The Centers for Medicare and Medicaid Services (CMS), Federal Trade Commission (FTC), and the Department of Health and Human Services (HHS) Office of Inspector General (OIG) will co-host a workshop on October 5, 2010 to address anti-trust, physician self-referral, anti-kickback and civil monetary penalty issues for Accountable Care Organizations (ACOs). ACOs are a new form of an integrated delivery system that was established as a demonstration project within the Medicare program by the Patient Protection and Affordable Care Act on March 23, 2010.

Continue Reading Health Care Reform: Federal Trade Commission, CMS and HHS Announce Workshop on Accountable Care Organizations

The Louisiana Supreme Court in Cheramie Services, Inc. v. Shell Deepwater Production, 2010 W.L. 1631977 (La. 2010) construed the Louisiana Unfair Trade Practices Act (“LUTPA”) to mean that persons other than business consumers and competitors may sue for alleged violations of the Act. Regardless of the context of the legislation, according to the Supreme Court, the term “any person” means exactly that – any person.

In the action, Cheramie Services, Inc. (“Cheramie”) entered into a contract with Shell to provide personnel to its platforms. Shell placed two Cheramie employees, Kenneth Ward and Kevin Kays, on a platform. Shell paid Cheramie who paid the employees who were placed on these specific platforms. Ward and Kays alternated working fourteen day shifts so one of them was always on the platform. About six months thereafter, Shell stopped making payments to Cheramie and began paying Filco International, Inc. (“Filco”) for the services provided by Kays and Ward. Additionally, Cheramie sent an employee to meet with Shell about filling a position on another platform. The employee met with Shell and was told that if she wanted the position, she would have to work for Filco, because it had submitted the successful bid.
Continue Reading Louisiana Supreme Court Interprets Unfair Trade Practices Act

Health care reform legislation increased the tools the government can use to recover money incorrectly paid to providers. The risk to providers of retaining overpayments has increased significantly.

Effective March 23, 2010, the law requires a person (including health care providers who are reimbursed under part A and Part B) who has received an overpayment from claims billed to Medicare or Medicaid to report and return the overpayment to the Secretary of HHS, the State, the intermediary, carrier, or contractor, as appropriate. In addition, the person must state the reason for the overpayment.
Continue Reading Failure to Report and Return Identified Overpayment can be a False Claim

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Under the Patient Protection and Affordable Care Act, all states are required to contract with recovery audit contractors (RACs) by December 31, 2010. This program is being expanded to Medicaid, as well as to Medicare Parts C and D. Federal regulations to carry out the expanded RAC program will be created by the Secretary of Health and Human Services.

RACs have been used since 2006 (following a three year demonstration project) to conduct audits of Medicare providers to determine whether an overpayment was made in Medicare Parts A and B claims. RACs typically review a small sample of claims from a health care provider for a specific review period and calculate an error rate, based on the RAC’s determination as to whether claims were improperly paid.
Continue Reading Recovery Audit Contractor Program Will Be Expanded to Medicaid

During the 2010 Session, the Louisiana Legislature enacted Act 986 to amend La. R.S. 30:2022, the state law concerning the Louisiana Department of Environmental Quality’s (LDEQ) permit process. The legislation began as House Bill 1169 and was authored by Representative Karen St. Germain. Governor Bobby Jindal signed the legislation on July 7, 2010, as Act 986. The Act became effective that same day.

The Act enacted La. R.S. 30:2022(D), which requires greater transparency from LDEQ regarding changes made to permits, renewals, extensions, and modifications. First, Act 986 requires that, if requested by a permit applicant, LDEQ provide the applicant with a written summary of the specific changes to the existing permit whenever LDEQ prepares a draft database permit for the renewal, extension, or substantial permit modification of an existing hazardous waste permit, solid waste permit, Louisiana Pollutant Discharge Elimination System (LPDES) permit, or air quality permit. The database is LDEQ’s Tools for Environmental Management and Protection Organization (TEMPO) database system. Previously, LDEQ was under no obligation to inform a permit applicant of each and every change that had been made in the renewal, extension, or substantial modification of an existing permit.
Continue Reading Legislature Changes Permit Process at the Louisiana Department of Environmental Quality

On July 13, 2010, the Centers for Medicare and Medicaid Services (“CMS”) published a proposed rule that would require physicians to disclose to their patient(s), at the time of ordering a CT, MRI or PET Scan service that may be performed in the physician’s office, the name, address, telephone number and distance from the physician’s office of ten (10) competing suppliers of the CT, MRI or PET Scan service where the patient may wish to have the test performed. This proposed rule implements a provision in the Patient Protection and Affordable Case Act (the “PPACA” or “Health Care Reform Legislation”) that mandates the disclosure at the time the test is ordered.

Continue Reading CMS Issues Proposed Rule on Disclosure Requirements for Certain In-Office Imaging Services

Judges in East Baton Rouge and St. Tammany Parish have issued two of the earliest rulings on the impact of the Louisiana New Home Warranty Act on claims by homeowners against contractors for damages related to Chinese Drywall. Both state district court judges have found that the Louisiana New Home Warranty Act is the exclusive remedy as between a builder and a homeowner for damages caused by Chinese Drywall. Both judges have also ruled that the Chinese Drywall incorporated into homes in Louisiana is not a structural component of the home and is thus subject to a one year warranty period.

In both of the district court cases, the courts dismissed the plaintiff’s case because the suits against the contractors were brought more than one year after the homes were occupied by the original owners.

The rulings by the district court judges should have no impact on homeowner claims against suppliers and manufacturers of Chinese Drywall as the Louisiana New Home Warranty Act only applies to the relationship and rights between a home builder and a home owner in Louisiana.

In Bollinger Shipyards, Inc. v. Director, Office of Worker’s Compensation Programs, U.S. Dept. of Labor, (5th Cir. 2010) the United States Fifth Circuit upheld the award of workers compensation benefits to an undocumented immigrant worker who was injured on the job as a pipefitter.

The Bollinger plaintiff, Jorge Rodriguez, fell and allegedly injured himself while welding for his employer, Bollinger Shipyards, Inc.  At the time of his alleged injury, Rodriguez had been working for Bollinger for approximately eight months, having initially obtained employment by falsely holding himself out as a United States citizen.  Rodriguez presented Bollinger with a false Social Security Card.  Bollinger initially paid Rodriguez temporary disability benefits and reimbursed him for a portion of his medical bills.
Continue Reading Immigration Status is Irrelevent Under the Longshore and Harbor Workers’ Compensation Act

By the Admiralty and Maritime Team

In Solana v. GSF Development Driller I, et al., 587 F.3d 266 (5th Cir. 2009), the United States Fifth Circuit reiterated the longstanding rule that generally, a seaman belonging to a vessel in peril cannot claim a salvage compensation for saving his vessel.

The facts in Solana are quite interesting.  As Hurricane Katrina approached the Gulf Coast, Global Santa Fe (GSF) evacuated its jack-up and anchored rigs in the Gulf of Mexico, which included the Development Driller I (DDI), a $350 million dollar semi-submersible drilling rig. The DDI’s power was shut off and its crew was evacuated.  Solana, a 20 year GSF employee and Offshore Installation Manager (OIM) of the DDI, and Lally, a ballast control operator and senior dynamic positioning operator, were among those employees who were evacuated from the rig.
Continue Reading United States Fifth Circuit Reiterates Rule That Crew Members Are Not Entitled to a Salvage Award for Assistance Rendered to Their Own Vessel