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

On November 2, 2007, the Louisiana Court of Appeal for the First Circuit ruled that the Louisiana Medicaid Program may not recoup payments from a health care provider participating in Medicaid based solely on a billing record review when the basis for the alleged overpayment is that the services were not medically necessary. In Doc’s Clinic, APMC v. Louisiana Department of Health and Hospitals, No. 2007 CA 0480 (La.App. 1 Cir. 11/2/07), Doc’s Clinic appealed an Administrative Law Judge’s decision affirming an alleged overpayment of approximately $260,000.00. The Louisiana Department of Health and Hospitals (“DHH”) alleged that Doc’s Clinic had billed for medically unnecessary services, based on a billing record review by a nurse, with some assistance from a physician. DHH originally notified Doc’s Clinic of not only the alleged overpayment amount, but also of DHH’s intention to exclude the provider from the Medicaid Program participation.

Continue Reading Medicaid Recoupment Based on Lack of Medical Necessity Not Permitted If Based on Review of Billing Records Alone

2007 La. Acts No. 361 amended Louisiana Code of Civil Procedure Article 561 to provide an exception to the abandonment period for cases filed before the landfall of Hurricanes Katrina and Rita. The amendment extends to five (5) years the abandonment period for cases that meet the requirements set forth in La. C.C.P. art. 561(2). Article 561 states, in pertinent part, as follows:

A.       (1) An action, except as provided in Subparagraph (2) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding:

(a) Which has been opened;

(b) In which an administrator or executor has been appointed; or

(c) In which a testament has been probated.

Continue Reading Abandonment Period for Cases Filed Prior to Hurricanes Katrina and Rita Extended to Five Years by Recent Amendment of Louisiana Code of Civil Procedure Article 561

The Louisiana Fourth Circuit Court of Appeal recently held that the single business enterprise theory may apply in a breach of contract case.

The single business enterprise theory, a jurisprudential theory under which one or more entities affiliated with another entity may be held liable for such other entity’s debts or liabilities, was first recognized in Louisiana by the First Circuit Court of Appeal in 1991 in the case of Green v Champion Insurance Co. This theory is somewhat unique to Louisiana and greatly erodes traditional corporate laws which generally shield shareholders and affiliated entities from the debts or liabilities of a corporation or other entity.   Although the Louisiana Supreme Court has not expressly adopted the single business enterprise theory, it has had opportunities to repudiate or criticize such a theory but has not done so; and as a result, other appellate courts in Louisiana have continued to invoke the theory.

Continue Reading Single Business Enterprise Theory Continues to Gain Ground

Louisiana law prohibits arbitration clauses in “contracts of employment of labor.” In Wright v. 3P Delivery, LLC, 2007-683 (La.App. 3 Cir. 10/31/07) — So.2d —-, the court was asked to consider whether an arbitration clause in a contract requiring the plaintiff, an individual, to provide transportation services along with handling, loading and unloading of shipments for defendant, fell within this prohibition. The issue to be decided was whether the contract was one wherein the plaintiff provided service(s) to the defendant, thus making the arbitration clause valid, or was the contact one wherein the plaintiff provided labor to the defendant, thus rendering the clause invalid.

Continue Reading Statutory Prohibition Against Arbitration of Labor Contracts

On Thursday, November 8, The New York Times reported that the U.S. House of Representatives passed the Employment Nondiscrimination Act. The Act grants gays and lesbians protections from discrimination in the workplace. The New York Times also reported that Senator Edward Kennedy would introduce similar legislation in the Senate, and that Senator Susan Collins said that she would be a lead co-sponsor.

Continue Reading Federal Protection for Gays and Lesbians Forthcoming?

The United States Court of Appeals for the Ninth Circuit recently upheld the health care fraud conviction of a mental health clinic owner in Idaho, ruling that proof of intent to defraud can be made by showing reckless indifference to the truth or falsity of statements in health care cases. The Ninth Circuit Court of Appeals case is entitled United States v. Dearing, No. 06-30606 (9th Cir. 9/25/07). The reckless indifference standard, which has long been a standard for civil liability in cases brought under the Federal Civil False Claims Act, 31 U.S.C. §3729, et seq., was cited as being sufficient to uphold a criminal conviction under 18 U.S.C. §1347, a federal criminal health care fraud statute.

Continue Reading Reckless Disregard Upheld as Standard in Criminal Conviction

A jury in California issued a $6 million verdict against SLB Toys USA, Inc. (also known as ToyQuest) in favor of Wham-O, Inc., the manufacturer of the famous backyard yard toy, the Slip ‘N Slide. Wham-O owns two registrations for design marks for water slides which include the color yellow as part of the registration. Wham-O claimed that its famous yellow water slide has become an instantly recognizable iconic symbol of summer fun, and is famous among both children and adults.

Continue Reading Jury Sides with the Wham-O Slip ‘N Slide

On October 19, 2007, the Department of Health and Human Services Office of Inspector General (OIG) posted Advisory Opinion No. 07-13 concerning ownership in ophthalmology Ambulatory Surgical Centers (ASCs). The Advisory Opinion can be found at http://www.oig.hhs.gov/fraud/docs/advisoryopinions/2007/AdvOpn07-13.pdf

A group practice and a surgical center requested an opinion from the OIG regarding whether a Proposed Arrangement would violate the anti-kickback statute. The Proposed Arrangement called for the addition of optometrists as owners of three single-specialty ophthalmology ASCs.

Continue Reading OIG Issues Advisory Opinion on Ambulatory Surgical Centers

The Louisiana New Home Warranty Act provides the exclusive remedies, warranties, and prescriptive periods (statute of limitations) as between builder and owner related to home construction. The Act’s minimum required warranties are mandatory, and cannot be waived by the owner or reduced by the builder. Homeowners cannot avoid the exclusivity by crafting recovery claims through other theories. Consequently, the New Home Warranty Act provides the exclusive remedy, but permits the builder to contractually assume greater obligations or warranties than those set forth in the Act.

Continue Reading Louisiana New Home Warranty Act Protects Insurance Carriers