years. While the federal minimum wage has remained unchanged since 2009, states and municipalities have taken the lead in implementing wage increases to reflect the rising cost of living and economic shifts. State-Level Action in the Absence of Federal Change With the federal minimum wage stuck at $7.25 per hour for over a decade, many states have enacted their own legislation to raise wage floors. These efforts include: State-level minimum wage increases Automatic adjustments tied to inflation Municipalities setting wages above state levels This decentralized approach has led to a patchwork of wage standards across the country, with significant variation depending on location. Widespread Increases Since 2014 The movement to raise minimum wages has gained substantial traction: 28 states and the District of Columbia have increased their minimum wage since 2014 30 states and the District of Columbia now have minimum wages above the federal rate 63 municipalities or counties have set minimum wages higher than their respective state minimums Wage rates exceeding $15.00 per hour are increasingly common These changes reflect a broader recognition of the need for wages that better support working individuals and families. Leading the Nation: Highest Minimum Wage Rates As of mid-2025, several states and cities stand out for their high minimum wage rates: District of Columbia: $18.00/hour (effective July 1, 2025) California: $16.50 Connecticut: $16.35 New Jersey: $15.49 New York (NYC, Long Island, Westchester): $16.50 Washington: $16.66 Municipalities in Washington State boast the highest local rates: Burien, WA: $21.10 Tukwila, WA: $21.10 (for large employers) Seattle, WA: $20.76 These figures highlight the growing trend of local governments stepping in to ensure livable wages. Who Still Earns the Federal Minimum? Despite the federal rate remaining at $7.25, only a small fraction of workers earn this amount: Less than 2% of American workers are paid the federal minimum wage The Bureau of Labor Statistics projects wage growth of 3% to 5% across most states in 2025 By October 2025, over half of all states will have minimum wages above $14.00/hour This data suggests that market forces and state legislation are driving wage increases independently of federal action. Federal Legislation on the Horizon? The Raise the Wage Act of 2025, introduced in both chambers of Congress on April 8, 2025, proposes sweeping changes: Gradual increase of the federal minimum wage to $17.00/hour by 2030 Elimination of the subminimum wage for tipped workers and workers with disabilities Tipped employee minimum wage to rise to $15.00/hour by 2030 Strong backing: 175 Congressional sponsors and support from 85 labor organizations If passed, this legislation would mark a significant shift in federal wage policy and could set a new national standard.
November 19, 2025
Real Estate
The Role of Delaware Legal Opinions in Today’s Corporate Transactions
In commercial transactions, legal opinions often serve as both a risk-allocation device and a due diligence tool. Among the states, Delaware occupies a special place in opinion practice because of its role as the preferred jurisdiction for entity formation, corporate governance, and sophisticated financing structures, as outlined in the previous article, Five Reasons Delaware Reigns Supreme for Business Formation. A “Delaware legal opinion” is typically rendered by counsel admitted to practice law in Delaware on issues governed by Delaware law—most frequently concerning the formation, existence, power, and authorization of a Delaware entity. Legal opinions are not guarantees of outcome; they are professional judgments based on law and fact as of the opinion date. In a Delaware context, legal opinions are most often requested in three categories of transactions: Financing transactions – Lenders frequently require Delaware legal opinions when the borrower or guarantor is a Delaware corporation, limited liability company, limited liability partnership, or limited partnership. Mergers and acquisitions – Opinion letters provide assurances that the Delaware entities involved are duly organized, validly existing, and in good standing. Securities offerings – Opinions regarding valid issuance of shares and due authorization are common in both private placements and public offerings. For counterparties, a Delaware legal opinion provides assurance that the entities they are contracting with are legally valid and authorized to enter the transaction. For clients, an opinion may be a necessary condition to close the deal. Although every opinion letter is transaction-specific, certain opinion points recur with regularity in Delaware practice. These include: Due Organization and Good Standing – Opinion giver confirms that the entity has been duly formed under the Delaware General Corporation Law (DGCL), the Delaware Limited Liability Company Act, or other applicable Delaware law and remains in existence and is in good standing. Power and Authority – The entity possesses the power under its governing statute and charter documents to enter into the transaction. Due Authorization – Proper approvals (board, members, or managers) have been obtained. Execution and Delivery – The documents have been validly executed and delivered by the Delaware entity. Enforceability –The obligations under the agreement(s) are enforceable against the entity, subject to customary exceptions (such as bankruptcy or equitable principles). Opinion givers frequently rely on certificates from the Delaware Secretary of State (e.g., good standing certificates) and officer or manager certificates to establish factual predicates. No Delaware legal opinion is absolute. Instead, it is qualified by assumptions, limitations, and exceptions designed to keep the opinion within the bounds of what is professionally supportable. Some common qualifications include: Bankruptcy Exception – Enforceability opinions are subject to limitations arising under bankruptcy, insolvency, and similar laws. Equitable Principles Limitation – Enforcement may be subject to general principles of equity. Choice of Law Limitation – Opinions are limited to Delaware law; no view is expressed on the law of other jurisdictions. Assumptions – Opinion giver may assume genuineness of signatures, legal capacity of natural persons, and authenticity of documents. Delaware lawyers rendering opinions occupy a careful balance between advocacy and objectivity. Although engaged by a client, opinion counsel owes professional duties to the counterparty receiving the opinion. Courts and bar associations recognize that the opinion recipient is entitled to rely on the lawyer’s professional judgment, but that the lawyer is not an insurer of the transaction. Consequently, opinion practice demands diligent factual inquiry (review of charter documents, resolutions, certificates); accurate legal research grounded in Delaware statutory and case law; clear communication of scope, assumptions, and limitations. Failure to adhere to customary standards can expose opinion counsel to professional liability, even though such claims remain rare. Delaware’s prominence in U.S. business law ensures that Delaware legal opinions will remain a cornerstone of corporate, financing, and M&A transactions. While often treated as routine closing deliverables, these opinions embody careful professional judgment, rigorous analysis, and adherence to customary standards. For opinion givers, the discipline is one of precision, ensuring that each word reflects exactly what can be supported under Delaware law, and nothing more. For opinion recipients, reliance on a Delaware opinion provides comfort that the legal foundation of their deal is sound. In this way, Delaware legal opinions both reflect and reinforce Delaware’s reputation as the nation’s preeminent forum for business law.
November 19, 2025
Intellectual Property
Common Copyright Mistakes That Can Cost Your Business Big
You learned everything you need to know about avoiding copyright infringement in elementary school: don’t copy. And if you do copy, you will be called a copycat. Childish, I know, but it seemed to work. Except copying continues outside of elementary school, and businesses spend time and money resolving claims of unauthorized copying, diverting their attention and resources from their core business. The Problem Although we may learn in elementary school not to copy, the lesson does not always take hold. What harm is there in copying? Who is going to catch us? If it’s online, it’s available for me to use, and I don’t need anyone’s permission. That thinking is one root of the problem. The notion that obtaining permission is too much of a legal slog (too expensive, too time consuming, etc.) is another reason the ‘don’t copy’ rule is ignored (generally seen in tech projects, such as the current use of others’ works to train large language models for AI). More often than not, copiers get caught. This is especially true in the case of parties copying photographs. Photographers are well aware that their photographs are used without permission, and actively police their rights. There have been lawsuits regarding the use of photos of foods used on menus without permission. Creators have received cease and desist letters because they have used, without permission, a photograph as the background for a work they created. Photographers have sued when their images were re-posted on Instagram without permission. Interior design and fashion companies (among others) like to post on their websites and their social media when their items or their work are featured in prominent publications. Such postings are almost always without permission. For example, a wallcovering company could post on its website photos from magazines showing its wallcoverings in houses. The owners of the homes may have consented to the company’s use of the photos, and the magazines may have consented, but that is usually not enough. The photographer must give permission because they generally own the copyright to the photo. Posting photos to social media can also result in claims of copyright infringement if the posts are made without permission. Yes, social media is made for sharing photos. That does not mean that photos can be shared without consent. LeBron James, Gigi Hadid, Versace, Fenty, and Moschino have all been sued for copyright infringement after posting photographs on social media without permission (Gigi Hadid was sued for posting photos of herself taken by paparazzi). News articles, too, present an issue. Reproducing news articles can give rise to copyright infringement claims. Imagine if a company had a news section on its website that reproduced news articles it thought would be of interest to its customers. That would also pose issues. Each article posted would be an infringement. If that posting was a long-running practice (say two or three years), then that company could be in for a significant payment to the owner(s) of the posted articles. If You Copy, Then You Copied Unauthorized reproduction of artistic works is generally known as copyright infringement. The primary defense to copyright infringement is that the original work and the infringing work are not substantially similar, or that one did not have access to the original work. But in the cases we have been discussing, that argument is generally not available, as the copies are usually identical to the original work. Giving credit to the creator of the original work does not avoid a claim of copyright infringement. A photographer or a news organization might decide not to take action if credit is given, but the fact that you gave credit is not a legal defense. In copyright infringement cases, it doesn’t matter that you didn’t intend to infringe. You either infringed or you didn’t. Intent enters the picture, in some situations, when damages are being assessed. Fair use is frequently cited as a defense. While fair use is a defense to a copyright infringement claim, determining whether something constitutes a fair use usually requires determination by a court. Such a determination can take considerable time (a year or more), and it is difficult to predict how a court will decide a fair use question. The fact that the entire work is reproduced will weigh against a finding of fair use, as will the fact that the work has not been transformed into something new — the work has merely been reproduced. If the photograph or news organization has a program for licensing their works, that will also weigh against a finding of fair use. The limited number of defenses works in favor of copyright owners. Copyright Law Favors Copyright Owners If there has been copyright infringement, copyright owners are entitled to recover their actual damages plus the infringers’ profits attributable to the infringement. If the copyright owner timely registered their copyright, they can seek, as an alternative to actual damages, statutory damages, which are generally set by the court and can be up to $30,000 per infringement and up to $150,000 per willful infringement. With timely registration, copyright owners can also seek to recover their reasonable attorney’s fees. That alone is favorable to copyright owners, but recent Supreme Court decisions have decidedly tipped the scales. In one case, the Supreme Court ruled that the Copyright Act’s three-year statute of limitations only applied to when a claim had to be brought, not how far back the copyright owner could reach for damages. In another case the Supreme Court declined to rule on whether the three-year period is calculated from when the copyright owner discovers the infringement or from when the infringement occurs. Most courts calculate it from when the copyright owner discovers the infringement. So take the wallcovering company we discussed above. They have been posting magazine covers and the pages from the magazines featuring their wallcoverings on their website for ten years. One of the photographers used by the magazines to photograph houses learns what the wallcovering company has been doing today. The photographer has three years from the date of discovery to act, and when they do, they can recover damages for every post by the company that infringed the photographer’s rights, even if the post was made ten years ago. That can add up very quickly, and result in payments to copyright owners in the thousands or millions of dollars. What To Do? The penalties for copyright infringement can be steep, making it essential to learn how to avoid copyright infringement exceedingly important. Training employees to ask questions about what they are doing before they do it is a good way to start. Provide users links to images of interest, and do not duplicate them unless you have permission. Linking is not copyright infringement. Ensuring that employees understand the company’s policy against copying and discouraging it is another step. Train employees on what is permissible and what is not. Do not assume that they know — there are many myths and urban legends about what is permissible, and the time to learn what the law actually permits and what it does not permit is before a claim is brought, not after. Hiring your own creators to create photos, images, articles, and the like for your company’s use, is another way to avoid this issue. Yes, there is a cost associated with this. That cost, however, is likely less than the cost of paying to resolve a claim brought by a copyright owner, both in time and in money (and your own attorney’s fees).
November 18, 2025
Healthcare
Corporate Practice of Medicine Compliance Checklist
A corporate practice of medicine compliance checklist is an essential tool for healthcare organizations to ensure they follow all applicable CPOM laws and regulations. This checklist helps medical practices, professional corporations, and healthcare organizations maintain compliance with state law, protect patients, and safeguard the practice’s reputation. The most important aspects of CPOM compliance include preventing non-physician staff or corporate entities from influencing clinical decisions, ensuring licensed physicians make all medical decisions, and adhering to key OSHA standards, such as the bloodborne pathogen standard and the ionizing radiation standard. This post provides healthcare organizations, medical practices, and compliance officers with a detailed guide to corporate practice of medicine (CPOM) compliance. You’ll learn about state-specific CPOM laws, common compliance issues, and best practices for maintaining adherence to regulatory requirements. What is the Corporate Practice of Medicine? The corporate practice of medicine (CPOM) refers to state laws that prohibit non-physicians or corporate entities from owning or controlling medical practices in a way that influences clinical decisions. These laws exist to ensure that licensed physicians maintain full authority over patient care, treatment plans, and medical decisions, preventing outside business interests from compromising the quality of healthcare services. CPOM is the legal doctrine that restricts corporate influence over healthcare practice management, requiring that medical services and clinical decisions remain under the control of licensed physicians. This doctrine applies to a wide range of healthcare organizations, from single-physician offices to large medical groups. CPOM laws originated in the early 20th century to protect patients from financial or commercial pressures in medical care. The main goal is to make sure that healthcare organizations and business owners don’t put making money ahead of patient care, and that medical decisions are based only on clinical judgment. States with strict CPOM enforcement include California, Texas, New York, and Illinois, among others. These states closely monitor corporate ownership of medical practices, emphasizing the importance of compliance programs to prevent violations. Violations of CPOM laws can occur when non-physician staff or corporate executives influence treatment plans, refer patients in ways that favor financial gain, or dictate clinical decisions. Penalties can include fines, revocation of medical licenses, and legal action that could jeopardize a practice’s reputation and patient care standards. Who Needs a CPOM Compliance Checklist? Using a CPOM compliance checklist helps these organizations implement effective compliance programs, maintain thorough documentation, provide necessary employee training, and mitigate potential regulatory and legal risks. A corporate practice of medicine compliance checklist is essential for healthcare organizations that face CPOM risks, including: Medical practices owned by non-physicians: Ensures business owners don’t improperly influence clinical decisions. Private equity or corporate-owned healthcare groups: Helps large organizations navigate complex CPOM regulations and maintain legal compliance. Multi-specialty practices: Provides guidance on managing diverse medical specialties while protecting patient care and adhering to state law. Telehealth companies expanding across state lines: Ensures compliance with varying CPOM requirements and protects licensed physicians from regulatory risks. Corporate Practice of Medicine Compliance Checklist A corporate practice of medicine compliance checklist is an essential guide for healthcare organizations, medical practices, and compliance officers to navigate CPOM laws and maintain ethical, legal, and safe medical operations. This checklist ensures that physician authority is preserved in clinical decision-making, non-physician staff do not improperly influence patient care, and regulatory and OSHA requirements are met. Healthcare organizations can prevent compliance issues, reduce regulatory risks, and safeguard both patient care and the practice’s reputation by using a CPOM compliance checklist. 1. Understand State-Specific CPOM Requirements For instance, California and Texas enforce CPOM doctrines strictly, while other states may allow more flexibility. A thorough review of these requirements, along with any recent updates or legal changes, ensures your practice avoids violations that could lead to fines, loss of licensure, or other penalties. Keeping current with state-specific CPOM laws also helps healthcare organizations align their corporate and clinical operations with regulatory expectations. 2. Clarify Roles of Key Team Members Clear role definition is critical for CPOM compliance. All physician owners, administrators, managers, and support staff should understand their responsibilities, particularly in separating clinical decisions from business operations. Physicians must retain ultimate authority over treatment plans and patient care, while administrative staff manage operations, finances, and regulatory documentation. Including outside consultants or advisors in this structure requires caution to ensure they do not influence medical decisions. Properly defining roles protects the practice from CPOM violations and reinforces the integrity of clinical decision-making. 3. Confirm Physician Ownership Needs Compliance with CPOM laws often requires that physicians hold majority ownership of the medical practice. Practices structured as professional corporations (PCs), limited liability companies (LLCs), or hospital affiliations must review ownership arrangements to confirm they meet state CPOM requirements. Non-compliant ownership structures, where non-physician investors control the practice or influence clinical decisions, can result in significant legal and financial consequences. Ensuring proper physician ownership safeguards the practice against regulatory risks and protects patient care from undue corporate influence. 4. Set Up or Audit Professional Corporation Structures Healthcare organizations should either establish or periodically audit their professional corporation structures to ensure compliance with CPOM laws. This includes verifying that entity registration is accurate, bylaws reflect physician authority over medical care, and corporate governance aligns with state-specific CPOM rules. Auditing these structures ensures that physicians retain full control over clinical decision-making while the business side operates within legal boundaries. Properly structured professional corporations also support compliance documentation, which is essential during legal reviews, audits, or inspections. 5. Maintain Separation Between Clinical and Business Operations Maintaining a clear separation between administrative oversight and clinical decisions is one of the most important aspects of CPOM compliance. Administrative staff should focus on operational, financial, and regulatory responsibilities, while physicians make all medical decisions. Documenting workflows, training employees on their scope of authority, and implementing written policies and procedures help prevent inadvertent interference. Compliance programs, hazard communication standards, exposure control plans, and adherence to OSHA regulations like the bloodborne pathogens standard further reinforce a compliant and safe healthcare environment. 6. Create Management Services Agreements with Legal Input Healthcare organizations should develop management services agreements (MSAs) that define the responsibilities and limits of administrative managers. These agreements must ensure that non-physician managers handle only operational, financial, and administrative functions, without influencing medical decisions or patient care. It is critical to have legal counsel review all agreements to confirm compliance with state CPOM laws, federal regulations such as the Stark Law and Anti-Kickback Statute, and other applicable standards. Properly drafted MSAs help safeguard the practice from regulatory risks while establishing accountability and clear boundaries between clinical and business operations. 7. Periodically Review Agreements for Compliance CPOM compliance is an ongoing responsibility, and healthcare organizations should regularly review all contracts and agreements to ensure they do not grant corporate control over clinical decisions. Financial arrangements, management terms, and operational roles should be updated as needed to reflect changes in state law, clinical structure, or business strategy. Documenting each review and maintaining records of amendments enhances accountability and demonstrates a commitment to regulatory compliance, supporting the practice’s reputation and protecting patient care. 8. Define Physician Responsibilities Clearly Every CPOM compliance program should include a clear outline of physician responsibilities. This includes authority over clinical decisions, oversight of treatment plans, and monitoring compliance with medical and safety regulations. Physicians should also be assigned duties for reviewing clinical protocols, ensuring adherence to OSHA standards like bloodborne pathogens and ionizing radiation, and overseeing proper documentation of medical records. Clearly defining these responsibilities prevents ambiguity, reduces regulatory risk, and ensures that patient care decisions remain under licensed physician control. 9. Clarify Non-Physician Staff Duties Non-physician employees, including administrative staff, office managers, and business consultants, should have well-defined duties that focus on operational and administrative functions. Boundaries must be established to prevent interference with medical decisions, treatment plans, or patient care protocols. Staff should also understand compliance-related responsibilities, including following safety procedures, using personal protective equipment (PPE), and adhering to written hazard communication and exposure control programs. Proper role delineation reinforces CPOM compliance and maintains the integrity of the healthcare practice. 10. Align Clinical Protocols with Regulations Clinical protocols and patient care guidelines must comply with both state CPOM laws and federal regulations. Practices should document standard treatment plans, quality measures, and clinical workflows while ensuring they meet legal and regulatory requirements. Regularly reviewing these protocols ensures that updates to medical standards, safety regulations, or OSHA requirements are incorporated into everyday operations. Documented review processes help protect patients, reinforce compliance practices, and support thorough recordkeeping for audits or legal reviews. 11. Implement Internal Compliance Controls Healthcare organizations should implement internal controls to monitor adherence to CPOM requirements continuously. This may include compliance dashboards, tracking logs, or automated reporting systems that identify potential violations. Corrective actions should be taken proactively whenever non-compliance issues are detected, such as deviations from clinical authority, improper administrative influence, or safety hazards. A robust internal compliance program protects the practice from legal exposure and reinforces a culture of regulatory adherence and patient safety. 12. Schedule Regular Compliance Audits Regular audits are essential for both clinical and administrative operations to ensure ongoing CPOM compliance. These audits should document findings, identify gaps, and outline corrective actions with assigned accountability. Periodic reviews provide an objective evaluation of the practice’s adherence to state law, OSHA standards, and corporate policies, helping to prevent compliance issues before they escalate. Documented audits also demonstrate a commitment to patient care, safety, and regulatory excellence, which strengthens the practice’s reputation. 13. Educate Staff on Compliance Standards Continuous staff education is critical to maintaining CPOM compliance. Onboarding sessions and regular refresher training should cover clinical authority, administrative boundaries, OSHA requirements, exposure control plans, hazard communication standards, and reporting obligations. Providing real-life examples and scenarios enhances understanding, reinforces proper procedures, and encourages staff to escalate issues when necessary. Well-trained employees are a cornerstone of compliance, helping to protect patient care, maintain regulatory adherence, and uphold the organization’s reputation. 14. Work with Experienced Legal Counsel Engaging attorneys with expertise in corporate practice of medicine (CPOM) laws is essential for any healthcare organization. Legal counsel can provide guidance during practice expansions, acquisitions, or updates to management services and employment contracts, ensuring all actions remain compliant with state-specific CPOM regulations. Documenting legal advice and confirming follow-through on recommendations helps protect the practice from regulatory violations, enforces proper corporate governance, and reinforces physician authority over clinical decisions. 15. Partner with Credentialing, Billing, and Accounting Experts Healthcare organizations should work closely with external partners such as credentialing, billing, and accounting specialists to maintain CPOM compliance. These partners must adhere to guidelines that prevent corporate or financial influence over clinical decision-making. Maintaining proper documentation of their activities ensures accountability and supports thorough records for audits, legal reviews, and regulatory inspections, protecting both patient care and the practice’s reputation. 16. Monitor Changes in Laws Continuously CPOM compliance requires ongoing awareness of legal and regulatory changes. Healthcare organizations should subscribe to updates from state medical boards, federal regulators, and industry associations to track relevant CPOM and healthcare law developments. Internal policies and procedures should be revised promptly in response to new regulations or guidance, ensuring that the practice remains compliant and that compliance officers and staff are informed of any adjustments to clinical or administrative responsibilities. 17. Update Internal Procedures Regularly Internal policies and procedures should be reviewed at least annually or more frequently as needed to reflect changes in CPOM requirements, OSHA standards, or operational practices. Integrating new legal, regulatory, or operational updates ensures that the medical office maintains compliance with state law and federal regulations. Staff must be informed of revisions through training or written communication to reinforce adherence and prevent compliance issues in both clinical and administrative operations. 18. Adjust Agreements and Contracts Over Time Periodically reassess management services agreements, employment contracts, and vendor agreements to ensure alignment with evolving CPOM regulations. Updates may be required to address changes in ownership, staffing, corporate structure, or state-specific laws. Clear documentation of all revisions demonstrates diligence in maintaining compliance, supports regulatory reviews, and reduces the risk of legal exposure or penalties. 19. Keep Detailed Records of Compliance Efforts Thorough documentation is a cornerstone of CPOM compliance. Practices should maintain records of audits, training sessions, policy updates, approvals, and corrective actions. Keeping detailed compliance records ensures that regulatory authorities can review the practice’s adherence to CPOM laws, OSHA standards, hazard communication programs, and internal procedures. These records also support accountability within the organization and provide evidence of proactive risk management. 20. Establish Communication Channels for Compliance Issues Healthcare organizations must create clear communication channels for reporting potential CPOM or regulatory violations. Staff should know the proper procedures for escalating issues, while designated personnel must be assigned to investigate and resolve reported concerns. Establishing defined steps for corrective action and resolution prevents non-compliance from escalating and fosters a culture of accountability, safety, and adherence to compliance practices. 21. Ensure Telemedicine Practices Follow Regulations With the expansion of telehealth services, healthcare organizations must verify that telemedicine operations comply with both state and federal regulations. This includes confirming physician licensing for cross-state practice, protecting patient data and privacy under HIPAA, and maintaining full physician oversight of remote medical care. Adhering to CPOM laws in telemedicine ensures that clinical decisions remain under the control of licensed physicians and prevents non-physician entities from influencing treatment plans or patient outcomes. 22. Maintain Up-to-Date Credentials for All Staff All licensed physicians, physician assistants, and relevant medical personnel must maintain current credentials, certifications, and licenses. Practices should track renewals, organize records for audits, and implement reminder systems for upcoming expirations. Ensuring that all medical staff maintain proper credentials supports CPOM compliance, reinforces patient safety, and protects the practice during regulatory inspections. 23. Protect Against Non-Physician Interference in Clinical Decisions Preventing non-physician influence on patient care is a core element of CPOM compliance. Implementing whistleblower policies, separating financial incentives from medical judgment, and monitoring administrative interactions with physicians help safeguard clinical autonomy. These measures protect patients from inappropriate business-driven influences, reinforce regulatory adherence, and maintain the integrity of treatment plans and medical decisions. 24. Monitor Financial Arrangements for Legal Compliance Healthcare organizations must ensure that all financial arrangements comply with CPOM laws and federal statutes such as the Stark Law and Anti-Kickback Statute. Improper fee-splitting, profit-sharing, or non-compliant physician compensation can expose a practice to severe penalties. Regular audits of contracts, compensation structures, and financial agreements help prevent violations, maintain regulatory compliance, and protect the practice’s reputation. 25. Create a Staff Compliance Reporting System An effective reporting system allows staff to report potential CPOM or compliance concerns safely and efficiently. Anonymous reporting options, prompt follow-up, and thorough documentation of all reports and resolutions ensure that issues are addressed proactively. These systems strengthen accountability, cultivate a compliance culture, and assist in preventing minor issues from turning into significant regulatory or legal breaches. 26. Manage Compliance During Mergers and Expansions During mergers, acquisitions, or expansion into new markets, healthcare organizations must conduct thorough CPOM due diligence. Ensuring that physician control is maintained over clinical decisions is critical, even when incorporating new entities. Internal policies and compliance procedures should be updated post-merger to reflect any operational or structural changes, maintaining regulatory adherence and protecting patient care standards. 27. Prepare Documentation for Audits and Inspections Thorough documentation is essential for CPOM compliance, particularly during audits or regulatory inspections. Practices should keep organized records of contracts, compliance logs, training sessions, and management activities. Quick access to comprehensive documentation demonstrates a commitment to regulatory compliance, provides evidence of proactive risk management, and helps maintain the practice’s reputation and credibility with regulators. 28. Ensure Marketing and Advertising Compliance All marketing and advertising efforts must comply with CPOM laws and avoid implying corporate control over clinical decisions. Physician endorsements should be accurate and verifiable, and promotional materials must be reviewed to confirm legal compliance. Ensuring that marketing aligns with CPOM regulations protects the practice from misrepresentation, regulatory fines, and potential legal action, while maintaining trust with patients and the public. Want to Secure Your Practice Against CPOM Risks? Compliance with the corporate practice of medicine (CPOM) doctrine is critical to protecting your healthcare organization, medical staff, and patients. Adhering to CPOM laws ensures that physicians maintain authority over clinical decisions, prevents non-physician interference in patient care, and safeguards your practice from regulatory and legal risks. Healthcare organizations should regularly review and update their corporate practice of medicine compliance checklist, audit internal procedures, and stay informed of state-specific laws to maintain ongoing compliance. FAQs The following FAQs address common questions about the corporate practice of medicine doctrine, helping practices navigate regulatory requirements and maintain compliance. What Happens if a Medical Practice Violates CPOM Laws? Violating CPOM laws can result in fines, legal penalties, and even revocation of medical licenses. It can also damage the practice’s reputation and compromise patient care by allowing improper influence over clinical decisions. Can a Non-Physician Own a Medical Practice Legally? In most states with strict CPOM laws, non-physicians cannot own or control a medical practice in a way that influences clinical decisions. Exceptions may exist in states without the corporate practice of medicine doctrine, but ownership structures must still comply with federal laws and regulatory standards. How Often Should a CPOM Compliance Checklist Be Updated? A CPOM compliance checklist should be reviewed and updated at least annually or whenever there are significant changes in state laws, practice structure, or federal regulations. Regular updates ensure the practice remains compliant and protects both patients and licensed physicians. What Are The Compliance Issues in Practice Management? Compliance issues can include improper corporate influence over clinical decisions, failure to maintain proper documentation, non-adherence to OSHA standards, and violations of Stark Law or the Anti-Kickback Statute. Addressing these issues proactively helps protect patient care, regulatory compliance, and the practice’s reputation. Which States Allow Corporate Practice of Medicine? States that follow the corporate practice of medicine doctrine strictly prohibit non-physicians from owning or controlling medical practices in ways that influence clinical decisions. Key examples include California, Texas, New York, Illinois, and Florida, among others, where healthcare organizations must structure ownership and operations to ensure licensed physicians retain authority over all medical decisions.
November 18, 2025
Healthcare
Understanding the 5 Elements of Fraud in Healthcare
Understanding the 5 elements of fraud is essential for any healthcare provider seeking to avoid fraudulent behavior patterns, protect their legal rights, and reduce the risk of fraud charges or litigation. In healthcare law, a fraud claim typically requires a false statement, knowledge of its falsity, intent to induce reliance, reasonable reliance by the alleged victim, and resulting harm. These elements help courts decide if a claimed misrepresentation is serious enough to be considered fraud and if the person making the claim needs to show that they reasonably depended on the misleading information. This post explains how regulators and courts analyze intent, material fact disputes, and the circumstances constituting fraud. It will help providers understand what actions may expose them to liability. What Is Considered Fraud in Healthcare? Fraud in healthcare occurs when a person makes a false statement or material misrepresentation with the intent to deceive another party. Typically, this entails actions intended to obtain payment, benefits, or advantages beyond their legal entitlements. Courts treat these actions seriously because fraudulent behavior patterns can harm patients, insurers, and government programs. A fraud claim also exposes the party charged to civil penalties, criminal liability, and extensive litigation. Healthcare fraud involves conduct that satisfies several key elements under common law fraud. The plaintiff must show a false representation of a material fact and prove fraud through clear and convincing evidence. Regulators frequently depend on circumstantial evidence when direct proof is scarce, particularly when the defendant acted with reckless disregard or knew the information was false. These cases require proof that the injured party or alleged victim justifiably relied on the statements and suffered measurable harm. Fraud is different from waste and abuse, even though all three can trigger regulatory action. Waste involves unnecessary services that increase costs without clear intention to deceive. Abuse includes practices that are inconsistent with accepted standards but do not always involve intent. Fraud, however, requires intent, reliance, and a deliberate act that misleads another party. This distinction matters because fraud charges carry far more serious consequences and often result in court action, summary judgment battles, or detailed inquiries into the defendant’s intent. Healthcare fraud can appear in many forms, such as billing fraud, false claims, misrepresentation of services, and deceptive advertising. Kickbacks and improper inducements also qualify as fraud because they distort medical judgment and violate federal law. These actions expose the defendant to liability because the plaintiff’s reliance and loss causation can usually be demonstrated with convincing evidence. Every fraud case depends on specific facts, including the actions based on the defendant’s statements, the knowledge of the person making the claim, and the resulting injury. Courts evaluate how a reasonable person would interpret the statements and whether the plaintiff must show diligent inquiry or due diligence. When allegations arise, both the complaint and the opposing party’s response determine how the court analyzes the five elements of fraud and whether the case proceeds. What Are the Five Elements of Fraud in Healthcare? Fraud in healthcare is evaluated under principles drawn from common law fraud, and courts require specific elements to establish liability. Regulators and judges look closely at the statements, conduct, and circumstances surrounding an alleged misrepresentation. Each element must be supported by clear and convincing evidence, which is a higher standard than most civil claims. These elements help determine whether the defendant knew the statements were false, whether the plaintiff justifiably relied on those statements, and whether the alleged victim suffered real harm. They include: Material Misrepresentation A misrepresentation of a material fact occurs when someone makes a false statement, omission, or deceptive act that influences another party. In healthcare, such allegations can include false claims, inaccurate documentation, misleading medical records, or deceptive advertising. Providers can commit fraud when they present information that appears credible but does not reflect actual services or clinical decisions. Courts examine whether the material representation affected the other party’s actions under the circumstances. Even small inaccuracies in documentation can create legal risk because insurers and regulators rely on precise statements. A single false representation may support allegations that the person making the statement intended to deceive the other party. Healthcare organizations must understand that material misrepresentation does not require dramatic misconduct. A pattern of minor errors can form circumstantial evidence that supports allegations of fraudulent behavior patterns and places the defendant in a difficult position. Knowledge of Falsity The second element requires proof that the defendant knew the statement was false or acted with reckless disregard. Courts do not require direct proof of knowledge, so circumstantial evidence is often used to show that the defendant knew or should have known the truth. This type of case is common in fraud cases involving inaccurate claims, altered records, or reckless billing practices. Regulators also examine whether deliberate ignorance contributed to the false statement. Healthcare compliance requires accurate records and honest communication because reckless disregard can satisfy the knowledge requirement. The party charged with fraud may argue they lacked intent, but patterns of inconsistent statements or missing documentation can undermine their defense. Courts evaluate whether a reasonable person in the defendant’s position would have known the statement was false. When the defendant’s knowledge is established, the plaintiff must only show that the false statement influenced their decision. Intent to Induce Reliance Intent is a key element in proving fraud because the defendant must have acted with the purpose of influencing another party. Regulators evaluate intent by reviewing documentation, communications, billing records, and marketing statements. A false representation made in a claim submission or advertisement often shows intent because the act encourages an insurer, patient, or regulator to rely on the information. Courts consider whether the defendant’s conduct suggests a deliberate plan to mislead the opposing party. In healthcare, intent often appears in billing fraud or deceptive advertising where providers present information that encourages financial payment or trust. The plaintiff must show the defendant’s statements were designed to affect their actions. When a provider submits documentation knowing it will be reviewed by insurers or government agencies, the court presumes they intended those parties to rely on the information. This element is critical because fraud cannot exist without purposeful conduct directed toward another party. Justifiable Reliance Justifiable reliance means the alleged victim relied on the statement in a manner that a reasonable person would under the circumstances. Insurers, patients, regulators, and healthcare payers rely heavily on documentation and representations. Courts evaluate whether the plaintiff justifiably relied on the statements and whether a reasonable person in their position would have interpreted the information as accurate. The plaintiff’s reliance must also be connected to an action based on the misrepresentation. Documentation plays a major role because clear records can support or defeat allegations of reliance. When the plaintiff’s reliance is justified, they may show that the misrepresentation influenced their decisions. Healthcare providers must understand how their statements affect other parties because reasonable reliance often forms the strongest part of a fraud claim. Courts consider whether the plaintiff must have conducted due diligence, but they do not require perfect investigation when trusting a professional. Damages The final element of fraud requires proof of harm. The plaintiff must show that the reliance on the false statement caused injury, such as financial loss, improper reimbursement, or patient harm. In healthcare, harm can also include regulatory penalties, audits, recoupments, or damage to professional reputation. Courts require evidence of loss causation, which links the misrepresentation to the injury. Without damages, the fraud claim cannot succeed, even if the other elements are strong. Fraud cases often involve complex calculations because damages may include restitution, penalties, or statutory fines. Healthcare providers may face license actions or government investigations if fraud is proven. Courts consider whether the plaintiff suffered measurable harm and whether the injury stemmed directly from the false statement. When damages are established, the defendant may be liable for significant consequences that affect their practice and future operations. What Are Common Examples of Fraud Allegations in Healthcare? Fraud allegations in healthcare often arise when regulators believe a provider made a false statement or misleading representation that influenced another party’s decisions. Many fraud cases begin when an insurer, regulator, or patient reports circumstances constituting suspicious billing patterns or deceptive conduct. These allegations can trigger audits, investigations, or litigation where the plaintiff must prove fraud through clear and convincing evidence. One common example involves billing for services not provided, which creates immediate suspicion of fraudulent intent. Regulators review records to determine whether the material representation matches actual treatment. A false representation in billing can support allegations that the defendant knew the statements were inaccurate. Courts often use circumstantial evidence to evaluate whether the statements influenced the other party. Another major category involves upcoding, unbundling, or improper modifiers, which can inflate reimbursement. Even minor inaccuracies can become evidence that the person making the claim acted with reckless disregard. These actions may appear intentional when repeated across many claims, and they can suggest a plan to commit fraud. Insurers may argue that they justifiably relied on the codes and suffered financial harm as a result. Healthcare providers also face allegations for false marketing claims, including guarantees, cure claims, or deceptive advertising. Misrepresentation in marketing can create liability even when the provider does not intend to mislead. Courts evaluate whether a reasonable person would rely on the statements based on the circumstances. When a plaintiff’s reliance is shown, the case may proceed despite citations omitted from marketing materials. Another common allegation involves misrepresenting clinician credentials or scope of practice. This occurs when a provider performs services they are not authorized to perform or advertises qualifications they do not possess. Plaintiffs often argue they relied on these statements and suffered injury. Regulators treat these cases seriously because credibility and trust are essential in healthcare. Kickbacks and improper referrals also trigger fraud charges because they distort medical judgment. These cases often rely on circumstantial evidence showing that the other party received improper inducements. The plaintiff must demonstrate that the conduct influenced decisions in a way that caused harm. Courts evaluate whether a reasonable person would interpret the referral pattern as intentionally deceptive. Finally, telehealth compliance issues have become a significant source of fraud allegations. Misrepresentation of patient interactions, inaccurate documentation, or unauthorized prescribing can lead to claims of fraudulent conduct. Regulators review whether the defendant acted with knowledge or reckless disregard when submitting telehealth claims. These cases often examine intent, reliance, and the impact on insurers or government programs. How Do Regulators Investigate and Prove Fraud? Regulators investigate fraud by examining whether a provider made a false statement or engaged in conduct that suggests a material misrepresentation. Their goal is to determine whether the defendant knew the information was false or acted with reckless disregard for the truth. These regulation agencies look at circumstances constituting suspicious activity, including billing patterns, documentation inconsistencies, or statements that appear misleading. Regulators gather detailed records to analyze intent, reliance, and harm, as they must prove fraud cases with clear and convincing evidence. These efforts help determine whether the injured party justifiably relied on the misrepresentation and suffered measurable damages. Agencies such as CMS, OIG, Medicare contractors, state boards, and insurance regulators begin investigations by reviewing billing data and comparing it to expected norms. Unusual trends may indicate fraudulent behavior patterns or practices that could mislead another party. Regulators also examine whether the defendant’s actions show deliberate ignorance or reckless disregard. If patterns start to show up, regulators may look into the case more closely and see if the plaintiff needs to prove the elements of common law fraud. This initial review often sets the stage for deeper investigation and potential fraud charges. Audits play a central role because they reveal whether claims match the underlying documentation. Regulators request records, communications, and clinical notes to confirm that services were actually provided. When records appear inconsistent, investigators may issue subpoenas to obtain additional information. These documentation requests help agencies determine whether the person making the statement intended the other party to rely on it. If discrepancies persist, regulators may suspect that the defendant tried to commit fraud through misrepresentation or omission. Regulators also use undercover investigations when they suspect deceptive conduct, which paperwork alone cannot prove. Investigators may pose as patients to gather statements directly from the provider. These interactions can reveal false representations, improper inducements, or claims outside the provider’s scope of practice. Courts often view these statements as strong circumstantial evidence, especially when the defendant benefits financially. This evidence becomes important when the opposing party challenges the allegations during litigation. Patterns of conduct help regulators assess intent, because fraud rarely relies on one isolated act. When the same inaccuracies appear repeatedly, regulators infer that the defendant knew or should have known the statements were false. Providers may argue they made mistakes, but patterns suggest deliberate conduct rather than error. Courts evaluate whether a reasonable person in the defendant’s position would recognize the misrepresentation. These evaluations help determine whether the plaintiff’s reliance was justified and whether loss causation can be established. Documentation is often the most important factor because it supports or undermines the entire fraud claim. Regulators review whether records were altered, omitted, or created after the fact. Missing or incomplete documentation may indicate an effort to hide fraudulent statements. When the plaintiff shows that they relied on the documentation and suffered harm, the case becomes stronger. This connection between the misrepresentation and injury is essential because fraud cannot exist without damages. How to Identify and Prevent Fraud in Business Fraud in business settings often begins with patterns of behavior that seem minor but create significant legal risk over time. Healthcare providers need to know how a false statement or misleading action can affect someone else and lead to claims of fraud. Detecting fraud early helps prevent circumstances constituting regulatory violations, civil liability, or litigation. Businesses should train staff to recognize suspicious activity, review internal controls, and ensure that documentation supports all representations to insurers, regulators, and patients. When these safeguards are in place, the risk of a fraud claim decreases, and the organization strengthens its defense if allegations arise. One effective technique for detecting fraud involves reviewing financial and operational data for unusual trends. Sudden spikes in revenue, inconsistent coding patterns, or repeated documentation errors can indicate potential misrepresentation of a material fact. Businesses should also monitor employee behavior for signs of pressure, opportunity, or rationalization, which often appear before fraudulent acts occur. Regular internal audits help businesses find false claims before they turn into formal fraud cases. These audits also help the company demonstrate due diligence if regulators question their practices. Another important step is evaluating communication within the organization. Misleading statements, vague explanations, or pressure to ignore established procedures may indicate fraudulent behavior patterns. In healthcare settings, inaccurate clinical documentation, improper inducements, or claims outside the provider’s scope of practice can signal deeper problems. Companies need to make it easy for workers to report problems without worrying about getting in trouble. Whistleblower programs often provide early warnings that help prevent injury to the alleged victim and reduce exposure to legal action based on alleged misrepresentation. The business must also examine high-risk areas where fraud most commonly occurs. Common schemes include billing for services not provided, creating false invoices, misusing company funds, or altering financial records. In healthcare, additional risks involve upcoding, unbundling, deceptive advertising, and improper referrals. These actions can influence insurers, regulators, or patients and create the appearance of intent to commit fraud. When the company identifies these patterns, it can intervene quickly to correct errors and prevent further harm. How Can Healthcare Providers Avoid Fraud Liability? Healthcare providers face significant risk when their actions appear to involve a false statement, misleading documentation, or a material misrepresentation. Regulators and courts examine every detail to determine whether the defendant knew the information was false or acted with reckless disregard. Providers must therefore adopt systems that prevent conduct resembling fraudulent behavior patterns and reduce the chance of a fraud claim. Strong safeguards also help demonstrate that the provider acted in good faith and did not intend to deceive another party. When compliance systems are consistent, providers are better positioned to defend against allegations involving circumstantial evidence, plaintiff’s reliance, or loss causation. These strong safeguards include: Strong Compliance Programs: A strong compliance program helps prevent conduct that may appear as intentional misrepresentation. These programs establish clear expectations for billing, documentation, and communication within the organization. Regulators often view a structured program as evidence that the provider lacked intent to commit fraud. A good compliance system also reveals inaccurate statements before they lead to litigation or fraud charges. Providers who maintain consistent oversight reduce their exposure to allegations involving reckless disregard. Documentation Best Practices: Accurate documentation is essential because investigators often examine records first when reviewing suspected fraud cases. Courts look for inconsistencies that may suggest a false representation or omission. When documentation is complete and reliable, it becomes difficult for a plaintiff to prove that they justifiably relied on any misleading information. Strong documentation also helps demonstrate that the provider exercised due diligence in every interaction. These practices reduce the risk of injury to the alleged victim and limit claims involving material misrepresentation. Proper Billing and Coding Protocols: Billing and coding errors are major triggers for regulatory audits and fraud investigations. Practices like upcoding, unbundling, and improper modifiers can appear as attempts to commit fraud, even when unintentional. Training and internal audits help ensure that staff follow established protocols and avoid inaccurate claims that may influence another party. These audits also identify patterns that could be misinterpreted as circumstantial evidence of intent. Proper billing systems demonstrate that the provider did not knowingly submit false information. Transparent Advertising and Patient Communication: Transparent communication reduces the risk that a patient or insurer relies on inaccurate or misleading statements. Providers must ensure that advertisements do not guarantee results, promise cures, or exaggerate outcomes. Honest communication helps prevent situations where a reasonable person could claim reliance on a false statement. It also strengthens the provider’s credibility and reduces the risk of complaints based on alleged misrepresentation. Clear messaging supports ethical practice and protects the organization from fraud allegations. Legal Review of Marketing, Scope of Practice, and Telehealth Operations: A legal review of marketing materials and patient communication helps ensure compliance with state and federal law. Attorneys can identify statements that may suggest intent to deceive or mislead another party. They also confirm whether services align with the provider’s scope of practice, which prevents conduct that regulators may interpret as fraudulent. Telehealth systems require additional oversight because documentation and jurisdictional rules can create risk. Legal review ensures accuracy and prevents claims that the provider knowingly submitted false or misleading information. When Providers Should Contact a Healthcare Attorney Healthcare providers should seek legal support whenever circumstances raise concerns about a possible false statement, material misrepresentation, or alleged misrepresentation in their operations. Early guidance helps keep actions from being seen as dishonest or careless disregard for the truth. Regulators and insurers rely heavily on documentation, so even small inconsistencies may influence another party and trigger a fraud claim. When providers see early warning signs, they can seek legal help before the claims turn into audits, investigations, or lawsuits. Early intervention also helps demonstrate due diligence, which can protect the provider if the plaintiff must later prove fraud with clear and convincing evidence. Providers should contact an attorney immediately when they receive red flags such as audits, payer inquiries, or unusual documentation requests. These events often indicate that a regulator suspects circumstances constituting a false representation or improper billing activity. A payer may request records because they believe the provider submitted claims that do not match documented services. Patient complaints and demand letters also require urgent attention because they may reflect reliance by an alleged victim who believes they suffered injury. These complaints can grow into formal fraud cases if not addressed quickly and strategically. Early legal intervention is essential because it helps prevent minor issues from becoming full investigations. Attorneys can review statements, billing practices, and documentation to identify errors that could appear intentional. By correcting issues early, providers reduce the chance that investigators will interpret patterns as circumstantial evidence of intent to commit fraud. Legal counsel also helps shape responses to auditors and insurers, ensuring that statements are clear, accurate, and consistent with the facts. This proactive approach can prevent the matter from progressing to summary judgment or litigation involving allegations of common law fraud. Need a Healthcare Attorney To Navigate Claims? It is essential for every healthcare provider to understand the 5 elements of fraud because even small inaccuracies can appear as a false statement or material misrepresentation. Regulators examine documentation, billing patterns, and communication closely, and they often rely on circumstantial evidence when evaluating intent. Providers who understand how courts analyze intent, reliance, and injury are better equipped to avoid conduct that may resemble fraudulent behavior patterns. This knowledge also helps reduce the risk that an alleged victim will claim they relied on misleading information and suffered harm. FAQs Fraud claims in healthcare and business settings often involve complex legal standards, so providers must understand how courts analyze intent, reliance, and harm. These questions address the core issues regulators examine when determining whether a false statement or material misrepresentation occurred. What Are The 5 Elements of Fraud? The five elements are misrepresentation of a material fact, knowledge of falsity, intent to induce reliance, justifiable reliance, and damages. Courts require clear and convincing evidence to prove fraud under common law standards. How Can I Identify The 5 Elements of Fraud in a Business Setting? Look for false statements, reckless disregard, misleading documentation, or conduct that influences another party’s decisions. Patterns of inconsistent records or unexplained financial activity often serve as circumstantial evidence of fraudulent intent. What is Loss Causation in Fraud Claims? Loss causation refers to the connection between the misrepresentation and the injury suffered by the alleged victim. The plaintiff must show the false representation directly caused financial, regulatory, or reputational harm. What are Common Reasons For The Dismissal of Fraud Claims? Fraud claims are often dismissed when the plaintiff fails to plead facts showing intent, reasonable reliance, or a material misrepresentation. Claims may also fail when evidence does not meet the clear and convincing standard required to prove fraud.
November 17, 2025
Business
Before You Exit: Navigating Succession Planning and Growth in Privately Held Companies
The Third Annual Private Business Owner Survey by Brown Brothers Harriman (BBH) is out, and it provides a revealing and timely look into the mindset, priorities, and risks facing today’s private business owners. We're all aware of it by now - the largest cohort of founders and business owners are reaching retirement age. The survey from BBH and findings in the report shed light on the intersection of personal planning and corporate continuity. For business owners, investors, advisors, and those preparing to take the reins, this report offers not just data, but direction. Succession and sustainable growth are clearly interconnected based on the information collected. The BBH report also underscores the importance of understanding the broader exit landscape. In addition to estate planning, it should be considered how search funds, independent sponsors, and family office buyers fit in. As deal volume rises and ownership transitions accelerate, sellers must weigh the nature of their successors just as carefully as the valuation terms. Succession: More Talked About, Still Under-Planned Although 62% of business owners express a desire to pass their business to the next generation, only 23% have taken concrete steps to implement a formal succession plan with key executives. An alarming 30% have no succession plan at all, despite the majority having been in business for decades. The balance (~46%) have some form of succession plan in progress. Key barriers to succession planning were reported to include: Emotional reluctance to step away (28%) Uncertainty over the right successor (41%) Complex family dynamics (46%) The business owner's perception of the successor's preparedness is also likely an issue, where the overwhelming majority reported that the successor is not yet fully prepared. Business owners hope that informal conversations will serve as a roadmap, but the reality is far less forgiving. Without clear documentation and defined leadership roles, businesses face confusion, instability, and risk of value erosion during a transition. Succession isn’t a one-time event - it’s a process requiring candid conversations, objective planning, and consistent follow-through. This is where search funds and independent sponsors can play a unique role. These buyers, often backed by seasoned investors or family offices, are well-positioned to acquire and operate businesses where no natural successor exists. Their appeal lies in their hands-on involvement, long-term view, and ability to step into the role of owner-operator while respecting the legacy of the founder. This also ties into the critical question of estate planning. The BBH report found that of the 70% of business owners with an estate plan, 76% will be using a trust. Growing and Sustaining: A Top Priority with Diverging Paths A strong growth mindset persists among private business owners. 78% of respondents prefer reinvestment and long-term growth over extracting profits or maintaining full ownership. However, this growth focus can lead to diverging opinions within ownership groups, especially when generational views or risk tolerances differ. The survey revealed that while 59% of owners believe their leadership teams are very well aligned on business strategy, 32% admitted to only moderate alignment. That misalignment can be costly—it often leads to stalled initiatives, delayed decision-making, and increased friction over strategic direction. To support growth, owners are considering various funding strategies: 69% plan to use traditional bank financing 30% are open to family office partnerships 20% are exploring private equity as a source of growth capital Still, the most commonly cited barrier to external capital is loss of control. Many owners fear that selling equity or bringing in new stakeholders may compromise their values, culture, or influence. However, those who thoughtfully structure outside capital arrangements may find they unlock opportunities that far exceed the costs. It’s worth noting that the search fund (ETA) and independent sponsor space is seeing a sharp uptick in activity, with many of these buyers receiving funding from family offices and specialty investors. Many of these groups offer capital and continuity without the pressures of a traditional private equity exit cycle. Some family offices are combining direct investment strategies with multi-generational wealth management, leading them to become increasingly active in small and mid-market acquisitions. The Legacy Lens: Transcending the Exit Succession is not simply about exiting the business or passing on shares. It’s about defining and preserving a legacy that goes beyond spreadsheets and valuations. Owners in the BBH survey expressed deep commitments to continuity. They desire to see family harmony, company culture, employee loyalty, and community impact. These “soft” values often matter just as much as legal or tax considerations. To preserve legacy and sustain the business beyond the current generation, owners must: Foster regular dialogue with heirs and management teams Evaluate successor readiness across leadership roles Introduce outside advisors who offer perspective and neutrality Reassess governance frameworks to support long-term strategy Document as much as possible Moreover, it’s vital to build structures that allow next-generation leaders to grow into their roles while being mentored by the outgoing generation. Done well, this approach creates both continuity and momentum. Preparing the Business, Not Just the Owner: Legal Review Succession planning is as much about preparing the business as it is about preparing the people. Even the most well-intentioned plan will falter if the company’s infrastructure, processes, or governance can’t support new leadership. Important readiness steps include: Reviewing key contracts for assignability or change-of-control clauses Establishing clear reporting systems and operational playbooks Addressing concentration risks (customer, supplier, key employee) Implementing equity compensation or retention plans for critical staff Transition planning should include a full enterprise audit of both legal and operational functions of the business to ensure the next owner or leader inherits a stable foundation. This level of diligence is especially critical in independent sponsor or search fund transactions. Buyers in these transactions often inherit businesses with informal structures or legacy systems that require immediate modernization. Business owners planning an exit should prepare for this scrutiny and invest in proactive documentation and governance to avoid valuation discounts or deal delays. This will also help the business command a higher valuation. Final Thoughts Whether your long-term vision includes a family transition, a management buyout, or a strategic sale to a search funder or family office, the path forward must be deliberate. Integrating succession with growth planning is key to protecting enterprise value and maintaining continuity. Planning early provides more flexibility, more stakeholder buy-in, and ultimately, a smoother transfer of both ownership and leadership. The BBH survey reveals a growing awareness of these issues, but this awareness must also be followed by action. Fortunately, a wide range of advisors, tools, and capital partners are now supporting business owners through these pivotal moments. Read the full BBH report here: BBH Thid Annual Business Owner Survey
November 14, 2025
Landlord Representation
VAWA Compliance: New 2025 HUD Forms & What You Need to Know
The Violence Against Women Act (VAWA) has long provided essential housing protections for victims of domestic violence, dating violence, sexual assault, and stalking. For housing providers operating federally subsidized housing programs (e.g., Section 8, public housing, and LIHTC), compliance is mandatory. In March 2025, the U.S. Department of Housing and Urban Development (HUD) released updated versions of several key VAWA forms, which now carry an expiration date of January 31, 2028. These new forms are required to be used by covered housing providers to ensure compliance with VAWA’s housing provisions. Additionally, it is worth noting that VAWA protections apply regardless of gender and are designed to promote safety, mitigate risk, and prevent displacement. Moreover, your state or local jurisdiction might have enhanced VAWA protections in addition to the federal requirements. Which Forms Changed in 2025? Form HUD-5380 – Notice of Occupancy Rights Under VAWA This document informs tenants and applicants of their rights under VAWA. The new form included several changes, such as clarifying the process and documents needed, expanding the definitions of “affiliated individual,” enhancing confidentiality provisions for housing providers to comply with, clarifying the instructions for residents, and adjustments to overall formatting for readability. Covered housing providers are required to provide Form HUD-5380 to residents or applicants at: (a) move-in; (b) with any notice of eviction or lease termination; and (c) when denying an application to a HUD-subsidized unit or program. To safeguard ongoing compliance, covered housing providers must use this updated form and ensure staff are trained on proper use and distribution. If you’re unsure whether your forms are current or need help implementing them, reach out for legal guidance. Form HUD-5381 – Model Emergency Transfer Plan (Optional but recommended) This form is optional, but it provides housing providers with a template for implementing emergency transfer procedures for survivors. Form HUD-5382 – Certification of Domestic Violence, Dating Violence, Sexual Assault, or Stalking This form allows survivors to self-certify their experience and request protections under VAWA. Covered housing providers are required to provide this form upon a request from a resident and/or when a survivor seeks an emergency transfer or protection from eviction. Form HUD-5383 – Emergency Transfer Request Regardless of whether a resident is complying with their lease agreement, this form allows residents who qualify as victims under VAWA to request an emergency transfer to another unit for safety reasons. Residents can request such a transfer if they reasonably believe staying in the current unit poses an imminent threat to their safety and/or if a sexual assault occurred at the property within the past 90 days. Covered housing providers are required to keep this information confidential and separate from other documentation in the tenant’s resident file. Form HUD-5384 – Emergency Transfer Data Collection Form This new form introduces a data tracking component for housing providers, which expects property managers to maintain accurate records for compliance audits. In essence, this form seeks information on emergency transfer requests and outcomes to help HUD monitor response times and identify barriers to safety. Why These Updates Matter & Key Takeaways: Using outdated forms can jeopardize compliance and expose housing providers to risk. The updated forms reflect legislative changes from the VAWA Reauthorization Act of 2022 and are designed to streamline provider responsibilities. Immediately replace outdated HUD VAWA forms with the 2025 versions Ensure staff are trained on when and how to distribute these forms (even to applicants) Maintain the utmost confidentiality when handling VAWA-related requests from residents Update your leasing policies to align with VAWA protections Use translated versions of the HUD VAWA forms for applications and residents who use a primary language other than English
November 13, 2025
Family Law
Preparing for the Tough Questions: Cross-Examination in Divorce Litigation
Divorce proceedings can be emotionally charged, and one of the most stressful moments for anyone involved in divorce proceedings is cross-examination. Whether you are negotiating child custody, spousal support, or asset division, your testimony can significantly impact the outcome. Proper preparation will help you remain calm, focused, and effective under scrutiny. Cross-examination is a tool your spouse’s attorney will use to test your credibility, challenge your statements, and highlight inconsistencies. It is not a conversation; it’s structured legal questioning aimed at uncovering facts that support their case. As you prepare to be crossed-examined, clients are often advised to review the following list: : Review all prior statements, including financial disclosures, deposition transcripts, affidavits, and interrogatories. Ensure you are familiar with the facts, dates, and numbers — don’t rely soley on memory. Be honest. Inconsistencies or exaggerations can be used against you. Listen carefully to each question before answering. Pause to think before answering. Maintain a neutral tone and avoid defensive or argumentative responses. Avoid volunteering extra information. If a question is unclear, ask for clarification. Stick to “yes,” “no,” or brief factual responses, when possible. Your lawyer can simulate cross-examination and help you practice and anticipate tricky questions. Role-playing allows you to practice staying composed under pressure. Focus on maintaining consistency and avoiding emotional reactions. Don’t guess or speculate. If you don’t know the answer, it’s acceptable to say, “I don’t know” or “I don’t remember.” Avoid getting trapped by hypothetical questions that could misrepresent your situation. Dress appropriately and maintain good posture. Avoid fidgeting, eye-rolling, or sighing, which can be interpreted negatively. Show respect to the court, opposing counsel, and yourself. Preparation is the most powerful tool in cross-examination. By reviewing your statements, practicing with your attorney, and staying calm under pressure, you can confidently navigate the process and protect your rights in a divorce case.
November 12, 2025
Family Law
Dividing Private Equity the Smart Way: Protecting Both Sides in Divorce
Private equity assets add a layer of complexity to divorce that goes beyond the standard division of bank accounts and retirement plans. These interests often involve tiered payout structures, vesting schedules, capital commitments, and unpredictable future value. When a spouse holds interests in private equity funds or serves as a General Partner (GP), Limited Partner (LP), or carried-interest recipient, courts and lawyers have to navigate issues that blend valuation, tax, compensation, and property law. The first step is understanding exactly what the spouse owns. This can include limited partnership interests, general partner interests, profits interests, co-investment rights, or carried interest. Each behaves differently and may be treated as either compensation, an ownership stake, or a hybrid. Courts look at when the interest was granted and what it compensates. If the interest was earned for work performed during the marriage, some or all of it may be considered marital property. Interests granted before the marriage, or tied to nonmarital contributions, may be partially or entirely separate. Many cases involve a mixed classification that requires a detailed analysis of vesting, performance hurdles, and labor contributed during the marriage. Unlike publicly traded securities, private equity interests rarely have a clear fair market value. Many are illiquid, subject to complex waterfall structures, or highly dependent on future fund performance. Divorce lawyers typically bring in valuation experts familiar with fund economics. These experts may use discounted cash flow models, scenario analysis, or simulations to estimate a present value. Because private equity interests are hard to value and even harder to divide directly, courts and attorneys often use one of two approaches. Offset Method The spouse who holds the private equity interest keeps it, and the other spouse receives an equivalent share of different assets. This is common when the interest can be valued with reasonable confidence. If/When Distribution Method If the value is too uncertain, the parties agree that future distributions will be shared if and when they occur. This keeps the non-titled spouse from receiving a payout on an asset that may never materialize. Both methods should address tax consequences, capital calls, and potential clawback obligations. Most private equity agreements restrict transfers and do not permit a spouse to become a partner or member. Divorce decrees typically circumvent these restrictions by requiring the titled spouse to remain the legal owner while sharing future distributions pursuant to court order or settlement. If future distributions are to be shared, the agreement must include reporting requirements. These often include providing K-1s, capital account statements, distribution notices, and annual fund updates so both sides can monitor the interest over time. Private equity interests demand careful handling in divorce because they blend compensation, investment value, and long-term risk. When properly analyzed and structured, they can be divided in a way that protects both parties while avoiding unintended tax or financial consequences. The key is early identification, experienced valuation support, and a settlement structure that reflects the realities of private equity economics.
November 11, 2025
Construction
USDOT’s Interim Final Rule: A New Era for DBE and ACDBE Certifications
Update (December 2025) New developments have occurred regarding USDOT’s Interim Final Rule. On December 2, the Pennsylvania Unified Certification Program (PA UCP) issued notice to DBE firms advising that recertification submissions are required under the new USDOT Interim Final Rule. To be considered for recertification, firms must submit updated Personal Net Worth statements, 2024 tax information, and a Personal Narrative demonstrating individualized social and economic disadvantage. All required materials must be submitted by February 5. Firms that do not timely submit complete documentation risk decertification. In 1983, Congress enacted the U.S. Department of Transportation (USDOT) Disadvantaged Business Enterprise (DBE) Program to ensure equitable access to federal contracts involving highway, transit and aviation projects for small businesses owned and operated by socially and economically disadvantaged individuals, including women and members of specific racial and ethnic minority groups. Last month, USDOT issued an Interim Final Rule (IFR) on October 3, 2025 that fundamentally changes how firms qualify as DBE and Airport Concession Disadvantaged Business Enterprises (ACDBE). The rule, which came into effect on the date of its publication, eliminates race- and sex-based presumptions of disadvantage — requiring every applicant and currently certified firms to prove social and economic disadvantage on an individual basis. These changes affect all firms certified or seeking certification under the DBE and ACDBE programs, including thousands of women- and minority-owned small businesses that have historically relied on the presumption of disadvantage. Why the Rule Was Issued The IFR, effective October 3, 2025, follows a series of court rulings and executive orders directing agencies to remove race- and sex-based classifications from federally funded programs. In Mid-America Milling Co. v. U.S. Department of Transportation, the U.S. District Court for the Eastern District of Kentucky held that USDOT’s use of such presumptions likely violate the equal-protection component of the Fifth Amendment. USDOT and the Department of Justice agreed with the court’s conclusion and determined that the DBE and ACDBE programs must now operate in a race- and sex-neutral manner to be consistent with constitutional requirements. Key Changes Under the Interim Final Rule The IFR amends 49 CFR Parts 24 and 26 to remove race- and sex-based presumptions from the definitions of “socially and economically disadvantaged individual.” Instead, each owner applying for or maintaining a firm’s DBE or ACDBE certification must now: Demonstrate disadvantage on a case-by-case, individual basis — based on personal experiences and circumstances within American society, without regard to race or sex Submit a personal narrative establishing disadvantage by a preponderance of the evidence — describing specific experiences of economic hardship, systemic barriers, or denied opportunities in education, employment, or business Explain the resulting economic harm, including type and magnitude — illustrating disadvantage relative to similarly situated, non-disadvantaged persons Attach a personal net worth statement—and any other relevant financial information Immediate Program Wide Impacts USDOT has estimated that roughly 41,000 firms nationwide will need to be reviewed, and each state must assess and revise its DBE goal methodology for approval. Many state DOTs have already paused goal setting and tracking while UCPs develop a process for reevaluation. Until each UCP completes its reevaluation process, recipients of federal transportation funding may not set DBE contract goals, and participation by existing DBEs cannot be counted toward overall goals. Following the reevaluation of all DBEs in the state, recipients must assess, update, and obtain approval of their DBE goal methodology. Importantly, contracts that have already been awarded are not impacted, and the DBE goals stated within those contracts remain applicable. Additionally, the termination provisions outlined in 49 CFR § 26.53 continue to apply, prohibiting contractors from terminating a DBE firm without good cause. However, all contracts that have not yet been awarded must be amended to zero out the DBE goal. Why This Matters The DBE and ACDBE programs have long been essential to ensuring fair access to public transportation project contracts. But the shift from group-based presumptions to individualized proof introduces significant uncertainty and administrative burden for small businesses. Firms that do not respond promptly, or that submit insufficient documentation, risk losing certification and access to set-aside opportunities until they can requalify under the new standards. What DBE and ACDBE Businesses Should Know While the rule applies to all DBE and ACDBE firms, female- and minority-owned businesses will feel the most immediate impact. Under prior regulations, women and certain minorities were presumed to be socially and economically disadvantaged. That presumption no longer exists. As such, to maintain certification, owners must now prepare a detailed personal narrative and financial disclosure demonstrating disadvantages based on lived experience not related to race or gender. For many owners, this will mean documenting: Specific professional or economic barriers encountered Instances of unequal access to capital or contracting opportunities Measurable economic impact of barrier encountered Mid-Atlantic State Responses The IFR requires that each state’s UCP to reevaluate all certified firms “as quickly as practicable.” All DBE firms must complete the reevaluation process in the jurisdiction of their original certification (i.e. the firm’s home state). Below is a brief update from key Mid-Atlantic states. Delaware DelDOT has provided notice stating that all currently certified DBE firms have lost their certification and must undergo reevaluation to remain in the program. In its communication, DelDOT clarified that the IFR does not affect existing contracts, and agencies are not required to recompete or reopen current awards. Maryland With over 10,000 certified firms — nearly 25% of the national total — MDOT, serving as the state’s UCP, has expressed its desire to move swiftly in recertifying and reassessing its DBE program. In fact, MDOT has already initiated the process of securing expedited procurement to hire external reviewers to support the reevaluation process. New Jersey The state’s UCP has issued a notice outlining requirements and prohibitions under the IFR; however, no specific deadlines or guidance regarding the reevaluation process is provided. Moreover, all interstate firms will be delisted from the NJUCP directory and must complete the reevaluation process in the jurisdiction of the firm’s original certification. New York While there is no conspicuous notice of the IFR on the state’s UCP websites, MTA — one of New York’s Certifying Partners — has revised the DBE Participation Provisions within its General Provisions for Design-Build Contracts. These revisions indicate that firms will be recertified through an application process, followed by a reassessment and resetting of the overall DBE goal. Only after this process will the need for new contract-specific goals be determined. Pennsylvania A notice has been sent to DBE firms regarding the IFR requirements; however, no deadlines have been provided for the reevaluation process. The Pennsylvania UCP has also announced that it is not currently accepting any new applications. Southeastern State Responses Georgia The Georgia UCP (GUCP) has issued a notice to DBE firms regarding the IFR’s requirement to demonstrate individual social and economic disadvantage. In its communication, GUCP stated that it is seeking further clarification and will continue to update DBE firms regarding certification status and recertification procedures once additional guidance is received. North Carolina The state’s UCP has acknowledged the IFR through formal notice but has not provided further communication regarding its specific requirements or prohibitions. No deadlines or guidance related to the reevaluation process have been issued at this time. South Carolina SCDOT has announced that all currently certified DBE firms have temporarily lost their certification and must undergo reevaluation to remain in the program, noting that the previous decertification procedures found in 49 C.F.R. § 26.87 do not apply. SCDOT also indicated that it is working expeditiously to complete the reevaluation process and will issue further guidance, including the required documentation, to DBE program participants. How DBE and ACDBE Businesses Can Prepare Affected businesses should begin preparing now to ensure they remain eligible and avoid decertification during the reevaluation process: Collection Documentation – Gather records reflecting challenges obtaining financing, discrimination in lending or contracting, or other business obstacles. Draft a Comprehensive Personal Narrative – Explain, in detail, how personal and economic barriers have impacted business growth. Review Financial Information – Confirm your Personal Net Worth statement is current and accurate. Consult Counsel – Experienced legal counsel can help interpret new requirements, structure the narrative, and ensure compliance with 49 CFR § 26.67 and related provisions. How DBE and ACDBE Businesses Can Be Proactive While the IFR impacts federally funded projects, small and minority business certifications remain active and relevant for state-funded projects. Unlike DBE certification, which is governed by federal regulations, small and minority business certifications are administered under state specific guidelines. Firms undergoing DBE reevaluation may already hold certification as a small or minority business within their certifying state. For instance, Maryland’s UCP evaluates all DBE applicants during the certification process to determine their eligibility for the small business program. Generally, a firm will qualify as a small business if it does not exceed the established size and revenue thresholds. In addition, some states are transitioning their DBE firms to the Small Business Administration’s 8(a) program which certifies socially and economically disadvantaged small business owners seeking to expand in the federal marketplace. Certification under the 8(a) program allows firms to compete for sole-source and competitive set-aside contracts. The program authorizes up to $7 million for acquisitions assigned NAICS codes and $4.5 million for all other acquisitions. Similar to the DBE program, to be eligible for the 8(a) program 51% of the firm’s ownership interest and control of the firm must be in a socially and economically disadvantaged individual whose personal net worth is no more than $850,000. As the landscape continues to shift, DBE and ACDBE firms are encouraged to review their certifications and evaluate alternative certification programs that offer greater stability and alignment with their long-term business goals.
November 10, 2025
Healthcare
Confidentiality Agreement for Medical Practice
A confidentiality agreement for medical practice is a legally binding document that ensures patient information, business data, and proprietary processes within a healthcare setting remain private and protected. In the medical field, confidentiality is a legal requirement under regulations like HIPAA. These agreements establish clear boundaries for how patient records and sensitive business information can be accessed, used, or shared by employees, contractors, and third parties. Without a proper confidentiality agreement, a medical practice risks data breaches, legal penalties, and loss of patient confidence. This post covers what a confidentiality agreement for medical practice is, why it’s essential for protecting patient information and healthcare compliance, and how an experienced healthcare attorney can help you draft one that meets legal standards. What Is a Confidentiality Agreement in a Medical Practice? A confidentiality agreement for medical practice, also known as a nondisclosure agreement (NDA), patient confidentiality agreement, or medical staff confidentiality contract, is a legal agreement designed to protect confidential information shared within a healthcare setting. The main goal is to protect private information, such as patient medical records, trade secrets, technical specifications, and business-sensitive information that belongs to the practice. This written agreement establishes a confidential relationship between the disclosing party (the medical practice) and the receiving party (such as employees, consultants, vendors, or third-party service providers), ensuring that such disclosure of confidential information is limited to permissible use only. It helps prevent unauthorized disclosure, public disclosure, or misuse of proprietary information and intellectual property that could harm the business or patients. In a healthcare context, all parties involved, such as employees, temporary staff, and former employees, must sign this legal contract to confirm their understanding of the obligations created by the agreement. It typically outlines the time period for which confidentiality must be maintained, what qualifies as confidential data, and circumstances that may allow permissible disclosure, such as a court order or prior written consent from the disclosing party. Why Confidentiality Agreements Are Essential in Healthcare In the healthcare environment, confidentiality agreements are vital for maintaining trust, legal compliance, and professional integrity. They help protect patient privacy in accordance with the Health Insurance Portability and Accountability Act (HIPAA) and similar privacy laws. A HIPAA confidentiality agreement ensures that those handling protected health information (PHI), such as medical histories, test results, or billing details, understand what qualifies as confidential data and agree not to disclose it without prior written consent or a court order. Any unauthorized disclosure can lead to identity theft, financial penalties, and loss of patient confidence. Beyond patient care, these agreements also safeguard the practice’s business information, including marketing strategies, pricing structures, medical software, technical specifications, and patient databases. In a competitive industry, such proprietary information and intellectual property represent valuable assets that must be protected from misuse by third parties or competitors. Whether during business negotiations, a joint venture, or when two companies exchange sensitive materials for the same purpose, a confidential disclosure agreement ensures both parties agree on how to handle, share, and protect data. By clearly outlining ownership rights, permissible disclosure conditions, and governing law, this legal contract helps healthcare organizations remain compliant and secure in their operations. What Is a HIPAA Confidentiality Agreement and Why It’s Important A HIPAA confidentiality agreement is a specific type of legal agreement required under federal law to protect protected health information (PHI). It sets out the responsibilities of all parties involved, including healthcare employees, contractors, and other individuals with access to patient records, to maintain strict confidentiality. The agreement defines what constitutes confidential information, such as diagnostic results, medical charts, or financial data, and restricts its use to authorized purposes only. It also explains the consequences of any breach, including disciplinary action or legal penalties. By implementing a comprehensive confidentiality agreement template that includes HIPAA protections, medical practices can ensure they meet legal standards while maintaining patient trust. Such agreements create a clear understanding between one party disclosing information and another party receiving it, emphasizing the obligations and interests of both sides in keeping data confidential. These contracts form the backbone of a secure, compliant, and trustworthy healthcare practice. What Every Healthcare Confidentiality Agreement Must Cover A well-drafted healthcare confidentiality agreement is essential for protecting both patient privacy and a medical practice’s sensitive business information. These legal contracts clearly define what constitutes confidential information, establish the responsibilities of those who access it, and outline the legal consequences of any breach. Whether it’s signed by an employee, contractor, vendor, or third-party service provider, the agreement ensures all parties involved understand their role in maintaining confidentiality and complying with healthcare privacy laws like HIPAA. Definition of Confidential Information Every confidentiality agreement should begin by defining what “confidential information” includes. In healthcare, this typically covers patient data, medical records, test results, billing information, and any other protected health information (PHI). It can also include business-related confidential data such as pricing structures, marketing strategies, medical software, or technical information that gives the practice a competitive edge. Clearly stating what qualifies as confidential information prevents ambiguity and ensures all parties know exactly what must be protected. Obligations of the Employee or Contractor The agreement must specify how the receiving party (an employee or contractor) is required to handle, store, and protect sensitive information. This includes keeping confidential data in secure systems, using authorized communication channels, and avoiding any disclosure of confidential information to unauthorized individuals. It should also prohibit discussing patient details in public or online settings and require the signer to report any suspected breaches immediately. Duration of Confidentiality A strong confidentiality agreement template should make clear that confidentiality obligations apply both during and after employment. For example, the duty to protect patient information usually lasts indefinitely, while business-related information might have a set time (e.g., two to five years). This ensures that even former employees remain bound by the legal obligations of the agreement. Exceptions to Confidentiality Certain exceptions should also be included to outline when disclosure is legally permissible. These may involve information already in the public domain, cases where the patient has given prior written consent, or situations where disclosure of confidential information is required by a court order or governmental body. Defining these permissible disclosure scenarios helps prevent confusion and ensures compliance with governing laws. Consequences of Breach Every nondisclosure agreement should detail what happens in the event of a breach. Depending on the severity, consequences may include disciplinary action, termination of employment, financial penalties, or even legal liability. Clear language about the obligations created by the agreement reinforces accountability and deters negligent handling of confidential materials. Acknowledgment and Signature Finally, both the disclosing party (the medical practice) and the receiving party (the employee, vendor, or consultant) must sign the written agreement. Signatures confirm that both parties agree with the terms and understand their responsibilities under the entire agreement. Keeping signed copies on file is crucial for compliance audits, legal protection, and proof of a valid confidential relationship. How to Implement Confidentiality Agreements in Your Practice Putting a confidentiality agreement into action is just as important as drafting it correctly. The first step is to work with an experienced healthcare lawyer who understand the complexities of HIPAA, patient confidentiality, and healthcare compliance. A qualified attorney can ensure that your legal agreement is properly written, enforceable under governing law, and tailored to your practice’s structure and needs. Every employee, contractor, or third-party service provider with access to confidential data should sign the written agreement before starting work. Introducing the confidentiality agreement during onboarding helps new staff understand their obligations regarding protected health information (PHI) and other proprietary information from day one. It’s also best practice to review the agreement alongside HIPAA training and internal privacy policies, reinforcing the importance of maintaining a confidential relationship with both patients and colleagues. Once the agreements are signed, keep them securely stored in each employee’s HR file as part of your compliance documentation. Practices should also review and update these agreements annually or whenever there are changes in law, internal systems, or staff roles to ensure continued compliance and protection against unauthorized disclosure. Ready to Protect Your Medical Practice’s Privacy? Protecting confidentiality is about safeguarding your patients, your staff, and the reputation of your medical practice. A well-drafted confidentiality agreement helps prevent data breaches, builds patient trust, and keeps your practice aligned with HIPAA and other healthcare privacy laws. Rather than waiting for a legal issue to arise, take a proactive approach to compliance and secure your sensitive information before problems occur. Frequently Asked Questions (FAQs) Below are answers to some common questions that will help you navigate confidentiality requirements in a medical setting: Who Should Sign a Confidentiality Agreement in a Medical Practice? Everyone who has access to confidential information should sign one. This includes employees, contractors, vendors, consultants, temporary staff, and third-party service providers. This ensures that all parties involved understand their responsibilities in protecting patient data, proprietary information, and other confidential materials belonging to the practice. Is a Non-Disclosure Agreement HIPAA the Same as a Confidentiality Agreement? A non-disclosure agreement (NDA) and a HIPAA confidentiality agreement share similar goals but serve slightly different purposes. While an NDA can apply to any type of confidential information, a HIPAA confidentiality agreement specifically addresses protected health information (PHI) and ensures compliance with federal privacy laws governing healthcare data. Many practices use a combined document that covers both. What Happens if an Employee Violates It? If an employee breaches a confidentiality agreement, the consequences can include disciplinary action, termination, financial penalties, or even legal liability. In cases involving HIPAA violations, the practice may also face federal fines or sanctions. A clear legal agreement helps outline these consequences and gives the practice grounds for enforcement. How Long Should Confidentiality Last? The duration of confidentiality depends on the type of information. Patient information is typically protected indefinitely, even after employment ends, while business or proprietary information may be subject to a set period (e.g., two to five years). The agreement should clearly state how long each type of data remains confidential. Can Patients Also Be Asked to Sign One? Yes, patients can be asked to sign one. In certain cases, such as when patients participate in research studies, media projects, or collaborative healthcare programs, they may be asked to sign a patient confidentiality agreement. This ensures that patients understand how their data will be used and shared, maintaining transparency and trust between the practice and the patient.
November 10, 2025
Construction
Pennsylvania Supreme Court Decision Supports Legislative Finality Created by Statute of Repose
In a welcome development for Pennsylvania’s construction industry, the Pennsylvania Supreme Court’s recent decision in Gidor v. Mangus reinforces the integrity of legislatively adopted Statutes of Repose. On October 23, 2025, the Supreme Court held that Section 7512 of the Pennsylvania Home Inspection Law constitutes a one-year statute of repose — eliminating the right to bring a lawsuit against a home inspector. The decision signals continued judicial support for the legislative adoption and intent behind statutes of repose. This decision arrives at a critical point, as two high-profile cases involving the Construction Statute of Repose — Aloia v. Diament and Clearfield County v. Transystems — are pending before the Pennsylvania Supreme Court. Each case threatens to erode the protections afforded by the 12-year Construction Statute of Repose, 42 Pa. C.S. §5536. In Aloia, plaintiffs argue that alleged violations of the building code toll the statute of repose. While the County in the Clearfield County appeal asserts that the ancient doctrine of nullum tempus exempts public entities from the Construction Statute of Repose. The Gidor court’s affirmation of the 1-year Statute of Repose is particularly relevant to the construction industry because the court’s decision heavily relies on its prior decisions interpreting the Construction Statute of Repose. The court emphasized that, because the statutory clock starts at a definite event independent of injury or discovery and is not subject to equitable tolling, the statute extinguishes any claim. Critically, the repose period upheld in Gidor was just one year from the date a home inspection report was delivered. The court’s reasoning underscores the judiciary’s willingness to enforce clearly defined legislative statutory repose periods. Moreover, the court’s acceptance and approval of a one-year statute of repose in Gidor lends judicial credibility to legislative efforts such as Senate Bill 399, which seeks to shorten the Construction Statute of Repose period to six years. By reaffirming the distinction between statutes of limitation and repose, Gidor strengthens the argument advanced in amicus briefs filed by Offit Kurman on behalf of leading A/E/C associations: the repose period must remain a firm and predictable legislative boundary eliminating all claims. If the Supreme Court follows its reasoning in Gidor, we anticipate that the Court will preserve the 12-year Construction Statute of Repose’s essential function of providing finality, reducing indefinite liability, and protecting the architects, engineers, and contractors from stale claims. Law Clerk Robyn St. Hilaire provided valuable insight and contributed to this article.
November 5, 2025
Mergers and Acquisitions
Bridging the Gap: The Art of Communicating with First Time Sellers
It is estimated that 75 million baby boomers could retire by 2030. Many of these boomers have built successful businesses over decades, and they are now ready to sell as they move into the next phase of their lives. This is leading to a rise in M&A activity involving first-time sellers who are financially sophisticated and emotionally invested in their business, but they have not experienced the pace, process, or complexity of an acquisition. When this kind of first-time seller is involved, there can be some tension if buyers bring in large law firms who utilize their standard “big deal” approach. This specific client needs more clarity, connection, and practical guidance as opposed to layers of process. The Process Can Overwhelm the Person When a large law firm comes in on the buyer’s side, they bring an undeniable level of horsepower to transactions. But the same approach taken for billion-dollar deals isn’t necessarily a fit for the sale of a closely held business, and it can lead first-time sellers to feel sidelined and overwhelmed by complex jargon, unexpected costs, or rigid workflows. It can also lead the seller’s counsel, who they have likely worked with for years, to feel out of step with the tempo and expectations of the larger firm. The result is often an erosion in goodwill between the buyer and seller before the deal closes. The Advantage of the Middle-Market and the Art of Adapting This significant disconnect has created an opportunity for middle-market firms that understand both sides of the table. Middle-market firms offer sophisticated, deal-tested counsel who still prioritize communication and trust. They are better able to breakdown the jargon of big firms into advice business owners can understand and act on, helping these first-time sellers to feel informed and empowered, rather than frustrated and intimidated. But bridging this kind of a gap isn’t just about legal skill. It also requires a level of emotional intelligence and the ability to recognize when a seller needs context or reassurance. It also requires an understanding that every negotiation does not necessitate a 100-page response. There is an art to adapting the process to the client’s needs and experience level without compromising the quality of the transaction. The Importance of Nuance There is no one size fits all approach to transactions. They are all different, and they all require a nuanced approach. If a first-generation business owner is selling their life’s work to a PE firm, there is a very different set of concerns involved than if a serial entrepreneur is on their fifth exit. It is critical that counsel knows how to balance structure with flexibility and sophistication with accessibility, meeting clients where they are as opposed to forcing the client into a transactional template. Applying this kind of nuance to transactions can lead to a smoother process and a collaborative closing. There is significant value in the firms that can operate in the middle. They bring the kind of insight and technical strength expected from big firms, but they also have the responsiveness and reliability expected from small firms. As the market becomes further shaped by generational transitions and first-time sellers parting with their closely held businesses, the balance that middle-market firms bring to the table is more than just a competitive advantage. It is what gets this kind of deal done.
November 4, 2025
Labor and Employment
Independent Contractor Misclassification: Labels Don’t Shield Liability, Says Eleventh Circuit
In a decision that underscores the importance of substance over form in employment relationships, the Eleventh Circuit recently reaffirmed that contractual labels alone do not determine whether a worker is an employee or an independent contractor under the Fair Labor Standards Act (FLSA). The case, Galarza v. One Call Claims, LLC, involved three insurance adjusters who sued for unpaid overtime, alleging they were misclassified as independent contractors. The plaintiffs had signed independent contractor agreements with One Call Claims, LLC (OCC), which staffed adjusters for Texas Windstorm Insurance Association (TWIA). Despite the agreements, the adjusters worked full-time for TWIA for nearly two years, were restricted from working for other carriers, and had no control over their pay or hours. TWIA dictated how they performed their work—even after transitioning them to remote roles. The Eleventh Circuit applied the six-factor economic reality test from Scantland v. Jeffrey Knight, Inc., emphasizing that no single factor is dispositive. Instead, the focus is on the worker’s economic dependence on the company. The court found that five of the six factors weighed in favor of employee status, reversing the trial court’s summary judgment and sending the case to a jury. Key takeaways from the decision include: Control Matters: The companies’ significant control over the adjusters’ work and schedules undermined their classification as independent contractors. Economic Dependence Is Central: The court stressed that the ability to deduct expenses or maintain licenses does not negate economic dependence. Indefinite Engagements Raise Red Flags: The long-term, exclusive nature of the relationship suggested an employment arrangement. Essential Services Tip the Scale: The adjusters’ work was integral to the companies’ operations, further supporting employee status. The court’s conclusion was striking: “If a jury could not reasonably find that the workers were economically dependent under these facts, it’s not clear that a professional working from home could ever establish economic dependence under the FLSA.” What Employers Should Do This case serves as a cautionary tale for employers. Simply labeling a worker as an independent contractor does not insulate a company from liability. Employers must evaluate the actual working relationship using the economic reality test. Misclassification can lead to substantial legal exposure, including back pay, penalties, and litigation costs. Employment counsel should guide clients in conducting regular audits of contractor relationships, ensuring that classifications align with the realities of the work performed. When in doubt, err on the side of caution — and compliance.
November 3, 2025
Healthcare
Can a Nurse Open a Med Spa in California?
If you’ve ever wondered, “Can a nurse open a med spa in California?” the short answer is that nurses cannot directly own a med spa, but there are legal pathways available if they establish the right business structure. Under California’s strict corporate practice of medicine laws, only licensed physicians can own medical practices that provide medical services like aesthetic treatments and non-invasive cosmetic procedures performed at a medical spa. However, nurse practitioners (NPs), registered nurses (RNs), and physician assistants (PAs) can play a key role in the operation and management of a med spa, provided they maintain compliance with California medical board regulations. To legally operate, a nurse must partner with or work under a licensed physician serving as a medical director or form a management services organization (MSO) that handles the day-to-day operations of the medical spa. In this post, we explain the legal process, licensing requirements, and ownership rules for nurses who want to open a med spa in California. Can a Nurse Open a Med Spa in California? Many nurses looking to enter the aesthetics industry often ask, “Can a nurse open a med spa in California?” The answer depends on understanding the state’s ownership rules, medical director requirements, and strict regulatory compliance standards. Under California law, only licensed physicians can directly own or operate a medical spa, since offering medical services, even noninvasive cosmetic procedures like laser hair removal or injectables, falls under the practice of medicine. However, nurse practitioners (NPs) and registered nurses (RNs) can play a key role by partnering with a licensed physician who acts as the medical director and oversees all medical treatments. To structure their business legally, nurses often form a Management Services Organization (MSO), which handles administrative and day-to-day operations while the medical director retains control over medical decision-making. Our legal team at Cohen Healthcare Law Group helps nurses and healthcare professionals establish compliant med spa businesses, ensuring they meet all licensure, supervision, and business structure requirements under California medical board regulations. What Are California Med Spa Laws and Regulations? California med spa laws are among the most comprehensive and restrictive in the United States, designed to uphold patient safety, ensure proper medical supervision, and limit ownership of medical practices to qualified professionals. Since most procedures performed in a med spa, such as Botox injections, laser hair removal, microneedling, and other aesthetic treatments, involve the practice of medicine, California law requires that a licensed physician either own or control the medical spa. According to the Medical Board of California, if a facility offers medical treatments, it must be owned by a physician, and all medical decisions must be made by licensed medical professionals, not business managers or non-physician investors. This rule stems from California’s long-standing corporate practice of medicine doctrine, which prohibits non-physicians and corporations from owning, controlling, or influencing a medical practice. In other words, while a nurse, businessperson, or investor can help manage the administrative side of a med spa, they cannot make decisions that involve medical judgment or patient care. The Medical Board of California makes it clear that the law is intended to prevent conflicts of interest and protect patients from unqualified individuals providing or directing medical services. Under California med spa regulations, a medical director, who must be a licensed physician, is required to oversee all clinical activities within the med spa. This physician must establish a genuine doctor-patient relationship with every patient before any treatment is performed, which includes taking a medical history, performing an appropriate exam, and developing a treatment plan. The medical director is also responsible for ensuring that standardized procedures and protocols are in place and that any delegation of medical tasks to nurse practitioners, physician assistants, or registered nurses complies with state law. This includes supervision requirements as defined by both the Medical Board of California and the California Board of Registered Nursing. In practical terms, this means that while nurse practitioners, registered nurses, and physician assistants can perform many aesthetic treatments, they must do so under appropriate supervision and within their legally defined scope of practice. For example, laser treatments and cosmetic injections can be delegated to qualified nurses, but only under a physician’s oversight and with clearly documented standing orders or treatment protocols. A physician cannot merely “rent” their license or act as a distant figurehead, as the California law requires ongoing, active involvement in the clinical operations of the med spa. Violating these rules can have serious consequences. The Medical Board has issued multiple warnings about unlicensed ownership arrangements and “paper medical directors” who do not provide real supervision. Such violations can result in disciplinary action, license suspension, or fines for both the supervising physician and the non-physician operator. As the Medical Board of California explains, even if a med spa appears spa-like, once medical procedures are offered, it is legally treated as a medical practice and must comply with all applicable healthcare laws. How Can Nurses Maximize Their Role in Med Spas? While California med spa laws limit direct ownership by nurses, registered nurses (RNs) and nurse practitioners (NPs) can still play a pivotal role in delivering high-quality patient care, managing day-to-day operations, and expanding service offerings through legally compliant structures. By aligning your practice with the right medical director, maintaining proper licensure, and working closely with a healthcare attorney, you can confidently grow your nurse-led med spa operations while adhering to California’s regulatory standards. Enhancing Nurse Practitioner Capabilities For nurse practitioners, maximizing your role in a med spa means balancing clinical expertise with leadership and management. California recognizes the advanced clinical training and diagnostic authority of nurse practitioners, especially those who meet criteria for full practice authority under state law. This enables NPs to provide a broader range of aesthetic and medical services, from laser treatments and injectables to customized treatment plans, all while ensuring compliance with the California Medical Board’s scope of practice regulations. Expanding your service offerings can also help position your med spa for growth. For example, offering integrated wellness programs, noninvasive cosmetic procedures, or specialized aesthetic treatments under physician supervision can attract a wider patient base. However, clinical expansion must go hand-in-hand with strict adherence to standardized procedures and medical protocols approved by the supervising physician or medical director. Beyond clinical operations, nurse practitioners can strengthen their role by cultivating patient trust and brand credibility. Transparent communication, thorough patient education, and ongoing professional development help foster confidence and repeat business. These are critical qualities that distinguish a legally compliant and patient-centered med spa from one operating outside regulatory boundaries. Navigating Licensing and Permits Here’s a step-by-step guide to help nurses and other licensed healthcare professionals navigate the process legally and efficiently: Obtain and Maintain a Valid Professional License: Before offering any medical spa services, ensure that you hold a valid and active Registered Nurse (RN) or Nurse Practitioner (NP) license from the California Board of Registered Nursing (BRN). If you are collaborating with a physician, that physician must also be licensed and in excellent standing with the Medical Board of California (MBC). These credentials are non-negotiable for performing or supervising medical procedures such as injectables, microneedling, and laser treatments. The California Department of Consumer Affairs oversees these credentials through the Medical Board of California and the Board of Registered Nursing, both of which enforce compliance with the Business and Professions Code and the Nursing Practice Act. Establish a Legally Compliant Business Structure: Under California’s corporate practice of medicine doctrine, only physicians can own or control medical practices. To comply, many nurse-run med spas operate through a Management Services Organization (MSO) model. In this structure:The professional medical corporation owned by a licensed physician handles all medical decisions and patient care. Nurses or non-physicians can own the MSO, which oversees daily business operations like staffing, marketing, and billing. This separation ensures adherence to California law and empowers nurses to actively participate in the business aspects of the medical spa. Partner with a Qualified Medical Director: Every med spa must have a medical director (a licensed physician) who oversees clinical operations, ensures standardized procedures are followed, and supervises any delegated medical tasks. The medical director is also accountable for patient evaluations, treatment plans, and continuous monitoring. This partnership is crucial for meeting California Medical Board requirements and ensuring safe, compliant care. Secure Local Business Licenses and Permits: Before opening, obtain the necessary city and county business licenses and register your fictitious business name (DBA) if your med spa operates under a trade name. Depending on the services offered, you may also need specific permits from your local health department, such as infection control or sanitation compliance for aesthetic treatments. Create Written Protocols and Standardized Procedures: According to California law, all assigned medical tasks must adhere to written standardized procedures or treatment protocols. These documents define which treatments nurses or physician assistants can perform and under what level of physician supervision. They also ensure scope of practice compliance under the California Nursing Practice Act. Comply with HIPAA and OSHA Regulations: Since med spas handle protected health information and perform medical procedures, compliance with HIPAA (for patient data protection) and OSHA (for workplace safety) is mandatory. This includes maintaining secure medical records, ensuring staff training, and implementing infection control protocols. Maintain Ongoing Legal and Regulatory Compliance: Once your med spa is operational, stay current with continuing education, license renewals, and state updates to healthcare regulations. Regular internal audits, policy reviews, and consultations with a healthcare attorney can help you identify potential risks early and maintain long-term compliance. By following these steps, nurses and allied health professionals can create a compliant, profitable, and patient-centered med spa business in California. Cohen Healthcare Law Group provides personalized legal guidance for each phase to help ensure your nurse-led med spa thrives within the framework of California law. Steps to Start a Successful Med Spa Business Starting a medical spa in California goes beyond offering aesthetic treatments. It requires a strong legal foundation, a solid business plan, and adherence to healthcare regulations. From understanding ownership laws to obtaining proper insurance, every step must align with California med spa laws to ensure your business operates safely and successfully. Here’s how to get started: Develop a Comprehensive Business Plan Every successful med spa begins with a well-thought-out business plan. This document serves as your roadmap, outlining your vision, target market, financial goals, and operational structure. A strong plan typically includes: Market Analysis: Research your local competition, identify service gaps, and define your target audience (for example, patients seeking non-invasive cosmetic procedures). Service Offerings: Specify which medical spa services you’ll provide, such as laser treatments, injectables, or skin rejuvenation, and confirm that they align with your team’s licensure and expertise. Financial Planning: Include projected startup costs, recurring expenses, pricing strategy, and break-even analysis to ensure your business is profitable and sustainable. Legal and Regulatory Strategy: Detail how your med spa will remain compliant with California medical board regulations, including the corporate practice of medicine rules and medical director oversight. A comprehensive business plan not only helps guide your decision-making but also reassures investors and lenders that your med spa is structured for long-term success. Strategic planning is especially critical for nurse practitioners, registered nurses, and physician assistants, who must navigate additional layers of licensing and supervision requirements. Choose the Right Legal Structure Your med spa’s legal structure determines how it can operate under California law. Because only licensed physicians can own medical practices in the state, non-physicians, including nurses, must work within a compliant framework such as a Management Services Organization (MSO). In this model, the physician owns the professional medical corporation, while the MSO, owned by a nurse or non-physician, manages non-medical operations like marketing, staffing, and administration. Selecting the right structure early on prevents future compliance issues and ensures you’re adhering to the corporate practice of medicine doctrine. An experienced healthcare attorney, such as those at Cohen Healthcare Law Group, can help you draft the necessary contracts and policies to protect both the medical and business aspects of your spa. Secure Proper Licensing and Permits Before opening your doors, obtain all licenses and permits required by your local jurisdiction. This includes a business license, fictitious business name (DBA) registration, and, if applicable, health department permits for infection control and safety compliance. All medical professionals, such as physicians, nurse practitioners, registered nurses, and physician assistants, must hold active licenses through their respective California boards. Failure to secure or maintain proper licensure can lead to disciplinary action from the California Medical Board or Board of Registered Nursing, jeopardizing your practice. Hire and Train Qualified Medical Staff A successful med spa relies on a team of skilled and licensed professionals. All staff performing medical procedures must operate within their scope of practice under the direct supervision of a medical director. Regular staff training in safety protocols, HIPAA compliance, and patient care standards promotes excellence and minimizes legal risks. Obtain the Right Insurance Coverage Operating a med spa involves unique liability risks due to the medical nature of its services. Appropriate insurance coverage is essential to protect your business and your professional reputation. Common types include: Medical Malpractice Insurance: Covers claims arising from medical treatments and procedures. General Liability Insurance: Protects against accidents or property damage occurring at your facility. Professional Liability (Errors and Omissions) Insurance: Safeguards against claims of negligence or mistakes made during aesthetic or medical services. Cyber Liability Insurance: Protects patient information and business data from cyber threats. Working with an insurance broker who understands healthcare and aesthetic medicine ensures that your coverage meets both legal and practical requirements. Implement Risk Management and Compliance Protocols Beyond insurance, proactive risk management is key to protecting your med spa. Establish clear standardized procedures, maintain accurate medical records, and ensure that all treatments comply with your medical director’s supervision protocols. Regular internal audits and ongoing consultation with a healthcare attorney can help identify potential compliance gaps before they escalate into legal issues. Build a Strong Patient-Centered Brand Finally, focus on creating a med spa that prioritizes patient safety, trust, and results. Transparent communication, informed consent, and ethical advertising are all key components of a reputable med spa brand. When combined with excellent care and a compliant business structure, these qualities position your med spa for lasting success in California’s highly competitive market. Integrating Technology and Marketing for Growth For nurse-led or physician-supervised med spas, leveraging digital tools improves client experience and ensures smoother operations, regulatory compliance, and stronger brand visibility. By adopting the right technology and implementing effective marketing strategies, med spa owners can build trust, attract new patients, and retain loyal clients. Leveraging Technology for Operations Technology is very important for making everyday tasks at med spas easier. Advanced scheduling and electronic health record (EHR) systems help keep patient records accurate, follow treatment plans, and meet HIPAA and California Medical Board rules. Also, digital consent forms and secure telehealth platforms can make it easier to take in new clients and follow up with them while keeping their information private. Inventory management software helps keep track of medical supplies to Inventory management software helps track medical supplies, ensuring compliance with occupational safety and health requirements. Customer relationship management (CRM) systems also allow med spa owners to monitor client satisfaction, automate appointment reminders, and track performance metrics. By embracing tools that enhance both patient safety and administrative efficiency, med spas can focus more on providing high-quality services. Effective Marketing Strategies A strong marketing plan is essential to position your med spa as a trusted provider of medical aesthetic services. Begin by creating a professional website that clearly communicates your med spa’s credentials, medical director oversight, and range of non-invasive cosmetic procedures. Implement search engine optimization (SEO) strategies using keywords like “California med spa,” “licensed medical professionals,” and “nurse-run med spa” to attract organic traffic. Social media platforms like Instagram, Facebook, and TikTok are ideal for showcasing before-and-after results (with patient consent), educating clients on safe treatments, and highlighting the expertise of your medical professionals. Paid advertising and local partnerships can further increase visibility, while loyalty programs encourage repeat visits. Email marketing can nurture relationships with existing clients by promoting seasonal offers or new aesthetic treatments, while client feedback systems can help continuously improve services. By integrating smart technology with consistent, compliant marketing strategies, nurse-led med spas can achieve sustainable growth and a loyal client base. Ready to Open Your Med Spa? If you’ve ever asked yourself, “Can a nurse open a med spa in California?” The answer lies in understanding the state’s complex healthcare and business laws and partnering with the right legal team. With the proper licensing, medical director collaboration, and compliance framework, nurses can play a leading role in creating safe, profitable, and legally compliant med spas. FAQ Opening a med spa in California involves navigating a complex web of healthcare, business, and licensing regulations, especially for nurses. Below are answers to some of the most frequently asked questions about nurse-led med spas in California: What Are The Requirements For a Nurse To Open a Med Spa in California? Under California law, only licensed physicians can own or control a medical spa that offers medical treatments. However, nurses can still play a major role by partnering with a licensed physician or forming a Management Services Organization (MSO) that handles non-medical operations like staffing, marketing, and administration. To remain compliant, a nurse must ensure that all medical procedures are performed under physician supervision and that the med spa follows California Medical Board and Board of Registered Nursing regulations. Can a Registered Nurse Perform Cosmetic Procedures in a Med Spa in California? Yes, but only under the supervision of a licensed physician or nurse practitioner with standardized procedures in place. Registered nurses (RNs) can perform noninvasive cosmetic treatments such as laser hair removal, Botox injections, and dermal fillers, provided they have proper training and follow established protocols. They cannot independently diagnose, prescribe, or initiate treatment plans without appropriate supervision as defined by California law. Can a Nurse Practitioner Open a Med Spa in California? A nurse practitioner (NP) has more flexibility due to their advanced practice authority, but still cannot independently own a med spa unless they collaborate with or are supervised by a licensed physician. California’s corporate practice of medicine doctrine prohibits non-physicians, including NPs, from owning medical practices that provide medical services. However, NPs can form an MSO to manage the business side of the spa while ensuring a compliant relationship with a physician medical director who oversees all clinical services. What Licenses and Permits Are Required to Open a Med Spa in California? To open a compliant med spa, you’ll need a valid medical license (for physicians) or a collaborative agreement (for nurse practitioners and physician assistants). Additionally, the business must be properly registered as a Professional Corporation (PC) or MSO, depending on its structure. Other requirements include local business licenses, health department permits, occupational safety compliance, and HIPAA-compliant systems for patient data protection. Ensuring each of these elements is in place protects both your practice and your patients.
November 3, 2025
Estates and Trusts
Spotlight on Intestacy: Liam Payne and the Importance of Planning Ahead
When One Direction's 31-year-old band member, Liam Payne, fell from an Argentinian hotel balcony to his tragic death in October 2024, he left his then 8-year-old son, Bear, fatherless. However, as the sole heir to his father's fortune, the young grade-schooler had instantly and unwittingly become the playground's "most eligible bachelor." Fortunately, it seems, Bear's "mum," Girls Aloud singer/actress Cheryl Tweedy, has, together with Payne's former music lawyer, successfully secured court-appointed co-administrative control over Payne's estate and with it, Bear’s inheritance. For her part, although Tweedy has remained out of the public spotlight for most of the past year since Payne's untimely death, Tweedy has publicly been quoted as intending to block her son's access to the money until he turns 25 and possibly doling out portions of it in the years thereafter. These are commonly used provisions in trusts intended to protect minors and young adults from themselves. Tweedy is credited with recognizing that unfettered access to Bear’s inherited wealth any earlier would likely be problematic for him in numerous ways, including making him a target for unscrupulous sycophants or blowing it all on any combination of vices (the whole "male frontal lobe not fully closing 'til age 25" reality). While Bear is not expected to want for anything, Tweedy is generally credited with wanting Bear to grow up appreciating the "value of a dollar" (or an English pound, in this case). Commendable, if only due to its apparent rarity these days, for a celebrity to espouse such a grounded outlook. Brava, Ms. Tweedy. Brava. But, if it were truly this easy, why do any estate planning at all? Even assuming the best of intentions of a surviving parent, how could lack of planning, and particularly lack of a trust over one's assets, go completely sideways? Using young Bear Payne’s situation as a guide, let us begin to count the ways: Probate and Taxes. Intestacy necessitates probate, which can be a costly, time-sucking hassle, and delay. Also, depending on the amounts involved and the jurisdiction, the resulting tax consequences could be substantial, especially compared to a potentially tax-free disposition had a simple trust transfer been documented while Payne was alive. Court-appointed estate administrator(s). You cannot presume the person or people you would want or expect to be in charge will actually be appointed by the court. It is not a foregone conclusion that anyone, in particular, will be appointed. In any event, unscrupulous relatives, "friends," and/or advisors may tie things up in costly legal proceedings, vying for access and control (and the enticement of a not-insignificant paycheck for their services)! No creditor protection. Without the typical spendthrift protections of a trust, creditors of Bear will be able to reach the inheritance assets even if Bear’s mum has withheld the funds from Bear to try to protect Bear from himself. Bear the heir. Bear, himself, is empowered to insist on distributions as soon as he comes of age. As if a teenager needed any other excuse to seek early emancipation! Unless a formal guardianship or conservatorship is imposed (for reasons unrelated to his inheritance rights), Bear will be entitled to insist on receiving all of it, regardless of what his mum thinks is best for him at that point. Lest one jump too quickly to buy into the guardianship/conservatorship option, I caution one to look no further than the Brittany Spears saga to appreciate why this is not necessarily the way to go. Co-fiduciary deadlock. For now, at least, there have been no public reports of any disagreement between the co-fiduciaries. As the ongoing litigation between Jimmy Buffett’s co-fiduciaries reflects, even hand-picked equals can find themselves deadlocked. The single-most important takeaway from Liam Payne’s situation is that it is never too early to plan. My first boss, a former Army flag officer, counseled me to always have a back-up plan in case one under our “command” was “hit by a bus” and didn’t make it into work (I had just been promoted, and the bookkeeper and payroll manager reported to me). In the estate planning context, lack of planning means leaving matters to chance and risking both your loved ones and the wealth you hope to leave behind for them. Refusing to address end-of-life decisions can be a very costly choice. And make no mistake, not deciding is still deciding. As the classic rock line goes: “If you choose not to decide, you still have made a choice.” (Rush, Freewill, 1980). Cheryl 'will block Bear from Liam Payne's inheritance' until he reaches major milestone, Metro.co.uk
October 30, 2025
Bankruptcy
Global Capital, Local Law: Navigating the Risks of U.S. Bankruptcy
When raising capital in the U.S., owners and directors of foreign companies have to be cognizant of how restructuring can be used by creditors to displace management and shareholders. A recent decision by the U.S. District Court for the Southern District of New York, which upheld a bankruptcy court’s order imposing sanctions on former owners and directors of Eletson Holdings Inc. (“Eletson”), underscores the importance for company leadership, particularly those facing financial distress, to fully understand the scope of obligations under U.S. bankruptcy law. Eletson was the parent of a Greek-based international gas shipping enterprise operating a fleet of 18 medium- and long-range oil and gas tanker vessels carrying a wide range of refined petroleum products and crude oil. The business was operated through companies that were closely held by several related Greek family groups, each holding equity through offshore trusts. The three majority shareholders of Eletson, each holding a 30.7% interest, included the family of Laskarina Karastamati, controlled Lassia Investment Company (“Lassia”), the family of Vassilis Kertsikoff, controlled Family Unity Trust Company (“Family Unity”), and the family of Vassilis Hadjieleftheriadis, controlled Glafkos Trust Company (“Glafkos”). Each was organized under the laws of Liberia. The minority shareholders of Eletson were Elafonissos Shipping Corp. and Keros Shipping Corp. During the Chapter 11 proceedings, the board of directors of Eletson consisted of 1) Vassilis Hadjieleftheriadis, 2) Konstantinos Hadjieleftheriadis, 3) Ioannis Zilakos, 4) Emmanuel Andreoulakis, 5) Vassilis Kertsikoff, 6) Eleni Giannakopoulou, 7) Panagiotis Konstantaras, and 8) Laskarina Karastamati. Eletson was forced into bankruptcy in March 2023 when three creditors (the “Petitioning Creditors”) commenced involuntary Chapter 7 proceedings against the company and two affiliates (Eletson Finance (US) LLC and Agathononissos Finance LLC) (the “Debtors”). In re Eletson Holdings Inc. et al. (“Bankruptcy Proceeding”), No. 23-10322 (Bankr. S.D.N.Y.) In September 2023, the case was converted to a voluntary Chapter 11 proceeding. The Petitioning Creditors and the Debtors submitted competing reorganization plans. Under the plan proposed by the Debtors, the Greek families who held a majority interest in Eletson prior to bankruptcy, committed to provide funds to the entity in exchange for their continued control. The creditors, by contrast, promised to contribute $53.5 million in cash to Eletson through an offering of equity rights to holders of unsecured claims, which would be backed up by a commitment amount by one of the Petitioning Creditors of the same value. After contentious fights and lengthy hearings, the bankruptcy court found that the plan proposed by the Debtors was unconfirmable and not feasible and approved the creditors’ recapitalization plan. The Debtor’s plan was unconfirmable because it did not contribute new value: (1) the supposed new value contribution was not new because it came from inside the Debtors’ capital structure, (2) the contribution was contingent upon a final award in pending arbitration proceedings, and (3) there was no adequate proof that the funds committed by the majority shareholders would be available over such a long-time horizon. The $37 million in new shareholder value proposed, even if available, did not provide sufficient funding to make all required payments on the effective date of the plan. The Bankruptcy Court ruled in favor of the creditors’ plan of reorganization (the “Plan”) because it provided sufficient funding to meet all effective date obligations, and because the creditors had escrowed $43.5 million in cash to fund the plan. On October 25, 2024, the Bankruptcy Court confirmed the Plan proposed by Petitioning Creditors (the “Confirmation Order”). The Confirmation Order vested control of Eletson in the Petitioning Creditors rather than the three Greek families that had previously controlled the company. On the date the Plan was to become effective, “all property in each estate” vested “in Reorganized Holdings, free and clear of all liens, claims, charges or other encumbrances.” Plan § 5.2(c). Section 5.4 of the Plan provided that all notes and stock and other documents evidencing or giving rise to claims against an interest in debtors were canceled and the obligations of the debtors thereunder or in any way related thereto were released, terminated, extinguished, and discharged. Plan § 5.4. The members of the board of directors of each Debtor, prior to the date the Plan went into effect, were “deemed to have resigned or otherwise ceased to be a director or manager of the applicable Debtor.” Plan § 5.10(c). Eletson Holdings was deemed to be Reorganized Holdings, and the equity of the old Eletson Holdings was vested in its new owners. Reorganized Holdings was to be managed by a new board consisting of three directors: (i) one director selected by the Plan Proponents, (ii) one selected by the Plan Proponents but subject to the consent of the Unsecured Creditors’ Committee, and (iii) an independent director selected by the Unsecured Creditors Committee. The Confirmation Order provided: “The Debtors and the Petitioning Creditors and each of their respective Related Parties were directed to cooperate in good faith to implement and consummate the Plan.” Confirmation Order ¶ 5(i). Furthermore, the Confirmation Order mandated: “Upon entry of this Confirmation Order, all Holders of Claims or Interests and other parties in interest, along with their respective present or former employees, agents, officers, directors, principals, and affiliates, shall be enjoined from taking any actions to interfere with the implementation or consummation of the Plan or interfering with any distributions and payments contemplated by the Plan.” The Plan became effective on November 19, 2024 (the “Effective Date”), 14 days after it was entered. Thus, on the Effective Date, the board members of the former Debtors were deemed to have resigned, the new board of directors was deemed appointed, the equity interest in the former holders was extinguished, and the equity interest was vested in the new holders. Following the Bankruptcy Court’s confirmation of the Plan, but before the Plan was effective, Elafonissos Shipping Corporation and Keros Shipping Company, the former minority shareholders of Eletson, sought relief from a court in Greece to appoint a temporary board to manage the company while the Confirmation Order was being appealed and with the specific mandate to obtain judicial protection, to support an appeal already filed against another order of the United States Bankruptcy Court for the Southern District of New York, and to seek other remedies and means provided by law, before the Greek Courts, in order to challenge the Confirmation Order. On November 12, 2024, the Greek Court issued an ex parte interim order replacing certain resigning directors of Eletson Holdings and appointing “Provisional Appointees” in their stead to join the remaining directors to form a provisional board of Eletson Holdings. On November 25, 2024, reorganized Eletson Holdings filed an emergency motion seeking an order imposing sanctions on Eletson’s former shareholders, officers, directors, and counsel because their actions outside of the United States frustrated the ability of the new owners of Reorganized Holdings to conduct business as contemplated by the confirmed plan. See In re Eletson Holdings Inc., Case No. 23-10322, Dkt. 1268. The Bankruptcy Court held a trial on the sanctions motion on January 6, 2025, which resulted in an oral decision granting the sanctions motion, followed by an accompanying order on January 29, 2025. Dkt. 11396, 1402. Notwithstanding that order, Eletson’s former management continued to fail to comply with their obligations under the Plan. The Bankruptcy Court had to issue orders enforcing the Plan and directing Eletson’s former shareholders and management to cooperate. In March 2025, the Bankruptcy Court found the legacy Eletson board of directors in contempt and ordered a $5,000 per day fine until they obeyed the Plan’s requirements. Id., Dkt. 1536, 1537. On July 2, 2025, the reorganized Eletson debtors obtained a court order granting a motion for attorneys’ fees and costs after asserting that Eletson’s former majority and minority shareholders, among others, treated the Bankruptcy Court’s authority and the confirmed Plan with contempt and “inflicted direct and measurable harm” by, among other things, forcing the reorganized company to seek enforcement of the confirmation order in Liberia and Greece. Dkt. 1712. The Bankruptcy Court increased the sanctions with respect to certain persons to $10,000 per day. Dkt. 1716. The former majority and minority shareholders appealed the orders imposing sanctions. In its September 26 decision, the U.S. District Court affirmed the Bankruptcy Court’s order. The Eletson Holdings illustrates how U.S. bankruptcy law empowers creditors with robust tools to restructure distressed entities, even to the point of displacing entrenched management and shareholders. The court’s willingness to enforce its orders across borders, impose sanctions, and penalize noncompliance underscores the importance of understanding the full scope of creditor rights and judicial authority in U.S. insolvency proceedings. For international businesses, especially those with complex ownership structures, the lesson is clear: cross-border capital raising demands not only financial sophistication but also a deep appreciation of the legal landscape and the risks of losing control.
October 29, 2025
Commercial Litigation
D.C. District Judge Narrows Case Between E-Commerce Giants, Temu and Shein
In December 2023, Temu (operated by Whaleco Inc.), a general e-commerce platform specializing in drop-shipping resale goods sold at deep discounts, filed suit against Shein, a similarly structured fast-fashion clothing manufacturer. In their suit, Temu alleged that Shein perpetuates a "mafia-style" scheme to monopolize the fast-fashion market through supplier intimidation, trade secret theft, and abuse of the Digital Millennium Copyright Act. Temu claimed that Shein coerced Chinese suppliers, who provide the overwhelming majority of Temu’s inventory, into filing over 33,000 allegedly baseless copyright takedown notices on Temu’s website in order to disrupt Temu's operations. Shein countersued in August 2024, accusing Temu of encouraging sellers to infringe intellectual property rights, stealing Shein's trade secrets and product designs, and operating a counterfeiting-reliant business model. This battle between Shein and Temu reached a critical moment on September 30, 2025 when a district judge in the District of Columbia dismissed key claims of plaintiff Temu, while allowing Temu’s intellectual property claims to proceed. This recent ruling proved a strategic victory for Shein. The court dismissed Temu's antitrust claims under the Sherman and Clayton Acts, ruling that the alleged anticompetitive conduct occurred in China and fell outside U.S. jurisdiction. The court dismissed Temu's trade secret claims for similar reasons, as the alleged theft of trade secrets occurred overseas. However, the court left Temu's intellectual property claims intact, finding that Temu adequately pleaded infringement of its trade dress by Shein, direct copyright infringement related to Temu’s promotional mobile phone games, and violations of DMCA Section 512(f) for knowingly issuing false copyright takedown notices. This case underscores critical challenges for companies operating in global e-commerce markets – especially as international drop shipping business models become increasingly ubiquitous. In particular, U.S. courts have faced increasing difficulty addressing allegedly anticompetitive conduct by overseas entities whose actions may still be felt in the U.S. Meanwhile, such actors continue to misuse DMCA takedown procedure to gain a competitive edge in the market rather than as an IP protection tool. As both companies face broader regulatory scrutiny worldwide (Temu recently paid $2 million to the FTC to settle INFORM Consumers Act violations), this case may influence how courts evaluate jurisdictional questions in international supply chain disputes and assess claims of DMCA abuse in competitive marketplaces.
October 27, 2025
Estates and Trusts
The Legal Playbook for Athletes Crossing Borders
The 2025-2026 NBA season started with a bang last Tuesday night. It is reported that 135 international players from 43 countries are on the court this season. When an athlete leaves their home country to pursue a professional or collegiate career in the United States, the transition involves far more than training schedules, new teammates, and different coaching styles. It is also a major legal and financial shift. Immigration status, contract terms, taxes, and estate planning all come into play — often at once. Without the proper legal documents in place, even the most talented athlete can find their career and income at risk. The first and most fundamental step is securing the right visa and immigration documentation. Most international athletes arrive under a P-1 visa, for those internationally recognized athletes competing professionally, or an O-1 visa for athletes who demonstrate extraordinary ability in their sport. Collegiate athletes often enter the U.S. on an F-1 student visa. It’s critical that the visa category matches the athlete’s intended activities, whether training, competition, or endorsement work and that both the athlete and the sponsoring organization (professional team or university) comply with the visa’s terms. Working outside the scope of a visa, such as signing sponsorships or promotional deals without proper authorization, can lead to serious tax consequences and even more dire immigration consequences, which could jeopardize the athlete’s future entry into the country. According to Michael Freestone, Immigration Attorney and Principal at Offit Kurman, “For student athletes, the evolving rules around NIL compensation add another layer of complexity. International students on F-1 visas are generally prohibited from earning income outside authorized employment, meaning many cannot legally profit from NIL activities while in the U.S. Although F-1 students can earn “passive” income, the legal grey area with NIL activities makes such income problematic and could jeopardize the student’s status. Some athletes are exploring creative solutions, such as establishing businesses in their home countries or deferring income until after graduation, but these strategies should always be reviewed by an attorney experienced in both immigration, tax and contract law to avoid inadvertent violations.” Tax compliance often catches international athletes off guard. The U.S. tax system is complex, even for citizens, and foreign athletes are often surprised to learn they may owe taxes in both the U.S. and their home country. To avoid double taxation and other pitfalls, every athlete earning income in the U.S. should consult a tax professional familiar with cross-border income and endorsement deals. Proper withholding and filing documentation are essential to prevent crushing surprises at the end of the season. Beyond taxes, every international athlete must consider basic estate and incapacity planning. A durable power of attorney allows a trusted person to manage financial or legal affairs if the athlete is abroad or incapacitated. A health care proxy ensures that someone can make medical decisions in an emergency. These documents are often overlooked until a crisis strikes, but they help prevent confusion and protect the athlete’s interests during critical and unexpected moments. Estate planning itself is another critical piece of the puzzle. Even young athletes, particularly those signing lucrative contracts or endorsement deals based on their Name Image and Likeness (NIL) rights, can accumulate substantial assets quickly. A trust can make sure those assets are managed and distributed according to their wishes. For athletes with family members abroad, these documents also help avoid international probate complications and unnecessary tax burdens. Insurance coverage deserves equal attention. Health insurance is essential, but athletes should also explore disability insurance to protect against career-ending injuries and liability insurance to cover potential risks from public appearances or endorsement deals. Life insurance can also provide long-term planning options when the athlete’s professional sports career is long over. For student athletes, the evolving rules around NIL compensation add another layer of complexity. International students on F-1 visas are generally prohibited from earning income outside authorized employment, meaning many cannot legally profit from NIL activities while in the U.S. Crossing borders to compete in the U.S. can be a career-defining opportunity, but it also requires a careful understanding of the legal landscape. From visas to trusts, international athletes benefit from assembling a strong team off the field — an immigration lawyer, a tax advisor, an insurance professional, and an estate planning attorney who understands the unique intersection of sports, law, and global mobility. A little preparation now can safeguard a lifetime of achievement later.
October 27, 2025
Healthcare
How to Create a Durable Power of Attorney for Healthcare
A durable power of attorney for healthcare is an important legal document that allows you to appoint someone you trust to make medical decisions on your behalf if you become unable to do so. It ensures that your healthcare wishes are respected even when you can’t communicate them yourself. Without this document, doctors or family members may make important medical decisions without fully understanding your preferences. In this post, we’ll cover what a durable power of attorney for healthcare is, why it’s important, and the key steps to creating one correctly. You’ll also learn about choosing the right healthcare agent, ensuring your document meets state laws, and how to update it as your circumstances change. What Is a Durable Power of Attorney for Healthcare? A durable power of attorney for healthcare is a legal document that authorizes another person, called a health care agent or attorney in fact, to make health care decisions for you when you are unable to act on your own behalf. This document remains in effect even if you become incapacitated or lose the ability to make medical decisions due to illness, injury, or age. The agent you appoint should be someone you trust to follow your wishes, communicate effectively with doctors, and ensure you receive the type of medical treatment and care you prefer. The main difference between a regular power of attorney and a durable power of attorney for healthcare is that a regular POA becomes invalid if you become incapacitated. On the other hand, a durable power continues to give your agent the authority to act on your behalf. There are also durable powers that cover financial affairs or other matters, but a durable power of attorney for healthcare specifically deals with your healthcare needs and medical treatment decisions. For example, if an individual is in an emergency, the end stages of life, or undergoing complex medical treatment, they may not be of sound mind or physically able to decide what kind of care they want. Without a health care directive or durable power of attorney, loved ones may face the difficult task of guessing your wishes or disagreeing about your treatment. According to the National Institute on Aging, having a durable power of attorney for healthcare increases the likelihood that your medical wishes are honored and provides reassurance to family members that they are making the right decisions for you. Why You Need a Durable Healthcare POA A durable power of attorney for healthcare is vital to ensure your medical decisions are made according to your wishes, even when you can’t communicate them. It prevents family conflicts or court interventions by giving clear authority to your chosen agent or health care proxy. This legal document also provides peace of mind for you and your loved ones, knowing that someone you trust is responsible for your care and medical treatment. Without a durable power of attorney, important health care decisions such as whether to continue life support, authorize surgeries, or decide on end-of-life care may be left to doctors or the court. Real-life cases have shown that when people fail to create and sign such documents, their families often struggle with uncertainty, guilt, or disagreements about what kind of care should be provided. By putting your durable power of attorney for healthcare in place, you ensure your agent can act immediately in the event of an emergency, manage your medical and financial affairs, and follow your clear instructions. If you need help understanding the forms, state requirements, or how to fill out the documents correctly, it’s wise to discuss your situation with an experienced lawyer who specializes in health care and legal matters related to durable powers. How Does a Durable POA for Healthcare Work? A durable power of attorney for healthcare is a key part of advance care planning, which involves preparing for future healthcare needs in case of serious illness, injury, or loss of cognitive function. Simply discussing your preferences with loved ones or guardians is not enough, as formal documents are required to ensure your doctors and family members clearly understand and follow your medical wishes. Your health care agent has the authority to: Make medical decisions and give or withhold consent for procedures and treatments. Access your medical records and discuss your care with your doctors. Decide on hospital transfers, long-term care, or hospice arrangements. Carry out your end-of-life care preferences as stated in your durable power of attorney or living will. The agent’s authority only applies when you can’t make your own decisions, like after an accident, during a serious illness, or if you’re unconscious. While your agent has broad powers, there are important limitations. These limitations include: They cannot override your explicitly stated wishes in the document. They cannot make financial or estate-related decisions unless you also have a durable power of attorney for financial affairs. Their authority ends upon your death, at which point your testament or executor takes charge of financial or other matters. A durable power of attorney for healthcare works alongside a living will, another type of advance directive that details your specific preferences for medical care in emergencies. Together, these documents provide a comprehensive plan for your care, offering guidance and peace of mind to both your loved ones and your health care providers. How to Create a Durable Power of Attorney for Healthcare Decisions Working with an experienced lawyer can help you ensure that the document meets your state’s legal requirements, clearly outlines your instructions, and provides peace of mind to your loved ones and doctors. Here’s a step-by-step guide on what to do: 1. Choose Your Healthcare Agent Pick a trusted person who will act in your best interests and make medical decisions according to your wishes. Consider qualities such as reliability, excellent communication skills, and an understanding of your values and beliefs. You may also appoint alternate agents in case your first choice becomes unavailable or unable to serve. 2. Decide on the Scope of Authority Determine what powers your health care agent will have, such as consenting to surgery, choosing medical treatments, managing end-of-life care, or making decisions about organ donation. Specify any limits or restrictions, and include clear instructions about your preferences for life support, medications, or other health care interventions. 3. Complete the Legal Form Obtain your state-specific durable power of attorney for healthcare form. It is best to keep in mind that requirements vary depending on where you live. Fill in your personal information, along with the details of your agent(s). Be sure to state that the authority is durable, meaning it remains in effect even if you become incapacitated or lose the ability to make decisions. 4. Sign the Document Properly Most states require you to sign the document in front of witnesses, while some require notarization. Review your state’s laws to ensure you meet all legal standards. Make sure all signatures are valid and correctly dated to prevent potential challenges later on. 5. Communicate Your Decisions After signing, have an open discussion with your health care agent about your wishes. Explain your medical preferences, what kind of treatment you do or do not want, and how you define quality of life. Also, inform family members about your decision to avoid confusion, disagreement, or conflict during critical moments. 6. Distribute Copies Provide copies of your durable power of attorney for healthcare to your agent(s), primary doctor, and key family members. Hospitals and care providers should also have access to a copy. Keep one in a safe but accessible location for emergencies, and make sure your agent knows where to find it. 7. Review and Update Regularly Review your DPOA-HC periodically or after major life events such as marriage, divorce, or a serious health diagnosis. Update the document if your preferences or agents change, and follow the proper legal procedures for revocation or amendment. Keeping your documents current ensures that your wishes continue to reflect your values and circumstances. Durable Power of Attorney for Healthcare vs. Other Healthcare Documents A durable power of attorney for healthcare (DPOA-HC) is just one part of a complete plan for managing your medical care and ensuring your wishes are followed if you become unable to make decisions for yourself. However, it’s important to understand how this legal document differs from other advance directives, such as a living will, a healthcare proxy, and HIPAA authorization forms, and how all of them can work together to protect your rights. A living will outlines your preferences for medical treatment, particularly regarding life-sustaining procedures such as CPR, ventilators, artificial nutrition, or hydration. It tells your doctors and loved ones exactly what kind of care you do or do not want if you are in a terminal condition or permanently unconscious. A durable power of attorney for healthcare, on the other hand, goes a step further by allowing you to appoint a trusted person (your healthcare agent or attorney) to make medical decisions on your behalf in situations not specifically addressed in your living will. While the living will gives instructions, the healthcare proxy grants someone the authority to act and interpret your wishes as circumstances change. A HIPAA authorization or medical release form is another important document that complements your durable power of attorney for healthcare. It allows your agent, family members, or other designated individuals to access your medical records and communicate with your health care providers. Without it, your doctors and hospitals may be restricted by privacy laws from sharing vital information that could influence your medical decisions. Together, these documents form a powerful framework for advance care planning, ensuring that your health care providers have the guidance and legal permission they need to follow your wishes accurately. When combined, a living will, a durable power of attorney for healthcare, and a HIPAA authorization provide clarity and protection for both you and your loved ones. The living will expresses your medical care preferences, the DPOA-HC designates someone to make decisions on your behalf, and the HIPAA authorization ensures that your agent can access the necessary information to make informed choices. Having all three documents in place helps prevent confusion, delays, and conflicts during stressful medical situations. Best Practices for Medical Power of Attorney To make sure your durable power of attorney for healthcare remains effective and valid, follow these best practices: Review Your DPOA-HC Periodically: Revisit your documents every few years or after major life changes such as marriage, divorce, relocation, or a serious illness. Update your agent or instructions as needed. Keep Copies Accessible for Medical Providers: Provide your primary doctor, hospital, and agent with copies. Store one at home in a clearly marked folder and consider keeping a digital copy accessible in emergencies. Discuss Decisions Openly with Family Members: Talk about your values, health care preferences, and treatment goals with your loved ones to minimize confusion and prevent conflict. Choose an Alternate Agent: Designate a backup health care proxy in case your first choice becomes unable or unavailable to serve. Ensure Your Agent Understands Their Role: Your agent should know your medical wishes, understand your living will, and be prepared to communicate with your health care providers confidently. Work With a Lawyer: Consult an experienced healthcare attorney to make sure your durable power of attorney and other documents meet all state-specific legal requirements and are properly executed. Stay in Control of Your Healthcare Future Having a durable power of attorney for healthcare ensures that your medical wishes are honored even if you’re unable to speak for yourself. It’s a vital safeguard that gives you control, peace of mind, and confidence that the right person will make important decisions on your behalf. Planning now helps prevent confusion, stress, and family conflict later on. FAQ Below are some answers to help you make informed decisions about your healthcare planning: What Is a Durable Power of Attorney in Medical Terms? A durable power of attorney for healthcare is a legal document that allows you to appoint someone to make medical decisions on your behalf if you’re unable to do so. The “durable” part means it remains effective even if you become incapacitated. Where to Get Medical Power of Attorney Forms? You can obtain medical power of attorney forms from your state’s health department website, legal aid organizations, or a licensed attorney. Working with a healthcare attorney ensures the document meets state-specific legal requirements. What Is the Difference Between a POA and a Healthcare POA? A general power of attorney covers financial or legal matters, while a healthcare POA specifically deals with medical decisions. The healthcare POA activates when you’re unable to make healthcare decisions yourself. Can a Doctor Be a Medical POA? In most cases, a doctor cannot serve as your medical power of attorney unless they are a close family member. This prevents conflicts of interest and ensures unbiased decision-making. What Are the Disadvantages of a Durable Power of Attorney? One potential disadvantage is the risk of appointing someone who may not act in your best interest. Additionally, unclear or incomplete instructions can lead to disputes among family members or medical providers. How Much Does It Cost to Have a Durable Power of Attorney? Costs vary by state and legal assistance, typically ranging from $100 to $500 when prepared by an attorney. Free or low-cost forms are available online, but legal guidance ensures accuracy and validity. How Does a Durable Power of Attorney for Health Care Differ From a Living Will? A durable power of attorney for healthcare names a person to make medical decisions for you, while a living will outlines your specific treatment preferences. Together, they provide a complete plan for your healthcare wishes.
October 25, 2025
Mergers and Acquisitions
How Early Legal Counsel Shapes a Smooth Deal
Selling a business is never just about numbers on a page, it’s about preparation, people, and navigating the unexpected. Mike Mercurio presents a compelling series of conversations with client and former Fireline owner Anna Gavin, as she shares the real story behind her company’s sale. From the private moment she first decided to sell, to the surprise challenges of disclosure schedules, and the essential role of trusted advisors, Anna offers a rare, inside look at what the process truly feels like. Whether you’re years away from a sale or already planning one, her journey provides invaluable lessons on timing, team, and trust. In Part 6, the last of our Selling Your Business series, client and former Fireline owner Anna Gavin shares how early involvement from legal counsel Mike Mercurio and Offit Kurman set the tone for the entire transaction. Beyond just reviewing Letters of Intent (LOIs), the legal team played a crucial role in educating and mentally preparing her for complex steps ahead well before they became urgent tasks. This proactive approach helped avoid surprises and ensured the process moved smoothly, highlighting the value of strategic legal guidance from day one.
October 24, 2025
Business
The SMB Market Is Moving: Record SBA Lending, Strong Deal Flow, and What It Means for Buyers
According to the latest BizBuySell report, Q3 2025 saw 2,599 small business sale transactions. This is an 8% year-over-year increase and 11% growth over Q2. Data also shows a steady wave of buyers are seeking the right opportunity to operate and grow established businesses. In parallel, the Small Business Administration (SBA) was on pace to close $4.8 billion in loan approvals before the federal shutdown temporarily paused operations. This is the highest volume of capital deployed to small businesses in a single fiscal year. That includes over 84,400 7(a) and 504 loans, amounting to 1,600 loans a week. The appetite is clear. What’s Fueling the Market? Despite macroeconomic pressures (inflation, tariff-driven supply costs, etc.), many buyers remain focused on long-term fundamentals. The median sale price for a business this quarter was $320,044, down slightly from last year. This is likely a lower sale price than many Searchfunders/Independent Sponsors are targeting, but the data also shows a shorter time on market (149 days), evidencing strong buyer demand. Essential services were the leading category of sales. I work with buyers, investors, and operators on a daily basis. Here is what I am noticing: These Are Small Businesses — Not Just Small Corporations Many of these deals involve main street and lower middle market businesses, where the seller is not just the owner — they’re often the primary operator, manager, and customer relationship lead. This model can work well, but it’s important for buyers to go in with eyes wide open. These are not absentee owner businesses. These are owner-operator businesses, and unless the buyer has a plan to step into the day-to-day, or grow and install leadership, the absence of middle management may lead to significant demands on the business owner's time. Diligence Is Critical — Especially for Deals at or below $1 Million Buyers and advisors need to scrutinize: Owner reliance — Will customer or vendor relationships walk out the door post-close? Documentation gaps — Are there written contracts? Employment terms? Assignable leases? Many of these businesses fail to properly maintain documentation. Employee risk — What’s the true culture, compensation model, and turnover rate? System maturity — Is there any standardization, or will you be rebuilding ops from scratch? The Desire to Own Must Match the Business Type Entrepreneurship through acquisition (ETA) is a powerful path. But not every business fits every buyer. I always advise clients to ask: “Do I want to run this business, or do I just want to own it?” In the start-up world this is called "founder-market fit." The same concept applies here. Some deals are perfect for someone who wants to buy a job and eventually grow it. Others might require an immediate team build or capital outlay to systematize operations. It’s critical to understand the type of role you’re buying into, the basics of the industry, and what that means when operating solo or with lean support. Deals Are Happening — But You Need the Right Team This market shows real momentum. That being said, deals still require precision. That means: Structuring with SBA or seller financing Negotiating reps, indemnities, and transition terms Performing adequate due diligence Aligning tax, legal, and operational diligence Preparing to serve as both the owner and the operator (or installing trusted leadership) I work closely with searchers, independent sponsors, and advisors both during the acquisition and long after the closing. From real estate and contracts to employee issues and outside general counsel support, you need the support to manage the risk and build the value. It is exciting to see the growing volume of deals and buyer interest. But remember not to lose sight of the need to find the right acquisition target and to protect your downside.
October 23, 2025
Labor and Employment
The Warning Signs Managers Miss: How to Build a More Transparent Workplace
It's not uncommon for employers to be caught off guard by union organizing. Managers frequently describe the experience the same way: “I had no idea.” By the time a representation petition is filed with the National Labor Relations Board (NLRB), the campaign may have been underway for weeks or even months, quietly, strategically, and largely unnoticed. Understanding why management often misses the warning signs and how to build a more transparent workplace culture is critical for maintaining trust among employees. Even well-intentioned and attentive managers can overlook early warning signs of organizing activity. A lack of complaints is often mistaken for employee satisfaction, but silence can just as easily signal dissatisfaction, especially when workers feel their concerns won’t be heard or addressed. Communication gaps also play a major role: frontline supervisors are typically the first to notice shifts in morale or group dynamics, yet they may not report these patterns upward or may fail to recognize their importance. Finally, over time, routine dissatisfaction about scheduling, workload, or management style can become so familiar that it fades into the background, even as it quietly fuels collective frustration. The most effective way to avoid being caught off guard by organizing activity is to create a workplace culture where employees feel genuinely heard, respected, and valued. This requires intentional, ongoing effort. First, open and consistent communication is essential, providing employees with regular opportunities to share feedback, raise concerns, and see that their input leads to meaningful action. Second, supervisors should be trained to recognize shifts in morale and to respond effectively, since they are often the first to sense when issues are brewing. Employers can also benefit from conducting periodic check-ins, such as engagement surveys or small-group discussions, to identify recurring themes of employee dissatisfaction. When management understands the root causes of dissatisfaction and addresses them early, employees are less likely to seek outside representation. It's important to remember that employees have a legally protected right to organize and engage in concerted activity under the National Labor Relations Act. The goal isn't to suppress organizing, but to address the underlying workplace issues that may lead employees to seek union representation in the first place. By staying attentive, transparent, and proactive, employers can work towards fostering a cohesive, engaged workplace and avoiding the all-too-common refrain: “I had no idea."
October 22, 2025
Estates and Trusts
Is Your Will Valid After You Move? How Relocation Affects Your Estate Plan
According to a recent study conducted by Consumer Affairs, the average American moves 11.7 times in their lifetime. While the majority of these moves occur within the same county, or city, millions of Americans move every year from one state to another. When a client executes a will and subsequently moves to another state, an obvious concern arises: Will their will, drafted in one state, be admissible to probate in their new state of residence? The short answer is that most states will admit a will to probate that was validly executed under the laws of another state based on the Full Faith and Credit Clause of the U.S. Constitution and basic principles of comity. New York, in fact, has a statute directly on point; EPTL § 3-5.1 provides that a will executed outside the state is valid within the state if it is in writing, signed by the testator, and otherwise executed in compliance with the laws of New York, the jurisdiction in which the will was executed, or the jurisdiction in which the testator was domiciled, either at the time of execution or at the time of death. New Jersey similarly provides, pursuant to N.J.S.A. § 3B:3-9, that a will executed in compliance with New Jersey law is valid within the state regardless of where it was executed. N.J.S.A. § 3B:3-9 further provides that a will that is not executed in compliance with New Jersey law is nevertheless valid if it is executed in compliance with the state or country where the will was executed, or the state or country where the decedent was residing at the time of the will’s execution or at the time of the decedent’s death. However, there are significant differences in the probate laws of each state that can make executing a new will a prudent decision. Choice of Executor Many states only have minimal requirements for who may serve as executor of an estate. For example, New Jersey law provides that so long as an individual is 18 years old and competent, they may serve as executor of a decedent’s estate. In contrast, New York law provides, pursuant to SCPA § 707, that, a non-citizen, non-domiciliary may not serve solely as executor of an estate; a domiciliary co-executor must be appointed. Further, a person who does not possess the qualifications required of a fiduciary by reason of substance abuse, dishonesty, improvidence, want of understanding, or who is otherwise unfit, is also disqualified from serving as executor. The court may, in its discretion, also disqualify an executor who is illiterate or who has been convicted of a felony. Inheritance Tax An inheritance tax is levied on the assets received by the beneficiary of an estate. This is in contrast to an estate tax, which taxes the entire corpus of the decedent’s estate regardless of the ultimate beneficiaries. While the vast majority of states do not have a state inheritance tax, several states still maintain an inheritance tax, including New Jersey. The inheritance tax applies to bequests to relatives, including brothers, sisters, aunts, uncles, nieces, nephews, and distant relatives, as well as non-related individuals. Suppose a domiciliary of Florida (which does not have an inheritance tax) wishes to provide a bequest to their longtime romantic partner. If the bequest is made under the client’s will and they later move to a state with an inheritance tax, the client may inadvertently subject their romantic partner to a hefty inheritance tax. Thoughtful planning could be employed to avoid this result. For example, rather than leave the bequest under their will, the client may make the same gift during their lifetime. State-Level Estate Tax Another potential concern when changing domiciles is state-level estate taxes. In 2025, the federal estate tax threshold for individuals is $13.99 million. As such, very few individuals have federal estate tax issues. While the majority of states do not impose a state estate tax, a significant number of states still maintain an estate tax. Overwhelmingly, the state estate tax threshold is significantly lower than the federal estate tax threshold. For example, a will drafted in Oregon will likely have been drafted with the $1 million estate tax exemption threshold in mind. As such, married clients with relatively modest assets may employ an estate planning technique called a “credit shelter trust,” a trust designed to fully use the decedent’s remaining estate tax exemption amount at the time of their death. If the client later moves to New York, where the state estate tax threshold is currently $7,160,000, funding a credit shelter trust may no longer be necessary or even advisable. The trustees of the credit shelter trust, typically the surviving spouse and one or more independent trustees, will likely be obligated to administer a trust that may not serve a functional purpose, all the while incurring unnecessary administrative expenses. Statutory Right of Election Another potential concern is that a will drafted based on the spousal rights of one state may lead to unintended consequences if the client later changes their domicile. For example, many states permit the surviving spouse to “elect” against a decedent’s will, taking an inheritance based on a statutory formula as opposed to what is provided to them under the will. The laws of each state vary significantly in how the elective share of the surviving spouse is determined. A client may prefer to transfer the maximum amount of their assets possible to their children or other beneficiaries at their death, especially if their spouse has significant personal assets or if they are in a second marriage and have different beneficiaries than their spouse. As such, they may provide directions that their spouse is only to receive their elective share. If the client later changes their domicile, they may inadvertently provide significantly more (or less) to their surviving spouse than they may have intended, inviting conflict, ambiguity, and potentially subverting the client’s testamentary intent. Conclusion If a client moves from one state to another, they should strongly consider consulting with local counsel. This ensures that their will is valid under the new jurisdiction and continues to align with their estate planning goals. Even if the client’s will is valid and does not need to be re-executed, it is nevertheless essential that advanced directives such as health care proxies, powers of attorney, and appointments of standby guardianship are updated when moving to a different jurisdiction, as many states have statutory forms, and out-of-state forms may be rejected by health care providers and financial agencies.
October 21, 2025
Family Law
Can My Spouse Move Away with the Kids? What the Law Says About Relocation During Divorce
When parents separate, questions about where the children will live, and whether one parent can move away with them, often become some of the most emotionally charged and legally complex issues. Before a custody order is in place, understanding your rights and the court’s approach to relocation is essential. If a custody order has not yet been entered, both parents technically have equal rights to the children. However, that doesn’t mean one parent can pack up and leave. Courts view relocation during a pending divorce as a major decision that directly affects the children’s stability and the other parent’s rights. A move, even within the same state, can impact where the case is heard and how custody is ultimately decided. Judges base relocation decisions on the best interests of the child, not the convenience of the parent who wants to move. Factors may include: The reason for the move (new job, family support, safety, etc.) The distance involved and how it affects visitation The child’s age, school, and community ties Each parent’s relationship with the child Whether the move appears to be an attempt to interfere with the other parent’s time If your spouse has already moved or is threatening to, contact your lawyer immediately to determine whether or not an emergency order or injunction is warranted to have the child returned or to stop the move. Once custody is established, a parent who wishes to move usually provides advance written notice-often 60 to 90 days-before relocating. The other parent may then object and request that the court hold a hearing. In Maryland, for example, the court may include language in a custody order that requires the moving parent to file written notice with the court, the non-moving party, or both at least 90 days before the proposed move, whether it’s in-state or out-of-state. If you fear your spouse may move away with your children, speak with a family law attorney immediately. Taking early action may prevent a relocation before it happens. It is also important to document communication — texts, emails, or statements about moving. You may request temporary custody or access orders as soon as possible. Be sure to stay calm and cooperative. Courts tend to favor parents who act responsibly and keep the children’s needs first. Law protects both parents’ rights to maintain meaningful relationships with their children, and judges look closely at whether a move truly benefits the child or simply disrupts the other parent’s bond.
October 21, 2025
Labor and Employment
The Hidden Cost of Remote Work: Who Pays for the Home Office?
Remote work is now a customary feature of many workplaces. Until recently, employer policies (if any) governed payment of the job-related expenses incurred by remote workers. However, a number of states have now enacted express mandates for payment of remote employment expenses. California, Illinois, Iowa, Massachusetts, Minnesota, Montana, New Hampshire, New York, North Dakota, Pennsylvania, South Dakota, and the District of Columbia have statutes that require employers to reimburse employees for certain remote work expenses. The city of Seattle also requires payment of “remote work expenses” under its wage payment statute. There are three different types of expense reimbursement laws: Required Reimbursement Most of these states require reimbursement of “necessary” expenses that relate to the performance of the employee’s duties. Those states are California, Illinois, Massachusetts, Montana, North Dakota, South Dakota and the District of Columbia. Conditional Reimbursement Two states make reimbursement conditional on the employer’s policy. Iowa requires reimbursement of expenses “authorized by the employer;” and New York only requires payment for expenses that are “promised” to the employee. Equipment/Tools Reimbursement Two states do not have the “necessary” condition for reimbursement but require payment for equipment or tools based on their use in connection with employment. Minnesota requires reimbursement of expenses for “equipment used” in for work, except “tools of the trade.” New Hampshire similarly requires payment for any expenses “incurred at the request of the employer” except for “expenses normally borne by the employee.” All of these state laws commonly require more extensive reimbursement for work expenses compared with the narrower typical expense reimbursement practices historically used by employers. However, detailed guidance on the scope and nature of required reimbursements is not yet provided in these state laws. State laws that require employers to reimburse the expenses of remote workers typically define the costs covered in terms of whether they are “necessary” for discharge of the employee’s duties and directly related to the kind of work performed. Although not expressly stated in these laws, the underlying premise is that the expenses would not have been incurred unless the employee was performing remote work for the employer. Clearly, the definition of reimbursable expenses is very broad, since any equipment, software, connectivity, or furniture that is actually and routinely used to perform work can be seen as “necessary.” Typical examples of reimbursable expenses would include computer equipment, printers, cellphones, internet connections, software licenses, and cameras/microphones for video conferencing. However, the definition of expenses that are required to be reimbursed is broader than the typical scope of equipment that is reimbursed or furnished to the employee. For example, if a desk or an ergonomic chair is necessary for performance of the employee’s duties, then it may well fit the definition of a reimbursable expense under state law. As a general rule, any expenses that would be incurred by the employee if the employee were not working for the employer are not covered by the state reimbursement laws. Certainly, any normal living expenses (such as food, furniture, electric power, etc.) are not reimbursable under these laws. Also, any personal luxury items that are not necessary for the work (such as decorations for a home office) are not covered. The state statutes do not distinguish between temporary and more long-term remote work for purposes of reimbursement. None of the state laws address how the allocation of expenses that are used both for work and personal activities should be handled. Under the laws of the seven states that use the “necessary expense” test, it would probably violate the law to require pro rata apportionment, since the expenses are fully reimbursable if “necessary” for work. In the two states where the test is whether the equipment or tools are “used” in connection with employment, a similar analysis could apply. In the two states where the employer reimburses pursuant to its authorization or promises, the employer may allow for partial reimbursement as part of its policy. However, establishing and enforcing the separation of employment-related costs and personal costs would be very difficult. The state of Illinois is an exception to the lack of guidance on reimbursable expenses under state laws. The Illinois law supplies a five-part test for determining what expenses are covered: Whether the employee has any expectation of reimbursement Whether the expense is required or necessary to perform the employee’s job duties Whether the employer is receiving a value that it would otherwise need to pay for How long does the employer receive the benefit Whether the expense is required for the job In more than 75% of the states, reimbursement of remote work expenses is neither required by law nor regulated. As a best practice, however, employers should establish clear, detailed policies that describe what remote work expenses are considered to be necessary and directly related to employee duties, as well as policies for documentation and reimbursement of expenses. These policies may need to vary depending upon the job description, work performed, or disability accommodation.
October 20, 2025
Real Estate
Five Reasons Delaware Reigns Supreme for Business Formation
Why is the majority of Fortune 500 companies incorporated in the state of Delaware? Why are more than 75% of all new initial public offerings in the United States done by companies incorporated in Delaware? Why is Delaware able to generate more than 25% of its general fund revenue from the incorporation business? And, why have other states been unable to steal this business away from Delaware? Here are the top five reasons to form an artificial entity in Delaware. The Delaware court system is well established and highly respected. The Delaware Court of Chancery specializes in corporate issues and uses judges instead of juries. This means that in every litigation, a judge with a lot of expertise in complex corporate law matters will preside, and the opinions are relatively consistent. In addition, Delaware has historically and consistently been ranked one of the top judiciaries in the country. Delaware offers a lot of flexibility for structuring a business entity. Delaware’s corporate statutes are highly flexible with respect to corporate governance, allowing significant freedom in determining the composition, powers, and management structure of the board of directors. The Delaware limited liability company statute creates even more flexibility. If a structure can be imagined, chances are it can be accomplished with a Delaware LLC. Delaware offers greater privacy. Delaware entities do not need to disclose officer or director names on the formation documents. Delaware LLCs do not need to disclose the names of its members. This creates a certain level of privacy, if needed or desired. Investors prefer Delaware entities. Venture Capital investors, investment banks and other lending institutions typically prefer Delaware entities above all other states because of the reasons stated herein. Bi-partisan political consensus. When it comes to corporate law in Delaware, the politicians understand its importance, and Delaware’s importance. The bi-partisan political consensus in Delaware, therefore, attempts to keep the Delaware entities’ statutes modern and up-to-date, and to rely on Delaware’s corporate law specialists for advice on how to do this.
October 20, 2025
Healthcare
How to Achieve Medical Laboratory Compliance Efficiently
Laboratory compliance is foundational to safe, legal, and credible medical testing operations. Whether you run a diagnostic lab, clinical research facility, or pathology service, failure to meet regulatory standards can result in fines, loss of licensure, or reputational ruin. But achieving medical laboratory compliance efficiently is possible when you align policies, systems, and legal strategy. In this post, we’ll break down what laboratory compliance really means, the key laws and standards you must obey, and practical steps to streamline your journey. What Is Laboratory Compliance? Laboratory compliance refers to the process of ensuring that a clinical laboratory or testing facility follows all applicable regulations, industry guidelines, and compliance requirements governing safe and reliable laboratory operations. It’s the foundation of trust, accuracy, and safety in healthcare and research. Through strong lab compliance, organizations demonstrate their ability to comply with regulations set by regulatory agencies such as the FDA and other US government bodies that oversee testing, reporting, and data integrity. A robust compliance program also integrates technology such as a laboratory information management system (LIMS) to streamline lab processes, monitor activities, and ensure records are properly maintained. The use of LIMS helps laboratories achieve compliance more efficiently by automating workflows, tracking samples, managing equipment maintenance and calibration, and generating the necessary evidence for laboratory inspection. This ensures that every result can be traced back to its source, maintaining data integrity and accountability. It’s important to distinguish between compliance, quality control, and accreditation, even though they work hand in hand. Compliance focuses on meeting regulatory compliance and legal standards. Quality control ensures test results are accurate, consistent, and reliable through systematic checks and testing practices. Accreditation, on the other hand, involves independent validation by recognized organizations that confirm the lab’s adherence to industry standards and guidelines. Together, these elements allow lab managers, lab employees, and administrators to build effective, compliant laboratory operations that can withstand both internal review and external oversight. Why Laboratory Compliance Is Crucial for Medical and Clinical Labs Adhering to laboratory compliance is essential for maintaining trust, safety, and operational excellence. Every clinical laboratory has to follow the rules set by regulatory agencies to protect patients, employees, and data. By developing a structured compliance program, laboratories can identify risks, establish controls, and take preventive action before compliance issues arise. The procedure includes everything from equipment calibration and staff training to documentation and audit trails that provide evidence of compliance. Effective lab compliance protects both staff and patients by reducing the risk of accidents involving toxic chemicals, preventing physical damage, and ensuring proper handling of biological materials. Following strict standard operating procedures and maintaining a culture of safety ensures that laboratories remain compliant while promoting accountability among lab employees. It also allows lab managers to clearly define responsibilities, implement processes, and monitor operations to prevent errors that could lead to injury or regulatory penalties. Beyond safety, laboratory compliance is vital for preserving data integrity and research credibility. In fields like pharmaceutical production and diagnostic testing, even the smallest breach of data accuracy can have major consequences. Quality control processes, internal audits, and external audits ensure that lab data remains trustworthy, verifiable, and ready for inspection. The use of laboratory information management systems supports these procedures by maintaining organized records, creating digital audit trails, and minimizing human error. Such transparency not only meets regulatory compliance standards but also strengthens confidence in a lab’s results and reputation. When non-compliance occurs, the consequences can be devastating. A laboratory that fails to comply with established regulations risks severe regulatory issues, financial penalties, license suspension, and even shutdown. In worst-case scenarios, inaccurate data may lead to patient harm, contamination, or widespread physical damage. The long-term effects of non-compliance can destroy years of credibility, making recovery difficult. Maintaining a proactive compliance program, with regular audits, training, and continuous monitoring, ensures that a lab operates ethically and meets every compliance requirement efficiently and reliably. Key Regulatory Bodies and Standards In the United States, several regulatory agencies oversee different aspects of lab operations, ensuring that testing, reporting, and safety standards are met consistently. The Food and Drug Administration (FDA) regulates laboratories involved in pharmaceutical production, diagnostics, and medical testing to ensure that all lab data is accurate, reliable, and backed by sound quality control. The Clinical Laboratory Improvement Amendments (CLIA) set federal compliance requirements for testing performed on human samples, focusing on quality assurance, personnel qualifications, and equipment calibration. Meanwhile, the Occupational Safety and Health Administration (OSHA) establishes standards to protect lab employees from exposure to toxic chemicals, biological hazards, and other workplace risks, while the Environmental Protection Agency (EPA) enforces environmental regulations that govern waste disposal, emissions, and contamination control during laboratory operations. Beyond the U.S., international bodies such as the International Organization for Standardization (ISO) provide global frameworks, with ISO 17025 serving as the gold standard for laboratories seeking accreditation in testing and calibration. The difference between national and international compliance standards lies mainly in scope and recognition. National regulations like CLIA or FDA requirements are mandatory within the United States and enforced by government authorities. They define the minimum compliance requirements a laboratory must meet to remain legally operational. International standards, such as ISO 17025 or ISO 15189, are globally recognized and voluntary but often essential for laboratories that collaborate across borders or wish to demonstrate excellence beyond local laws. Many lab managers choose to align their compliance programs with both national and international standards to ensure competitiveness, data integrity, and credibility in the global industry. Meeting these combined standards involves maintaining thorough documentation, performing regular internal audits and external audits, implementing standard operating procedures (SOPs), and continuously training lab employees to ensure full regulatory compliance. By aligning with these key agencies and standards, laboratories can achieve compliance, prevent regulatory issues, and sustain the highest level of testing accuracy and reliability. Good Laboratory Practice Compliance Good Laboratory Practice (GLP) compliance is another critical part of maintaining reliable and ethical lab operations. GLP refers to a set of principles and guidelines that govern the planning, performance, monitoring, recording, and reporting of non-clinical laboratory studies. Established originally by the FDA and later adopted internationally through the Organisation for Economic Co-operation and Development, GLP ensures that laboratories conducting safety and efficacy testing produce accurate data that regulatory authorities can trust. Unlike general laboratory compliance, which focuses on meeting all regulatory compliance obligations, GLP compliance zeroes in on the scientific integrity and traceability of research. To ensure the verification of every experiment, result, and conclusion, it necessitates detailed documentation requirements, well-defined standard operating procedures, and robust audit trails. Following GLP standards also means maintaining strict equipment maintenance and equipment calibration schedules, ensuring staff training, and implementing effective quality control processes to eliminate errors. The benefits of following Good Laboratory Practice are far-reaching. Laboratories that adopt GLP principles enhance the credibility and reproducibility of their research, reduce the likelihood of compliance issues, and minimize the risk of non-compliance findings during laboratory inspection. By adhering to GLP, lab managers and lab employees can demonstrate that their data integrity, quality assurance, and processes meet internationally accepted expectations. This not only helps regulatory bodies like the FDA and EPA, but it also strengthens relationships with clients, pharmaceutical companies, and international partners who depend on accurate data and ethical testing methods. When comparing GLP to general laboratory compliance, the distinction is in focus and purpose. General lab compliance ensures that a laboratory meets legal regulations, safety requirements, and operational standards for day-to-day lab processes and audits. GLP compliance, however, specifically governs how research data is produced, validated, and stored, providing scientific credibility that complements a broader compliance program. Together, they create a comprehensive framework that ensures both regulatory compliance and scientific integrity, enabling laboratories to operate safely, ethically, and efficiently in a competitive, high-stakes environment. Common Laboratory Compliance Requirements Whether managing a clinical laboratory, research facility, or pharmaceutical production site, lab managers must implement standard operating procedures (SOPs), maintain accurate documentation, and conduct regular internal audits to achieve compliance. Important laboratory compliance requirements include: Safety and Environmental Regulations Compliance efforts start with ensuring laboratory safety. Laboratories must properly handle toxic chemicals, hazardous materials, and waste to prevent contamination and harm to lab employees. Standard operating procedures should define waste disposal protocols, spill response measures, and emergency evacuation plans. Staff training is also critical, as every employee must understand how to conduct procedures safely and comply with environmental protection regulations set by the US government, OSHA, and the EPA. Regular laboratory inspections and audits verify that safety measures, documentation requirements, and maintenance practices meet established compliance standards. Proper implementation protects staff and the environment and enhances the reliability of laboratory operations. Equipment and Instrumentation Compliance To achieve compliance, laboratories must ensure that all instruments are properly calibrated, validated, and maintained. Equipment maintenance and calibration logs are key compliance requirements that regulatory agencies like the FDA and ISO rely on for verification. Each instrument used in testing must undergo validation before use, and records must be accurately maintained to demonstrate traceability. A structured compliance program helps lab managers monitor instrument performance, prevent errors, and support data accuracy. Proper documentation and audit trails offer clear evidence of adherence to regulations, ensuring the accuracy and reliability of laboratory data and minimizing compliance issues during external audits. Personnel and Training Compliance Lab compliance heavily depends on qualified, well-trained personnel. Every staff member must meet certification and qualification requirements relevant to their responsibilities. Regular staff training ensures that lab employees remain updated on regulations, quality assurance protocols, and best practices. Documenting training sessions and certifications is part of the compliance program and serves as proof of adherence during audits or inspections. Lab managers must also establish clear SOPs for personnel conduct, assign responsibilities, and monitor performance to maintain compliance consistency. Continuous training strengthens laboratory operations and reduces risk by reinforcing safety practices, data reliability, and procedural accuracy across departments. Data Management and Documentation Maintaining accurate laboratory data and proper documentation is at the heart of laboratory compliance. Laboratories must keep complete and accurate records of tests, samples, and processes, whether in electronic or paper form. A compliant laboratory information management system (LIMS) ensures data integrity by managing audit trails, access permissions, and documentation requirements. Regulatory agencies often review record retention policies, documentation accuracy, and evidence of data monitoring to ensure laboratories meet compliance requirements. Proper data management supports quality control and internal and external audits and provides reliable evidence during regulatory inspections. Ultimately, effective documentation practices protect laboratories from non-compliance risks and preserve the credibility of lab results in the scientific and medical community. How to Ensure Lab Compliance Start by conducting regular compliance audits or self-assessments to identify gaps, risks, and areas of non-compliance. Internal audits help verify that laboratory operations, such as equipment maintenance, calibration, data recording, and sample testing, adhere to established standards. These evaluations also furnish proof of compliance for external audits and regulatory inspections, guaranteeing your lab’s constant readiness. Developing comprehensive standard operating procedures (SOPs) is equally important. SOPs outline consistent steps for everything from sample handling to waste management, enabling lab managers and employees to conduct processes accurately and safely. You should regularly review and update SOPs to keep your lab processes in line with current compliance requirements and best practices. Training your team is another critical part of achieving compliance. Every lab employee must receive onboarding and ongoing staff training to understand safety measures, documentation requirements, and data integrity standards. Continuous education helps prevent errors, supports quality control processes, and reinforces a culture of accountability across all laboratory operations. To streamline these compliance efforts, laboratories should implement a compliance management system or laboratory information management system (LIMS). These digital tools simplify tracking of SOPs, audit results, training records, and documentation updates. They also generate automatic audit trails, monitor corrective actions, and maintain accurate laboratory data, helping labs stay organized, efficient, and inspection-ready. Finally, navigating regulatory compliance can be overwhelming without expert legal guidance. Partnering with an experienced healthcare attorney can help you interpret regulations set by multiple agencies, establish preventive action plans, and respond effectively to compliance issues. Our experienced legal team at Cohen Healthcare Law Group provides trusted counsel for laboratories seeking to maintain compliance, avoid costly penalties, and strengthen their overall operations. Contact Cohen Healthcare Law Group today to ensure your lab meets every compliance requirement confidently and efficiently. Ready to Ensure Your Lab Meets All Compliance Standards? Staying on top of laboratory compliance is about protecting your staff, patients, and reputation. By conducting regular internal audits, maintaining clear standard operating procedures (SOPs), investing in continuous staff training, and using a reliable laboratory information management system (LIMS), your lab can operate efficiently while meeting every regulatory compliance requirement. Proactive compliance helps prevent costly fines, equipment downtime, and legal complications, all while strengthening data integrity and workplace safety. FAQ Below are answers to some frequently asked questions to help lab managers, compliance officers, and laboratory employees stay informed and compliant with federal and industry guidelines: What Does CLIA Compliance Mean? CLIA compliance refers to meeting the requirements set by the Clinical Laboratory Improvement Amendments (CLIA), which regulate all clinical laboratory testing performed on humans in the U.S. It ensures that laboratories produce accurate, reliable, and timely test results, maintaining high standards of quality control, data integrity, and regulatory compliance. How Much Does a CLIA Certification Cost? The cost of a CLIA certificate depends on the type of testing your clinical laboratory performs. Fees typically range from a few hundred to several thousand dollars, based on the complexity of the tests. Laboratories must also pay renewal fees every two years to maintain active certification and continue to achieve compliance with federal standards. What Are the Three Types of CLIA Certificates? CLIA regulations recognize three main certificates: Certificate of Waiver—for simple tests with a low risk of error. Certificate for Provider-Performed Microscopy (PPM)—for moderately complex microscopy tests. Certificate of Compliance or Accreditation—for complex testing requiring strict quality assurance, standard operating procedures, and regular inspections by regulatory agencies. What Are The Requirements For Lab Safety? Laboratory safety requirements include proper handling of hazardous and toxic chemicals, using personal protective equipment (PPE), maintaining equipment calibration, and following waste disposal protocols. Labs must also establish emergency procedures, conduct staff training, and ensure regular internal audits to prevent accidents and compliance issues. What Does PEL Stand For? PEL stands for Permissible Exposure Limit, a safety standard set by OSHA that defines the maximum amount of a substance or chemical a worker can be exposed to during a workday. Monitoring and controlling exposure levels are essential parts of laboratory risk management and regulatory compliance. Who Is Responsible for Lab Safety? Lab managers and supervisors hold primary responsibility for ensuring lab safety and compliance with all regulations set by the US government and relevant regulatory agencies. However, every lab employee plays a role by following SOPs, reporting risks, and adhering to compliance requirements to maintain a safe and efficient work environment.
October 20, 2025
Page 10 of 44
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