Kean Miller

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I.  LDEQ Recently Issued Proposed Rule Pursuant to Louisiana Mercury Risk Reduction Act to Reduce Use of Mercury-Containing Products and to Force Proper Disposal or Recycling of Mercury-Containing Products

In the August 2008 publication of the Louisiana Register, the Louisiana Department of Environmental Quality (“LDEQ”) issued a proposed rule that will supplement the procedures and requirements set forth in the Louisiana Mercury Risk Reduction Act (La. R.S. 30:2571–2588) for manufacturers of mercury-added products offered for sale, users of mercury-added products in drinking water and wastewater treatment systems, and dismantlers of end-of-life productions that contain mercury-added products within Louisiana (hereinafter “Proposed Rule”). See, La. Admin. Code Tit. 33, §§ 2701, 2703, 2705, 2707, 2709, 2711, 2713, 2715, 2717, 2719, and 2721 (2008). The Proposed Rule was published after the LDEQ’s consideration of numerous comments received in response to a rule published by the LDEQ in the December 2007 Potpourri Section of the Louisiana Register.

The Louisiana Mercury Risk Reduction Act was enacted in June 2006. The law was the first of its kind and provided the LDEQ with the authority to regulate mercury-added products and also gave the LDEQ the authority to handle unregulated mercury sources. The stated intent of the Louisiana Mercury Risk Reduction Act was to “achieve significant reductions in environmental mercury by encouraging the establishment of effective state and local waste reduction, recycling, and management programs while encouraging non-mercury alternatives.” La. R.S. 30:2571(C).Continue Reading Louisiana Mercury Risk Reduction Act – Proposed Rule Released by LDEQ

Property taxes in Louisiana are based on the fair market value of taxable property. The assessors make the fair market value determination based upon the status and condition of property as of January 1 of each tax year. Certain types of immovable property are generally revalued every four years; however if market conditions suggest changes in fair market value, adjustments can be made during the four year cycle. Most equipment and personal property is valued annually. La. R.S. 47:1978 and La. R.S. 47:1978.1 provide relief provisions for property owners that sustain damage after January 1 due to flooding or a natural disaster.
Continue Reading Property Owners with Hurricane Gustav Damage Entitled to Reduced Property Tax Assessments

According to a news release, the Louisiana Department of Economic Development (LED) has established new resources for hurricane-affected businesses in Louisiana.

The LED Business Recovery Call Center was activated on September 8th and offers recovery-related resources for businesses needing help in the aftermath of Hurricane Gustav. The call center can be reached at 1-877-610-3LED (3533).…

The Office of Inspector General issued Advisory Opinion No. 08-10 on August 19, 2008 regarding a proposal for a physician group practice to lease a facility owned by the practice on a part-time basis to other physician groups for the groups to provide certain radiation therapy treatments to their patients. The physician group practice that owns the facility had requested this advisory opinion from the OIG on whether the OIG considers the proposed part-time (i.e., block) leases of the facility to other physician groups would generate prohibited remuneration under the Federal anti-kickback statute. 

Continue Reading OIG Issues Advisory Opinion on Proposed Block Lease of Free-Standing Cancer Treatment Center

“Someone is using my photos and website design on the internet without permission. What can I do?” These questions arise more and more with the increased use of the internet in business. The technical answer is that you have a potential claim for copyright infringement. Filing a federal lawsuit under the Copyright Act, however, is not a realistic option for many businesses, particularly when monetary damages may not be at issue. The goods news is that with the enactment of the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C 512, victims of internet copyright infringement now have a more practical option for achieving the desired result – removing the infringing material from the internet – without filing a lawsuit.
Continue Reading Stopping Internet Copyright Infringement Short of Filing Suit

On June 10, 2008, Michael O. Leavitt, Secretary of the Department of Health and Human Services (DHHS) announced that Louisiana was one of twelve (12) communities chosen to participate in an Electronic Health Records Medicare Demonstration Project. The project will last five (5) years and will provide physicians with financial incentives to use certified electronic health records (EHRs). Incentive payments for the entire 5-year period may reach $58,000 per physician and $290,000 per practice.
Continue Reading Louisiana Chosen to Participate in Electronic Health Records Medicare Demonstration Project

The Louisiana Supreme Court issued its new opinion after a rehearing in Borel v. Young, again affirming the Third Circuit’s ruling and dismissing the lawsuit against late-added physician defendants, but on different grounds. The supreme court’s decision on rehearing solved an apparent dilemma for the plaintiffs created by the original opinion: the plaintiffs were precluded from filing suit until after the medical review panel had rendered an opinion but, in any case, were required to file suit within three years of the alleged medical malpractice. Since the three year period could not be suspended during the pendency of the medical review panel, the plaintiffs faced the possibility that their claims would be barred by the three-year peremptive period before the panel convened to consider their claims.
Continue Reading Louisiana Supreme Court’s Rehearing of Borel v. Young

In a major victory for business interests involved in maritime operations and what many commentators say is a harbinger of things to come, the United States Supreme Court recently struck down the $2.5 billion punitive damage award against ExxonMobil in a case involving claims for individual economic damages filed by landowners, native Alaskans and commercial fisherman following the 1989 grounding of the Exxon Valdez. See Exxon Shipping Company, et al v. Grant Baker, et al, 554 U.S. ____(June 25, 2008).  The Court determined that the upper limit for punitive damages in maritime cases was a 1:1 ratio to compensatory damages and sent the case back to the appellate court to reduce the punitive damage award to $507.5 million which was the amount of compensatory damages (those agreed upon in settlement and those awarded following trial) that the trial court determined were relevant for purposes of determining punitive damages.
Continue Reading Supreme Court Reduces Punitive Damage Award in Exxon Valdez Case and Limits Punitive Damage Awards in Maritime Cases

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 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