June 2008

The Centers for Medicare and Medicaid Services (“CMS”) recently issued on June 8, 2008 an advisory opinion in which CMS addressed whether a proposed physician ownership in a diagnostic center complies with the rural provider exception to the Stark Law. CMS concluded that the facts of the proposed physician ownership in the diagnostic center would satisfy the rural provider exception, but CMS also cautioned that meeting the elements of the rural provider exception is an ongoing requirement and must be continuously satisfied during the period of a physician’s ownership interest.
Continue Reading CMS Issues Stark Law Advisory Opinion on Physician Ownership and the Rural Provider Exception to the Stark Law

On April 16, 2008, the Louisiana Third Circuit Court of Appeal upheld a trial judge’s application of a 35% minority discount in determining the fair market value of the interest of a partner withdrawing from a limited liability partnership (LLP). It appears that the Supreme Court has been asked to consider this case, but has not yet made a determination of whether to do so. Accordingly, this decision may or may not be final, and although it did not involve a health care entity, it is instructive for health law purposes.
Continue Reading Louisiana Decision on Sale of Minority LLP Interest Absent Liquidation Has Health Care Provider Implications

On May 19, 2008, OSHA Directive Number 08-03 became effective. That directive provides the criteria by which OSHA will conduct the 2008 Site-Specific Targeting (“SST-08”) plan. OSHA’s SST program is the main programmed inspection plan for non-construction workplaces that have 40 or more employees.

OSHA’s SST-08 plan has three listings of “establishments” that will be targeted. The focus of the agency’s unannounced comprehensive safety inspections under SST-08 are approximately 3,800 high-hazard workplaces contained on OSHA’s Primary List.  The workplaces on the Secondary List and Tertiary List will only be inspected pursuant to SST-08 if all of the workplaces on the Primary List are inspected.Continue Reading OSHA Site-Specific Targeting of 3,800 High Hazard Workplaces Recently Announced

Several developments concerning the Spill Prevention, Control, and Countermeasure (SPCC) regulations occurred in 2006 and 2007. Thoughtful planning and continued tracking of these developments will be necessary to ensure compliance.

EPA revised the SPCC plan requirements in 2006 to:

  • Provide the option to self-certify SPCC Plans in lieu of review and certification by a Professional Engineer for facilities that have an aboveground oil storage capacity of 10,000 gallons or less and meet other qualifying criteria.
  • Provide an alternative to the general secondary containment requirement without requiring a determination of impracticability for qualified oil-filled operational equipment.
  • Define and exempt particular vehicle fuel tanks and other on-board bulk oil storage containers (called motive power containers).
  • Exempt mobile refuelers from the sized secondary containment requirements for bulk storage containers.
  • Remove SPCC requirements for animal fats and vegetable oils for certain types of facilities.
  • Extend the SPCC compliance dates for farms.

Continue Reading Keeping Up With Spill Prevention, Control, and Countermeasure Regulations

On May 30, 2008, the Centers for Medicare & Medicaid Services (CMS) issued an Advisory Opinion regarding a proposed arrangement under which a hospital system would license a custom software interface for use by the physicians on its medical staffs. The specific question addressed by CMS was whether the provision of the custom software interface by the hospital system to its medical staff physicians would create a compensation arrangement for purposes of implicating the self-referral prohibition of the Stark Law.
Continue Reading CMS Issues Stark Law Advisory Opinion on Hospital Providing Software Interface to Physicians

The Louisiana Supreme Court recently held in Borel v. Young that La. R. S. 9:5826(A) provided for both a one year prescriptive period and a three year peremptive period to file a claim for medical malpractice. The decision in Borel made it clear that a plaintiff had to file suit against a health care provider…