For decades, U.S. immigration officers issued a Form I-94 Arrival/Departure Record to almost all foreign nationals who lawfully entered the United States as nonimmigrants. The I-94 is a paper form that a nonimmigrant receives at the time of entry into the U.S. Its purpose is to record the nonimmigrant’s lawful admission to the U.S., including the date and place of entry, the visa class or status in which the person is admitted, and the length of time that the nonimmigrant is permitted to remain in the U.S. An example of an I-94 card is reproduced here.

Boards of education often wish to gather together to “touch base” with members of their community or merely wish to discuss and work through issues they are facing, without any intention to take official board action or have a formal board meeting. Such sessions are certainly useful and have the potential to be very productive, but, as we all know, the West Virginia Open Governmental Proceedings Act places many restrictions on how and when board members may convene as a group, what may take place, and what, if any, public notice is required.

The subject of open source licensing has created a level of uncertainty amongst companies, especially with General Public License (GPL) or GPL derivatives when it comes to intellectual property restrictions on coded data. The use of communication mechanisms known as sockets, which serve as a “rest stop” between client programs and server programs, has introduced several new possibilities to deterring infringement claims and disclosure requirements.

On April 23, 2013, the Supreme Court of Ohio reversed the decision of the Eleventh District Court of Appeals and applied Ohio Revised Code 2317.43, commonly referred to as the Apology Statute, to exclude a physician’s post procedure statements from evidence in a medical malpractice lawsuit. The Court’s slip opinion can be accessed here: Johnson v. Smith.

In a surprising reversal, on April 23, 2013, the U.S. Court of Appeals for the District of Columbia Circuit overturned a lower court order issued on March 23, 2012, in the case of Mingo Logan Coal Company v. U.S. Envtl. Prot. Agency, Civil Action No. 12-5150; 2013 U.S. App. LEXIS 8121 (D.C. Cir. April 23, 2013). In the lower court, District Judge Amy Berman Jackson ruled that the U. S. Environmental Protection Agency (“EPA”) did not have the power to retroactively “veto” a Clean Water Act § 404 “dredge and fill” permit after it was issued by the U.S. Army Corps of Engineers to Mingo Logan Coal Company for its Spruce No. 1 coal mining operation in Logan County, West Virginia. The appeals court decision reverses that ruling and reinstates EPA’s veto subject to Mingo Logan’s opportunity to pursue a challenge to the stated grounds for EPA’s decision.

Much attention has been paid to the Marketplace Fairness Act currently under consideration in Congress. Understandably, that coverage has focused on whether the bill, which would permit states to require out-of-state businesses to collect and remit sales taxes on goods sold over the Internet, will gather enough political support to become law. Little attention has been paid to the more interesting legal question—would the law be constitutional? Recent decisions from the federal courts suggest the question is open to serious debate.

The Centers for Medicare and Medicaid Services (“CMS”) released an important instruction for physicians, non-physician practitioners (“NPPs”) and providers who bill for services provided in skilled nursing facilities (SNFs) and nursing facilities (NFs). In its instruction, CMS discusses physician delegation of tasks in SNFs and NFs to NPPs, including nurse practitioners, physician assistants and clinical nurse specialists, which can be found in Section 3108 of the Affordable Care Act. Specifically, CMS clarifies the regulatory differences of physician delegation of tasks in SNFs and NFs, and outlines the tasks which can be delegated to NPPs in SNFs and NFs. CMS warns that, effective May 1, 2013, improper delegation of tasks to NPPs and improper billing of those tasks will result in denial of claims. As this new phase of denial review is implemented, it is important for physicians, NPPs and providers who bill for services relating to beneficiaries in SNFs and NFs to understand the requirements surrounding physician delegation.

On April 5, 2013 the U.S. Court of Appeals for the 11th Circuit issued its opinion in Landolfi v. Melbourne , holding that although an employee’s military service motivated the employer’s promotion decisions, his Uniformed Service Employment and Re-employment Rights Act (“USERRA”) discrimination claims must fail because the employer also considered legitimate factors in making the decisions.

In Forrest Construction, Inc. v. The Cincinnati Insurance Co., No. 11-6262, 2013 U.S. App. LEXIS 722 (6th Cir.), the United States Court of Appeals for the Sixth Circuit held that an insurer breached its policy with an insured contractor when it declined to defend the contractor from a counterclaim for defective workmanship asserted by the contractor’s former customer. The case arose out of the contractor’s construction of a house for the customer. The contractor filed suit against the customer, following a dispute over the amount owed for the house. The customer counterclaimed, alleging there were defects in the workmanship of the house. In particular, the customer alleged there was a substantial amount of cracking in the foundation, which caused “a potentially deadly collapse of the residence.” Though the customer did not specifically allege that any particular subcontractors were responsible for the defective workmanship, the counterclaim broadly alleged that the contractor “recklessly performed, or caused to be performed” the defective work.

For years, most Americans have been aware of an apparent sales tax loophole. If a consumer buys a television set at a brick and mortar store, sales tax will be due on the purchase. In contrast, unless the internet retailer is located in the same state as the consumer, no sales tax is paid when the same TV is bought online. While consumers have enjoyed this apparent loophole (it’s not a real loophole, as discussed below), non-online retailers have seen a significant loss in sales, and states and municipalities have lost out on billions of dollars in tax revenue.

January, 2013, was a watershed month for mortgage standards after the Consumer Financial Protection Bureau released the long-awaited final rules on ability to repay, qualified mortgages, mortgage servicing, and appraisal requirements. Each of these rules promises to keep compliance gurus busy throughout this year and into 2014. January also heralded another Dodd-Frank final rule of great interest to senior management, boards of directors, and certainly to the frontline, revenue producing, mortgage loan personnel – the mortgage loan originator compensation requirements.

While the Kentucky legislature continues to debate the issue of expanded gaming without progress, two Kentucky horse racing tracks – Kentucky Downs and Ellis Park – offer their patrons “Instant Racing”, or wagering on historical horse races. The tracks’ Instant Racing software is housed in a slot machine-like terminal, and the bettor wagers on historical horse races provided with limited past performance information which does not identify the date, the horse or the track. After placing a wager, the bettor is given the option of watching the race or immediately viewing the results and moving quickly to the next wager. The revenue generated by Instant Racing is substantial – from September 2011 to December 31, 2012 approximately $228 million has been wagered through the machines – but the legality of the game in Kentucky remains in question.

Obviously many county school systems are beginning the process of educating themselves on the changes found in Senate Bill 359. Some of the major changes that will be new for all are found in West Virginia Code 18A-4-7a, relating to the hiring of professional employees (we no longer get to say “1st Set of Factors and 2nd Set of Factors”). However, the purpose of this educational alert relates to statutory changes that impact the termination of employees, both service and professional.

On April 2, 2013, the Securities & Exchange Commission issued a Report of Investigation clarifying that a public company may use social media outlets such as Facebook and Twitter to disseminate material information to investors while still complying with its Regulation FD requirements. In the Report and accompanying press release, the Commission explained that a company must take reasonable steps to alert investors and the market as to which social media outlets will be used to disseminate such information.

An issue that arises every summer for counties relates to summer employment and summer seniority for service personnel. W. Va. Code 18-5-39(f) addresses the establishment of summer school programs.

Judge McMonagle has awarded damages in the San Allen case. The Judge accepted the plaintiffs’ expert on damages. He awarded $859,440,258.79 after a hearing on the issue of the amount of class action damages for employers who were not in a group rating plan from 2001 to 2009.

Individuals with concerns about preserving their assets from claims of possible future creditors no longer need to move their assets to Delaware, Alaska or offshore in order to protect them. With the enactment of the Ohio Asset Management Modernization Act of 2012 (“AMMA”), Ohio trust law, property law and debtor-creditor laws have been amended to move Ohio to the forefront of asset protection jurisdictions.