On August 1, 2006, the United States Court of Appeals for the Sixth Circuit affirmed a decision of the Departmental Appeals Board (“DAB”) of the United States Department of Health & Human Services (“DHHS”) that had upheld an award of civil monetary penalties of $77,100.00 against a skilled nursing facility (“SNF”) in Ohio. The penalties came as a result of the facility being cited by the state survey agency for numerous violations the agency was unwilling to waive, despite finding that prior Medicare program-participant violations had been substantially corrected upon revisit surveys.

Continue Reading Federal Court of Appeals Upholds Civil Monetary Penalty Award Against SNF Despite Claim No Harm Was Sustained by Nursing Facility Residents

On August 18, 2006, the Centers for Medicare & Medicaid Services (“CMS”) published a final rule that revises the hospital in-patient prospective payment systems (“PPS”) for fiscal year 2007. This article addresses the revisions CMS made to the requirements for Reporting Hospital Quality Data for Annual Payment Update (“RHQDAPU”) program in the PPS update. The revisions supplement the ten (10) quality measures CMS had established in November 1, 2003. These ten (10) quality measures involved Heart Attack, Heart Failure, and Pneumonia. For fiscal years 2005 and 2006, hospitals that chose not to submit quality data on the ten (10) quality measures received a 0.4 percentage reduction in payment update. For 2007 and subsequent years, the failure to report on the quality measures, which are being changed from 10 to 21 measures, will result in a 2.0 percent decrease. This large increase in reduction is mandated by the Deficit Reduction Act of 2005 (the “DRA”).

Continue Reading CMS Issues Final PPS Rule for In-Patient Hospital Services for Fiscal Year 2007

On August 24, 2006, the Office of Inspector General (“OIG”) of the United States Department of Health and Human Services (“DHHS”), through its Office of Audit Services, issued a report finding that the Medicare Program overpaid an estimated twenty million dollars for non-physician radiology services provided to hospital inpatients. The estimated overpayments covered the period 2001-2003.

During a Medicare patient’s inpatient hospital stay, the Medicare Program, under Part A, pays the hospital under the Prospective Payment Systems (“PPS”) based on what is known as DRGs. DRG payments include payment for non-physician radiology services. These non-physician services are known as the “technical component” of radiology services. The physician component of radiology services, known as the “professional component”, is billed to the Medicare Program, Part B, by the physician.

Continue Reading OIG Estimates $20 Million in Radiology Overpayments

In an August 14, 2006 ruling on a motion in a federal case in Alabama, the district judge allowed the admission of an investigation report created by the Centers for Medicare and Medicaid Services (“CMS”) in an EMTALA action. The lawsuit was brought by a lady who, at 38 weeks of pregnancy, had been involved in an automobile accident. She presented to the hospital emergency department and advised the clerk she was pregnant and was having contractions. She was told that she must wait for the obstetrician on call to decide whether to see her. The patient left the hospital. She filed an EMTALA complaint. CMS investigated the matter and concluded that the hospital had violated federal regulations. The patient also sued the hospital in federal court.

Continue Reading Federal Court Refuses to Apply State Peer Review Privilege in EMTALA Case

The Louisiana legislature amended Louisiana Revised Statutes 13:4207 to provide additional time delays in which judges must render a judgment in cases taken under advisement and rule on applications for a new trial, as well restrictions regarding the manner in which the judgment must be rendered.

Continue Reading Louisiana Legislature Sets Time Limits for Rulings on Cases Taken Under Advisement and Applications for New Trials

The court in Petch v. Humble, 41,301 (La.App. 2 Cir. 8/23/06) 2006 WL 2422914, –So.2d– considered the limited scope of liability for members of a limited liability company. The plaintiffs in that case, property owners, sued a limited liability company that owned neighboring property and three members of the limited liability company. Plaintiffs claimed defendants negligently failed to obtain a stormwater permit before beginning to develop a subdivision and in failing to employ a stormwater pollution prevention plan, which allegedly resulted in damage to plaintiffs’ property.

Continue Reading Limited Liability of LLC Members Affirmed

Baton Rouge, Louisiana – September 8, 2006 – Fifteen partners from Baton Rouge-based Kean Miller Hawthorne D’Armond McCowan & Jarman (Kean Miller) will be listed in the 2007 edition of The Best Lawyers in America (Woodward White, Inc.). Published biennially since 1983, The Best Lawyers in America is widely regarded as an important referral guide to the legal profession in the United States. The list is compiled through an exhaustive peer-review survey in which thousands of the top lawyers in the U.S. confidentially evaluate their professional peers.

The referral guide is subscribed to by more than 4,000 of the leading law firms in the U.S. and abroad, and by more than 1,000 of the world’s largest corporations. Because lawyers are not required or allowed to pay a fee to be listed, Best Lawyers is a reliable, unbiased source of legal referrals.

Continue Reading FIFTEEN LOCAL LAWYERS RECOGNIZED AS “BEST IN AMERICA” – National Peer Review Directory Lists Fifteen Partners at Kean Miller Law Firm

Louisiana Code of Civil Procedure Article 1916 no longer applies strictly to jury cases. House Bill No. 414, effective August 15, 2006, amended Article 1916 to apply to judge and jury trials, and to establish time delays for the preparation and execution of judgments, including contradictory motions, exceptions and compromise agreements. (Link to House Bill)

Former Article 1916 made a distinction between jury trials in which a general verdict was reached and those resulting in a special verdict. In the case of a general verdict, the judge was required to sign a judgment within three days of the verdict. For special verdicts, the judge was allowed unspecified time for deliberation, but was required to sign a judgment.

Amended and reenacted Article 1916 extends the three day rule for judges in jury trials and no longer makes a distinction between general and special verdicts. Regardless of the nature of the verdict rendered, judges must prepare and sign a judgment within ten days of the jury’s verdict. Alternatively, amended Article 1916 gives judges express authority to order counsel for a party to submit a judgment for signature by the court within ten days of the verdict.

Continue Reading Louisiana Legislature Enacts New Rules on the Preparation and Execution of Judgments

The Louisiana Department of Environmental Quality (“LDEQ”) recently instituted a pilot program of making its Electronic Document Management System (“EDMS”) available on the internet for a six-month trial period. The EDMS is the electronic repository of official records that have been created or received by LDEQ.  All documents that are defined as “public records,” including e-mail, either created or received by any LDEQ personnel are placed in the EDMS and can be searched on the internet through LDEQ’s website. All public documents that have not been labeled as confidential pursuant to LDEQ’s confidentiality statute, La. R.S. 30:2030, and that are dated July 1, 2005 or later are part of the pilot. The only exception is documents concerning radiation media as LDEQ has asserted confidentiality of these pursuant to its authority to keep potentially sensitive national security information as confidential.

Continue Reading Will Your Settlement Negotiations With LDEQ Be Published on the Web?

In State of Louisiana v. All Property and Casualty Insurance Carriers Authorized and Licensed to Do Business in the State of Louisiana, 2006-2030 (La. 8/25/06), the Louisiana Supreme Court upheld Acts 739 and 802 of the 2006 legislative session.

Act 739 extends to September 1, 2007, the filing period for Katrina-related claims under homeowner, personal property, tenant, condominium and commercial insurance policies, with a similar extension to October 1, 2007 for Rita-related claims.

Continue Reading Louisiana Supreme Court Upholds Acts Extending Prescription for Filing Hurricane-Related Insurance Claims