by Christopher J. Dicharry

1. If you will be contacting any person associated with a state agency or a state board on behalf of your company or any other person, you may be an Executive Branch Lobbyist. Contacting any staff members to advocate anything related to the agency is lobbying. Certain activities by healthcare professionals are not considered lobbying. Additionally, (i) contributions to the cost of certain social functions in connection with meetings of national or regional organizations of executive branch officials and (ii) the cost of meals and refreshment consumed by an executive branch official which is incidental to a speech or panel discussion involving the official are exempt from the Executive Branch Lobbying law.
 


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The Office of Inspector General ("OIG") issued Advisory Opinion No. 08-22 on December 8, 2008 regarding a proposed arrangement by a non-profit organization to hire two physicians on a part-time basis to perform endoscopies. The part-time physicians would perform the endoscopies at the offices of the non-profit organization, which was formed to employ physicians.

Each of the physicians also have a separate medical practice, at another location, through which each physician will continue to provide and bill for professional medical services furnished to patients outside of the proposed part-time employment relationship. The non-profit organization certified that the physician part-time employees will be its bona fide 3employees within the meaning of 26 U.S.C. § 3121(d)(2) and that it would pay the physicians a salary based on the fair market value of the professional services that would be personally provided by each physician while employed by the organization.


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by Dean P. Cazenave

Offers and sales of “securities” must be registered unless there is an applicable exemption from the federal and state securities laws. The most commonly known exemption is the private placement exemption set forth in Regulation D promulgated by the Securities and Exchange Commission under the Securities Act of 1933 (and corresponding private placement exemptions under applicable state “blue sky” laws).

Regulation D was primarily designed to facilitate capital raising transactions, as opposed to employee stock option or stock purchase plans. Many people are unaware that when an employer (or controlling Shareholder) sells stock to an employee (even at a discount, or even if to an executive), such a sale is subject to the securities laws and applicable federal and state exemptions from registration must be found.
 


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On October 1, 2008, the Department of Health and Human Services, Office of Inspector General (OIG) released its 2009 Work Plan. The OIG’s Work Plan describes the initiatives and priorities of the OIG for the 2009 fiscal year. The OIG will address these initiatives through audits, investigations, inspections, and health care industry guidance documents, as well as enforcement action under federal, civil and criminal statutes. The following are some of the important 2009 OIG initiatives for hospitals, physicians, and other health care providers:


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by Linda G. Rodrigue

In May of this year, the United States Court of Appeals for the Fifth Circuit absolved Lakeview Regional Medical Center (“Lakeview”) of any liability, and reversed a damage award against it, in a lawsuit that had been brought against Lakeview and a physician group practice by Kadlec Medical Center, a hospital located in the state of Washington. Kadlec sued Lakeview and a physician practice for over $8 million in damages, on the grounds that Kadlec was forced to settle a malpractice lawsuit due to the negligence of an anesthesiologist who was impaired at the time of the malpractice. Kadlec’s claim was that Lakeview and the physician group practice knew of the physician’s impairment when he was on the medical staff of Lakeview, were asked about his performance before he was credentialed at Kadlec, and did not disclose the prior impairment and disciplinary action that had resulted.


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by G. Trippe Hawthorne and Mark D. Mese

In a perfect world, Contractors would only do business with owners, designers, subcontractors, and material suppliers that they know well and trust. No surprises, misunderstandings, or disasters.

In this world, doing business is risky. The trick is to identify and analyze as many of the risks as you can, so that when you take a risk, you know what the risk is, and have some ideas about how to deal with it, should things go badly.

Here are three risks that you always want to identify and analyze:
 


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In a report issued September 17, 2008, the GAO commented that the Department of Health and Human Services (HHS) has made substantial strides in devising a national plan for protecting the privacy of patients’ electronic personal health information, but that HHS still needs to do more to ensure key privacy principles are fully addressed. The GAO’s remarks were contained in a report issued to the U.S. Senate Committee on Homeland Security and Governmental Affairs of a follow-up study by the GAO regarding the Office of the National Coordinator of Health IT’s efforts to insure the privacy of electronic personal health information exchange within a nationwide health information network.


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by Deborah A. Juneau

In a recent case, the Fifth Circuit emphasized the legislative purpose in the Health Care Quality Improvement Act (HCQIA) to improve the quality of health care by protecting physicians who participate in peer review actions, finding they were entitled to immunity from monetary damages.

In Poliner v. Texas Health Systems, — F.3d — (5th Cir. 2008), 2008 WL 2815533, an interventional cardiologist sued Presbyterian Hospital and several physicians for damages related to a restriction of his privileges during a peer review investigation. At trial, the jury found in favor of Dr. Poliner on various claims and awarded nearly $90 million in defamation damages and $110 million in punitive damages. The district court reduced the damages to $33 million, including prejudgment interest.
 


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by Lyn S. Savoie

In the September 20, 2008 issue of the Louisiana Register, the Louisiana State Board of Medical Examiners amending the rules governing dispensation of medications. The amended rules now forbid dispensing physicians from dispensing any controlled substance or drug of concern, unless the physician practices at a governmental facility or a licensed abuse or addiction treatment facility, or is engaged in a regulated clinical research project or investigational study.


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