Kean Miller

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In Oliver v. Magnolia Clinic, 2010-2785 (La. 3/25/11), 57 So. 3d 308, the Louisiana Supreme Court vacated a Third Circuit ruling that nurse practitioners were not covered by the Louisiana Medical Malpractice Act and did not benefit from the cap on damages. The Supreme Court remanded the case to the Third Circuit for an en banc consideration in order to obtain a majority opinion on the issues presented.

Upon original hearing, two judges of a five judge panel of the Third Circuit ruled the Medical Malpractice Act’s inclusion of nurse practitioners within its ambit violated the equal protection guarantees of the Louisiana Constitution and La. R. S. 40:1299.41(A)(1) and was, therefore, unconstitutional. Two judges on the panel ruled that the inclusion of nurse practitioners as health care providers entitled to the protection of the Medical Malpractice Act did not go into effect until the amendment of the statute in 2009. Because the alleged malpractice of the nurse practitioner occurred in 2000-2001, the statute did not cover the defendant nurse practitioner, and she was not entitled to a cap on the damages awarded at trial.Continue Reading Unsettled Question of Medical Malpractice Act Coverage For Nurse Practitioners in Louisiana

On April 28, 2011, Governor Bobby Jindal declared a State of Emergency as a result of growing concern over the predicted crest of the Mississippi River well above flood stage in many areas. Consistent with his authority, on May 13, 2011, James Welsh, Commissioner of Conservation, also issued an emergency and administrative order. It is…

On March 21, 2011, a final rule title “Identification of Non-Hazardous Secondary Material That Are Solid Waste” was published in the Federal Register. See, 76 Fed. Reg. 15456. The final rule does not as much identify that which is a solid waste as it identifies materials that are not solid waste. The effect of the rule is to determine whether combustion units should be regulated under Section 129 or Section 112 of the Clean Air Act (CAA) – solid waste is regulated under Section129 and non-solid waste under Section112. See, 76 Fed. Reg. 15610.

Under current regulations, certain materials (spent, sludges, by-products, specific chemical products and scrap) are solid waste when burned for energy recovery. See, 40 C.F.R. §261.2(c)(2). Materials are not solid waste when recycled through use or reuse as ingredients, as substitute products, or returned to the original process. See, 40 C.F.R. §261(e). The preamble of the final rule expands recycling by indicating that it includes burning for energy recovery. See, 76 Fed. Reg. 15468-69.Continue Reading EPA Clarifies Solid Waste Materials

On March 31, 2011, the Centers for Medicare & Medicaid Services (CMS) and other Federal agencies issued long anticipated proposed regulations addressing legal issues and other requirements for Accountable Care Organizations (ACOs) participating in the Medicare Shared Savings Program created last year by the health care reform legislation.

The following proposed regulations and documents were issued on March 31, 2011:

Centers for Medicare & Medicaid Services (CMS)

CMS issued a proposed rule that would implement Section 3022 of the Affordable Care Act related to Medicare payments to providers of services and suppliers participating in Accountable Care Organizations (ACOs) under the Medicare Shared Savings Program. Under the provisions in Section 3022 for ACOs, providers of services and suppliers can continue to receive traditional Medicare fee-for-service payments under Part A and B, and be eligible for additional payments based on meeting specified quality and savings requirements.

The CMS proposed rule for ACOs is available online at the CMS web site here. Continue Reading CMS and Other Federal Agencies Issue Proposed Regulations Regarding Accountable Care Organizations

The Louisiana Department of Environmental Quality (“LDEQ”) announced a final rule change, effective April 11, 2011, that deletes an exemption from water discharge permitting for pesticides applied directly or near waters of the state(1).  The exemption, based on an identical exemption promulgated by the EPA under the NPDES program, allowed the use of pesticides in…

On February 7, 2011, the NLRB and a private employer reached a settlement regarding the employer’s termination of an employee allegedly based, in part, on Facebook posts made by the employee. However, because the case had not made it through the courts, employers and employees will have to continue to wait for a definitive decision regarding the legality of disciplining an employee for his or her postings about a supervisor on a personal social media platform.
Continue Reading Settlement Reached in the NLRB Facebook Case

The Supreme Court recently struck a blow to employers and made another expansion to the scope of Title VII’s retaliation provisions. By its January 24, 2011 decision in Thompson v. North American Stainless, LP, –U.S. –, 2011 WL 197638 (2011), the court overturned a Sixth Circuit decision which had affirmed the dismissal of the retaliation claims brought by a terminated fiancé of another employee who had brought a sexual harassment charge. By its ruling, the Supreme Court held that the fiancé could bring his own suit under Title VII for the alleged retaliatory termination, even though he did not himself engage in any protected activity prior to his termination.
Continue Reading Supreme Court Holds Title VII Retaliation Claim Available to Terminated Fiance

On January 26, 2011, the U.S. EPA denied petitioner’s request to reconsider the newly promulgated one-hour sulfur dioxide (SO2) national ambient air quality standard (NAAQS). See, 76 Fed. Reg. 4780. The EPA determined that the objections raised were not of “central relevance” purportedly because they failed to support an argument that the promulgated standards should be revised. The petitioners objected, in part, to non-binding preamble guidance concerning implementation issues that were separate and independent from revisions of the NAAQS. Since the EPA denied reconsideration, no need existed for a stay.

Petitioner’s primary objection centered on perceived changes in EPA policy through utilization of modeling data to designate areas as non-compliant with the SO2 NAAQS. EPA countered that modeling had long been utilized “to determine whether areas have attained the NAAQS.” Petitioners also expressed concerns that modeling may over-predict violations. In its denial, the EPA countered that “modeling can very accurate identify areas of potential daily, maximum 1-hour concentrations above the NAQQS,” and if over-predictions exist, “interested parties would have a fair opportunity to show that using modeling in that case may not be appropriate.” See, 76 Fed. Reg. at 4782. Under this implementation process, the designation of non-attainment, based on modeling, will be the challengeable final decision.Continue Reading EPA Denies Reconsideration of One-hour Sulfur Dioxide Standard

The Louisiana Supreme Court has refused to review the decision of the First Circuit Court of Appeal in ConAgra Foods, Inc. vs. Bridges, 2010-0907 (La. App. 1st Cir. 10/29/10), 48 So.3d 1249. In ConAgra Foods, the First Circuit determined that ConAgra Foods, Inc. would receive the benefits of Louisiana net operating loss carryovers held by subsidiaries, which had been sold in Internal Revenue Code (“IRC”) §338(h)(10) transactions . Under federal tax law, the parties to a stock sale can elect IRC §338(h)(10) treatment such that the stock sale is treated as an asset sale for income tax purposes and the tax attributes of the subsidiaries that are sold are acquired by the selling parent corporation. The steps that occur under an IRC §338(h)(10) transaction are as follows:
Continue Reading Louisiana Supreme Court Refuses to Review Net Operating Loss Decision