ACT Requirements

Legal Requirements of a Registered Office for Your Company

2011-02-18T02:44:00.001-08:00

It is a legal requirement for every company which is registered in the UK to provide an official address for the public register. This address is where government organisations such as Companies House, HMRC and UK tax authorities will contact your business with important reminders and serve legal notices. The registered office of a company is displayed on Companies House registers which can be accessed online.

A company's registered office must be able to receive letters and documents related to the company, therefore a Post Office Box can not be used as the official address as it is not permitted by Companies House. This legal address must be situated in England or Wales unless the company is registered in Scotland which would then require the company to provide an address in Scotland as the recorded location.

The registered office address must be displayed on all official stationery and correspondence with the clients such as invoices and letters. The company name must also be displayed outside of the registered office address as a legal requirement. Since the introduction of the Companies Act 2006 it is also a legal requirement to display your registered office address on your websites.

Any changes which are made to the registered address must be recorded at Companies House. This can be done by filing an AD01 form either online using the registrar's online webfiling service or by completing the form and sending it to Companies House by post. This will ensure important documents and notices relating to your company are not sent to the wrong address as this could lead to your company being struck off and dissolved.

A company's trading address does not have to be the same as their registered office address. Therefore using a service provider can be very beneficial for owners of small businesses, particularly those who trade from their home address as it prevents their private details being displayed on Companies House registers. The data on the public register can be accessed online. Using an address service provider may also be useful to business owners who own a UK limited company and live outside of the UK as their company must legally provide a registered office with in the UK.

Using a service provider can also prevent junk mail being forwarded to people's home address as they can filter out obvious junk mail and forward relevant mail such as accounts notices, annual return reminders and HMRC letters. This will ensure your company files the necessary forms to maintain accurate and up to date company records which will prevent penalties being incurred.

How the HITECH Act Impacts a Business Associate

2011-02-18T02:43:00.002-08:00

HIPAA compliance requirements have been greatly changed with the American Recovery and Reinvestment Act (ARRA) and its Title XIII called the HITECH (Health Information Technology for Economic and Clinical Health) Act. With the introduction of this new law, business associates are now accountable for the privacy and security requirements that previously were required only by covered entities. In addition, a business associate is now subject to civil and criminal penalties. This also includes a provision that lets patients receive financial compensation for a violation of their privacy.

This new federal law has added strength to the enforcement portion of the law. The significant changes include:

Employees and other workforce members, including independent contractors, are now subject to civil penalties. This means that individuals are also now accountable legally.
There is a requirement for HHS to formally investigate any complaints and to impose civil penalties for violations of the rules if the violation is due to "willful" neglect.
The law requires that any civil monetary penalties or monetary settlements as a result of a violation of the rules be sent to the Office of Civil Rights (OCR) for enforcement of the privacy and security rules.
Civil monetary penalties now have a tiered system ranging from $100 to $50,000 depending on the offense.
The Secretary of HHS is required to conduct periodic audits to be sure that covered entities and business associates are compliant with the new rules.
The State Attorneys General now have the authority to bring suit in district courts for any violation on behalf of the residents of their state.

What Steps Should a Business Associate Take to be sure you are Compliant?

The first step is being sure you are properly classified. For example, if you are an independent contractor working for a service and not directly contracting with a covered entity, that probably means you are not a business associate, but an agent or subcontractor of a business associate. It is important, however, for independent contractors to understand if your contract is directly with the covered entity, that makes you a business associate and all of the new laws do apply to you.

Some things you need to consider include:

Assigning responsibility for compliance to one person. While you can have a team working on compliance issues, one person must be named as the compliance officer and be responsible. This does not have to be an employee and you can use a consultant if that works best for you, however, it is critical that you have this person identified.
Encryption of all electronic files. The HITECH Act has made the use of encryption the one thing that provides a "safe harbour" for not having a breach. Data that is not encrypted is considered unsecured according to the law. While you may already be using encryption for data transfers, this law also requires that information be encrypted while "at rest." This may require that you add encryption to all electronic files that are stored anywhere on your system. If you are in medical transcription, remember that this will also include the voice files stored on any dictation system. The Secretary of HHS will review these standards annually for any changes.
Breach notifications. While HIPAA has always required that a business associate notify their client of any breaches of information, the law now makes you responsible for being sure the notification is done. A breach is defined as acquisition, access, use or disclosure of unsecured PHI that is not permitted under HIPAA and that compromises the privacy or security of the information. Remember that unsecured data means unencrypted. Documentation of breech notifications must be kept for six years.
Be sure you are compliant with both the privacy and security rules. There are many points to consider in these rules. You must have written policies and procedures. You must have a written risk analysis done. You also must have a contingency plan in place for any kind of business disruption. Your systems also have to provide audit trails for who accesses protected health information.
Realize you are responsible for the actions of your workforce. The rules require training of the workforce, which must be done and documented. If you have remote workers, this can be more of a challenge, but it is possible.
Another significant change is that business associates are now responsible for trying to stop any violations by the covered entity (their client). This includes things even up to canceling your contract with a client who refuses to fix a violation or prefers to ignore the law. Both parties are responsible for doing this for the other, and this could very well change some of the relationships you currently have with your clients.
Documentation. Remember, it's all about being sure you have things documented. Use the rule of thumb that says "if it's not documented, it wasn't done." It is no longer acceptable to just say you are compliant. You must have written documentation to show that you have done all of the required steps.

The changes that have come as a result of the HITECH Act certainly have a big impact on business associates. The date for compliance is past. If you haven't taken the required steps, now is the time to do it.

Contractor Recovery Act Compliance on OMB's Radar Screen

2011-02-18T02:43:00.001-08:00

The Office of Management and Budget (OMB) just issued a memo telling federal agencies to, in effect, up their game on monitoring contractors receiving Recovery Act funds. OMB Director, Peter Orszag, directed federal agencies to take several steps immediately including identifying non-compliant recipients of Recovery Act funds. What does this mean to contractors receiving Recovery Act funds?

Well, the Act contains a number of oversight, accountability, and transparency provisions aimed at preventing waste, fraud, and abuse of funds received by federal contractors. Section 1512 of the Act requires recipients of Recovery Act funds to comply with certain reporting requirements with oversight of spending delegated to the Recovery Accountability and Transparency Board (RATB). Recipients of Recovery Act funds must report quarterly on the use and economic impact of those funds at the local level.

OMB is now requiring each federal agency to compile a verified and detailed list of recipients who were required to report in the October period but failed to do so. Recipients who have failed to submit a Section 1512 report as required by the terms of their award or that are persistently late or negligent in their reporting obligations are considered to be non-compliant, the memo says. Non-compliant recipients are subject to federal action, "up to and including the termination of federal funding or the ability to receive federal funds in the future."

The memo also calls on agencies to determine an appropriate outreach method and establish contact with each recipient that failed to report by the quarterly deadline. As part of this effort, agencies are to: determine the specific reasons a recipient failed to submit a report as required; provide assistance to recipients who experienced technical challenges in understanding coding or other situations and describe in plain language the consequences of current and continued non-compliance.

From this assessment, Federal departments and agencies are to determine the need, if any, for future action regarding each non-filing recipient, including but not limited to: enforcement of terms and agreement provisions, sanctions and other appropriate enforcement action. If the non-compliance appears to be fraudulent, Federal Departments and agencies are to refer the matter to other appropriate agency officials such as the officer responsible for criminal investigation.

OMB has already indicated in earlier memos that other Recovery Act matters under consideration for FAR coverage or other governmentwide guidance include:

Special Buy American Act requirements;
Additional requirements for contractor reporting; and
Expanded GAO/OIG access to contractor records.
On a case-by-case basis, OMB has stated that negative findings on a contractor's compliance with the Act by a Federal agency can result in termination of Federal funding and/or initiation of suspension and debarment proceedings of either the recipient or sub-recipient, or both. Further, in some cases, intentional reporting of false information can result in civil and/or criminal penalties.

Legal Requirements For PAT Testing and Portable Appliance Testing

2011-02-18T02:42:00.000-08:00

The legislation of specific relevance to electrical maintenance is the Health & Safety at Work Act 1974, the Management of Health & Safety at Work Regulations 1999, the Electricity at Work Regulations 1989, the Workplace (Health, Safety and Welfare) Regulations 1992 and the Provision and Use of Work Equipment Regulations 1998.

The Health & Safety at Work Act 1974 puts the duty of care upon both the employer and the employee to ensure the safety of all persons using the work premises.

The Management of Health & Safety at Work Regulations 1999 states:

"Every employer shall make suitable and sufficient assessment of:

(a) the risks to the health and safety of his employees to which they are exposed whilst at work, and
(b) the risks to ensure the health and safety of persons not in his employment arising out of or in connection with the conduct by him or his undertaking."

The Electricity at Work Regulations 1989 states:

"As may be necessary to prevent danger, all systems shall be maintained so as to prevent, so far as reasonably practicable, such danger."

"'System' means an electrical system in which all the electrical equipment is, or may be, electrically connected to a common source of electrical energy and includes such source and such equipment"

"'Electrical Equipment' includes anything used, intended to be used or installed for use, to generate, provide, transmit, transform, rectify, convert, conduct, distribute, control, store, measure or use electrical energy."

The responsibility on the employer to ensure work equipment is safe is also covered by The Provision and Use of Work Equipment Regulations 1998. This states that "Every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided." (Regulation 4(1)). This includes all work equipment (fixed, portable or transportable) connected to a source of electrical energy."

It is clear that the combination of the HSW Act 1974, the PUWER 1998 and the EAW Regulations 1989 apply to all electrical equipment used in, or associated with, places of work. These cover the distribution systems down to the smallest piece of electrical equipment. It is clear that there is a requirement to inspect and test all types of electrical equipment in all work situations.

Adrian Pendle, director of Intersafe Ltd, is a graduate in Economics. After University he worked in Financial Services in London before starting to work in the family firm. Being involved in all aspects of running a company it was in 1995 that he decided to start his own and formed Intersafe Ltd. While buying in PAT Testing services for the family company Adrian felt that the market for these services was not well served so took the decision to offer his own services via Intersafe Ltd. Adrian enjoys spending time with his young family and is a keen tennis player

How Does the SAFE Mortgage Licensing Act Affect You?

2011-02-18T02:41:00.000-08:00

The SAFE Mortgage Licensing Act (Title V of P.L. 110-289, the Secure and Fair Enforcement for Mortgage Licensing Act of 2008) was signed into law in July 2008. It requires every loan originator taking a residential mortgage loan application from a consumer to obtain a mortgage loan originator (MLO) license from the State Agency in which the subject property is located. And the States are required to set certain minimum requirements for obtaining the MLO License. So what are these minimum requirements? How does it affect loan originators in the mortgage business? And how are states implementing this federal mandate?

Education
Twenty (20) hours of education is one of the major requirements. In order to get a license, a mortgage loan originator must complete 20 hours of pre-licensing education that is offered by an approved education provider. Completion of one 20 hour course complies with this requirement for all states. The course will usually cost around $299 to $399. However, some states also require an additional 1 to 5 hours of state-specific education in addition to the federally mandated 20 hour course. Always keep in mind when trying to understand these new requirements, that each state is under a federal mandate to meet certain minimum requirements for licensing MLOs, but the state always has the right to set their standards higher than the federal mandate. Any states where you have done previous education to maintain a loan originator license prior to these new requirements may allow you to certify those past hours to meet this new requirement.

Also, eight (8) hours of continuing education is required each year to renew your license. Completion of one 8 hour course complies with this requirement for all states. However, just like the pre-licensing education, some states require an additional 1 to 5 hours of state-specific education each year as well.

Testing
The SAFE Act also requires that MLOs complete a test to obtain a mortgage loan originator license. To comply with this requirement, the states have worked together to make a National Test that covers federal laws and regulations for mortgage origination. This test is only required to be passed once for all states. However, each state has also developed their own state-specific test component. So the National Test and the State Test must be completed to obtain a license. Any states where you have done previous testing to obtain a loan originator license prior to these new requirements may allow you to certify those past tests to meet this new requirement. The National Test would still be required, but you could be exempt from having to take the state test. The National Test costs $92 and the State Tests cost $69 each. The tests only need to be passed once to obtain the license and never need to be taken again. And make sure to study for the tests. Only Sixty-Seven Percent (67%) of applicants are passing the National test.

Criminal Background Check
Each state is required under the SAFE Act to complete a criminal background check on MLO License applicants. To implement this there is a federal fingerprinting that can be paid for when you submit an MLO License application. When fingerprints are taken, they are sent to the FBI and the FBI reviews them and puts together a report of any criminal convictions that match your record. These criminal background check reports are then sent to the state to review. Because the federal fingerprinting only checks the FBI database, some states have decided to also require their own fingerprinting that would check their state criminal database. So you will definitely have to complete the Federal Fingerprinting once, but you also may have to complete a state fingerprinting requirement in some states. The federal fingerprinting costs $39 and the state fingerprinting ranges from $25 to $60.
The minimum requirements under SAFE Act state that no one can obtain a Mortgage Loan Originator (MLO) License if they have had any felonies in the last 7 years or if they have ever had a felony that was financial services related, such as fraud, theft, bribery, check forgery, etc.

Credit Background Check
Under the SAFE Act, each state is required to review a credit report. Unfortunately, unlike the specific nature of the minimum criminal background requirements, the SAFE Act is not specific as to what the minimum credit requirements are.
Mosts states have not released details on what they will be looking at on the credit reports and most states are not reviewing credit reports at this time. Every state that is currently requiring credit reports to be mailed to them is setting different standards, but there are basically 3 different ways I am seeing states handle it.

Some states are not telling applicants the minimum credit required, but are declining apps for credit issues (This is the worst situation, because you don't know if the state will accept the credit until you apply)
Some states are telling applicants the minimum credit required. For example they are saying any one with a score lower than 580 must provide a letter of explanation about how they are fixing their credit issues and will be financially stable going forward. (This is still not good, but at least you know if the LO will possibly have an issue if they apply)
Some states are just keeping a copy of the credit report in their file, but they are not looking at it.

My hope is that the federal government issues regulations that define what the states need to look at on the credit. Then we will know for sure whether someone meets those standards or not. At this time, most states have not issued any details on what they will be looking at.

Application
States are required to obtain a license application with certain minimum information. All states have a license fee associated with the application that ranges from $50 to $500. Completion of the application is required to be completed through a system called the Nationwide Mortgage Licensing System (NMLS), which now takes us to the final question. How are the states implementing these new requirements?

Nationwide Mortgage Licensing System (NMLS)
This system is a privately owned website that was created for the sole purpose of handling all of the states new mortgage licensing requirements all in one place. Most states have also decided to handle company and branch license applications through this system along with the Mortgage Loan Originator (MLO) License applications. The system is just a website that the states use to receive applications and comply with this new federal mandate under the SAFE Act. The NMLS does not review or approve license applications. The system allows for submitting a license application to a state electronically, it has a function to pay for the National and State Tests, a function to pay for the federal fingerprinting, and will soon also have a function to pay for the credit report to be sent to each state you want to obtain a license in. It also tracks the status of each MLO License and shows when education, test, and fingerprinting have been completed. And the states use the system to post deficiencies for a license when the state needs additional information.

Conclusion
Unfortunately, all of this new licensing is costing companies and mortgage loan originators a lot of money. It is creating a huge burden on mortgage companies that is then mostly being passed down to consumers. The system has had many difficulties in working with states existing laws to transition everyone onto the system. Hopefully, going forward, these new requirements will set accountability in the mortgage industry and benefit consumers. However, we are more likely to see the cost of obtaining a mortgage go up and the amount of oversight by state agencies diminish as the states now have less resources to enforce state laws and instead must focus their attention to all of the complexities of meeting these new licensing requirements. If you are in the mortgage industry, do not wait start the steps to meet these new requirements. It is a long and burdensome process, so start as soon as you can.

How Immigrant Children Will Benefit From the DREAM

2011-02-18T02:40:00.000-08:00

As immigration reform discussions have soured, immigrant youth question what will happen next.

These children had nothing to do with the choice of their parents to move to the U.S. Their memories of their home country, at best, are a blur. In their mind, the U.S. is their home country - but they are here illegally.

For these young immigrants, the DREAM Act is the most important aspect of the immigration reform debates in Congress.

In spite of strong public sentiment in favor of the DREAM Act, immigration reform opponents argue that undocumented immigrants should not be given new programs to earn legal status.

However, they never met Arthur.

With his mom and dad, he came to my offices to inquire whether he had any future options.

At first glance, he seemed an ideal student.

He had won several scholastic accolades. He was an "A" student. He took second place in a district essay contest. He served as historian for the school ASB. He played basketball on the high school team.

He had simple dreams. He told me, "My first goal is to enroll in the armed services." He hoped to go to college after his service days ended.

Yet, as impressive as his resume looked, it lacked one major item - papers granting him lawful immigration status in the U.S.

Having completed high school, he was at a dead end.

He is not alone.

For several years, as an immigration attorney, I have watched immigrant youth silently suffer after high school graduation. They cannot join the military. They cannot legally work. They cannot go to college. They can't go forward due to their deficit immigration status.

They deserve better.

Enter the the Development, Relief, and Education For Alien Minors Act (DREAM Act).

Contrary to the assertions of immigration opponents, the DREAM Act does not guarantee legalized status to immigrant children. It opens a pathway for these youth to earn their green cards or become U.S. citizens if, and only if, the children can meet the DREAM Act's strict requirements.

There is a two-step process for the DREAM Act. At the first stage, if he meets all requirements, an immigrant youth will be granted a temporary lawful immigration status for six years. At this point, he will have to demonstrate he has earned the right to become a lawful permanent resident.

There are four requirements in the first round:

Age - Must have entered the U.S. before the age of 16. Cannot, at the time of submitting the DREAM Act papers, be younger than 12 years old or older than 35 years old.

Long Term Residency - Must have been living in the U.S. on the date that the DREAM Act becomes law. Also, must have been living here for five years before the DREAM Act becomes law.

Education - Must have successfully completed GED courses or graduated from high school.

Good Moral Character - Must have good moral character and not have a record of criminal convictions.

In addition, immigrants seeking the DREAM Act's benefits will need to show English proficiency and pay a stern penalty fee to the government.

Assuming they fulfill all requirements, they will become temporary permanent residents, on a conditional basis, for six years.

When they reach this point, the government will review their performance to ensure they have fulfilled their college or military service requirements and to verify their criminal record remains unblemished.

Opponents claim immigrants use up our resources and fail to give anything back in return to the U.S.

The DREAM Act's goals undermine such criticism. By imposing strict college and military requirements on immigrant children, the government recoups the investments made during the early part of these children lives.

In addition, the government ensures their future contributions to the American tax base and social security revenues, as well as improving the level of qualified workers for different professions.

As I see things, it's time to pass the DREAM Act.

Safe Harbor Provision - Important Requirements You Need to Know About

2011-02-18T02:39:00.001-08:00

It's becoming more and more commonplace for small business owners to reach out to online users with a company blog. This can be a great way of interacting with your client base and target market, not to mention generating organic traffic through good SEO practices. However, there are very real copyright infringement issues that you need to be aware of. I'm not talking about stealing content for your blog - that's a no-brainer, and strictly illegal. I'm talking about users' comments. What if someone completely unaffiliated with your company posts a comment containing copyrighted information? Which party is legally liable? If you haven't taken steps to ensure that you're protected by the Safe Harbor Provision of the Digital Millennium Copyright Act (DMCA), you are.

What It Is

In 1998, in an effort to get legislation caught up with the steady increase of new technologies, the United States modified Title 17 of the US Code (the Title dealing with copyright law) to include the Digital Millennium Copyright Act. One section of the DMCA, Title II, is called the Online Copyright Infringement Liability Act -- more commonly known as the Safe Harbor Provision. This Provision essentially limits an online service provider's liability for infringement caused by users.

The premise of the Safe Harbor Act is that it's going to be difficult -- if not impossible -- for a company to screen every single comment for copyright infringement. And even if you are able to pore through every comment, it's unreasonable to expect you to be able to determine what is and isn't copyrighted.

How It Works

Of course, as with everything, there's a catch: you as an online service provider have to follow the exact requirements to the letter in order to be protected by the Safe Harbor Act. The only way to access the safety of this particular harbor is to adhere to specific requirements. A general "Email our webmaster if you find that this website infringes on your copyright" might dissuade someone from suing you -- but if they choose to do so, you're legally no more protected from the wrath of the courts than anyone else.

The goal of the requirements isn't to make things difficult on you -- it's to establish a clear procedure for addressing infringement. And the requirements are, in fact, not difficult at all.

What To Do

In order to be compliant with the requirements of the Safe Harbor Act, specific information needs to be available to the public -- both on your website, and on the US Copyright Office's website. In both places, the following information should be available:

The legal name of your business
Any assumed or alternate name of your business, if applicable
The name and physical address of the contact person at your business (no PO boxes allowed)
Email address and phone number of the contact person

As the online service provider, it's your responsibility to make it at easy as possible for someone to contact you about possible infringement issues. The only hitch: it costs you nothing to add the appropriate information to your own website, but you'll need to send the US Copyright Office a check in order for them to put your information on theirs.

What Happens Next

If one of your website users posts infringing content and the copyright owner comes across it, and if you've taken the proper precautions, you can expect something along these lines:

Your contact person will receive a letter listing the location of the infringing material (i.e. your website), the name of the infringing material, and a statement to the effect that their work is being used improperly, among other information.
You will take the allegedly infringing material down, and you will notify the user who posted it.
You will wait. If the user disagrees with the removal of the material, he or she will be able to submit a counter-notice to you, claiming that the removal was not proper because their use was not infringement.
If you receive such a counter-notice, you'll notify the person claiming to be the copyright holder that your user does not agree with their claims.
If the person claiming to be the copyright holder does not take legal action against the alleged infringer within 14 days, you are free to re-post the material.

If, on the other hand, you have not taken the proper precautions:

You will be sued for copyright infringement and, if charged, fined accordingly.

Given your options, don't you think it's worth your time to make sure you're complying with the requirements of the Safe Harbor Provision?

How Familiar Are You With the Information Security Requirements of HIPAA, EPHI and the HITECH Act?

2011-02-18T02:38:00.004-08:00

Virtually everyone has heard of HIPAA (the Health Insurance Portability and Accountability Act of 1996). The original act required that organizations use information security mechanisms to protect healthcare information that is processed and stored. HIPAA has had a pervasive impact on health-care organizations as well as insurers, universities and self-insured employee health care programs. Failure to comply with HIPAA could result in a fine of up to $250,000.00 or 10 years in prison for misusing client information.

Fewer people, however, are aware of the implications of the Security Rule for Electronic Protected Healthcare Information that is associated with HIPAA and what is known as the HITECH Act.

All components of the Security Rule for Electronic Protected Healthcare Information, (EPHI), became effective for all covered entities or CE'son April 20, 2006. The security rule for Electronic Protected Healthcare Information was deliberately designed to reflect the requirements of the original HIPAA Privacy Rule. Entities covered by the Electronic Protected Healthcare Information Security Rule must be able to document that the required organizational processes and procedures in place are reasonably implemented for appropriate administrative, physical, and technical safeguards ("HIPAA Security Rules", 2004).

The implications of the EPHI Security Rule are staggering for those who are responsible for providing information assurance. The EPHI rule applies to all covered entities who conduct business with CE's regardless of the industry. The EPHI rule also adds to the expanding list of information assurance laws and regulations (e.g. Sarbanes-Oxley, Graham Leach Bliely and FERPA) with which affected organizations must comply.

The original portion of the security rule for HIPAA was to address a full scope of security standards for the administrative, physical and technical safeguards to shield Protected Healthcare Information (PHI) from disclosure. The adoption of the new EPHI Security Rule now requires the covered entity to:

1. Ensure the confidentiality, integrity and availability of all electronically protected health information that the covered entity creates, receives, maintains or transmits

2. Protect against any reasonably anticipated threats or hazards to the security or integrity of such information

3. Protect against any reasonably anticipated uses or disclosures of such information that are not permitted or required by law

HITECH Act Regulations for Business Associate Agreement Compliance

2011-02-18T02:38:00.003-08:00

The requirements of HIPAA compliance have been changed greatly with the ARRA (American Recovery and Reinvestment Act) and the Title XIII of it is called HITECH "Health Information Technology for Economic and Clinical Health" Act. With this latest law introduction, now the business associates are answerable for the security and privacy requirements which were previously necessary only for the covered entities. Additionally, the business associates are also subject to criminal and civil penalties. In the law, there is a provision included that permits the patients to obtain financial recompense for privacy violations.

In this latest federal medical privacy law an extra strength is also added in the enforcement part of the act. The important changes include:

Workforce members and employees, also includes independent contractors, all are subject to civil penalties for violations. It means that individuals are now liable legally. There is also the necessity for HHS to investigate formally about any objections and to enforce civil penalties for disobedience of rules if this disobedience is because of willful neglect. It is a requirement of this law that any monetary settlements or social monetary penalties which arise due to the disobedience of rules will involve the OCR "Office of Civil Rights" for enforcement of security and privacy rules. Social financial penalties now have a tiered system that range from 100$ to 50,000$ depending on offense. The HHS secretary is required to perform periodic audits to assure that the covered business associates and entities are complaint with the new rules. The Attorney General of the state has power to take suit in regional courts for disobedience on behalf of their state residents.

In response to any complaint, the business associates can take some steps. In these steps the first thing is to be sure that you are correctly classified. For instance, you are an independent contractor and a service provider and you are not directly working with the covered entity, it means that you are not business associate. But, you are subcontractor or an agent for the business associate. It is very important for an independent contractor to know if his contract is with the covered entity which makes him a business associate and the all new laws apply on him.

Some things that must be considered are as follows: assigning responsibility for observance to one person. Although you can assign a team to work on observance issues, the name of one person should be the official compliance officer and must be responsible. This person should not be an employee but can be a supervisor or manager. A consultant may be used if you think he works well. But it is required that you someone designated for this position.

Before signing a business associate agreement, you must be sure about both privacy and security rules. Many points are there to be observed about these rules. You must follow the written procedures and policies. You must have an emergency plan for any type of business disturbance. Understand that you are accountable for all the actions of the workforce. It is requirement of the rules to train the workforce and the policy should be documented. For remote workers supervision will be more challenging but possible.

Landlords - Your Requirements Under the Fair Credit Reporting Act

2011-02-18T02:38:00.001-08:00

Every landlord should run a credit check on all potential tenant applications. The report will allow you to see how the potential tenant has paid his bills in the past 7 years. The report will show you the outstanding balances on all of his or her debts as well as their minimum monthly payment. The report will show you if they have made their payments on time each and every month or do they pay 30, 60 or even 90 days late. Most reports will give you a credit score that will show their current credit worthiness.

Landlords will try to rent out a property that they have purchased sometimes for over six figures. In addition they have spent thousands or tens of thousands of dollars on repairs. Landlords will have a lot of money vested in their property. The last thing you want is to lose that property as a result of a lawsuit for violating the Fair Credit Reporting Act or FCRA. Even if you do not lose the property you could be facing step fines and penalties for each violation. The only way to avoid this disaster is to make sure you do not violate the FCRA.

The Fair Credit Reporting Act covers the rejection of any potential tenant application based on any information found in their credit report. If you use the information contained in the credit report you must provide a notice to the applicant. This notice is commonly referred to as an "adverse action notice." This notice must include the name of the credit reporting agency that provided the credit report. It must also include the consumer's rights under the FCRA. You can get samples of what you should include in this notice from the Federal Trade Commission website.

Even if you reject an application for some reason other than the report on their credit, you must still provide notice to the applicant. This notice is required because you did use a report on credit in considering the potential applicant.

The purpose of the notice is to allow the potential applicant the right to get a copy of their credit report from the credit reporting agency that you used. This allows them to review their credit report for any errors and to get them corrected.

If you fail to provide the notice, the potential tenant can sue you for damages in federal court. If they are successful in their lawsuit against you, they can recover court costs and reasonable legal fees. This would be in addition to the amount they collect for damages.

Payroll Record Retention Requirements

2011-02-05T07:02:00.000-08:00

Every business must retain certain records on their current and past employees, but which ones and for how long?

On the federal level, there are two agencies that regulate record keeping. First is the IRS, which is responsible for enforcing the Internal Revenue Code. The second is the U.S. Department of Labor (DOL). The Wage and Hour Division of the DOL is responsible for enforcement of the Federal Fair Labor Standards Act (FLSA), the Family and Medical leave Act (FMLA), the Immigration Reform and Control Act (IRCA), and the laws governing wages paid by federal government contractors.

Both of these agencies have separate rules regarding the type of records that must be kept and the length of time you must keep the records. To further complicate your requirements there are numerous state, local and other regulatory agencies that may require additional record keeping. State agencies enforce State Unemployment Insurance Tax Acts, state wage and hour laws, child support and creditor garnishment laws and unclaimed or abandoned wage requirements.

Keeping these records accurate and up-to- date is extremely important to the health of your business. Without the proper records you will be unable to meet regulatory requirements should you be audited by any of various federal state and local agencies. Failing to meet these requirements can mean large penalties and the potential for large settlement awards should you be unable to provide the required information when requested.

Internal Revenue Service

The following records must be kept for four years after the tax due date or the actual date paid.

Name, address, occupation, and social security number of each employee
Total compensation and date paid including tips and non-cash payments
Compensation subject to withholding for federal income, social security and Medicare tax
Pay period for each compensation period
Explanation of difference in total compensation and taxable compensation
Employees' W-4 Form
Dates of employment (beginning and ending)
Employee tip reports
Wage continuation made to an absent employee by employer or third party
Details of fringe benefits provided to employee
Copy of employee's request to use the cumulative method of wage withholding
Adjustments or settlement of taxes
Amounts and dates of tax deposits
Total compensation paid to employee during calendar year
Compensation subject to FUTA
State unemployment contributions made
All information shown on 940
Copies of returns filed (941, 643, W-3, Copy A of Form W-2 and returned W-2 forms)

Department of Labor

The following records must be kept for three years after date of last entry.

Employee's name as it appears on social security card
Complete home address and date of birth if under age 19
Sex and occupation
The beginning of the employee's work week Regular rate of pay for overtime weeks
Hours worked each workday and workweek
Straight-time earnings including the straight -time portion of overtime earnings
Overtime premium earnings
Total wages paid for each pay period including additions and deductions
Date of payment and pay period covered
Records showing total sales volume and goods purchased
Following records must be kept for two years after the last date of entry
Employment and earnings records, employee hours of work, basis for determining wages and wages paid
Order, shipping and billing records showing customers orders and delivery records
Wage rate tables and piece rate schedules
Work time schedules that establish hours and days of employment

Department of Labor

In addition to the general requirements of both the IRS and the DOL mandated by several federal acts. They are:

Family and Medical Leave Act

Basic payroll and employee data

Dates FLMA leave is taken

Hours worked by employee in last 12 months

Hours of FLMA leave for exempt employee

Copies of employee notice to employer

Copies of general and specific notes given to employees

Copies of policy regarding taking of paid and unpaid leave by employee

Documents verifying premium payments of employee benefits

Records of FLMA leave disputes between employee and employer

Title VII of the Civil Rights Act of 1964 and the Americans with Disability Act of 1990 have no general record requirement under the law, but to meet the requirements all records relating hiring, promotion, demotion, transfer, layoff or termination, rates of pay, and selection for training or apprenticeship should be kept for one year from date of action.

The Age Discrimination in Employment Act of 1967 requires that you keep the following records for three years:

name
address
date of birth
occupation
pay rate
compensation earned

You also keep the following for one year from the date of action:

job applications
resumes
response to advertised job openings
records related to the failure to hire an individual

You also must keep all records related to

layoff or discharge of an employee
job orders submitted to a placement agency
employee administrated by employee physical exams used to make personnel decisions
job advertisements

The Immigration Reform and control Act requires that you must retain copies of the I-9 Form for three years after the date of hire.

Charles J. Read, CPA has been in the payroll, accounting and tax business for 30 years, the last fifteen in private practice. Mr. Read is the author of “How to Start a New Business”.

The Effect of the Patent Reform Act on Inequitable Conduct

2011-02-05T07:01:00.003-08:00

The Need for Patent Reform

In 1984 Judge Giles Rich proclaimed that the inequitable conduct defense "has been overplayed, is appearing in nearly every patent suit, and is cluttering up the patent system." Four years later, Judge Philip Nichols pronounced that "the habit of charging inequitable conduct in almost every major patent case has become an absolute plague." The Federal Circuit's ostensible hostility towards the inequitable conduct doctrine stems from its perceived effects: defendants employ inequitable conduct as a magic incantation against patentees, diverting the court's attention away from the statutory requirements of patent protection.

The Patent Reform Act of 2005

The Federal Circuit's long- standing hostility towards inequitable conduct sparked a series of proposals for its reform from the NAS, FTC, and AIPLA. On June 8, 2005, Rep. Lamar Smith introduced the Patent Reform Act of 2005. The bill is a wide-ranging reform package relating to the procurement, enforcement, and validity of patents. Specifically, the bill proposes a number of procedural and substantive changes to the duty of candor and good faith presently codified in 37 C.F.R. § 1.56. In general, the Patent Reform Act substantially increases the barriers to successfully pleading inequitable conduct as a defense to patent infringement and, in some cases, reduces the penalties for the commission of inequitable conduct. Thus, the Act cleanses the hands of some who would possess unclean hands under modern inequitable conduct doctrine.

A Heightened Culpability Requirement

The Patent Reform Act, like current rules and regulations, imposes a duty of candor and good faith on individuals associated with the filing or prosecution of a patent application. Under the Act, an individual is in violation of this duty when:

the individual knowingly failed to disclose information or knowingly misrepresented information;
the information not disclosed was material or, in the case of a misrepresentation, the misrepresentation was material;
the individual had knowledge of the materiality of the information not disclosed or, in the case of a misrepresentation, had knowledge of the materiality of the misrepresentation; and
the individual's intent was to deceive or mislead.

Accordingly, the basic elements of modern inequitable conduct--materiality and intent--remain under the proposed legislation. The Act, however, departs from the Federal Circuit's standard of culpability for inequitable conduct. Presently, the Federal Circuit employs a standard of culpability interrelated with the degree of materiality of the misrepresented or omitted information. The Patent Reform Act proposes a knowledge requirement substantially higher than the current standard. Thus, the subjective good faith of the accused would be dispositive of intent under the Act. The Act's heightened culpability requirement also substantially increases an alleged infringer's evidentiary burden when asserting inequitable conduct. Pursuant to the Act, the patent owner must knowingly fail to disclose or misrepresent in formation. This heightened requirement will deter alleged infringers from frivolously asserting the defense in court unless substantial evidence exists to satisfy the requirement. Since direct proof of wrongful intent is rarely available in inequitable conduct proceedings, this heightened requirement should drastically reduce the number of parties claiming inequitable conduct as a defense to patent infringement. By cleansing the hands of those who would be liable for inequitable conduct under modern inequitable conduct doctrine, the Act should reduce overall costs associated with patent litigation.

Contractor Recovery Act Compliance on OMB's Radar Screen

2011-02-05T07:01:00.001-08:00

OMB has already indicated in earlier memos that other Recovery Act matters under consideration for FAR coverage or other governmentwide guidance include:

The Dream Act - Immigration Law Reform in 2010?

2011-02-05T07:00:00.001-08:00

One of the many changes President Obama has promised America is immigration law reform. Many ideas have been discussed. One of them is the DREAM Act, sponsored by Senator Lugar from Indiana and Senator Durbin from Illinois, among others. The basic idea is to allow certain illegal immigrants who were brought here by their parents at a young age and who have been educated in American schools to become permanent residents.

Under the DREAM Act, certain undocumented individuals could become legal residents. The first step in this process is for the individual to enroll in some type of higher education, such as a university, vocational school, or apprenticeship program. Another option is to enroll in the U.S. military. If certain requirements are met, this person may apply for conditional residency in the U.S. Upon receipt of an associates degree or a 2-year equivalent within six years of the initial petition, the conditional status can be changed and the individual can become a legal permanent resident of the United States.

To be eligible for permanent residency under the DREAM Act, the individual must have entered the United States before turning 16 years of age and must have been in the United States for at least five years without interruption. The individual must also demonstrate the ability to speak English.

Conditional residents under the DREAM Act will be eligible for private loans to fund their education, but will not be eligible for Pell grants. Under the DREAM Act, 65,000 students could become conditional residents each year, and eventually become permanent residents and citizens if they comply with current immigration rules and regulations.

One of the ideas behind the DREAM Act is to better utilize the taxpayer dollars that are being used to educate illegal immigrant youth in public schools across the country. If these youth are willing to continue their education through additional schooling or through the military, they would be allowed to become a legal part of our society without the fear of losing their families through deportation. In addition, the DREAM Act initially only benefits those who most likely were taken across the border by their parents through no decision of their own. Many of these individuals have spent more years illegally in the United States than in their home countries.

The DREAM Act could be merged with other legislation as part of comprehensive immigration law reform in 2010. If other ideas do not receive the necessary support from members of Congress, the DREAM Act could be enacted without additional reform measures. Either way, even the proposal of such legislation gives hope to many people now living in the United States who currently have no way of becoming a legal resident.

How Immigrant Children Will Benefit From the DREAM Act

2011-02-05T06:59:00.001-08:00