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On January 4, 2011, the U.S. Department of Justice (DOJ) announced that seven additional hospitals had agreed to pay $6.3 million to resolve allegations under the False Claims Act (FCA) related to overcharging Medicare for kyphoplasty procedures. These settlements are the fourth round of settlements with hospitals by the DOJ to resolve kyphoplasty-related claims under the False Claims Act. Including the settlements announced on January 4, 2011, the DOJ has entered into similar settlements with 25 hospitals for approximately $26 million.Continue Reading Department of Justice Continues to Use Data Mining of Billing Errors in False Claims Act Settlements with Hospitals under Kyphoplasty Initiative

Kean Miller is pleased to announce the relocation of its downtown Baton Rouge headquarters from One American Place to 80,000+ square feet of re-imagined law office space in II City Plaza effective today, Monday, January 10, 2011. II City Plaza is the only Class A office space constructed in Baton Rouge in the last 25 years.…

A spar is a nautical structure designed to float with the bulk of the hull below the waves-something akin to a giant buoy. Fields v. Pool Offshore, Inc., 182 F.3d 353(5th Cir. 1999). Spars are essential to the expansion of oil production in deep water and their use has led to the legal question of their status. Are they vessels? Consistent with the Fifth Circuit Court of Appeals’s three part test, several recent decisions in Texas District Courts have found that a SPAR is a work platform and not a vessel. The finding is important since jurisdiction of a Jones Act action requires the existence of a vessel.

In Fields, the Fifth Circuit laid out the three part test to distinguish “stationary” work platforms from vessels. These factors include the function of the structure, whether it is moored or secured at the time of the accident, and that it has greater than theoretical mobility. Fields distinguished spars from drilling rigs, as rig move from site to site; spars are committed to a particular location. Spars have elaborate methods of attaching to the sea floor which would be difficult and expensive to undue; drilling rigs do not. Subsequent to Fields, the United States Supreme Court clarified that the distinction was not time dependent; that is it did not flip back and forth dependent on when the accident occurred. Following is a summary of recent cases which have applied the above test.Continue Reading District Courts Continue To Agree That Production SPARs Are Not Vessels

The Centers for Medicare & Medicaid Services (CMS) recently issued a Proposed Rule in the September 23, 2010 Federal Register to implement certain program integrity changes mandated by the Patient Protection and Affordable Care Act (“ACA” or “Health Care Reform Legislation”). Besides addressing new provider screening and enrollment requirements under the ACA, CMS solicited public comments on the compliance program requirements included in the ACA for Medicare and Medicaid providers.

The Health Care Reform Legislation contains two separate provisions mandating compliance programs. Section 6401(a) of the ACA requires a provider of medical or other items or services or a supplier, as a condition of enrollment in Medicare, Medicaid or the Children’s Health Insurance Program (“CHIP”), to establish a compliance program that contains certain core elements. Section 6102 of the ACA specifically requires Medicare skilled nursing facilities (“SNF”) and Medicaid nursing facility (“NF”) to have an effective compliance and ethics program in preventing and detecting criminal, civil, and administrative violations. SNFs and NFs are subject to both compliance plan requirements under sections 6102 and 6401(a).
 Continue Reading Health Care Reform Advisory: CMS Solicits Comments to Compliance Program Requirements

New major and modified existing stationary sources require air permits prior to beginning construction. Where increases of criteria pollutants  such as sulfur dioxide, nitrogen dioxide, carbon monoxide, particulate and volatile organic compounds exceed a “significance” threshold, the permittee is required to analyze available and technically feasible control technology with the goal of selecting the best available control technology (BACT) for new or modified emissions units. With agency agreement, the selection of BACT becomes an enforceable part of the permit. 

We now have a new “pollutant,” greenhouse gas (“GHG”) equivalents for the six regulated greenhouse gases (carbon dioxide, methane, nitrous oxide, sulfur hexafluoride, perfluorocabons, and hydrofluorocarbons). GHGs are measured as equivalents to carbon dioxide, the most common GHG (CO2e). Starting January 2, 2011, permits issued for facilities that otherwise trigger PSD (as above) and have a new or increased potential to emit (PTE) of CO2e of 75,000 TPY, must address GHG emissions. Following July 1, 2011, a PSD permit may be required for significant increases in GHGs alone (100,000 tpy for a new source or 75,000 tpy for` a modification), even where there is no significant increase of any other regulated criteria pollutant. 

As with other pollutants, once PSD is triggered for GHGs, the permittee must evaluate and propose that which constitutes BACT to control the CO2e. Although the general scheme for selecting BACT is familiar, a top down ranking of available and technical feasible technologies, the available options are not. There are no conventional CO2e scrubbers or waste heat boilers, or filter traps to capture CO2e.  While some technologies are emerging, the process of determining BACT for CO2 control is a new frontier, and lack of guidance can cause permitting delays. To address some of the uncertainties,  EPA issued guidance on November 10, 2010 concerning permitting GHGs explaining the process for determining the required emission control technology – BACT.


Continue Reading EPA Issues Greenhouse Gas (GHG) Permitting Guidance

Employers are struggling with how to respond to employee use of social media, particularly whether and/or how to respond to – or prevent – employees from posting comments about their employers on their personal social networking platforms, such as Facebook, My Space, and Twitter.  Until recently, there has been little guidance for employers in navigating this new territory.  However, on Tuesday, November 2, 2010, the National Labor Relations Board issued a press release, through which the Board announced its position on the issue.
Continue Reading Facebook and the NLRB: NLRB to Weigh In Regarding Employee’s Negative Comments About Her Supervisor

On March 17, 2010, Mississippi Governor Hayley Barbour signed into law an amendment to Mississippi’s public bid law, more specifically, to Mississippi’s resident “preference law.” Miss. Code Ann. § 31-3-21(3). Under this recent amendment, all non-Mississippi resident contractors who bid on Mississippi public works contracts must attach to their bid a copy of their own…

In an arbitration, the parties agree to hire one or more neutral third parties to hear the dispute and issue a ruling.  The parties further agree to abide by that ruling.  If one party fails to do so, the ruling can be enforced by a court of law just as if an actual judgment had been entered.  Some suggest the process is less costly and more efficient than litigation; however, significant rights can be lost under the guise of so called legal efficiency.
Continue Reading Beware: Arbitration

The Patient Protection and Affordable Care Act (the Act) included a new requirement that nursing homes have in operation a compliance and ethics program within 36 months of the effective date of the Act, or by March 23, 2013. The Secretary and the Inspector General of the Department of Health and Human Services must promulgate regulations by March 23, 2012 for an effective compliance and ethics program. The formality of the program, including the establishment of written policies and procedures to be followed by employees, will depend on the size of the organization. An organization that operates five or more facilities will be expected to have a more formal program.
Continue Reading New Compliance and Accountability Requirements For Nursing Homes

The Nursing Home Residents’ Bill of Rights (La. R. S. 40:2010.8) was amended effective June 8, 2010 to provide more freedom and more choice to residents and to remove some reasonable restrictions imposed by nursing homes.

Nursing homes must now provide the right to “immediate access” to certain state and federal government workers, the resident’s individual physician, immediate family members or other relatives of the resident, the resident’s clergy, and other visitors. The prior version of the statute required nursing homes to have flexible visiting hours and to allow for visitation. The new version of the statute allowing for immediate access does not take into consideration visiting hours. However, the nursing home may impose “reasonable restrictions” to protect the security of all residents and may change the location of visits to assist in care giving or to protect the privacy of other residents. The nursing home must also provide “reasonable access” to any resident by any entity or individual that provides health, social, legal or other services to the resident.Continue Reading Nursing Home Bill of Rights Changes