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NYS MAKES SIGNIFICANT AMENDMENTS TO THE PROMPT PAYMENT ACT

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Diana Plue, Esq. Sheats & Bailey, PLLC

On November 17, 2023, New York State amended sections of General Business Law Article 35E, known as the Prompt Payment Act, which applies to all private commercial construction projects having a value of $150,000.00 or more. This new legislation amends two sections of the Prompt Payment Act: General Business Law section 756-a and 756-c.

Section §756-a (2) of the Prompt Payment Act is amended to allow a contractor to submit a final invoice that includes retainage upon substantial completion of the contract, as defined or contemplated by the terms of the contract.  This is a notable departure from the prior version of the statute, where a Contractor had to wait to submit a final invoice until the contractor performed all its obligations under the contract.

The amendment to GBL § 756-c, limits the amount of retainage that can be withheld by an owner, contractor, or subcontractor on a private construction project. Under this new legislation, the maximum amount of retainage that can be withheld on private construction projects is five percent (5%).  In addition, contractors and subcontractors cannot withhold more retainage than the owner.  So, if the owner does not withhold the maximum 5% in retainage, then the contractor or subcontractor cannot withhold the maximum 5% retainage. Upon receipt of retainage, a contractor or subcontractor must release a proportionate amount of retainage to the relevant down the line subcontractor. Failure to release the retainage per GBL §756-c subjects the owner, contractor, or subcontractor to pay interest at the rate of 1% per month from the date retention was due and owing until paid.  

On their face these amendments dictate that the maximum amount of retainage withheld can only be 5% and that retainage can be billed before the project is fully complete. However, the opening of section 756-a states “except as otherwise provided in this article, the terms and conditions of a construction contract shall supersede the provisions of this article and govern the conduct of the parties thereto.”  Section 757 of the Prompt Payment Act provides only four instances where terms of a contract are void and therefore the parties conduct is fully governed by the Prompt Payment Act, and not the contract terms.  The amount of retainage withheld and the contracts definition of substantial completion are not one of the listed contract terms that are void.  As such, we think there are ways with carefully constructed contract provisions to still withhold 10%. 

Furthermore, the amendment to the GBL §756-a leave the definition of substantial completion to the contracting parties.  Thus, the definition needs to be carefully drafted and vetted by the parties as the definition will dictate when a final invoice can be submitted and thus when final payment received. 

For more information, contact Sheats & Bailey, PLLC; a law firm dedicated to serving the construction industry.  Tel: (315) 676-7314

The information provided in this article is not intended to serve as specific legal advice for any particular situation. Competent legal and experienced counsel should be consulted.

NYS WORKERS’ COMPENSATION – COVID-19 UPDATE

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ANNETTE MALPICA, VICE PRESIDENT, DIRECTOR OF CLAIMS & LEGAL COUNSEL, LOVELL SAFETY MANAGEMENT CO, LLC

Is fear of contracting the COVID-19 virus a compensable mental injury under the Workers’ Compensation statute? On July 20, 2023, The Appellate Division-Third Department in three separate unanimous opinions decided the issue with a resounding “NO”.

Matters of Matthews, Brown, and Djanuzakov* involved claims filed against the New York City Transit Authority and its subsidiary by claimants who had public facing jobs.  The claimants, a train conductor, cleaner and bus driver filed mental stress claims alleging various psychological conditions as a result of being exposed to COVID-19 in the workplace. The claimants never contracted COVID prior to filing the claim however, they claimed exposure to other workers who tested positive and several coworkers and passengers who died of COVID-19 causing claimants to feel unsafe, depressed, and afraid to return to work.  In all three claims, the treating psychologists gave total disability, finding that the psychological symptoms made it impossible for the claimants to return to work. All three claims were disallowed by the Law Judge and the Workers’ Compensation Board.

In Matter of Brown, the claim was disallowed due to insufficient medical evidence to establish a causal nexus between the mental stress and claimant’s job duties. In Matters of Matthews and Djanuzakov, the Board disallowed the claims finding that the stress experienced by the claimant (train conductor and bus driver respectively) was the same as other similarly situated workers during the pandemic. The attorney representing all three claimants appealed to the Third Department.

The Court noted that “it is well settled that a mental injury arising from work-related stress is compensable” and the fact that the condition was pre-existing will not preclude the claim if the claimant’s employment exacerbated the condition as “to cause a disability which did not previously exist.” The claimant, however, must demonstrate that the stress that caused the injury was “greater than that which other similarly situated workers experienced in the normal work environment.” The Workers’ Compensation Board, as the fact finder, determines whether workplace stress is extraordinary based upon the evidence presented to it. In all three claims, the Third Department found that the Board’s reasoning was supported by the case law and affirmed its decisions.      

2017 and 2022 Legislation to Address Mental Stress Injuries

WCL Section 10 recognizes that certain stressful situations at work may trigger disabling mental injuries. In order for a mental injury to be compensable, the stress that caused it must be considered to be greater than the normal stress at work experienced by similarly situated workers. This evidentiary standard sets a high bar. In 2017, the legislature in recognition of the high standard for mental injury claims by police officers, firefighters, and emergency medical technicians created a carve out by removing the restriction that a mental stress claim had to be greater than the stress sustained by similar first responders.

During the 2022 legislative session, the Assembly and Senate passed a bill that would have extended the exception carve out for first responders to the entire labor force (A2020-A/S.6373-B). In addition, the bill if passed, would eliminate the requirement that the stress stemmed from a work emergency. The Governor vetoed the bill, noting the significant cost to the system, this however, did not stop the bill from being reintroduced during the 2023 session. In 2023, A.5745/S.6635 passed the Senate, but failed to pass the Assembly.       

For more information on workers’ compensation contact Lovell at 1-800-5-LOVELL or visit online www. Lovellsafety.com.

*Matter of Sheldon Matthews v. New York City Transit Authority, 218 AD3d 983 (2023)

Matter of Tracey Brown v. New York City Transit Authority, 218 AD3d 967 (2023)

Matter of Djanuzakov v. Manhattan & Bronx Surface Transit Operating Authority, 218 AD3d 980 (2023)

Insurance Renewals – Navigating the Hard Market

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Actions that aid results

By: Brett Findlay, Vice President, Business Risk Specialist, OneGroup

The New York construction industry, and realistically the entire New York business landscape, is in the midst of an insurance hard market. The lack of insurance availability and the pricing volatility associated with it is leaving consumers in a difficult place when it comes to their insurance renewals. Although insurance options may be limited, it’s critical to know what or who those options are and when to approach them. Proactively managing your program can be an effective solution to unpredictable insurance renewals.

A hard insurance market is characterized by an increased demand for insurance coverage coupled with reduced supply. Underwriting guidelines from the carriers will become more stringent, policies issued by carriers will decrease, premiums are higher, and carriers are less willing to negotiate terms. The current market is hard and exhibits all of those tendencies. The question is, how do you proactively and effectively manage your program to counter the marketplace?

There are a couple simple strategies you can deploy to make this process more manageable and limit surprises and negative outcomes for your business.

Know where to look. A lack of options and higher prices are attributable to most coverage lines of insurance right now, including but not limited to property, commercial automobile liability, and umbrella liability. Identifying the key coverage lines of your program and asking your agent what the renewal is looking like early in the process is the first step. At that point, you should be gathering the data necessary for the carriers to quote those lines for you. Accurate data, provided in full 90+ days prior to the renewal date, will help your cause.

Be ahead of the renewal. By starting the renewal process early, 90+ days out, and by utilizing a broker who understands your business and the insurance marketplace, you’re putting yourself in a better position. It’s critical to select a broker that has availability to those necessary carriers. Ask the broker at that early stage what their marketing strategy is, what carriers they’ll be approaching and why.  Some of the carriers may need to visit your operations and meet with key team members in advance of providing alternatives. As they are interviewing you, this is a great time to ask them questions to see if a partnership would be a good fit for your operations and growth strategy. This is a key reason for why timing is so important. When you are discussing this process with your agent, if you’re not comfortable with their answers, it may be time to find a new one.

Know the landscape (and how to work within it). Much like the construction industry, insurance companies aren’t immune to staffing shortages either. Underwriters are going to work on accounts where they have all the data necessary to finish their process and in a timely manner. If you are not in front of them early, with what they need, the likelihood that you’ll be getting their best is drastically reduced.

It’s equally important that your agent is competent in representing your best attributes. The ability of that agent to forecast the costs and insurance availability with the proper insurance carrier should be a pre-requisite. Knowing how to communicate your businesses story is also key. You need someone who knows construction, knows your business, and knows the carriers and underwriters that are writing insurance competitively for your type of operations.

Relationships Matter. A broker’s relationship with their carriers is every bit as important as your relationship to your agent; there are two sides to the relationship. Having an agency that is well respected in the local insurance marketplace is critical to getting the best program in place at the most competitive cost. This becomes even more critical when the availability of options is limited. I firmly believe that instead of selecting multiple brokers to “quote” your insurance, it’s significantly more beneficial to interview brokers and select one to represent you. You’ll garner greater respect and attention to your business if the local underwriters know that you’re serious about your program and who represents it. If they get multiple submissions from different agents, and the data those agents submit is conflicting, the likelihood that you’ll get their best is also limited.

Typically, a hard market is not a fun process to go through. But you have the ability to proactively position your business to handle the situation. Talk to your agent, prepare yourself for the unexpected and the possibility of having to market your insurance, and get in front of the curve. Contractors, especially in today’s Upstate New York economic landscape, must be sharper than ever to increase or even maintain profit margins. Preparing yourself for a hard market and forecasting any potential dramatic increases in your insurance costs will put you in a better position to control those margins.

For more information on renewing your insurance, you may reach out to Brett Findlay at 315-280-6376 or by email at BFindlay@OneGroup.com.

Knowing Your Financing Options for Purchasing Construction Equipment

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Joseph A. Hardick, CPA, CCIFP, Dannible & McKee, LLP

When purchasing new construction equipment, one of the most important factors to consider is the financing option that works best for your needs. Paying in cash may be the most convenient and cost-effective option as it eliminates the concerns of long-term debt, high interest rates and debt-to-equity ratios. However, most construction companies opt for financing due to the lack of available funds.

There are three options available for financing equipment: short-term rental, lease, and loan. For our purposes, we will focus on the latter two. Although renting is a good choice for specialized equipment that’s only needed for a short period, it can be more expensive than taking out a loan or leasing. Renting is a suitable option here because there is no long-term commitment and maintenance is covered by the rental company.

Most companies, however, require long-term equipment availability. This is where leasing and financing are best suited. Both options have their pros and cons, so the best financing option will depend on how the equipment is being used.

Purchasing With a Loan

Obtaining a loan is the most common type of financing when acquiring equipment. It was particularly popular when there were low interest rates and fast tax depreciation options. With the rising rates, it is important to assess this option. Nevertheless, loans still offer many benefits, such as:

  • It is the most cost-effective option in the long run.
  • There are no usage restrictions.
  • Payments can be customized to suit your needs.
  • The equipment can be sold or traded at any time.
  • Tax benefits such as Section 179 deduction or bonus depreciation are available.

Purchasing equipment with a loan also has some downsides, including:

  • High initial cost and high down payments.
  • Higher monthly interest and payment.
  • Equipment can become outdated, potentially affecting resale value.
  • A significant impact on cash flow.

Leasing Equipment

Leasing is another form of financing that has become increasingly popular recently. However, it’s important to note that the rising interest rates have also affected new leases. Recently, there have been significant changes in the rules involving leases, which could greatly impact your decision when acquiring new equipment. There are two types of leases: finance leases and operating leases, each with its own advantages and disadvantages.

A finance lease is similar to a loan, where it is a long-term commitment, and the equipment can be purchased at the end of the lease term. Several requirements must be met to qualify for a finance lease. The financial lease has the following characteristics:

  • Fixed payment plan based on the equipment’s useful life and fair market value.
  • Lower monthly interest and payment, but longer lease terms.
  • The equipment might have usage restrictions.
  • The option to buy at the end of the lease term, either at FMV or a predetermined price.
  • A long-term commitment, sometimes can be longer than a loan.

An operating lease is any other lease that doesn’t qualify as a financial lease. An operating lease is like a rental for an extended period, where the equipment must be returned without the option to purchase it at the end of the lease term. The operating lease has the following characteristics:

  • Flexible lease period.
  • Requires the equipment to be returned at the end of the lease term.
  • Does not impact the debt-to-equity ratio if it’s less than a year.
  • Offers access to newer models and technology.
  • Requires limited maintenance.
  • Last for a short term, usually three years, but can be modified.
  • Has higher monthly payments (flexibility comes at a cost!).

Summary

Making the right financial decision when purchasing equipment can greatly impact your profitability. The financial options available to you will depend on your specific situation, and there are many variables that need to be taken into consideration. However, if funds are readily available and the equipment is essential to your daily operations, paying in cash is the best option.

Contributing Author: Joseph A. Hardick, CPA, CCIFP, is a tax partner who has over 40 years of experience in all areas of individual and corporate income tax preparation and planning. Joe specializes in corporate tax and tax planning for manufacturing and construction companies.

State of Construction Industry

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Earl R Hall, Executive Director – Syracuse Builders Exchange

By most measures, 2023 was a strong year for construction industry employers throughout upstate New York.  Measuring growth can be subjective, however, the increase in membership at the Syracuse Builders Exchange is one standard metric which is objective.  Membership increased to 970 at the end of 2023, with 42 new member employers joining during the year.  Today, the Syracuse Builders Exchange remains the largest construction industry Association in the state of New York.

Another metric used to measure growth is the total number of building projects for bid compared to 2022.  Building projects for bid increased 3.6% from 5,064 in 2022 to 5,244 in 2023.  The increase was driven by continued public investment in the medical, secondary and higher education markets, coupled with strong private capital investments in the industrial, multi-family residential, and commercial markets. 

Central New York is poised to continue sustained construction growth into 2024 with many regional project owners beginning work on such projects as:

  • Onondaga County STEAM School
  • MICRON
  • Turning Stone Expansion
  • Onondaga County Aquarium
  • Syracuse Inner Harbor Development

The continued optimism associated with regional economic development, coupled with increased construction bidding opportunities, is somewhat tampered by a potential recession, lack of adequate skilled labor, increased material costs and aggressive project schedules.  The construction industry is not immune from periodic challenges, but contractors have proven to be resilient over the past century as they continue to deliver finished projects to owners.

Labor will continue to be the most concerning matter going into 2024 as the lack of skilled craftsmen and craftswomen may impact contractors’ abilities to bid additional work and/or to complete tight schedules on time.  Although the building trades’ unions and non-signatory employers have been aggressively attempting to recruit, train, and retain construction workers, such efforts have not produced a labor pool large enough to accommodate the current projects scheduled to being in 2024.  There remains much optimism the abundance of work will attract skilled craftspeople from other geographies throughout the United States.

Labor wages continue to increase at rates upstate New York has rarely seen.  Wage increases vary by trade but have averaged close to 4% per year in the past two years, and in some cases higher.  Such wage increases have been driven by high inflation, huge demand for skilled labor and significant increased costs associated with food, gas, and clothing.   Labor costs and the availability of skilled labor will continue to be of concern throughout the year.

The anticipated economic development to hit central New York will be led by the construction industry.  Although many leaders in the secondary and higher education arenas are focused on careers inside these yet to be built new buildings and facilities, those project owners need to first build those facilities.  Most suburban school districts are a decade behind in developing career and technical education programs, in particular construction career pathways.  And while regional BOCES programs remain vital to the construction industry, those student seats are limited.  The need for a four-year construction curriculum is essential in developing the next generation skilled workforce contractors and project owners desperately needed.  The only way to meet the incredible economic development opportunities that await central New York is to have the skilled work force to build those projects.

These issues are not unique to upstate New York as such is prevailing throughout the country.  Although such headwinds are anticipated to continue in the short term, contractors and project owners alike remain resilient and will explore developing alternative methods to deliver a finished project. 

Auburn Community Hospital Health System:A Destination For Quality Care

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By: Elizabeth Landry

Dr. James I. Syrett Chief Medical Officer, Dr. Daniel Alexander, Chief Administrative Officer & Chief of Orthopedics, Dr. Emily Brooks, Chief Nursing Officer Joshua Alexander, Chief Operating Officer, Stephen Graziano, MD, Division Chief of Upstate Cancer Center Adult Hematology/Oncology, Scott Berlucchi, President & CEO Christina Sherman, RN, Director of Cancer Services, Auburn Community Hospital, Erik Burch, Sr. VP Administration

It’s hard to imagine the growing Auburn Community Hospital (ACH) of today filed for bankruptcy just 16 years ago. Since 2007, bolstered by the belief brighter days were ahead and led by the expertise of CEO and President Scott Berlucchi, FACHE, LNHA, Auburn Community Hospital has experienced a financial and operational turnaround. Berlucchi is known for his specialty in managing and growing small rural hospitals and has a proven track record for turning around struggling healthcare systems, as evidenced most recently by his leadership of ACH.

Today, ACH is both a Safety Net and Sole Community Provider Hospital offering a myriad of medical services to its patients. The health care center also encompasses the top-rated Finger Lakes Center for Living skilled nursing facility, three urgent care centers in the surrounding communities, and Auburn Memorial Medical Services, a multi-specialty physician group. Exciting additional services that will soon be offered at ACH include the new Auburn Heart Institute, Comprehensive Cancer Care Center, and Auburn Concussion Clinic, as well as new initiatives focusing on orthopedic care and excellence in nursing.

Reflecting on this exciting phase of expansion, Berlucchi emphasized the hard work of the entire team at ACH.

“The Center will provide needed care for the local community that they would otherwise have to travel long distances for and will also increase employment”

“We are taking care of our business. We could not do this without strong support from our Board of Trustees, led by Anthony Franceschelli, and an exceptional management team that has worked hard to transform our healthcare system. Demand for ACH’s services, utilization and growth continues to increase as we bring acute, post-acute and preventive care to members of our community. What I am most proud of is according to a recent study by The University of Wisconsin Population Health Institute, Cayuga County has experienced remarkable year over year improvements in health outcomes vs. other NYS counties over the last 10 years despite numerous challenging health factors. That means as the only health system in the area we are making a difference in our community when it comes to health outcomes,” he said.

LIFE-SAVING CANCER CARE
A recent partnership with Upstate Medical Center has allowed ACH to bring highly advanced specialty outpatient treatments closer to home for its patients, with the new comprehensive Cancer Center planned to open in January of 2024. The addition of the Cancer Center to ACH is aimed at directly improving the health and well being of the hospital’s patient population, as data indicates that cancer is the leading cause of premature death in Cayuga County. Additionally, according to Truven Health Analytics, 80% of residents in the surrounding area must travel further than 25 miles to receive medical oncology services.

To help alleviate these concerning circumstances, the Cancer Center allows patients to take advantage of “one-stop shopping” for their medical treatments, since the Cancer Center  is connected to the main hospital. Combined with the partnership of excellent SUNY Upstate cancer physicians, this increased convenience for patients will provide for more efficient, cost effective, and quality care right in their own community. Dr. Komal Akhtar, Medical Director for the new Cancer Center, has extensive training in Internal Medicine, Hematology and Medical Oncology, and is a member of the American Society of Clinical Oncology. She expressed her excitement about the impact the new Cancer Center will have on the area served by ACH.

“The Center will provide needed care for the local community that they would otherwise have to travel long distances for and will also increase employment,” she said. “The partnership with SUNY Upstate Cancer will provide world class care and lives will be saved because of the care given locally. This is the hospital’s highest priority and a critical part of our long-term sustainability as the largest employer in the area.”

INVESTMENTS IN CARDIAC CARE
Alongside the addition of the Cancer Center, ACH is enhancing the level of cardiovascular care for its patients with the new Auburn Heart Institute. Located in a newly renovated wing on the third floor of ACH, this multimillion-dollar investment in cardiac care will be led by Dr. Ronald Kirshner, who was recently appointed as its chair and medical director. Dr. Kirshner recently served as the Chief of Cardiac Services and Cardiothoracic Surgery at Rochester Regional Health Sands Constellation Heart Institute for over 30 years, and his clinical interests and expertise include creating systems to drive healthcare efficiency and quality.

After Berlucchi had asked Dr. Kirshner to come to ACH and recommend improvements to its cardiac care offerings, Dr. Kirshner found that for those in Auburn and Cayuga County, the risk of dying from heart disease is significantly higher than other parts of the state. He thus identified the need for a comprehensive cardiac care center at ACH, and the idea for the Auburn Heart Institute was born. The Heart Institute will offer many cardiac care services, from diagnostic testing to a cardiac catheterization laboratory, and the longterm vision is to perform procedures and surgeries at the facility.

Dr. Kirshner stated that he’s looking forward to continuing to build a strong team at the Heart Institute. “I’m excited about the opportunity to develop a world‐class heart institute in close collaboration with my colleagues and this community. We’re going to start out with the highest quality and that will be our North Star. Our goal is to make the Auburn Heart Institute a healthcare destination for cardiac care in Upstate New York. I’m committed to recruiting world-class cardiologists and other cardiac professionals to join our multidisciplinary team,” he said.

ENHANCEMENTS IN ORTHOPEDICS, NURSING AND MORE
Exciting new developments at ACH are certainly not limited to cancer and cardiac care. In the realm of orthopedic care, Dr. Daniel Alexander joined Auburn Orthopedic Specialists (AOS) in October of 2022, and he has over 20 years of experience performing more than 20,000 surgeries. He is laser focused on continuing to build a “patient first” orthopedic practice at ACH. “The team at AOS has built a first-class orthopedic practice, and I look forward to helping them grow this practice. All the surgeons in the AOS practice are doing remarkable work, and I’m impressed with the investments Auburn Community Hospital leadership has made in new technology to allow this practice to grow and serve this community. I’m excited, too, about working with our  local physicians and those healthcare professionals who are doing remarkable work in our operating rooms and in the various service areas offered throughout our healthcare system,” he stated.

Another important addition to the team at ACH is Dr. James Syrett, who joined the hospital in May of 2023 as the Chief Medical Officer. Board certified in both Emergency Medicine and EMS Medicine, Dr. Syrett has become only the third physician within a 100 mile radius of Auburn to be certified by ImPACT Applications Inc., a leading provider of concussion management tools, which helps ensure healthcare providers have the necessary skills and knowledge to use the tools effectively. Utilizing his extensive experience in EMS and Emergency Medicine, as well as an interest in the emergency management of concussions. Dr Syrett will serve as the Medical Director of the new Auburn Concussion Clinic, which opened in October and is seeing patients next day when referred from other physicians. This gives patients immediate access to concussion specialists, which is unusual in this region.

The groundbreaking growth of service offerings at ACH, from orthopedics to cancer care, cardiac care, and emergency concussion management, is also bringing about excitement and a new vision for the hospital’s nursing staff. Led by Dr. Emily Brooks, DNP, RN, who joined the leadership team at ACH as the new Chief Nursing Officer in June of 2023, the nursing staff’s goal is to serve the surrounding community with the utmost compassion and highest quality of  evidence-based care.

“We’re creating a culture of nursing excellence at Auburn Community Hospital,” Dr. Brooks explained. “We’re creating the best place for nurses to work in a healthy work environment. This will create a nursing workforce committed to delivering the very best evidence-based care. For every patient that comes into our hospital, the goal is to be able to care for them here, in their community. As such, we have developed the very first Auburn Community Hospital Nursing Strategic Plan. The focus is quality, patient experience, excellence, and nursing performance.”

BUILDING ON CURRENT GROWTH FOR FUTURE SUCCESS
Certainly, the focus on providing highquality health care for patients right in their own community that Dr. Brooks emphasized is already having an immensely positive impact.

Looking to the future, Berlucchi has a vision for ACH to build on this success in the surrounding community and partner with other area hospitals to better serve patients throughout the wider region, as well.

“We want to work with the other central New York hospitals to become more of a regional health care hub that partners to provide care for the growing population, in particular the increased healthcare needs of employees and family members of Micron when that ramps up. I’m also very concerned about the lack of sufficient mental health care in our area and plan on working with NYS, Cayuga County Health Department, and the other hospitals to develop a comprehensive plan to  serve the needs of those suffering from mental health challenges and addiction,” said Berlucchi.

However, for Berlucchi and the rest of the team at ACH, there is no limit
to how far ACH’s reach will extend and how many patients’ lives will be positively affected by the quality care being offered. “What’s happening right here in Auburn is that we are working together with our community, regional partners and our State and Local governments to build the model for rural community hospitals,'” Berlucchi said. “We’ll take care of Auburn. We’ll take care of Cayuga County. But mark my words, you’ll see a region that is growing and we are going to see the whole region coming to Auburn for the level of care that we’re providing.”

“What’s happening right here in Auburn is that we are working together with our community, regional partners and our State and Local governments to build the model for rural community hospitals,’” Berlucchi said. “We’ll take care of Auburn. We’ll take care of Cayuga County. But mark my words, you’ll see a region that is growing and we are going to see the whole region coming to Auburn for the level of care that we’re providing.”

 

Artificial Intellegence

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BY KATHRYN RUSCITTO, ADVISOR

We are planning a Heritage trip and have spent hours doing research. My daughter pulled up Chat GPT, gave it a few directions and in 30 seconds it listed an itinerary, things to visit, and lots of other info for consideration.

In a moment it became clear to me how Artificial Intelligence can augment my work. I still had to decide who, what, where, and when, but AI took the data that exists, boiled it down and gave me options to start with. It saved time, and while not perfect, gave me info I had not looked at prior.

Can AI do the same thing in health care? From chronic illness , to assisting in the development of new devices and drugs, can AI supplement clinicians work flow? Can it review charts and data, predict at risk patients, and match patients to treatments?

The current use of AI in some phone processes, has proven to be a barrier when a question did not fit the algorithms. In time, those early designs will be improved. For AI to work in health care, it needs to be integrated into clinician workflows, not added as yet another step. The debate about AI replacing human decisions is concerning and deserves consideration. But more likely it will free the workforce from analytical tasks and move to higher level thinking. In addition, other concerns relate to the bias of the data. But the advancement of AI will likely be similar to the integration of computers, smart phones and laptops into our daily lives. They didn’t replace humans, but a human without a smart phone or laptop does not have the advantages in easily accessing info and education. If AI can improve care for patients, by adding to the analytical knowledge of clinicians in an era of accelerated information and inventions, it will advance care.

I looked for some examples where AI is integrated in health care and found specialists are using AI in nephrology and cancer treatments. “Penny” at UPenn is helping clinicians with complex patients between visits, “The technology has the potential to improve patient health by guiding them through complex medication schedules, keeping clinicians routinely updated about a patient’s condition, and enabling clinicians to step in at early signs of trouble.” h t t p s : / / w w w. a a m c . o r g / n e w s / how-ai-helping-doctors communicate- patients.

Additionally there are many applications already in use for detecting disease through programs that analyze bacteria, and other disease criteria to lead to diagnosis and treatment in radiology, pathology and cancer treatments.

For clinicians to be comfortable with machine learning, or language learning that reads patient records and integrates info to recommend treatment, they will want a clear understanding of the quality of the ap’s learning. Also, it’s track record in making accurate diagnosis, and their ability to integrate their own clinical history and knowledge. The AMA cautions clinicians about bias and inaccuracy in todays AI algorithms, but notes it will continue to improve and tomorrows physicians will see a reduction in paperwork burden and back room operations from chart reviews to billing. https://www.ama assn.org/practice management/ digital/why generative-ai-chatgpt cannot- replace-physicians

In the past 100 years we have moved from an agrarian society, to an industrial society, to an age of information. We have now entered what is being called the age of knowledge, or the creative age. Understanding AI’s potential is our best advantage to adapting it in applications for health care.

Resources: https://www.jnj.com/inno ation/artificial-intelligence- in-healthcare &utm_source=goog

AI Won’t Replace Humans https://hbr.org/2023/08/a -wont-replace-humans- but-humans-with-ai-will replace-humans- without-ai

The Current State of AI in Healthcare: https://healthtechmagazin .net/article/2022/12/ ai-healthcare-2023-ml-nlp more-perfco

Kathryn Ruscitto, Advisor, can be reached at linkedin.com/in/kathrynru citto or at krusct@gmail.com

 

Corporate Transparency Act

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On January 1, 2024, a new federal law, the Corporate Transparency Act (“CTA”), will go into effect. The main purpose of the CTA is to crack down on the proliferation of shell companies used as shields in money laundering, tax avoidance, and similar activities. However, the new reporting requirements will also compel most businesses created by filing documents with the Secretary of State to provide the information outlined in the CTA. Any business entity that must report to FinCEN is called a “reporting company” in the language of the CTA. The information will have to be reported to the Financial Crime Enforcement Network (“FinCEN”), which is part of the Department of Treasury.

There are three main parts to the new reporting requirements: beneficial ownership information (“BOI”), company applicants, and information about the reporting company itself. Reporting companies must submit the information of everyone possessing beneficial ownership. A beneficial owner is defined in the CTA as an “individual who, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, exercises substantial control over the entity, or owns or controls 25 percent or more of the ownership interests of the entity or receives substantial economic benefits from the assets of the entity.1” While owning or controlling over 25 percent of the business entity is fairly straightforward, the definition of “substantial control” is less obvious. Within the CTA, the definition of substantial control is expansive. It includes, but is not limited to, any senior officers of the company, persons having authority over the appointment or removal of any senior officer or a majority of board members, persons who direct or have substantial influence over important decisions made by the entity or have control over an intermediary entity that exercises substantial control over a reporting company. Since the definition of a beneficial owner is expansive, careful consideration will have to be given to make sure everyone who meets the definition of a beneficial owner has their BOI entered into the FinCEN site.

A “company applicant” is the individual who files the application with the Secretary of State and, in addition, the person who directs or controls the filing if more than one individual is involved. However, at least at this point in time, there can only be two company applicants. The company applicants might not be anyone who works  for or controls the reporting company in question. The company applicant could, for instance, be the lawyer and paralegal hired to help bring the entity into existence. The company applicant information will only have to be submitted once.

The reporting company will need to disclose its 1) legal name, 2) DBA names, 3) business address, 4) state of formation, and 5) Taxpayer Identification Number. The beneficial owners of the reporting company will have to disclose their 1) legal name, 2) date of birth, 3) residential address, 4) unique number from an acceptable document such as a U.S. passport, state ID, or driver’s license, and 5) an image of that document.

The company applicants will need to disclose the same information as the beneficial owners with one potential difference: if the company applicant is registering the company in the course of the applicant’s business, such as lawyers, paralegals, or others, then the business address of the law firm will be substituted for the residential address. Also, the company applicant information will be required only for business entities that are formed on or after Jan. 1, 2024. The BOI will be required of all entities that are reporting companies regardless of their date of formation.

Businesses already in existence on Jan. 1, 2024, will have one year to file an initial report. For Businesses formed on or after Jan. 1, 2024, and before Jan. 1, 2025, an initial report must be provided to FinCEN within ninety days of formation. On and after Jan. 1, 2025, businesses will have to submit the required information within thirty days of formation. Another thing to note is that changes in beneficial ownership will need to be filed. Any changes in ownership or changes in organizational structure will require subsequent filings to keep the BOI up-to-date. Certain businesses are exempt from the reporting requirement, but most of these businesses are those in heavily regulated areas of finance. Otherwise, the important exemption to note is the “large operating company.” To qualify as such, a company needs 1) more than 20 full-time employees, 2) more than 5 million dollars in gross receipts/sales in the US, and 3) a commercial, physical street address in the US. All three of these elements must be met. For example, a business that]  operates online with no commercial, physical street address will not qualify for the exemption even if it has more than 20 employees and over 5 million dollars in gross receipts or sales. The other exemptions will be listed at the end of this post. While this legislation has mostly flown under the radar and might come as a surprise to many business owners, there is still time to prepare the necessary information. CCBLaw is here to help answer any questions and assist your business to ensure compliance with the CTA. In the meantime, to avoid potential civil and criminal penalties, entities that will qualify as reporting companies should make determinations as to who will be considered a beneficial owner under the CTA and gather the necessary information to submit to the FinCEN portal once it is active. Importantly, reporting companies will also want to consider who will have the responsibility of updating any changes in BOI to FinCEN because, as addressed above, as beneficial ownership changes, BOI is required to be updated within 30 days of any such change.

More links:
FinCEN website Small Entity Compliance Guide FinCEN contact page

Benjamin Goldberg is an associate at CCB Law, a boutique law firm focused on providing counsel to physicians and healthcare professionals. He can be reached at 315-477-6214 or bgoldberg@ccblaw.com.

 

Physician Burnout A Healthcare Crisis Impacting Quality Of Care And Driving Medical Errors

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Although physician burnout is not a new phenomenon, it has been put in the spotlight recently due to its rise in frequency. A 2021 survey by the Mayo Clinic and Stanford Medicine noted that 62.8% of physicians experienced symptoms of burnout, up from 38% in the previous year.

While the crisis of COVID has dissipated and was a leading stressor, one could argue the effects are still lingering. For one, the continued questioning of science and proliferation of misinformation around medicine in general has created a rift in the physician-patient relationship. Additionally, physicians often point to the administrative obstacles brought on by changing governmental requirements as a key component to their increase in job dissatisfaction. The AMA
recently spoke out on the topic of prior authorization, noting it as an antiquated system that must be reformed and a key point of frustration for doctors.

Burnout can occur in any workplace, but for physicians and health networks, its impact on patient safety sparks a need for additional concern. For some time, the focus on patient safety has been placed on a system approach, but this ignores a key component. While putting these systems in place has clearly shown to be beneficial, one could argue these benefits are derailed by overwhelmed providers suffering the fatigue of burnout.

Dr. Daniel Tawfik, a lead author of a study published in the Mayo Clinic Proceedings, looked at systems versus physician burnout in contributing to errors. What he found was “…rates of medical errors tripled in medical work units, even those ranked as extremely safe if physicians working on that unit had high levels of burnout. “The correlation between physician burnout and potential errors is not surprising, and with the significant increase in physicians reporting struggles as noted above, we must support physicians in the functions of their daily practice to make an impact on decreasing medical errors. We all have a personal stake in setting up the structures to support our physicians, as the impact goes beyond staffing or financial concern, and to the heart of the quality of care goal that every provider and health system strives for daily. It is incumbent on administrators to encourage an open dialogue on mental health that supports colleagues checking in with each other. These efforts must go beyond a pat on the back, to a review of the systems in place cultivating the accelerated rates of burnout.

Multiple pain points contributed to the issue at hand that must be addressed. Solving this requires actions from the government, insurance carriers, the tech sector, and health systems to change workflow responsibilities, increase reimbursement, and eliminate redundant administrative tasks, allowing physicians to do what they are trained to do. The first thing we must do is listen to what our providers are telling us they need. I believe Jack Resineck, Jr., MD, former President of the AMA, said it best in speaking out for his fellow colleagues: “Physicians haven’t lost the will to do our jobs – we are just frustrated that our health care system is putting too many obstacles in the way.” This is a fixable problem that cannot be ignored.

Connect with Jenn Negley, Vice President, National Healthcare Practice at Risk Strategies at 267-251-2233 or jnegley@ risk-strategies.com

Growing in Strength: Expanding Upstate’s Heart Care Program

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By: Becca Taurisano

With an influx of new talent, Upstate University Hospital’s heart care program is growing stronger than ever. Bringing experience from some of the nation’s top medical facilities with formal training in specialties like structural interventional cardiology, the program is leveraging the knowledge and talents of the well established heart care team at the region’s only medical university. Upstate has assembled a dynamic group of providers that is expanding the program and offering comprehensive heart health care to Central New York.

Full Range of Services
The heart care program at Upstate University Hospital provides a full range of services—preventative, interventional, surgical, and post-operative. With six cardiology practices in the greater Syracuse area, the heart care team has increased accessibility to care and bolstered their footprint in the community. In addition to Upstate’s downtown Syracuse location, which includes the dedicated Heart and Vascular Center, cardiology consult services are available at Upstate Community Hospital as well.

The heart care team treats all health issues related to the heart including coronary artery disease, valvular heart disease, congestive heart failure, arrhythmias including atrial fibrillation, complex aortic disease including aneurysms, cardiac tumors, and the full spectrum of structural heart disease including closure of small holes in the heart. All the major cardiac surgical services are available, from open surgery to less invasive transcatheter procedures.

The physician team is composed up of cardiologists, cardiac surgeons, interventional cardiologists, a structural interventional cardiologist, electrophysiologists, and a cardiac critical care anesthesiologist who is the newest member of the team. They are supported by advanced practice providers (APPs), nurses, operating room staff, perfusionists, cardiac catheterization laboratory staff, anesthesiology staff, imaging staff, and Intensive Care Unit (ICU) staff.

Preventative education and postoperative treatment are both key components to the heart care program. For congestive heart failure patients, there is an educational support team located in Upstate’s downtown Syracuse location to help patients with lifestyle, dietary information, and support to keep them out of the hospital. This complements  the cardiac rehabilitation program at the Upstate Health Care Center in Syracuse.

Introducing Dr. Marek Polomsky, Cardiac Surgery

Cardiac surgeon Marek Polomsky, MD joined Upstate University Hospital this July as an Assistant Professor of Surgery and the Medical Director for Cardiac Critical Care. He is board-certified by the American Board of Surgery and the American Board of Thoracic Surgery and most recently was the Surgical Director of the Mechanical Circulatory Support Program and the Quality Chair for Cardiothoracic Surgery at the University of Vermont Medical Center. He was attracted to Upstate University Hospital’s status as a teaching hospital, with a long tradition of educating successful medical students and surgical residents and providing top cardiac surgical care, which supports his interest in teaching  and optimizing surgical performance and outcomes.

Cardiac surgeons at Upstate University Hospital benefit from a vast array of institutional resources. This can be found in the operating rooms which are equipped with the latest technology and supported by cardiac anesthesiologists proficient in the specific needs of heart patients such as utilization of transesophageal echocardiograms. “Whatever I need to do procedures, we have it here at Upstate,” said Dr. Polomsky. “The most important resource is our staff. The support from nurses, nurse practitioners, physician assistants, perfusionists, and laboratory technicians, makes this possible. The level of talent here is remarkable.”

Quality is a primary focus for Dr. Polomsky, both intraoperatively and postoperatively. He follows and has implemented protocols for Enhanced Recovery After Surgery (ERAS), through which Upstate optimizes postoperative care, such as weaning patients off ventilators and early extubation, minimizing blood transfusions, early mobilization, and focusing on nutrition. For Dr. Polomsky, compassion for his patients is paramount. “I treat each patient as if they were a member of my own family. I make sure they have the appropriate surgery that is based on medical evidence. That is what I am most proud of,” he said. “It is vital for our community to have a strong cardiac care program here, and there is a common goal among all of us for the program to grow.”

Introducing Dr. Michael Fischi, Interventional Cardiology

Michael Fischi, MD, FACC, FSCAI joined Upstate University Hospital in September 2022 as an interventional cardiologist. Using catheters to diagnose and treat heart and vascular conditions, allows patients to avoid open-heart surgery while providing life-saving results. Dr. Fischi has a background in electrical engineering and gravitates toward the tools and technologies utilized in transcatheter procedures. During his cardiology fellowship at Duke, he focused his research on cardiac assist devices, coronary interventional technology, drug-eluting stents and polymer delivery platforms. Dr. Fischi holds U.S. patents for a multi chamber sequentially inflating cardiac assist device, muscle function augmentation, and a novel percutaneous Left Ventricular Assist Device (LVAD). He also did a fellowship in coronary and peripheral vascular intervention at the University of Rochester, is a fellow of the American College of Cardiology, and is a fellow of the Society for Cardiovascular Angiography and Interventions.

The environment at Upstate University Hospital was a major draw for Dr. Fischi, with its focus on a heart care team that works well together and encourages learning to support patient care. “We have a nurturing environment here. People are encouraged to develop new skills and are not afraid to ask questions. Our staff is well-trained and equipped to handle emergent situations,” he said.

One of his focuses is on developing relationships with other area hospitals, primary care physicians, and external cardiology practices. “Referring physicians are looking to work with people who will provide their patients with quality care, inform them of the results of the procedure, and take care of their patients in a timely manner, without having to jump through a lot of hoops,” he said. “We are in the position to offer that to them here at Upstate.”

Team Approach to Patient Care

The cardiologists and cardiac surgeons at Upstate use a team approach, using direct communication and constant collaboration to ensure patients receive the best possible care. Larry Charlamb, MD, Interim Chief of Cardiology said, “The cardiac surgeons are our closest allies in treating patients. It is a natural allegiance for all of us to work together to provide care.” The cardiology and cardiac surgery teams confer regularly to discuss patient cases and develop the best treatment plan moving forward.

Cardiac surgeon Marek Polomsky, MD, said, “Every patient is discussed in a team setting and is cared for in a collaborative manner.” In addition, a joint cardiology, cardiac surgery, and vascular surgery conference meets once a month, where the heart care team shares perspectives on the diagnostic evaluation process, treatment, and outcomes of complex cardiovascular and aortic cases. There are echocardiogram, electrocardiogram (EKG/ECG), and cardiac catheter laboratory conferences conducted regularly as well.

Introducing Dr. Srikanth Yandrapalli, Structural Interventional Cardiology

Srikanth Yandrapalli, MD, FACC joined Upstate University Hospital this July as a Structural Interventional Cardiologist. Following his role as Chief Resident of Internal Medicine at New York Medical College at Westchester Medical Center, Dr. Yandrapalli completed three fellowships in cardiovascular diseases: interventional and structural cardiology at New York Medical College; Massachusetts General Hospital/Harvard Medical School; and Brown University Hospitals. He also worked as an interventional cardiologist at Brown University hospitals. He is board certified by the American Board of Internal Medicine in Internal Medicine, Cardiovascular diseases, and Interventional Cardiology.

Dr. Yandrapalli is one of the few formally trained structural interventional cardiologists in Central New York. Structural interventional cardiology is a specialized field that manages structural abnormalities or defects within the heart including the valves, the muscle, and the septum or chambers. It bridges the gap between surgery and medicine, allowing patients to receive treatment in a less invasive way.

For structural cardiology procedures, planning is essential and the first step is imaging. Utilizing CT Scan imaging and advanced perioperative transesophageal echocardiography with 3D technologies, the staff can create 3D models of the patient’s anatomy in order to determine the feasibility and approach to managing a structural heart condition. “This ensures a really good roadmap. I have to know what to expect so that we can provide safe and effective treatment to our patients,” Dr. Yandrapalli said.

Through his training, Dr. Yandrapalli has cultivated knowledge of the latest tools and technology. “I have learned not just how to do these procedures, but also how to navigate complications and risks that may arise, so we can more safely treat patients,” he said. Upstate University Hospital leadership is committed to providing advanced services and is focused on improving the access to the minimally invasive procedures Dr. Yandrapalli performs, including providing the latest technology available. “Technology plays a really important role in what I do. We want to offer the least invasive treatment available to our patients and we are committed to doing that at Upstate,” he said.

“The cardiac surgeons are our closest allies in treating patients. It is a natural allegiance for all of us to work together to provide care.”

Looking Ahead to the Future With a strong  foundation and the support of senior leadership, the heart program can continue to add new offerings to its service line. Upstate Medical University Department of Medicine Chair, Cynthia Taub, MD and Upstate University Hospital Chief Medical Officer, Amy Tucker, MD are both cardiologists with extensive background in clinical practice and program development. With leadership laser-focused on the prioritization of heart care, Upstate is positioned to see tremendous growth in the coming years by serving the needs of the community. “We are building on the strengths of the academic medical setting where we can offer an even greater range of cardiac services, such as the expertise needed for patients in our Cancer  Center whose treatment may affect the heart, or patients in our obstetrics/maternal fetal medicine program who have cardiac conditions during pregnancy. There is room to develop more preventative care and address care disparities. We have the system and expertise to offer that,” said Dr. Taub.

By developing relationships with regional hospitals, primary care physicians, and cardiology groups, Upstate looks to further expand its access. In the last year, catheter laboratory volume has increased by 50% and referrals have risen as well. Two of the cardiac catheter laboratories are being updated, featuring the most up-to-date technology available for the interventional cardiologists to perform transcatheter procedures. The heart care program also plans to recruit additional staff in several areas including electrophysiology, advanced cardiac imaging, advanced heart failure cardiology to expand access to services.