Laches | February 2024

LACHES

www.ocba.org | February 2024 | Number 665

DR. CHATBOT:

Understanding Regulatory Requirements for AI in Health Care

FINAL OFFER: PARITY OR ELSE:

Federal Government Issues Landmark Proposed MPHAEA Rules

NONCOMPETES ARE SO LAST YEAR:

FTC Proposes Banning Most Noncompete Clauses

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B I R M I N G H A M ,

M I C H I G A N

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LACHES

CONTENTS FEBRUARY 2024

OAKLAND COUNTY BAR ASSOCIATION 1760 S. Telegraph Road, Suite 100 Bloomfield Hills, Michigan 48302-0181 (248) 334-3400 • FAX (248) 334-7757 www.ocba.org

2023-2024 BOARD OF DIRECTORS

FEATURES Dr. Chatbot: Understanding Regulatory Requirements for Artificial Intelligence in Health Care The expansion of AI into the medical field presents potential regulatory challenges for providers and their counsel.

By Emma Trivax 10 Noncompetes Are So Last Year In 2023, the FTC proposed banning most noncompetition clauses in employer-employee contracts.

By Kelley Donnelly and Fatima M. Bolyea 14

PRESIDENT Melinda N. Deel

SECRETARY Kari L. Melkonian

DIRECTORS Victoria B. King Syeda F. Davidson Julie L. Kosovec Emily E. Long Jennifer L. Lord Moheeb H. Murray Kimberley Ann Ward Kenneth F. Neuman Layne A. Sakwa Jonathan B. Frank

EXECUTIVE DIRECTOR Jennifer Quick

ABA DELEGATE James W. Low

LACHES EDITORIAL BOARD Victoria B. King Syeda F. Davidson Coryelle E. Christie Lanita Carter

Thamara E. Sordo-Vieira Carmen E. Moyer Fahd Haque

PRESIDENT-ELECT Dean M. Googasian VICE PRESIDENT Sarah E. Kuchon TREASURER Aaron V. Burrell

THE MISSION OF THE OAKLAND COUNTY BAR ASSOCIATION IS TO SERVE THE PROFESSIONAL NEEDS OF OUR MEMBERS, IMPROVE THE JUSTICE SYSTEM AND ENSURE THE DELIVERY OF QUALITY LEGAL SERVICES TO THE PUBLIC. Articles and letters that appear in LACHES do not necessarily reflect the official position of the Oakland County Bar Association, and their publication does not constitute an endorsement of views that may be expressed. Readers are invited to address their own comments and opinions to:

Final Offer: Parity or Else: Federal Government Issues Landmark Proposed Rules Under MHPAEA The new rule would strengthen requirements ensuring parity between mental health and medical treatment coverage.

By Katherine R. Hopkins 18

DEPARTMENTS

President’s Page E.D.itorial OCBA Calendar of Events Professional Development and CLE Jury Trials and Utilization Diversity, Equity, and Inclusion On the Circuit In Pro Per Committees Foundation New OCBA Members OCBA Staff Directory Adjourned

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PUBLISHING PARTNER

LACHES | Oakland County Bar Association 1760 S. Telegraph Rd., Ste. 100 Bloomfield Hills, MI 48302-0181 Publication and editing are at the discretion of the editor.

5750 New King Drive, Ste. 100 Troy, MI 48098 Phone: 248.691.1800 / Fax: 248.691.4531

LACHES (ISSN 010765) is the monthly (except July and December) publication of the Oakland County Bar Association, a Michigan nonprofit corporation, 1760 S. Telegraph, Ste. 100, Bloomfield Hills, MI 48302-0181. Copyright © 2024 Oakland County Bar Association. The price of an annual subscription ($20) is included in member dues. Periodical postage paid at Bloomfield Hills, MI 48304 and additional entry offices. Postmaster: Send address changes in writing to Oakland County Bar Association, 1760 S. Telegraph, Ste. 100, Bloomfield Hills, MI 48302-0181.

LACHES is published exclusively for the Oakland County Bar Association by Hour Custom Publishing, a division of Hour Media, L.L.C. Copyright © 2024.

All rights reserved. No portion may be copied or published without the express written consent of the publisher. The views expressed in this publication are not necessarily those of OCBA or Hour Media.

www.ocba.org

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PRESIDENT’S PAGE

OCBA Lawyers Have Heart!

By Melinda N. Deel

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his month’s column holds a place close to my heart, as I have always believed in the importance of volunteering and the privilege it is to be able to give back. As an attorney who has practiced juvenile law for many years, I love working with children and having the opportunity to enrich their lives. To that end, I have participated in the OCBA’s Mock Trial program, which gives elementary school students a hands-on opportunity to participate in the justice system. I chaired the Law Related Education Committee that hosts the Youth Law Conference, which teaches high school students about the legal process with topics that interest them.

I also assisted in organizing the Juvenile Law Committee’s program that provided duffel bags filled with much-needed supplies to children in the foster care system. I have found my volunteer work through the OCBA to be tremendously rewarding and have appreciated the ability to make someone’s life just a little bit better.

The OCBA provides numerous opportunities for you to give back by not only using your legal skills but also making significant contributions to your community. I am so proud of the work the OCBA does to fulfill its mission to ensure the delivery of quality legal services to the public.

Please take a look at these exciting and rewarding law-related educational opportunities provided by the OCBA, and hopefully, you’ll find one that interests you and that would benefit from your knowledge and experience:

MOCK TRIAL FOR ELEMENTARY SCHOOLS

Imagine watching an 8-year-old argue a court case or get to play a judge or juror — there’s nothing cuter! The OCBA, in collaboration with Oakland Schools, offers this creative learning approach for students in grades two through six.The Mock Trial program allows students to take a hands-on learning approach to all aspects of a court case. Introducing children to the who, what, where, when, and why of the law can foster a lifelong apprecia-

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tion for the legal justice system.

Students work in teams and learn about different roles and responsibilities in the courtroom through interactive role-play. The mock trial involves an alleged theft of intellectual property (a recipe) using the SpongeBob SquarePants characters familiar to students. Students truly enjoy the funny script, the supporting props, the opportunity to act out the trial in a real courtroom, and that they get to actively participate in determining a verdict!

Attorney volunteers visit the children’s classroom prior to their mock trial to explain the program. They answer any questions the students have about the court system, the experience of being a lawyer, and the theft of SpongeBob’s de-

♥

licious recipe. The Mock Trial program concludes with a field trip to the local district court or the Oakland County Circuit Court, where students present their mock trial in an actual courtroom setting.

YOUTH LAW CONFERENCE

The Youth Law Conference educates high school juniors and seniors about career options in the legal profession and the general legal process and provides tools for better decision-making. By tailoring this program to the interests and issues of a teen audience, the OCBA and its volunteer attorneys deliver an engaging program that is a hit with students and teachers alike.

At the conference, students and teachers

2023–2024 participate in breakout sessions where they hear from prominent speakers from both the bench and the bar. Past conference topics have included computer forensics, a legal professionals panel, street law, using forensic evidence to solve crimes, military law, domestic violence law, employment law, identity protection, K-9 units, cyberbullying, TV shows: fact or fiction, law school admission, and more!

GENERAL TOPIC SPEAKERS BUREAU

The Speakers Bureau provides a great community service by maintaining a comprehensive roster of attorneys and other legal professionals who want to present to interested groups. The OCBA Speakers Bureau is a service provided to local teachers, nonprofit administrators, and community group leaders. All Speakers Bureau volunteers bring an exciting perspective and an extensive knowledge of legal issues to the table.

MILITARY VETERANS SPEAKERS BUREAU

The OCBA’s special Military Veterans Speakers Bureau provides speakers who have inspirational stories that will interest, motivate, and energize an audience. Not only do these speakers tell great stories about rising to the occasion and overcoming challenges, but they also have

the gift of bringing humor and entertainment to a presentation when it is time to lighten the mood.

The Military Veterans Speakers Bureau members have served in the Army, Air Force, Navy, Marine Corps, and National Guard. They have been on active duty during times of peace and during conflict. Veterans have served in the Korean, Vietnam, Iraq, and Afghanistan wars.

They have been in combat, been stationed stateside, and served in the reserves. The members of this bureau have diverse military careers and are eager to share their unique experiences.

Elite Supporters PLATINUM $10,000+

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SENIOR LAW DAY

Senior Law Day is an invaluable resource that helps to educate senior citizens and/or their adult children on the areas of law that impact older adults. Thanks to the generous support of the Oakland County Bar Foundation, there is no cost for seniors to attend. Attendees choose from several informational sessions presented by our volunteer attorneys.

Topics include:

BRONZE

$2,500–4,999.99

• Wills and trusts.

• Medical power of attorney.

• Michigan estate recovery plan.

• Guardianships/conservatorships.

There is also an “Ask a Lawyer” session where participants can speak with an attorney one-on-one.

JUDICIAL CANDIDATE FORUMS

Each election cycle, the OCBA partners with the League of Women Voters of the Oakland Area and the Detroit Free Press to host judicial candidate forums for all judicial races in Oakland County where there are contested seats.

Each forum consists of two panelists — one from the Oakland County Bar Association and one from the Detroit Free Press — who ask questions of each of the judicial candidates. A representative of the League of Women Voters moderates the forum. Local citizens are invited to attend these events and submit questions for responses by the candidates.

More information can be found on these volunteer opportunities, as well as how to get involved, at ocba.org/volunteer.

®

ATTORNEYS AT LAW

Melinda N. Deel is the president of the Oakland County Bar Association.

“Elite Supporters” consist of distinguished firms whose sponsorship of 2023-2024 OCBA events total $2,500 or more. There are four supporter levels. If you’d like more information on this program, contact Jennifer Quick at jquick@ocba.org.

Elite Supporter levels: PLATINUM ($10,000+), GOLD ($7,500+), SILVER ($5,000+), and BRONZE ($2,500+)

Learn. Lead. Succeed. www.ocba.org

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E.D.ITORIAL

What Could Be Better Than Serving Up Smiles?

By Jennifer Quick

S

everal studies of civic engagement conclude that young adults do not have a basic understanding of our system of government, including the three branches of government, and the application of the rule of law in the United States. As a result, participation and faith in our democratic system of government are compromised. Civics education in schools is necessary to produce graduates who are informed, educated, and involved in their communities; who exercise their right to vote; and who will then share that knowledge with their families and friends.

Recognizing this challenge to our communities, in 2010, Daniel D. Quick, OCBA and OCBF past president and current State Bar of Michigan president, worked with the OCBA’s Law Related Education Committee and civic education consultants from Oakland Schools to

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develop the Elementary Mock Trial program.

Important to Dan and the committee was that the program would be relevant to students, that it would engage them, and that it would hopefully inspire them to pursue careers in law or public service. It was also important to involve educators to ensure that the content was appropriate for elementary students and aligned with curriculum standards. Introducing this education at the elementary school level creates a sense of excitement and curiosity among the students that serves as a foundation for future interest in their government and in the court system.

From 2010 to early 2019, the OCBA promoted the Elementary Mock Trial program to second through sixth grade teachers in Oakland County each fall to inform them about the educational programming and the

opportunities for their schools to participate.

The program is funded by a grant from the Oakland County Bar Foundation and helps cover costs such as materials, volunteer training, and transportation reimbursement for some of the schools.

If a teacher is interested, they complete a form and send it to staff at the OCBA. The staff then reaches out to a pool of volunteer attorneys to find one who is willing and able to work with the school to coordinate its participation in the program. The volunteer attorney will typically visit the classroom to explain the program to the students, work with them to assign roles, and get them prepared to conduct a mock trial at one of the courts in Oakland County.

The attorney will contact a court and work with it to arrange a date and time when the school can come into the courthouse to conduct a trial

E.D.ITORIAL in an actual courtroom. A judge also participates in the experience.

The mock trial itself involves an alleged theft of intellectual property (a recipe) using the SpongeBob SquarePants characters who are familiar to students. The trial can be scaled to the desires of the teacher and the abilities of the class. In its fullest form, the trial includes: 1. Active roles for up to 40 students.

2. The ability of teams to exercise critical and analytical thinking in order to craft questions to ask the witness.

3. Opportunities for demonstration of advanced verbal skills during oral presentation of opening and closing statements.

4. A series of exhibits which the students may use during their examination and which will help students maintain interest.

5. The opportunity to use assimilation and critical thinking to discuss the facts presented and determine a verdict.

6. A humorous script and scene designed to maximize student involvement.

Volunteer attorneys are supplied with an attorney guide, materials for the teachers, scripts for the students, and the exhibits. Volunteers also undergo training. The last Elementary Mock Trial training was conducted in 2015, and at the height of the program, the OCBA had a pool of over 30 volunteer attorneys.

From 2010 to early 2020, 3,633 students participated in the program, ranging from second to sixth graders. While at the courthouse, they also had the opportunity to observe an actual court proceeding, tour the courthouse, and sometimes tour a jail or meet the K-9s of the Oakland County Sheriff ’s Office. The attorneys and judges who participate in the program state that it is often a highlight of their year.

Unfortunately, the closure of the courts during the pandemic put the Elementary

Mock Trial program on hold. Even as courts reopened, the backlog of cases made it difficult for judges to give up their courtrooms to host a class. But, fortunes have once again changed.

After speaking with circuit, probate, and district court judges throughout Oakland County, we have found they are ready and eager

to welcome students back to their courtrooms.

We have also recently had some elementary schools reach out to us wanting to participate in the program again.

All we need now is a pool of attorney volunteers. This is where you come in.

VOLUNTEERS NEEDED

Led by three Elementary Mock Trial volunteer veterans, Dan Quick, Melinda Deel, and Mark Berke, the Law Related Education Committee will be conducting an Elementary Mock Trial training for those interested in participating the evening of Wednesday, February 28, at the OCBA. The training will also be recorded to be available to future interested volunteers. Our goal is to cultivate a pool of volunteers of 20-25 OCBA members.

If you are interested in attending the mock trial training and volunteering for the program, please contact Janise Thies at jthies@ocba.org or (248) 334-3400.

Volunteering for this program is incredibly rewarding. OCBA President and program volunteer Melinda Deel shares, “Serving as a volunteer attorney for the OCBA’s Elementary Mock Trial program has been tremendously rewarding. I love working with the children and seeing the joy on their faces as they’re learning about the legal system in a fun and interactive way. It’s incredibly meaningful to be a part of their introduction to the law.”

Apart from the extraordinary educational opportunity for students, participation in the program brings true smiles to their faces. And to quote SpongeBob SquarePants, “What could be better than serving up smiles?”

Jennifer Quick is the executive director of the Oakland County Bar Association.

CALENDAR OF EVENTS Please Note: Dates listed below were sent to the publisher on December 5, 2023. It is possible that some of the events listed below have since been altered. Please check ocba.org/events for the most up-to-date schedule of events.

FEBRUARY

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LUNCHEON LIMINE: CRIMINAL COURT Our bench/bar brown-bag luncheon series continues virtually via Zoom and will feature Judges Yasmine Poles and Kwamé Rowe from the Oakland County Circuit Court. They will share tips and preferred protocols for criminal proceedings. Bring your questions and join us for an informal discussion of legal topics and practice issues. Space is limited, so register today at ocba.org/events.

NEW LAWYERS VS. THE BOARD CHALLENGE The New Lawyers Committee annually invites the OCBA board of directors to a competitive challenge. This year will feature a cornhole tournament. Can the board retain its title after winning last year’s ax-throwing challenge, or will the new lawyers take back the coveted trophy? You can participate without having to be a new lawyer or a board member — you just have to pick a side! Register at ocba.org/events.

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OFFICE CLOSED IN OBSERVANCE OF PRESIDENTS DAY

MARCH AFFINITY BAR CHARITY CHALLENGE Join several local and affinity bars as we compete to see which bar can raise the most for its charity of choice. Attendees will vote for their favorite bar association by donating cash “tips” to the association’s “tip jar.” All tips will go to the charities selected by each respective bar association.

The bar association that receives the most tips will win the challenge and receive an additional donation to its charity! All net proceeds from the event will be split between all of the charities. Join us and help your favorite affinity bar association to victory! Register at ocba.org/events.

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DISTRICT COURT BENCH/BAR CONFERENCE Recovering the Lost Art of Civility Our popular biennial bench/bar conference is back in person as we continue to build collegiality between the bench and the bar. This year, we focus on bringing back civility in the courtroom. We also touch on important changes in civil and criminal law, including updates in landlord/tenant law; the Michigan Indigent Defense Commission; alternative dispute resolution; and best practices in virtual client representation.

Learn more and register at ocba.org/dcbb.

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FEATURE | AI

DR. CHATBOT:

Understanding Regulatory Requirements for Artificial Intelligence in Health Care

By Emma Trivax

C

an artificial intelligence (AI) be my new doctor? Maybe. There do not appear to be many guardrails stopping AI from acting as such. Recently, I put various symptoms into an AI chatbot and asked it to diagnose me. The chatbot responded with its best approximation of what was wrong with me, then suggested I follow up with a doctor. I did it a second time, with different symptoms, and it again diagnosed me, then suggested I follow up with a doctor. Is this different from entering my symptoms into Google and seeing the top result from WebMD? Or submitting my symptoms into a symptom checker online? It feels different — likely because the chatbot’s response was personally tailored to me. Is this considered practicing medicine?

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AI | FEATURE

AI has been making significant strides in the health care sector, offering a range of capabilities from simple language translations to machinelearning diagnoses based on large volumes of patient data. However, the expansion of AI into health care services, devices, and operations presents potential regulatory challenges for health care providers and their counsel.

UNDERSTANDING AI IN HEALTH CARE

AI in health care has a rich history that dates to the 1950s. The earliest applications of AI in this field involved machines that were programmed to make very basic decisions. The 1980s and 1990s saw the development of machinelearning algorithms, which were applied to medical diagnoses, medical imaging, and the prediction of patient outcomes. In the 2000s, the focus shifted to the use of AI in personalized medicine.

The 2010s focused on deep learning, which revolutionized AI applications in health care, particularly in the fields of medical imaging, drug discovery, and genetics.1 Common applications of AI in health care include natural language processing, machine learning, deep learning, generative AI, software as a medical device (SaMD), and clinical decision support software.2

health-related AI software, including those used for administrative support, promoting a healthy lifestyle, functioning as electronic patient records, and managing data transfer or storage. The 21st Century Cures Act has clarified this by specifically excluding such software from the definition of a medical device, thereby removing it from FDA jurisdiction. This includes clinical decision support software, which provides personalized information to patients and their providers to improve health care outcomes, provided it meets certain criteria. However, distinguishing between software that merely informs medical decisions and software that directly influences medical decisions can be a complex task.

Privacy laws also play a significant role in the use of AI in health care. All applicable federal, state, and international privacy laws need to be adhered to, including the Health Insurance Portability and Accountability Act (HIPAA), genetic information privacy requirements, regulations regarding substance use and mental health services, the General Data Protection Regulation, and state privacy laws.

LEGAL RISKS ASSOCIATED WITH A ‘DR. CHATBOT’

As discussed above, the regulation of AI in the health care context is still in its formative stages.

This raises significant regulatory and ethical concerns. With few state-specific laws and even fewer federally applicable laws to govern AI’s use in health care, several questions are raised. Can AI be used in a way that would be considered practicing medicine? Can AI vendors be held liable for bad medical advice given to patients?

Or would the supervising physician, assuming there is one, be held liable? Are there data privacy concerns?

The Corporate Practice of Medicine

The health care industry is heavily regulated, with stringent physician licensing regulations issued by the boards of medicine in each state.

Many states also have a “corporate practice of medicine doctrine” (CPOM), which prohibits corporations from engaging in the practice of medicine or employing a physician to provide medical services. This doctrine is rooted in the

REGULATORY LANDSCAPE FOR AI IN HEALTH CARE

No comprehensive federal framework to regulate AI in health care currently exists. Certain states are actively implementing laws to oversee the development and deployment of AI that impacts health care, and approximately half of the states have pending or enacted AI legislation more generally. Michigan, for example, has no AI laws on its books.

On a federal level, the Food and Drug Administration (FDA) regulates the production and sale of medical devices in the U.S., including AI. The FDA classifies medical devices, including AI, into three classes based on risk.

Class I is considered the lowest risk category, Class II is considered moderate to high risk, and Class III is the highest risk category.3 AI software intended to diagnose or treat diseases is considered a medical device, often categorized as SaMD. Depending on the risk level associated with the particular SaMD under review, it can be classified as Class I, II, or III. The FDA also regulates AI software integral to a medical device’s hardware. Again, the FDA reviews each new AI software application and subsequently places it in the appropriate class. The FDA review process varies based on the device’s risk classification and the nature of any changes made post-market.

The FDA does not review certain types of www.ocba.org

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FEATURE | AI principle that a corporation cannot be licensed to practice medicine and therefore cannot exert control over an individual physician’s medical judgment. However, individuals licensed to practice medicine may be granted limited corporate structures, such as “professional corporations” (PCs), but such limited corporate structures require the direct ownership of the individual(s) licensed to practice medicine.

So, you might ask: How would AI fit into this framework? Health care providers now have access to AI in many different forms. AI can now analyze medical data, provide diagnosis and clinical decision support, and even predict health outcomes. There is certainly potential for the AI vendor or developer to be scrutinized for potentially practicing medicine. Using Michigan as an example, Michigan prohibits individuals from practicing medicine without a license.4 The practice of medicine means “the diagnosis, treatment, prevention, cure, or relieving of a human disease, ailment, defect, complaint, or other physical or mental condition, by attendance, advice, device, diagnostic test, or other means, or offering, undertaking, attempting to do, or holding oneself out as able to do, any of these acts.”5 If an AI vendor or developer created AI that gave medical advice to treat, diagnose, prevent disease in, or cure a patient, that AI may directly violate Michigan law. While some AI will be used under health care provider oversight, some will not. For instance, in my initial query to the chatbot about medical symptoms, the chatbot did provide a suggested diagnosis without confirmation from a provider first. Despite the AI telling me to follow up with a provider, did the AI just then practice medicine?

Of course, if a provider utilizes the AI as a mere resource before any medical advice is offered to the patient, that may prevent any unlawful practice of medicine by the AI. Providers must remain the ultimate decision-maker, regardless of whether AI is able to come to the same decision. There are many unanswered questions here: • Who is liable if the physician relies on AI for medical advice that turns out to be incorrect?

• Will AI vendors put disclaimer language in their agreements prohibiting users from practicing medicine with the AI? • Is that disclaimer enough?

These are the types of questions that will only be answered as the practice of using AI in health care increases. The disparity between the stringent regulation of the CPOM and the relatively lax oversight of AI in health care is stark.

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Privacy Laws

Michigan has enacted the Identity Theft Protection Act, MCL 445.61-79d. This law requires businesses and government agencies to take certain measures to protect personal identifying information. For example, it is a prohibited act to use another person’s personal identifying information to obtain credit, goods, services, money, or medical records with intent to defraud or violate the law.6 Violations of this act can result in civil penalties. Health care providers must remain vigilant that they understand how the AI companies are using their patients’ information. A use of patient information that may be permitted in one state could be a violation of Michigan’s law.

There also are concerns about how HIPAA applies to AI. HIPAA was enacted in a time when paper records were the norm, and it did not fully address the digital transformation of health care. Nonetheless, practitioners have found ways to adapt their physical, technical, and administrative safeguards to keep up with the ever-changing technological environment.

However, AI is less self-contained than many electronic medical record systems and may make it more difficult to adequately protect against bad actors. Just in the last four years, there has been a 239% increase in large breaches that resulted from hacking activities, and there has been a 278% increase in ransomware across the board.

In 2023, 77% of the large breaches reported to the Office for Civil Rights resulted from hacking.7 As such, AI companies must embrace appropriate security measures, monitor compliance, create stringent access controls, and provide comprehensive training for their personnel and associated vendors. Health care practitioners must always be cautious when introducing a new technology into their practices.

Cultivating trust in these technologies is pivotal for their enduring utility and success in health care, and this trust is intricately linked to safeguarding the privacy of patient data. The input of protected health information into AI software could be considered an unauthorized disclosure under HIPAA, if the AI company has not signed a business associate agreement (BAA) with the health care provider. Furthermore, AI companies must adhere to the terms of the BAA when using or disclosing protected health information. For instance, if an AI company uses protected health information to enhance its algorithms in a manner not permitted by the BAA, it would constitute a HIPAA violation.

AI Biases

The World Health Organization cautioned AI users in the health care field that “the data used to train AI may be biased, generating mislead-

ing or inaccurate information that could pose risks to health, equity and inclusiveness.”8 The California attorney general also has launched an inquiry into potential racial and ethnic disparities in commercial health care algorithms used by hospitals and health care providers. This all underscores the urgent need for comprehensive regulatory guidelines to ensure AI is used responsibly and ethically in health care.

CONCLUSION

The use of AI in health care is a rapidly evolving field housed in a complex regulatory landscape.

Even without definitive answers, health care providers and their counsel must attempt to understand the relevant regulatory requirements to ensure compliance and mitigate risks. As AI continues to advance and become more integrated into health care services, devices, and operations, it is essential to stay informed about the latest regulatory developments and guidelines.

Emma Trivax is an attorney in Troutman Pepper’s Detroit office.

Emma represents a wide range of health care providers, including physicians, pharmacies, hospitals, clinical laboratories, skilled nursing facilities, DMEPOS suppliers, and more. She advises her clients on regulatory, transactional, and compliance matters, including mergers and acquisitions, fraud and abuse, HIPAA, corporate practice of medicine, billing/reimbursement, and licensing issues.

Footnotes: 1. Vivek Kaul, Sarah Enslin, and Seth A. Gross, History of Artificial Intelligence in Medicine, GIE Journal (2020).

2. Artificial Intelligence for Health Care Providers: Overview, Practical Law Health Care, Westlaw (last accessed Nov. 1, 2023).

3. Regulatory Controls, U.S. Food & Drug Administration, <fda.gov/medical-devices/overview-device-regula tion/regulatory-controls> (last accessed Nov. 1, 2023).

4. MCL 333.17011.

5. MCL 333.17001(1)(j).

6. MCL 445.65(1)(a)(i).

7. HHS’ Office for Civil Rights Settles Ransomware Cyber-Attack Investigation, U.S. Department of Health and Human Services, <https://www.hhs.gov/about/ news/2023/10/31/hhs-office-civil-rights-settlesransomware-cyber-attack-investigation.html#:~:text= Ransomware%20and%20hacking%20are%20the, large%20breaches%20reported%20to%20OCR.> (last accessed Nov. 2, 2023).

8. WHO Calls for Safe and Ethical AI for Health, World Health Organization, <https://www.who.int/news/ item/16-05-2023-who-calls-for-safe-and-ethical-ai-forhealth> (last accessed Nov. 7, 2023).

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FEATURE | Noncompetes

Noncompetes Are So Last Year

By Kelley Donnelly and Fatima M. Bolyea A BRIEF PRIMER

O

n January 5, 2023, the U.S. Federal Trade Commission (FTC) announced a notice of proposed rulemaking (NOPR) that would ban noncompete clauses in employer-employee contracts.

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Noncompetes | FEATURE

The NOPR defines “noncompete clause” as any “contractual term between an employer and a worker that prevents the worker from seeking or accepting employment with a person, or operating a business, after the conclusion of the worker’s employment with the employer.”1 Notably, this definition includes even de facto noncompete clauses, such as: • A nondisclosure agreement between an employer and a worker “that is written so broadly that it effectively precludes the worker from working in the same field after the conclusion of the worker’s employment with the employer.”2

comment period included the potential adverse impact on the protection of intellectual property; the proposed rule’s tendency to disincentivize investment in worker training; and concerns that nonprofit health care providers would be unfairly advantaged by the proposed rule since they are exempt from it.

Twelve U.S. senators and 52 U.S. representatives sent a letter to the FTC in support of the proposed rule, observing that “the noncompete rule would impact approximately 30 million Americans, giving them increased freedom to change jobs and create new businesses, and it would increase wages by nearly $300 billion each year.”4

The U.S. Chamber of Commerce submitted a letter in opposition to the proposed rule noting that the proposed rule does not make exceptions to protect the employer’s “legitimate business concerns such as preserving trade secrets and protecting investments in personnel.”5 Even the Michigan Chamber of Commerce put in its two cents, submitting a comment opposing the proposed rule.

In part due to the volume of public comments received, the FTC is not expected to vote on the proposed rule, or a revised version of the proposed rule, until April 2024. However, the FTC is not prohibited from acting sooner, and any rule promulgated by the FTC will take

• A contractual term between an employer and a worker that “requires the worker to pay the employer or a third-party entity for training costs if the worker’s employment terminates within a specified time period, where the required payment is not reasonably related to the costs the employer incurred for training the worker.”3 Importantly, however, the FTC’s new rule would have certain exceptions. For example, the rule would not apply to noncompete clauses that are entered into by a person who is selling a business entity or otherwise disposing of their ownership interest in the business entity when the person restricted by the noncompete clause is a substantial owner, member, or partner of the business entity at the time the person enters into the noncompete clause. The new rule would also not apply to franchisee-franchisor relationships.

WHERE ARE WE NOW?

Following the issuance of the NOPR, the public comment period opened. Among other things, the proposed rule sought public comment on: 1. Whether franchisees should be covered by the rule.

2. Whether senior executives should be exempted from the rule, or subject to a rebuttable presumption rather than a ban.

3. Whether low- and high-wage workers should be treated differently under the rule.

The comment period was subsequently extended until April of 2023, and the FTC received nearly 27,000 comments in this time frame. The main concerns received during the www.ocba.org

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FEATURE | Noncompetes effect 180 days after its publication.

But, even if the proposed rule is adopted by the FTC, it still faces many legal challenges, including constitutional and statutory challenges to the FTC’s authority to issue the proposed rule.

While we wait with bated breath for the FTC’s decision, it is important to note that the FTC is not the only governmental body seeking to prohibit noncompetition provisions.

The U.S. National Labor Relations Board’s general counsel issued guidance on May 30, 2023, announcing that the noncompete provisions contained in many employment agreements violate Sections 7 and 8(a)(1) of the National Labor Relations Act (NLRA) unless narrowly tailored to special circumstances justifying the restrictions.6 Section 7 of the NLRA protects employees’ “right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”7 Under the act, it is therefore an unfair labor practice in violation of Section 8(a)(1) for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in [Section 7].”8 GC Memo 23-08 argues that noncompete provisions are overbroad — “that is, they reasonably tend to chill employees in the exercise of Section 7 rights, when the provisions could reasonably be construed by employees to deny them the ability to quit or change jobs by cutting off their access to other employment opportunities that they are qualified for based on their experience, aptitudes, and preferences as to type and location of work.”9 While general counsel memos are not binding law, GC Memo 23-08 serves as a pro-

16 LACHES MAGAZINE

nouncement, from the prosecutorial perspective, that noncompete provisions in employment agreements may violate the NLRA, giving the NLRB regional offices permission to seek information from employers on noncompete agreements during pending or future investigations.

In addition, in May of 2023, Minnesota became the fourth state (joining California, Oklahoma, and North Dakota) to adopt a statute declaring employee noncompetition agreements unenforceable.10 Colorado prohibits noncompetition agreements except in very specific circumstances.11 In April of 2023, House Bill 4399 was introduced in the Michigan House of Representatives. This bill places restrictions on the use of noncompetes by employers, including prohibiting the use of such agreements with low-wage employees and requiring the employer to satisfy a number of requirements in order to utilize these provisions. House Bill 4399 is still in committee and has shown no signs of movement.

BEST PRACTICES

This area of law is in a period of flux, and counsel for employers (and employees) should pay close attention to any changes in the coming months. In preparation, employers should evaluate their use of noncompetition agreements with appropriate caution, adopting a state-by-state or even employee-by-employee analysis. Any use of noncompetition clauses or overly broad agreements which may be interpreted, in any way, as chilling the legitimate rights of departing employees should be accompanied by a strong justification for their use.

Employers should also consider alternative means to protect their legitimate business interests, including through other restrictive

covenants and contractual provisions and by taking reasonable steps to protect confidential information and trade secrets. Lastly, counsel should review GC Memo 23-08 along with any further guidance from the NLRB and FTC to ensure their employment agreements will not run afoul of governmental agencies.

Kelley Donnelly is an associate in Taft’s Commercial Litigation practice group. She concentrates her practice on businesses and individuals in all areas of commercial litigation, with a primary interest in employment law and disputes arising out of the media and entertainment industry.

Fatima M. Bolyea serves as senior counsel at Taft Stettinius & Hollister LLP in Southfield, where she practices commercial litigation and represents a range of business clientele, including small businesses and family-owned companies. She is a past chair of the State Bar of Michigan Litigation Section and currently serves on the State Bar of Michigan Representative Assembly and Judicial Qualifications Committee.

Footnotes: 1. See Proposed Rule, 910.1(b)(2)(i)-(ii), Definitions.

2. See Proposed Rule, 910.1(b)(2)(i)-(ii), Definitions.

3. See Proposed Rule, 910.1(b)(2)(i)-(ii), Definitions.

4. Letter to FTC in Support of Noncompete Rule, brown.senate.gov/imo/media/doc/lettertoftcin supportofnoncompeterule.pdf (April 19, 2023).

5. U.S. Chamber of Commerce, Notice of Proposed Rulemaking, Federal Trade Commission; Non-Compete Clause Rule (88 Fed. Reg. 3,482-3,546, January 19, 2023), uschamber.com/assets/documents/FTCNoncompete-Comment-Letter_FINAL_04.17.23.pdf (April 17, 2023).

6. GC Memo 23-08.

7. 29 USC 157.

8. Id. at 158(a)(1).

9. Id. 10. National Law Review, “Minnesota to Ban NonCompete Agreements Other Than Related to Sale, Dissolution of Business,” natlawreview.com/article/ minnesota-to-ban-non-compete-agreements-otherrelated-to-sale-dissolution-business (May 18, 2023).

11. National Law Review, “Colorado’s New Restrictive Covenant Law Now Effective,” natlawreview.com/ article/colorado-s-new-restrictive-covenant-law-noweffective (September 1, 2022).

and Other Privacy Law Compliance

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• Healthcare Corporate and Transactional Matters, including • Healthcare Corporate and Contracts, Corporate Formation, Transactional Matters, including Mergers, Sales/Acquisitions, and Contracts, Corporate Formation, Joint Ventures Mergers, Sales/Acquisitions, and • Joint Medicare, Medicaid, and Other Ventures Third-Party Payor Audits and • Medicare, Medicaid, and Other Claim Denials Third-Party Payor Audits and • Licensure, Staff Privilege, Claim Denials and Credentialing Matters • Licensure, Staff Privilege, • Provider ContractsMatters and Credentialing • Provider Billing and Reimbursement Issues • Contracts

• Statute (AKS), • Stark BillingLaw, andAnti-Kickback Reimbursement Issues and Fraud & Abuse Law Compliance • Stark Law, Anti-Kickback Statute (AKS), • Physician Physician Issues and Fraudand & Abuse LawGroup Compliance • Physician Regulatory Compliance • and Physician Group Issues

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FEATURE | MHPAEA

FINAL OFFER: PARITY OR ELSE

The Departments of Treasury, Health and Human Services, and Labor Issue Landmark and Much-Anticipated Proposed Rules Under the MHPAEA

By Katherine R. Hopkins BACKGROUND

I

n 1996, Congress enacted the Mental Health Parity Act of 1996 (MHPA), which required parity in (or equivalence between) aggregate lifetime and annual dollar limits for mental health benefits and medical/surgical (M/S) benefits.1 The Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act of 2008 (MHPAEA) expanded the MHPA by adding new requirements, including provisions requiring group health plans to ensure that the financial requirements and the treatment limitations (both quantitative and nonquantitative) applicable to mental health and substance use disorder (MH/SUD) benefits are no more restrictive than those applicable to M/S benefits. In addition, the MHPAEA prohibits separate financial requirements or treatment limitations solely applicable to MH/SUD benefits.2 The requirements of the MHPAEA generally apply to both grandfathered and non-grandfathered health plans.3

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MHPAEA | FEATURE

The Consolidated Appropriations Act of 2021 (CAA 2021) expanded MHPAEA by expressly requiring health plans that cover both M/S and MH/SUD benefits to perform and document a comparative analysis of the design and application of their treatment limitations to show parity between MH/SUD and M/S benefits and provide such analyses upon request.4 Finally, the Consolidated Appropriations Act of 2023 (CAA 2023) amended the MHPAEA by sunsetting a provision that allowed selffunded, non-Federal governmental plans to opt out of compliance with the MHPAEA.5 The Departments of the Treasury, Health and Human Services, and Labor (collectively, the Departments) have recently released several important documents relating to the MHPAEA, including a 117-page proposed rule, which was published at 88 Fed. Reg. 51552 (August 3, 2023).6 The proposed rule seeks to strengthen the implementation of the MHPAEA’s “fundamental purpose,” which the Departments state “is to ensure that individuals in group health plans or with group or individual health insurance coverage who seek treatment for covered mental health conditions or substance use disorders do not face greater barriers to accessing benefits for such mental health conditions or substance use disorders than they would face when seeking coverage for the treatment of a medical condition or for a surgical procedure.”7

PROPOSED RULEMAKING

The proposed rule would substantially rewrite the existing MHPAEA regulations, which apply to group health plans and issuers.8 In addition, the proposed rule codifies new MHPAEA regulations, drafted to provide explicit requirements for the comparative analyses required by CAA 2021 and to sunset the MHPAEA opt-out provision for self-funded, non-Federal governmental plans as required by CAA 2023.9 The proposed rule makes significant changes to the rules related to nonquantitative treatment limitations (NQTLs) and, for the first time, would explicitly require the mathematical test that currently applies to quantitative treatment limitations (QTLs) to be applied to the NQTLs.10 The proposed rule, if finalized, would apply to covered plans and issuers on the first day of the first plan year beginning on or after January 1, 2025.11 Because the proposed rule is subject to change through the rulemaking process, this article provides a high-level overview of the new provisions, briefly lists the changes made to the existing provisions, and then turns to issues raised by the proposed rule.

NEW PROVISIONS

The proposed rule contains several new provisions, including the following: » Substantially All / Predominant Test. The proposed rule requires that for a plan or issuer to apply a NQTL to MH/SUD benefits, two-thirds or more of the M/S benefits in the same classification must be subject to the same NQTL. This is the same mathematical test that has historically been applied to QTLs. There are limited exceptions to this requirement for certain benefit structures that apply NQTLs that are based on (well-documented) independent professional or clinical standards or that guard against fraud, waste, and abuse. » Mandated Outcomes Data. The proposed rule mandates that plans and issuers collect and evaluate data in a manner reasonably designed to assess the impact of NQTLs on access to and utilization of MH/ SUD benefits. Relevant data includes the following: (1) the number and percentage of claim denials; and (2) in- and out-ofnetwork utilization rates (including data related to provider claim submissions), network adequacy metrics (including time and distance data, and data on the number of providers accepting new patients), and provider reimbursement rates (including how such rates compare to billed charges).

» Material Differences in Outcomes Data.

The proposed rule would explicitly provide that “material differences” in outcomes data (i.e., outcomes that are more stringent for MH/SUD, as compared to M/S, benefits) will be viewed as a strong indicator of noncompliance in parity. And, for the network composition NQTL, a “material difference” in outcomes data will be a violation of the MHPAEA. If such material difference is found, the plan or issuer will be required to take (and document) reasonable action to address the material differences in access.

If such material difference persists, the documentation of the steps can be used to excuse the noncompliance. » Meaningful Benefits. The proposed rule would require that if a plan or issuer provides any benefits for a MH/SUD condition in any classification of benefits, the plan or issuer would not be considered to provide benefits for the MH/SUD condition in every classification in which M/S benefits are provided unless the plan or issuer provides “meaningful benefits” for the treatment for that MH/SUD condition in each classification, as determined in comparison to the benefits provided for M/S conditions in the same classification.

The Departments have provided two examples to demonstrate how to comply with this requirement:

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FEATURE | MHPAEA

1. A plan covers treatment for autism spectrum disorder (ASD), a MH/ SUD condition, and covers outpatient, out-of-network developmental evaluations for ASD but excludes all other outpatient treatment benefits for ASD, including applied behavior analysis therapy, when provided outof-network. The plan also generally covers the full range of outpatient treatment out-of-network for M/S conditions. The Departments conclude that the plan would be in violation of the parity requirements because it fails to provide meaningful benefits for the treatment of ASD when covering only one type of benefit in the outpatient, out-of-network classification while generally covering the full range of M/S benefits in the same category.

2. A plan generally covers the diagnosis and treatment of eating disorders, a type of MH/SUD condition, but specifically excludes nutrition counseling from coverage, including in the outpatient, in-network classification.

Nutrition counseling is the primary treatment for eating disorders. The plan also generally covers primary treatments for M/S conditions in the outpatient, in-network classification.

The Departments conclude that the plan would violate the parity requirements by failing to provide meaningful benefits to treat eating disorders in the outpatient, in-network classification when compared to the plan’s coverage of M/S benefits in the same classification.

» ERISA Plan Fiduciaries Must Certify the MHPAEA Comparative Analysis. The proposed rule would require self-insured plans subject to the Employee Retirement Income Security Act of 1974 (ERISA) to include a certification by one or more named fiduciaries who have reviewed the analysis, stating whether they found the comparative analysis to be in compliance with the content requirements of the proposed rule. » Notice of Noncompliance. The proposed rule requires that, if a plan or issuer is found to be in violation of the MHPAEA, then it must notify all participants and beneficiaries enrolled in the plan or coverage for which the plan or issuer has been

20 LACHES MAGAZINE

determined to be noncompliant with the MHPAEA. This notice must be provided within seven calendar days of the plan or issuer’s receipt of the final determination of noncompliance, and a copy must be provided to the Departments and any service provider involved in the claims process. » Formal Deadlines for MHPAEA Comparative Analysis Submission. The proposed rule would formalize the following requirements related to the submission of comparative analyses to the Departments upon request: Initial Request. Upon initial request, the plan or issuer must provide the comparative analysis within 10 business days (or an additional period of time specified by the requesting Department).

Insufficiency Letter. After a comparative analysis is deemed insufficient, the requesting Department will specify additional information that must be submitted within 10 business days.

Initial Determination of Noncompliance. Upon an initial determination of noncompliance, the plan or issuer must specify the actions it will take to bring the plan or coverage into compliance and provide the requesting Department an additional comparative analysis within 45 calendar days of the initial noncompliance determination.

PROPOSED AMENDMENTS TO THE EXISTING REGULATIONS The proposed rule also makes several amendments to the existing regulations, including the following:

» Meaning of Terms. The proposed rule amends the existing regulatory definitions of the terms “medical/surgical benefits,” “mental health benefits,” and “substance use disorder benefits” to clarify what it means for a definition of a mental health condition or substance use disorder to be “consistent with” generally recognized independent standards of current medical practice, and whether, for purposes of the MHPAEA, a condition is a mental health condition or a substance use disorder when State insurance law and generally recognized independent standards of current medical practice conflict.

Specific Mental Health Conditions.

The preamble to the proposed rule clarifies that certain conditions are mental health conditions under generally recognized independent standards of current medical practice. Those mental health conditions are eating disorders, such as anorexia nervosa, bulimia nervosa, and binge-eating disorder, and ASD. » In addition, the proposed rule would amend the definition of “treatment limitation” to explicitly reference the illustrative list of NQTLs to which the definition refers, indicating that such list is non-exhaustive, and amend the last sentence to state that a complete exclusion of all benefits for a particular condition or disorder is not a treatment limitation for purposes of this definition. » Illustrative, Non-Exhaustive List of NQTLs. The proposed rule amends the existing regulatory illustrative, non-exhaustive list of NQTLs — moving the list to a new regulatory provision and making other, minor changes. Specifically, the proposed rule explicitly clarifies that the NQTLs listed in

MHPAEA | FEATURE the regulation are non-exhaustive and that other, unlisted, NQTLs exist. Further, the proposed rule adds other NQTLs to the already existing list.

N QTL Examples. The proposed rule also revises and adds to the already existing examples. These examples provide fact patterns and conclusions about whether the detailed fact pattern would violate the NQTL requirements. The examples serve to demonstrate how the NQTL rules operate and provide specific examples of the NQTL-compliance analysis.

ISSUES RAISED BY THE PROPOSED RULE

In examining potential issues raised by the proposed rule, the sheer number of affected entities cannot be understated. In relevant part, the Departments indicate that the proposed rule will affect: » Plans. The Departments estimate that 1.488 million fully insured, non-grandfathered plans with less than 50 participants and approximately 409,800 ERISAcovered group health plans with 50 or more participants (of which approximately 250,000 are self-insured group health plans) will be affected by the proposed rule.

In addition, the Department of Health and Human Services estimates that 230 self-funded, non-Federal governmental plans would be affected by the implementation of the MHPAEA opt-out sunsetting provisions. » Participants, Beneficiaries, and Enrollees. The sheer number of plans affected by the proposed rule will also have a direct

impact on the participants, beneficiaries, and enrollees in those plans. And, according to the Departments, there are approximately 55.403 million participants and 47.990 million beneficiaries in ERISA-covered group health plans with 50 or more participants; approximately 17.841 million participants and 15.198 million beneficiaries in non-Federal governmental plans with 50 or more participants; an estimated 11.187 million participants and 10.914 million beneficiaries in ERISA-covered, non-grandfathered, fully insured health plans with less than 50 participants; and approximately 11 million individual health insurance policyholders (with approximately 15 million total enrollees). » Issuers and TPAs. The Departments have estimated that 476 health insurance issuers, which provide benefits in the group and individual health insurance markets, with 1,500 issuer/State combinations, and an estimated 205 third-party administrators, which provide services to health plans, will be impacted by the proposed rule. In addition, the Departments estimate that at least 40 managed behavioral health care organizations, which provide mental health and substance use disorder benefits to group health plans, will be affected by these proposed rules.

With this in mind, practitioners should be aware of several issues raised by the proposed rule, including: » More stringent requirements to prove NQTL compliance may materially reduce the ability of plans and issuers to apply common NQTLs to MH/

SUD benefits. The MHPAEA defines “treatment limitation” imprecisely, indicating only that it “includes limits on the frequency of treatment, number of visits, days of coverage, or other similar limits on the scope or duration of treatment.”12 And, the MHPAEA requires that “treatment limitations applicable to … mental health or substance use disorder benefits are no more restrictive than the predominant treatment limitations applied to substantially all medical and surgical benefits covered by the plan (or coverage) and there are no separate treatment limitations that are applicable only with respect to mental health or substance use disorder benefits.”13 Arguably, the MHPAEA’s definition of treatment limitation restricts the application of the substantially all / predominant test contained in the statute to QTLs, as only QTLs are listed in the definition.

And, the current regulations appear to reflect this view, applying the substantially all / predominant test to only the financial requirements and QTLs, while requiring that NQTLs be analyzed to ensure that, both “as written and in operation,” the “processes, strategies, evidentiary standards, or other factors used in applying the [NQTL] to mental health or substance use disorder benefits … are comparable to, and applied no more stringently than [those applied to medical/surgical benefits].”14 Under the proposed rule, however, NQTLs are required to be analyzed, in part, under the substantially all / predominant test currently applicable to financial requirements and QTLs. In effect, this new requirement will likely significantly reduce the ability of a plan or issuer to apply a NQTL to MH/SUD benefits because it adds what essentially amounts to a threshold evaluation that most plans will be unable to meet. It is likely, in part due to the administrative burden required to implement NQTLs, that most plans do not impose common NQTLs, like prior authorization or concurrent review requirements, on twothirds of the M/S benefits in any particular classification. As a result, plans would, if the proposed rule becomes effective as written, be unable to apply the NQTLs to MH/ SUD benefits, which will likely result in increased claims cost for plans.

In addition to the application of the substantially all / predominant test to the NQTL-compliance analysis, the proposed rule also requires an analysis of the “design and application” and “relevant data.” The design and application analysis www.ocba.org

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FEATURE | MHPAEA requires plans and issuers to demonstrate that the design and application of any NQTL applicable to MH/SUD benefits are not based on factors or evidentiary standards that discriminate against MH/ SUD disorders. The relevant data analysis requires plans and issuers to collect and review claims and other data to show that the plan does not operate in a manner that results in a clear disparity in the outcomes of MH/SUD benefits as compared to M/S benefits. The proposed rule clarifies that distinct differences between such benefits likely indicate that the NQTL is not in compliance with the parity requirements.

Overall, the proposed rule’s three-step analysis15 will require that plans and issuers have detailed plan-level claims data and deeply investigate what that data shows about the application of NQTLs “in operation.” While this is welcome guidance, it is likely that most plans will have difficulty obtaining the detailed claims data required and will be forced to incur significant expense to perform the analysis.  An inability to define MH/SUD conditions under State guidelines (including, but not limited to, State insurance laws) in all cases may result in additional benefit-coverage requirements. The MHPAEA defines “mental health benefits” as “benefits with respect to services for mental health conditions, as defined under the terms of the plan and in accordance with applicable Federal and State law.”16 The existing regulations, as a result, provide that “[a]ny condition defined by the plan or coverage as being or not being a mental health condition must be defined to be consistent with generally recognized independent standards of current medical practice (for example, the most current version of the [American Psychiatric Association’s] Diagnostic and Statistical Manual of Mental Disorders (DSM), the most current version of the [World Health Organization’s International Classification of Diseases] ICD, or State guidelines).”17 Thus, under the existing regulations, a plan is permitted to define mental health conditions in accordance with State guidelines.

In some cases, and subject to some exceptions, state guidelines define ASD and eating disorders as medical conditions, not mental health conditions.18 As a result, some plans have elected to adopt these state guidelines to define mental health conditions under the plan, thus classifying ASD and eating disorders as medical/ surgical benefits, which functions to avoid

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the application of the MHPAEA and the stringent parity requirements to benefits for those conditions.

Under the proposed rule, however, the requirement that mental health conditions must be defined as consistent with generally recognized independent standards of current medical practice no longer permits plans to rely on State guidelines if the condition falls under the mental, behavioral, and neurodevelopmental disorders chapter (or its equivalent) of the most current version of the ICD or is listed in the most current version of the DSM. Because both ASD and eating disorders are listed in the ICD and the DSM, plans will not be permitted to adopt State guidelines that classify those disorders as medical conditions. As a result, unless the plan completely excludes benefits for ASD and eating disorders (which is permitted under the MHPAEA19), the benefits will be subject to the MHPAEA and its stringent parity requirements.  New remedies provided by the proposed rule may result in plans incurring additional, unanticipated costs and facing private litigation. The proposed rule, as discussed above, requires that, if a plan or issuer is found to be in violation of the MHPAEA, then it must notify all participants and beneficiaries enrolled in the plan or coverage for which it has been determined to be noncompliant with the MHPAEA within seven days of the finding of noncompliance. This notice may not be combined with other notices and must state, on the first page in (at least) 14-point font, the following: Attention! The [Department of Labor / Department of Health and Human Services / Department of the Treasury] has determined that [insert the name of the group health plan or insurer] is not in compliance with the Mental Health Parity and Addiction Equity Act. 

In addition, the proposed rule provides that, after a finding of noncompliance, the Departments will publish the name of the group health plan or insurer in its next annual report to Congress.

The notice to participants and beneficiaries — and public naming of noncompliant plans and insurers — may result in an increase in private lawsuits (likely, class actions), exposing the plans and insurers to liability.

Katherine R. Hopkins is an employee benefits attorney with AsherKelly in Southfield and a part-time faculty member of Wayne State University Law School. Hopkins concentrates her legal practice on Taft-Hartley multiemployer fringe benefit fund representation, with an emphasis on ERISA and IRC compliance. Hopkins is a graduate of Michigan State University and the University of Michigan Law School and is licensed to practice law in the States of Michigan and Indiana.

Footnotes: 1. See, 88 Fed. Reg. 51552, 51558 (August 3, 2023).

These mental health parity provisions are codified in three (nearly identical) sections of the United States Code. Currently, those U.S. Code sections are: a) § 712 of the Employee Retirement Income Security Act of 1974 (29 USC § 1185a); b) § 2726 of the Public Health Service Act (42 USC § 2726); and c) § 9812 of the Internal Revenue Code (26 USC § 9812).

2. 88 Fed. Reg. 51552, 51558 (August 3, 2023).

3. See, § 1251 of the Affordable Care Act and its implementing regulations at 29 CFR § 54.9815-1251, 29 CFR § 2590.715-1251, and 454 CFR § 147.140.

4. 88 Fed. Reg. 51552, 51561 (August 3, 2023).

5. 88 Fed. Reg. 51552, 51563 (August 3, 2023).

6. The Departments also published three additional documents in connection with these proposed rules: a) Technical Release 2023-01P (July 25, 2023), requesting stakeholder feedback on data requirements related to network composition and a possible enforcement safe harbor; b) 2023 Congressional Report, as required by law; and c) FY 2022 MHPAEA Enforcement Fact Sheet, summarizing the Departments’ enforcement efforts during calendar year 2022.

7. 88 Fed. Reg. 51552, 51554 and 51563 (August 3, 2023).

8. The existing MHPAEA regulations are codified at 26 CFR § 54.9812-1, 29 CFR § 2590.712, and 45 CFR § 146.136.

9. These new MHPAEA regulations, if finalized, will be published at 26 CFR § 54.9812-2, 29 CFR § 2590.7121, and 45 CFR § 146.137.

10. See, 88 Fed. Reg. 51552, 51569 (August 3, 2023).

11. 88 Fed. Reg. 51552, 51568 (August 3, 2023).

12. See, e.g., ERISA § 712(a)(3)(B)(iii).

13. See, e.g., ERISA § 712(a)(3)(A)(ii).

14. See, e.g., 29 CFR § 2590.712(i)(4)(i).

15. Step 1: Substantially All / Predominant Test; Step 2: Design and Application Analysis; Step 3: Relevant Data Analysis.

16. See, e.g., ERISA § 712(e)(4).

17. See, e.g., 29 CFR § 2590.712(a).

18. See, e.g., Montana Insurance Law, 33-22-702, MCA. 19. See, 29 CFR § 2590.712(a)’s definition of “treatment limitations.” See, also, 88 Fed. Reg. 51552, 51568 (August 3, 2023).

JURY TRIALS & UTILIZATION NOVEMBER 2023 DATE STARTED

JUDGE

CASE NUMBER CASE NAME

ATTORNEYS

TYPE OF CASE

DISPOSITION

JURY DAYS

11/14/2023

Cohen

2022-281145-FC People v. Hawkins

Christopher George George Chedraue

Homicide - Felony Murder, Child Abuse 1st Degree

Guilty as Charged

3

11/6/2023

Matis

2017-162575-NF Maple Manor Rehab Center v. Farm Bureau Ins.

Stuart Lebenbom James Crocker

No Fault Auto Insurance

Mistrial

1.5

11/13/2023

Matis

2017-162575-NF Maple Manor Rehab Center v. Farm Bureau Ins.

Stuart Lebenbom James Crocker

No Fault Auto Insurance

In Progress

8

10/30/2023

Matthews

2022-197943-NF Jamie Dolph v. Auto Owners Ins. Co.

Allen Ayoub Marc McDonald

No Fault Auto Insurance

No Cause

3.5

11/9/2023

Matthews

2022-194327-CH Rebecca Henson v. John Binkowski

Joseph Daiek Andrew Herold

Housing and Real Estate

Verdict for Plaintiff $45,000.00

1

10/30/2023

McMillen

2022-195553-NI Jason Brunet v. Jennie Line

Michael Dezsi Hans Massaquoi, Ronda Truvillion

Personal Injury/Auto Negligence

No Cause

2.5

10/30/2023

Poles

2023-284346-FH People v. Duesette

Danielle Librandi Michael Lamb

Interfering w/ Electronic Comm., Domestic Violence

Ct. 1 Not Guilty, Ct. 2 Guilty

0.5

11/6/2023

Poles

2022-193224-NO Robert Plummer Jr. v.

Cheryl Arlow

Phillip Sternberg K. Williams, J. McCoy, D. Fleming

Negligence & Loss of Consortium

No Cause

4

11/13/2023

Poles

2020-184740-NI Teria Dowdy v. Gerald McDonald & Carrie Decker

Christopher Hunter Daniel Fleming, Mark Richard

Negligence & Owners Liability

Verdict for Plaintiff $1,538,710.20

4.5

10/30/2023

Rowe

2022-282363-FC People v. Austin Batzer

Jasleen Singh Jordan Zuppke

Torture, 8 Cts. CSC 1st, CSC 2nd, Unlawful Imprison., Aslt. GBH Strang.

Ct. 1 Not Guilty, Cts. 2-12 Guilty

3

11/7/2023

Rowe

2021-276573-FH People v. Mansour

David Hutson Barton Morris

OWI/Occupant Under 16 2nd or Subsequent Offense

Guilty as Charged

1

11/28/2023

Rowe

2023-284097-FH People v. Young

Kristie Sparks Arnold Weiner

Vunerable Adult Abuse - 3rd Degree

Not Guilty

2

11/13/2023

Valentine

2022-194233-CB Abraham Landscape Group v. City Club Apt.

Z. Moen, D. Grossman, M. Burns Mark Rossman

Business Court

Verdict for Plaintiff $330,063.00

3

11/27/2023

Valentine

2023-285589-FH People v. Dewalt

Nicole Garmo Belem Morales

Weapons/Firearms Poss. by Felon, Weapons - Felony Firearm 2nd Off.

Guilty as Charged

1

11/14/2023

Visiting Alexander

2019-173622-NI Phillip Sinta v. Erica Klavons

Richard Brewer Renee Townsend

Personal Injury/ Auto Negligence

No Cause

3.5

www.ocba.org

23

DEI

DEI AND THE OCBA:

Where We Are and Where We Are Going

By Arturo Alfaro, Shane Kolo, and Donna Pearson

T

he important work of supporting and fostering diversity in the legal community is not the burden of any single organization or committee, but rather that of all legal professionals, law firms, and judicial institutions. With that outlook, the mission of the OCBA’s Diversity, Equity and Inclusion Committee is to leverage best practices and resources to promote an inclusive culture that attracts, retains, and promotes leadership among attorneys with diverse backgrounds, experiences, and characteristics within the legal profession and the OCBA. We each play a critical role in ensuring that diversity and inclusion thrive in the workplace, schools, and communities at large so everyone can thrive and be supported living as their true, authentic selves without scrutiny or shame. While the steady march of progress has benefited the legal community, the effects of the global COVID-19 pandemic set back the important work of DEI in our community.

People of color, socioeconomically disadvantaged individuals, and non-cisgender persons were disproportionately affected during the pandemic. This scar of exclusion continues to plague us today. Now, more than ever, we have a responsibility to advocate and consider diversity, equity, and inclusion in our hiring and promotion practices, mentorships, bar associations, firms, judiciary, and leadership positions to continue the important work of supporting, celebrating, and benefiting from diversity in all its forms.

In September 2019, the Oakland County Bar Association formally committed to deepening our collective understanding of the intricacies of DEI and our legal community by forming the DEI Committee. The DEI Committee works to implement inclusion, anti-racism strategies, and programming to increase awareness, create pathways for diverse individuals, and train local bar members to identify common barriers that have historically limited diversity in our profession. Within the last three years, this committee has partici-

24 LACHES MAGAZINE

Taste of Diversity pated in, coordinated, or organized several events, trainings, and presentations to meet the OCBA’s commitment to fostering diversity, equity, and inclusion and to allow members to learn about and explore the varied backgrounds, stories, battles, and victories of those making a path we can follow. A full list of these events can be found in the sidebar to the right.

Moving forward, the DEI Committee looks to continue fostering discussions within the legal community to gain new perspectives, provide training and education, and benefit from creating a more accommodating and understanding legal profession. We also look to contribute to a legal profession where all people, regardless of their skin color, gender identity, sexual orientation, socioeconomic status, or any other factor, can contribute to our legal community to the best of their abilities, without the weight of judgment, harassment, or exclusion.

Although the OCBA and the committee

have engaged in these efforts and continue the discussions and exploration, participating members and the committee cannot reach the OCBA’s goals alone. Each one of you, as a member of this noble profession and local bar association, has a voice, an input, and purposeful actions you can take that are necessary to achieve the results we all desire: a profession that truly reflects those we serve and represent.

Therefore, we formally extend to you an invitation to participate in and follow the events focused on diversity, understanding, and training.

But more importantly, we challenge you to be intentional, purposeful, and thoughtful so that you can join the OCBA and the committee in being the change we speak of. If you have any interest in meaningfully participating in this change, please visit the OCBA’s “Commitment to Diversity, Equity and Inclusion” webpage, ocba.org/DEIcommitment, and click on the links for reading materials, visual and audio resources, and action opportunities.

DEI

DEI COMMITTEE EVENTS •“ Looking Ahead: Strategic Plans for Diversity and Inclusion for Your Work Environment.” Roundtable discussion, July 24, 2020.

•“ Recognizing, Acknowledging and Accommodating Unseen Disabilities: Focus on ADHD and Dyslexia.” Presentation, September 2020.

• “Michigan Lawyers Weekly — Diversity Lab & Mansfield Rule.” Joint event, October 2020.

•“ DEI: From Awareness to Action Workshop.” A three-part series on unconscious bias, micro-inequities, and how to be an ally, November 2020 to March 2021.

•“ Mental Health: Awareness, Destigmatizing and Resources.” January 2021.

•“ Life/Work/Balance — Analyzing the Paradigm from a Familial Context.” March 2021.

•“ Important Veterans Resources and Benefits You and Your Clients Should Know” with the Veterans Law Committee. Seminar, April 2021.

•A Mile in My Shoes. VR application produced by Michigan State University, May 2021.

• “From Words to Action: Meaningful Connections in the Pipeline Process for Mentoring and Sponsoring Diverse Students.” American Bar Association Men of Color Project presentation, August 2021.

• “Law and the Intersectionality of Culture and Religion.” October 2021.

• Taste of Diversity. October 2021.

• “Pronouns, Perspective and Update in Queer Education.” November 2021.

• “Legal Ramifications for Firms Regarding DE&I Programs.” Joint presentation, December 2021.

• “Equity in the Legal Field.” Roundtable discussion, April 2022.

• Pronoun seminar. June 2022.

• “Barriers on the Pathway to Success.” Seminar, May 2023.

• Taste of Diversity. October 2023.

• And many more to come.

ACCOUNTABLE Business Litigators | Business Lawyers altiorlaw.com | 248.594.5252

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25

ON THE CIRCUIT

Winds of Change

By Richard Lynch

R

egular criminal law practitioners may find this article redundant; however, for general practitioners or those with a passing curiosity on procedural changes in the law, this update on two recent procedural changes to criminal remands and problemsolving court transfers may prove helpful. I delayed presenting this article, as it took some time to identify what the new normal would look like.

REMANDS OF CRIMINAL CASES TO DISTRICT COURT IN ACCORDANCE WITH PEOPLE V. CRAMER

The Michigan Supreme Court clarified the rule on remands from the circuit court to district court following a bind-over.1 By way of background, after a defendant waived his preliminary examination, the district court bound the matter over to the circuit court for trial on the felony and associated misdemeanor charges.2 On motion of the prosecuting attorney, the circuit court judge dismissed the

26 LACHES MAGAZINE

felony charge of OWI causing serious injury and remanded the remaining misdemeanor to the district court for further proceedings.3 The defendant filed a delayed application for leave to appeal the order remanding the case to the district court, which was granted, challenging the remand.4 The Court of Appeals considered the issue and reversed the trial court’s decision, holding that “[t]he circuit court, having been vested with jurisdiction over the misdemeanor charge because defendant was also charged with a felony that arose out of the same transaction, was not divested of that jurisdiction upon dismissal of the felony charge.”5 The Supreme Court considered the issue and, in reliance upon MCL 600.611; People v. Miklovich, 375 Mich 536, 539; 134 NW2d 720 (1965); and People v. Kennedy, 384 Mich 339, 345; 183 NW2d 297 (1972), held that “[t]he Court of Appeals erred by holding that the circuit court is not authorized to remand a misdemeanor charge to the district court following the dismissal of the last felony charge

that was bound over to the circuit court.”6 I raise this matter because of the limited scope of the Supreme Court’s Cramer order.

Specifically, one must read the order in conjunction with MCR 6.008(C), which limits the authority of the circuit court to remand cases to the district court once it enters a guilty plea7 or verdict. Cramer does not open the floodgates for criminal remands to the district court. Instead, it recognizes the authority of the circuit court to remand a case to the district court after the dismissal of the last felony charge bound over to the circuit court.8 Timing matters when counsel considers a remand under Cramer. Counsel may only take advantage of the Cramer exception after the dismissal of the last felony charge and prior to the entry of any guilty plea or verdict. See MCR 6.008(C). As a Cramer remand must occur prior to any conviction, the sentencing limitation at MCR 6.008(D) does not enter the conversation.

The gray plea thin

ON THE CIRCUIT TRANSFERS TO PROBLEMSOLVING COURTS

The State Court Administrative Office (SCAO) has issued guidance clarifying the transfer of cases to or between problemsolving courts.9 The guidance clarifies that the problem-solving court transfers occur pursuant to MCL 600.1088. Please note that the SCAO memo also highlights the individual requirements of various types of problem-solving courts. Those considering a transfer under MCL 600.1088 must realize that the procedure effectuates a jurisdictional transfer.

Consequently, the receiving judge will preside over all subsequent proceedings, including sentencing or a violation of probation, if a defendant fails to successfully complete the problem-solving court program.

A key function of the transfer process becomes the memorandum of understanding requirement at MCL 600.1088(1), which requires a statement of the defendant’s eligibility and the approval of the courts and prosecuting attorneys for the original and receiving jurisdictions, as well as the defendant. Specifically, stakeholders must execute a memorandum of understanding (MOU), and an MCL

600.1088 transfer cannot occur without it. To facilitate this process, the circuit and district courts in Oakland County continue to work together to develop a standard MOU that complies with the governing law and eliminates the need to craft individual MOUs for each transfer.

Some readers may recall that courts previously transferred cases in accordance with MCL 600.1062(4), MCL 600.1201(4), MCL 600.1091(2), and MCL 600.1099c(2) for supervision and programming. Under these procedures, when such supervision transfers occurred, SCAO would assign a judge in the receiving court. SCAO will no longer make such judicial assignments. As outlined in the “Transfers to Problem-Solving Courts” memo, courts may accept participants under these laws; however, they will do so without transfer of jurisdiction.10 While not specifically stated, reliance upon the former practice of supervision transfers creates potential legal challenges, especially if a defendant faces a violation.

CONCLUSION

court transfers. If you are considering either option for a client, please consult the relevant authority to ensure that you fully understand the intricacies of these options.

Richard Lynch is the court administrator for the Oakland County Circuit Court.

Footnotes: 1. People v Cramer, __ Mich __; 986 NW2d 597 (2023).

2. People v Cramer, unpublished per curiam opinion of the Court of Appeals, issued July 14, 2022 (Docket 359333), p. 1.

3. Id. 4. Id. 5. Id., p. 5.

6. People v Cramer, __ Mich __; 986 NW2d 597 (2023).

7. For purposes of this article, the use of the term “guilty plea” includes nolo contendere pleas and when a court takes a plea without entering a judgment of conviction as under the Holmes Youthful Trainee Act, MCL 762.11.

8. Id. 9. See courts.michigan.gov/4a78c8/siteassets/courtadministration/scao-communications/2023/ 2023-10-03-memo-re-transfers-to-problem-solvingcourts.pdf, last accessed November 28, 2023.

10. Id., p. 1.

This article provides a very cursory overview of the Cramer remand and problem-solving

IN PRO PER Attorney Shanel T. Thomas recently joined the Labor and Employment Law practice group of Plunkett Cooney in its Bloomfield Hills office. Thomas focuses her practice primarily in employment litigation. Her expertise includes the defense of claims of discrimination and harassment, as well as disputes involving wage and hour issues and violations of the Family and Medical Leave and Americans with Disabilities acts, among others.

Thomas, who is admitted to practice in the state and federal courts in Michigan, has experience with medical malpractice and commercial litigation. Her expertise also includes business matters involving governance issues, real estate and tax law, mergers and acquisitions, and complex purchase and buy-sell agreements.

A 2022 cum laude graduate of Western Michigan University Thomas M. Cooley Law School, Thomas previously served as a law clerk to the chief judge of the U.S. District Court for the Eastern District of Michigan, in the federal defender’s office, and in the Washtenaw County Public Defender’s Office. Thomas, who received her undergraduate degree from Michigan State University in 2019, is also a certified mediator through the state of Michigan.

Adkison, Need, Allen & Rentrop, PLLC, in Bloomfield Hills is pleased to announce that Christopher J. Tower, Esq., has joined the firm as an associate.

As a member of its liquor licensing practice group, Tower focuses his practice primarily in the areas of liquor law, real estate, and municipal law. Tower received his undergraduate degree from Michigan State University and his Juris Doctor from the University of Detroit Mercy School of Law.

www.ocba.org

27

COMMITTEES AT WORK OCBA committees and programs help our members stay informed on significant developments in their areas of practice, suggest and help shape improvements to the legal profession, and serve the public. Below are just a few examples of our OCBA committees at work. Consider joining any OCBA committee for the networking and educational opportunities. Best of all, joining a committee is a free benefit of OCBA membership.

To learn more about or to join any one of the OCBA’s 30 committees, visit ocba.org/ committees.

PROBATE, ESTATE AND TRUST COMMITTEE Chair: Elisabeth Dery

Vice Chair: Julie McCowan

On November 14, 2023, over 40 attendees gathered at Red Lobster in Waterford for the Probate, Estate and Trust Committee’s annual Wills & Gills party. Judicial court staff and judges were hosted by committee members to show appreciation for the hard work they do for attorneys and the community throughout the year. Much networking and socialization took place, kicking off the holiday season.

FAMILY COURT COMMITTEE Chair: Katelyn Schaffer

Vice Chair: Jacob Simon

On November 15, 2023, 33 attendees gathered at Dick O’ Dow’s in downtown Birmingham for the annual holiday party of the Family Court Committee. Committee members, attorneys, judges, and vendors had a wonderful time mingling, eating delicious hors d’oeuvres, and enjoying beverages.

28 LACHES MAGAZINE

COMMITTEES AT WORK

LAWYER WELL-BEING COMMITTEE Chair: Sarah Kuchon

Vice Chair: Mary Aretha

On November 9, 2023, the Lawyer Well-Being Committee hosted an interactive seminar that dove into the rules of professional conduct. Sarah Kuchon led a discussion on identifying stress styles using tools such as active listening, locus of control, and emotion regulation for effective dialogue. Then, four panelists known for their ethics and professionalism, Judge Phyllis McMillen, Jennifer Grieco, Tom Howlett, and Julie Fershtman, shared tips and techniques for remaining calm and handling incivility.

www.ocba.org

29

FOUNDATION

Much to Do. Little Time to Do It.

By Mike Turco

L

awyers know the ebb and flow of the profession hits hard this time of year. Regardless of the hours you logged last year, the hard work you invested in your clients and their legal issues, or the success you achieved in your practice, everything reset on January 1. Our originations, billed hours, and collections reset.

We dig in, regain focus after having hopefully spent a little extra time with our families over the holidays, and roll up our sleeves for another year of interesting and challenging work.

Fortunately, each new year brings us new opportunities. One of those good opportunities happened on January 22 at The Townsend Hotel, where the Oakland County Bar Foundation held its annual Fellows Reception. We had another robust turnout, a good predictor for a strong year for the foundation and its programs. The reception gave us a chance to spend a few minutes together, celebrate a healthy start to the year, and realize we are not alone in the challenge of firing off the blocks for another year of practice. This is a rewarding but challenging job, and the Fellows Reception gave us a chance to celebrate our good fortune to practice law together.

Planning also begins anew each year. As you start planning for 2024, please consider supporting the OCBF mission. Need in our community does not take a break, and sadly, many of those in difficult situations experience the most intolerable experiences over the holiday season.

Let’s refocus on our collective commitment to help those in need as we dig into this new year.

As always, we welcome your support and ideas about how to improve our foundation. And to be blunt, we really need your financial support.

Sharing some numbers may help make this clear. We started this fiscal year with $147,108.84 in available grant funds and $50,000 in codicil funds. The codicil funds are available on an as-needed basis, but I view using those funds as borrowing from the future. The more we dip into codicil funds, the less we have to accumulate interest and the less we have available for future programs.

As we approached the end of 2023, the

30 LACHES MAGAZINE

contribute to the OCBF. Please also encourage OCBF had about $69,000 in grant funds and your partners to renew your firm’s support this all codicil funds left. Despite your hard work year. We need and appreciate your help greatly. and generosity to the OCBF last year, the truth You also should have received information is that those funds will not be enough to meet on our new Coffee Cup Challenge. This prothe needs of the many worthy organizations that gram is intended to promote friendly competirequest our financial help. It seems certain that tion between firms. The idea is simple: Encourwe will need to use codicil funds this fiscal year, age your colleagues to skip an overpriced coffee but even then, we will not have enough money a couple of times a week and donate those funds available to support each worthy cause. to the challenge. Given many have an annual Please understand our last fiscal year saw a tradition of participating in “Dry January,” please marked improvement over the OCBF COVIDdon’t hesitate to also contribute what you otherera performance, but we significantly lagged bewise may have used for your favorite libation. All hind where we were five years ago. This year we have set an aggressive goal of raising $300,000 in donations are welcome through this program, no matter if they are for coffee or something a new dollars to accelerate the OCBF’s recovery bit stronger. We will track each firm’s donation and augment the pool funds available to help level in a friendly contest for bragging rights, all programs through 2024 and into 2025. while helping to support worthy programs in our We are nowhere near realizing that goal. community.

Our fiscal year ends June 30, 2024. There is As we dig into this new year together, please much work to do and not a lot of time to do know that the OCBF truly it. But there is more than appreciates you and your enough time if we lean participation. This is into this together. our foundation, and Most of you have we collectively work received a packet hard to generate explaining sponsor funds to promote opportunities for access to justice and the 2024 Signature an understanding Event, our largest of the law in our and most important community. Thank fundraising program Coffee Cup Challenge you for everything you each year. RegardEncourage your colleagues to are doing to support less of rising food our mission. and facility costs, the skip an overpriced coffee a OCBF kept the same couple of times a week and sponsorship levels Mike Turco, the president donate those funds to the because we believe the of the Oakland County challenge. We will track each best long-term stratBar Foundation, is a firm’s donation level in a egy is to increase the business litigator with friendly contest for breadth of our sponsors Brooks Wilkins Sharkey bragging rights. rather than pushing our & Turco PLLC, a Fellow long-term supporters to in the American College increase their generosity. of Trial Lawyers, and the Please encourage your proud dad of three daughters firm vendors, your conwith his wife, Monique. sultants, and others to

OCBA PEOPLE

AND CREATIVE ASSOCIATION STAFF Executive Director Jennifer Quick (jquick@ocba.org) Deputy Director of Membership and Foundation Katie Tillinger (ktillinger@ocba.org) Finance Director Susan Maczko (smaczko@ocba.org) Professional Development Director Shanay Cuthrell (scuthrell@ocba.org) Marketing Communications Specialist MB Cairns (mcairns@ocba.org) District Court Case Evaluation Administrator Kari Ross (kross@ocba.org) Bookkeeper Mayly McRae (mmcrae@ocba.org) Public Services Administrator Janise Thies (jthies@ocba.org) Membership Coordinator Cathy Oaten (coaten@ocba.org) Receptionist Deborah Keegstra (dkeegstra@ocba.org) Administrative Assistant Lori Dec (ldec@ocba.org)

Business Litigators | Business Lawyers altiorlaw.com | 248.594.5252

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Unless otherwise indicated, please call (248) 334-3400 for assistance.

Address Changes........................................................ Mayly McRae Billing.......................................................................... Susan Maczko Board of Directors..................................................... Jennifer Quick Case Evaluator Applications............................................... Kari Ross Committees.................................................................Katie Tillinger District Court Case Evaluation............................................ Kari Ross Event Photos.................................................................... MB Cairns Finance....................................................................... Susan Maczko Inns of Court.............................................................Shanay Cuthrell Judicial Candidate Fora................................................ Janise Thies LACHES Magazine.................................................... Jennifer Quick Lawyer Referral Service – (248) 338-2100...................... Janise Thies Member Illness & Death Notification..........................Katie Tillinger Membership................................................................Katie Tillinger New Lawyer Admissions..............................................Katie Tillinger News Releases.................................................................. MB Cairns Oakland County Bar Foundation.................................Katie Tillinger OCBA Policies........................................................... Jennifer Quick Pro Bono Mentor Match Program................................. Janise Thies Professional Development/CLE................................Shanay Cuthrell Room Rental Reservations................................... Deborah Keegstra Speakers Bureau............................................................ Janise Thies Volunteer Opportunities................................................ Janise Thies Website..................................................................... Jennifer Quick

NEW MEMBERS in November Austin S. Church

Charles Lobert

Myeshia Cole

Amanda McBride

Brandon Corcoran

Rhonda Spencer Pozehl

Emily Cross

Sarah Queiros

Haley DelVecchio

Derek Raymond

Amir El-Aswad

Hannah Roberts

Justin Michael Gonzales

Joseph J. Shannon

Latonya Angel Hudson

Abril Valdes Siewert

Terry L. Johnson

Samantha Teal

Anthony Leo

Grayson Hunter Trepeck

www.ocba.org

31

ADJOURNED

Health Care and Employee Benefits

By Lisa R. Bremus

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ACROSS

1. AI method that attempts to mimic the human brain: __ learning 5. Yield 9. 24 hours 12. Region 13. Federal courts __ criminal, civil, and bankruptcy cases 14. Flamenco cheer 15. Stain 16. __trust law 17. Container 18. Valuable intellectual property: trade __ 20. “You’re in enough trouble __ __ __” (3 wds.)

22. Completes Hamlet’s question: “__ not to __” (2 wds.)

24. Borrower’s interest (abbr.)

25. Judge’s written explanation 28. Greases 31. Postgrad degree (abbr.)

32. Delay 35. Mesh 36. Layer 38. Non__ agreements protect 18 Across 40. National Institute of Corrections (abbr.)

42. Fish 43. Frolic and __ determine an employer’s liability 46. __ Shores, Michigan 50. French friend 51. Ladder step 53. Actress Skye 54. Competent 55. Otherwise 56. Oak 57. Examine and decide a case 58. Burn 59. 12 months

4

1. Wipes 2. P erry Mason creator: __ Stanley Gardner 3. U .S. commission protecting employees from discrimination (abbr.)

4. Customer 5. C omputer program that mimics human conversation 6. Poet’s evening 7. General __ Protection Regulation 8. F ederal law regarding private retirement and health plans (abbr.)

9. Corporate practice of medicine __ 10. Jai __ 11. Cravings 19. Greek goddess of strife and discord 21. First sale of stock (abbr.)

23. Pass a law 25. Choose 26. Protected health information, briefly

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27. __ Theft Protection Act 29. Allow 30. Sault __ Marie, Michigan 33. Recliner 34. Alphabet series 37. __ de Janeiro 39. Mental Health __ and Addiction Equity Act of 2008 41. 21st Century __ Act 43. Silly 44. Leader 45. Regulation 47. Ripped 48. “__ at __ time” (2 wds.)

49. __-do-well 52. U.S. intelligence agency (abbr.)

Answers can be found at ocba.org/laches.

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Number 665 | February 2024

LACHES

Oakland County Bar Association 1760 S. Telegraph, Suite 100 Bloomfield Hills, Michigan 48302-0181

If you are receiving duplicates of this magazine, please call the OCBA at (248) 334-3400.

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248-540-3333 www.googasian.com The Googasian Firm, P.C. 6905 Telegraph Road, Suite 140 Bloomfield Hills, Michigan 48301 (248) 540-7213 (fax) contact@googasian.com

Nearly all our clients come to us at the recommendation and referral of another lawyer or one of our own clients. We work hard each day to earn and keep our reputation as lawyers who honor referrals and take superb care of other lawyers’ clients, family members, and friends in times of crisis and need.

The Googasian Firm, P.C. Craig M. Weber • George A. Googasian Thomas H. Howlett • Dean M. Googasian