Kean Miller

Subscribe to Kean Miller's Posts

On July 19, 2007, the Fifth Circuit Court of Appeals affirmed the ruling of the U.S. District Court for the Eastern District of Louisiana denying class certification to three plaintiffs seeking to represent a class of uninsured patients who had received treatment from Ochsner Clinic Foundation. Maldonado v. Ochsner Clinic Found., No. 06-30573 (5th Cir. July 19, 2007).  The plaintiffs filed a lawsuit against Ochsner Clinic Foundation, a non-profit corporation, on behalf of themselves and all others similarly situated uninsured patients. The plaintiffs claimed that Ochsner billed uninsured patients higher rates for their care according to Ochsner’s internal “chargemaster” rates, while offering lower discounted rates to patients with private insurance, Medicare or Medicaid.
Continue Reading Uninsured Patients Lose Appeal to Fifth Circuit for Class Certification

It is important for employers covered by the National Labor Relations Act (“NLRA” or “Act”) to remember the impact which the Act can have on employment policies and rules – including, but not limited to, policies and rules in connection with confidentiality. This article is not intended to provide an exhaustive review of this area. Instead, it will merely refer to portions of the recent decision in Cintas Corporation v. National Labor Relations Board, 482 F.3d 463 (D.C. Cir. 2007) which “involve[d] an allegation that the confidentiality rule of [an employer] violated provisions” of the NLRA. Id. at 464.
Continue Reading Do You Remember the Impact the National Labor Relations Act Can Have on Employment Policies and Rules?

In June, we reported that a three judge panel of the District of Columbia Court of Appeal had issued a decision in NRDC v. EPA, Docket 04-1385, to vacate both the Commercial and Industrial Solid Waste Incineration (“CISWI”) Unit Rule and the National Emission Standard for Hazardous Air Pollutants Rule for Industrial, Commercial, and Institutional Boilers and Process Heaters (the “Boiler MACT”).  That report indicated that the court’s decision could be stayed by a timely request for hearing or a stay order.
Continue Reading Boiler MACT, Now It’s Gone!

On July 24th, Representative Pete Stark (D- CA) introduced an amendment to The Children’s Health and Medicare Protection Act of 2007 that would eliminate the whole hospital exception in the Federal physician self-referral law, otherwise known as the Stark Law.

Specifically, Section 651 of The Children’s Health and Medicare Protection Act of 2007 would eliminate the whole hospital exception in the Stark Law which would result in physicians being prohibited from referring Medicare patients to hospitals in which they have ownership interest. This amendment would apply to all hospitals, and not only physician-owned specialty hospitals. However, the amendment would grandfather hospitals that were in operation with Medicare provider agreements as of the date of introduction of the bill which is July 24, 2007.Continue Reading Congressman Pete Stark Takes Aim at Whole Hospital Exception in the Stark Law

On July 2, 2007, the Centers for Medicare and Medicaid Services (CMS) posted on its website the proposed updates to the Medicare Physician Fee Schedule for 2008. These proposed changes included a number of significant revisions to the federal physician self-referral prohibition otherwise known as the Stark Law. This article includes a brief summary of some of the proposed changes to the Stark Law regulations. The Kean Miller healthcare regulatory group will issue an expanded summary of the changes to the Stark Law regulations included in the proposed changes for 2008.
Continue Reading CMS Includes Proposed Stark Law Changes in 2008 Medicare Physician Fee Schedule Proposed Rules

On May 29, 2007, the Supreme Court handed down Ledbetter v. Goodyear Tire & Rubber Col, Inc., – U.S. –, 127 S.Ct. 2162 (2007), a decision favorable to employers and enforcing the timeliness requirements under Title VII for bringing a claim for alleged discriminatory pay. The court ruled that an employer’s decision setting an employee’s pay or raise within an otherwise neutral pay structure was a “discrete act,” triggering the running of the limitations period under Title VII. The plaintiff argued unsuccessfully that the pay claim was always timely because the disparate pay continued and compounded throughout her employment.
Continue Reading Title VII Time Limits For Claim For Alleged Discriminatory Pay Enforced

On June 8, 2007, a three judge panel of the District of Columbia Court of Appeal issued a decision in NRDC v. EPA, vacating both the Commercial and Industrial Solid Waste Incineration (“CISWI”) Unit Rule and the National Emission Standard for Hazardous Air Pollutants Rule for Industrial, Commercial, and Institutional Boilers and Process Heaters (the “Boiler MACT”). The decision will not become effective (meaning the CISWI and Boiler MACT Rules are still effective), until legal delays for rehearing and/or appeal have run. Moreover, two of the three judges wrote concurring opinions which strongly suggest that a stay order, with conditions, is likely to be issued if the parties so request it. With the September 13, 2007, Boiler MACT compliance deadline looming, EPA needs to provide prompt guidance to the thousands of regulated entities on their compliance obligations in light of the decision.
Continue Reading Boiler MACT Rule Vacated, But Not (Yet) Gone!

The OIG issued an advisory opinion on June 12, 2007 regarding a hospital’s proposed purchase of a partial ownership interest in a physician-owned Ambulatory Surgical Center (ASC). The message from this advisory opinion appears to be that the purchase of an interest in an existing physician-owned provider, such as an ASC, imaging center or Specialty Hospital, will receive a heightened level of scrutiny by the OIG.
Continue Reading OIG Issues Advisory Opinion Regarding Hospital Acquisition of Physician-Owned Ambulatory Surgery Center

The purpose of due diligence in the acquisition of licensing of intellectual property assets (namely patents and copyrights) is to give a buyer an opportunity to investigate and evaluate the asset concerned in some detail. More particularly, due diligence involving patens and copyrights can present ownership issues if the author/inventor is or was married and resides in a community property state. Whatever level of diligence is required for the particular transaction, the buyer should consider inquiring as to the current and past marital status of the inventor/author of the intellectual property if the inventor/author is either the seller; a direct owner of the seller; or in some cases, even a past owner of the intellectual property.
Continue Reading Intellectual Property Due Diligence In a Community Property State