Kean Miller

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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…

by the Admiralty and Maritime Team

In the recent case of Cain v. Transocean Offshore USA, Inc., et al., No. 05-300963, the United States Court of Appeals for the Fifth Circuit affirmed its long standing decision that a watercraft under construction is not a “vessel in navigation” for purposes of the Jones Act.

The determination of whether a vessel is “in navigation” is a critical part of the “seaman status” analysis. Congress did not define the term “seaman” when it passed the Jones Act. Thus, it has been left to the Courts to interpret and define that term. The U.S. Supreme Court’s most recent holding defines a “seaman” as an “employee whose duties contribute to the function of a vessel or to the accomplishment of its mission, and who has connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and nature.” Chandris, Inc. v. Latsis, 515, U.S. 347, 354 (1995).Continue Reading A Vessel Under Construction is (Still) NOT a Vessel

On January 28, 2008, the Family and Medical Leave Act (“FMLS”) was amended as part of the National Defense Authorization Act (“NDAA”) for Fiscal Year 2008. A copy of the amended FMLA is available at www.dol.gov. The amendments provide special leave rights to family members of certain servicemembers. There are two different types of leave rights created by the amendments:

(1) The circumstances for which up to 12 weeks of FMLA leave is available in a 12 month period are extended to include an additional qualifying reason —“because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation.” 29 USC 102(a)(1)(E). Until regulations define a “qualifying exigency”for which the leave is available, employers should not be required to extend this leave. An employer may require certification for this leave should the Secretary’s regulations provide for the manner and timing of any such certification. 29 U.S.C. Sec. 103(f).Continue Reading Family Medical Leave Act Amended as Part of National Defense Authorization Act

The Louisiana Department of Environmental Quality recently finalized revisions to the “Comprehensive Toxic Air Pollutant Emission Control Program” set forth in LAC 33:III.Chapter 51 of the Louisiana Air Quality Regulations. A final rulemaking, first initiated in September 2005, was published in the December 20, 2007 Louisiana Register and can be obtained at the following web address: http://www.deq.louisiana.gov/portal/tabid/2644/Default.aspx.  Unlike some states, Louisiana has its own air toxics program, which applies to major sources of “toxic air pollutants” as defined in LAC 33:III.5103. State toxic air pollutants include all federal “hazardous air pollutants” set forth in Clean Air Act § 112, and also 13 other pollutants, including ammonia, sulfuric acid, nitric acid, and hydrogen sulfide.

The final rulemaking, published in AQ-256, provides for the following revisions:Continue Reading Louisiana Air Toxics Regulations Revised by LDEQ

by the Admiralty and Maritime Team

The Transportation Worker Identification Credential (TWIC) is a new security measure established by Congress through the Maritime Transportation Security Act (MTSA) to ensure that individuals who pose a threat do not gain unescorted access to secure areas of the nation’s maritime transportation system. The TWIC is a tamper-resistant “smart card” containing an individual’s biometric (fingerprint) template to allow for a positive link between the card itself and the individual. The TWIC card is valid for five years.

Workers who require unescorted access to secure areas of ports, vessels, and outer continental shelf facilities will require a TWIC card. This includes mariners holding Coast Guard issued credentials, non-credentialed mariners in a vessel crew, facility employees who work in a secure area, truckers bringing/picking up cargo at a facility, agents, port chaplains, longshoremen, drayage truckers, surveyors, chandlers, and other maritime professionals. Facility security officers and personnel responsible for security duties are also required to obtain a TWIC card. The category of “other marine professionals” would, in this author’s opinion, include attorneys and their experts who may enter a port or other secure area to inspect vessels.Continue Reading The TWIC: What Is It, Who Needs It, and How Can I Get It

The 16th Judicial District Court granted a well operator’s motion for summary judgment and exception of no right of action and dismissed all of a property owner’s claims in a pending legacy oilfield suit. The Louisiana Third Circuit Court of Appeal upheld the trial court’s decision in LeJeune Brothers, Inc. v. Goodrich Petroleum Co., L.L.C., et al., 2006-1557 (La.App. 3 Cir. 11/28/07), __ So. 2d __, 2007 WL 4178946, rehearing denied (1/9/2008).

LeJeune Brothers, Inc. (“LeJeune”), the property owner, claimed that the Goodrich Petroleum Company, L.L.C. (“Goodrich”), a company whose predecessor had operated an oil and gas well on the property at issue, was liable to LeJeune for damages arising in tort and in contract, punitive damages, as well as damages for claims arising under the Mineral Code. Goodrich’s predecessor had operated pursuant to a mineral lease that had been executed with LeJeune’s predecessor in interest. LeJeune claimed that it was only after the purchase of the property in 2000 that it discovered that the property was contaminated with waste resulting from oilfield exploration and production activities and LeJeune maintained that it had no knowledge that the property was contaminated prior to the purchase of the property.Continue Reading Louisiana’s Third Circuit Court of Appeals Upholds District Court’s Dismissal of Legacy Oil Field Plaintiff’s Contract and Tort Claims In LeJeune Brothers, Inc. v. Goodrich Petroleum Co., L.L.C., et al.

The European Commission recently released a preliminary package of broad climate change policies that would affect industry, energy generation and transportation in the European Union. The goals of the climate change policies are to: (1) to reduce greenhouse gas emissions by twenty percent (20%) below 1990 levels by the year 2020; (2) to increase the proportion of power generated by renewable resources to twenty percent (20%) of total energy consumption; and (3) to institute a mandate that ten percent (10%) of the fuel consumed by the European vehicles to be from biofuel sources.

The proposed measures include:Continue Reading European Union to Cut Greenhouse Gas Emissions by Twenty Percent by 2020: European Commission Issues Climate Change Policy Package

On September 26, 2007, the Louisiana Second Circuit Court of Appeal upheld the judgment of the First Judicial District Court in Caddo Parish in finding that the noncompetition and nonsolicitation clauses in a contract between a urology clinic and a professional medical corporation (“PMC”) were enforceable as to the physician who had formed the PMC. Regional Urology, L.L.C., et al v. David T. Price, M.D. and David T. Price, M.D., A Professional Medical Corporation, 42-789 (La.App. 2ndrehearing denied 10/18/07.  Cir. 9/26/07), 966 So.2d 1087,

The clauses at issue were part of an independent contractor agreement between David Price, M.D., A Professional Medical Corporation (PMC) and Regional Urology, L.L.C. (Regional Urology). Dr. Price was not a named party to the contract in his individual capacity. The contract prevented competition and solicitation by David Price, M.D., PMC for a period of 2 years in Caddo and Bossier Parishes. In addition, the contract provided that it would “apply to any physician who is a Member, any corporation which is Member or any physician’s L.L.C. which is a Member of Regional Urology, L.L.C.”Continue Reading Physician Must Comply With Terms of Non-Competition Agreement

On December 21, 2007, EPA published notice of its adoption of a final rule to “clarify” the recordkeeping and reporting requirements for projects that do not constitute a major modification under the prevention of significant deterioration (“PSD”) and nonattainment new source review (“NNSR”) programs when calculated by the baseline actual emissions to projected actual emissions (“BAE to PAE”) methodology, but which have a “reasonable possibility” to result in a significant emissions increase.  72 Fed. Reg. 72607. The final rule defines “reasonable possibility” as either: 1) where the difference between BAE and PAE is > 50% of the significance level for the regulated pollutant; or 2) where the difference between BAE and PAE prior to subtraction of the emissions excluded from PAE through the “capable of accommodating/demand growth” exclusion is > 50% of the significance level for the regulated pollutant. However, the recordkeeping and reporting requirements differ depending upon whether “reasonable possibility” is triggered by scenario 1) or 2).
Continue Reading EPA Adopts Final Rule to Clarify “Reasonable Possibility” Recordkeeping and Reporting Requirements