Brown McCarroll Attorneys at Law

On February 1^stthe long overdue final rule of the Sunshine Act was released.  The Act aims to increase transparency relating to payments and investments held by physicians and teaching hospitals.  For those many physicians who have entered into some type of contractual relationship with a manufacturer, taking the time to familiarize themselves with these new rules will be important in order to understand what information will be disclosed, and how it can be disputed. 

On April 17, 2013, the Office of Inspector General (OIG) updated the OIG’s self-disclosure protocol (SDP).  This update significantly revises the SDP first published in 1998, and supersedes the OIG’s related open letters to providers from 2006, 2008 and 2009.

In August 2002, the United States Health and Human Services Office of Inspector General (HHS-OIG) issued a Special Advisory Bulletin relating to offering gifts and inducements to beneficiaries of Title XIX (Medicaid) programs.  Since the States operate their Medicaid programs under the direction of HHS-CMS, it has generally been considered in the health law community that the HHS-OIG Advisory Bulletin could be relied upon in advising healthcare providers.  The Health and Human Services Commission Office of Inspector General (HHSC-OIG), however, last month issued its own advisory bulletin in which it states that it will take an even more restrictive approach …

The Texas Medical Board met on April 12 and decided to change their unwritten physician profile website policy. The board decided to remove from physician profiles any applications for temporary suspensions filed by board staff which were ultimately denied by the board's temporary suspension panel in the physician's favor. The new policy is good news for physicians who have been exonerated of board staff charges that the physician was dangerous to the public. 

On January 31, 2013, the Centers for Medicare & Medicaid Services (CMS) announced the health care organizations selected to participate in the Bundled Payments for Care Improvement initiative (“BPCI”).  BPCI was created by the Affordable Care Act (“ACA”) healthcare reform law to assess whether bundling payments for services in a single episode of care can improve quality and lower costs.  BPCI also allows organizations to enter into payment arrangements that include financial and performance accountability for certain episodes of care.

The Long-Awaited HIPAA Omnibus Rule was just issued by HHS. 

Brown McCarroll is reviewing the  563 page prepublication version of the new HITECH Act rules.  Of importance, there are new requirements for business associates and their subcontractors , as well as significant changes for hospitals and health systems, including provisions requiring changes to the Notice of Privacy Practices.

In response to the deadly incidents with a compounding pharmacy in Massachusetts that is blamed for a meningitis outbreak that sickened more than 500 people and caused at least 36 deaths, potential federal legislation has been introduced in the U.S. House of Representatives.

The Director of the Office of Civil Rights (“OCR”), Leon Rodriquez, has made clear that he "absolutely" plans to continue the office's ongoing efforts to ramp up enforcement of HIPAA with resolution agreements, civil monetary penalties and other enforcement actions.

The Texas Health and Human Services Commission (HHSC) passed new and consolidated rules on October 14, 2012. The new rules increase the likelihood of litigation, increase revenue for the state, lower the State fiscal burden and increase the State's ability to exercise a sanction on providers.
 

The OIG report provides significant insight into the OIG process of identifying targets for scrutiny and identifies several areas that CMHCs may focus on to reduce the risk of scrutiny.

These regulations will allow the OIG to place a provider on payment hold upon a “credible allegation of fraud” (defined broadly) instead of the current “prima facie evidence” standard.

Over the past few weeks HHSC has been making site visits to Medicaid enrolled DME suppliers to verify operations and enrollment data.

On August 16, 2012, the U.S. Court of Appeals for the Fifth Circuit dismissed an appeal challenging the Patient Protection and Affordable Care Act's (PPACA's) restriction on expansion by physician-owned hospitals.

Novitas is requiring new Electronic Funds Transfer forms be completed and submitted for all Texas practices and providers that are transitioning from Trailblazer to Novitas Solutions, Inc.

On July 16, 2012 Medicare will no longer revoke Medicare billing privileges if a provider fails to respond to a Medicare  request for additional information.

If your organization is certified as a non-profit health corporation (formerly known as 5.01(a)s) under the Texas Occupations Code 161.001, your organization is required to submit a biennial report to the Texas Medical Board (TMB). For certified non-profit health organizations that were originally certified in an even number-ending year, you should have received or will receive shortly a notice for the re-certification. The Biennial Recertification is due at the August TMB meeting and should be submitted at least two weeks before the meeting date to avoid penalty.

 

Clearing a building site inside a crowded city can often be efficiently done by “imploding” existing structures utilizing high explosives.  While the science of demolition by implosion is mature and can be implemented safely, neighboring property owners have legitimate concerns about damage from flying debris, dust, ground vibration and air blast overpressure.

On February 22, 2012, the Supreme Court in Douglas v. Independent Living Center of Southern California vacated and remanded to the Ninth Circuit a series of cases that challenge provider reimbursement cuts in California’s Medicaid program.  At issue in the case was whether providers and recipients had standing to sue state officials under the Supremacy Clause to enforce a federal Medicaid law.

There can be no debate about the fact that social media has successfully invaded every aspect of our culture and our lives.

On May 3, 2012, the Centers for Medicare and Medicaid Services (CMS) Blog posted a delay to the implementation of the Physician Payments Sunshine Act. 

Arbitration clauses in lease agreements have become commonplace and are often included as a matter of course. In theory, arbitration is supposed to be less expensive, provide faster results, and generally be more efficient than traditional litigation. In reality, many have found arbitration to be just as expensive as litigation, if not more so, and ultimately less efficient. Litigation and arbitration each have their advantages and disadvantages. View this article, originally published in the CCIM Central Texas May 2012 newsletter, here.

On March 30, 2012, the Fourth Circuit reversed a $44 million judgment against Tuomey Hospital (Tuomey) for contracts that Tuomey had with physicians that allegedly violated the federal Stark law.

The Texas Legislature has enacted new laws specifying requirements for lien waivers and releases. These new laws protect laborers and materialmen by preserving their lien rights until they get paid. The old, common practice of forcing subcontractors to sign otherwise enforceable “blanket lien waivers,” in exchange for the privilege of working on a project, is now gone.  Importantly, the new law provides specific form lien waivers and releases.

The Texas Medicare Administrator Contractor changes from TrailBlazer to Novitas (formerly Highmark Medicare Services)

Here are some of the likely effects on landowners of the new Edwards Aquifer Authority v. Day decision by the Texas Supreme Court…

Congress passed the Needlestick Safety and Prevention Act (the NSPA) in 2001.  The NSPA directed OSHA to revise its Bloodborne Pathogens Standard to require employers to provide safety-engineered devices to workers who are at risk for exposure to bloodborne pathogens, to review the control plans describing employee protection measures at least annually, and to maintain a sharps injury log.

On February 17, 2012, the Texas Supreme Court held in Edwards Aquifer Authority v. Day that land ownership in Texas includes ownership of groundwater in place that cannot be taken without adequate compensation.  Here is what this means to Texas landowners…

The Office of the Inspector General (OIG) issued a press release alerting doctors and other providers to expect increased scrutiny from the OIG when reassigning their Medicare benefits to other entities.

CMS has, in the past, expressed concern regarding the use of concierge medicine by physicians treating Medicare patients.  CMS has prosecuted some concierge care practices for charging concierge fees for “non-covered services” under Medicare.  Despite this opposition, patients and physicians have increasingly implemented concierge-like relationships, including amenities that provide unlimited access to physicians via email, phone, or internet portals, house calls, and provide annual physicals for a periodic flat fee.

Most wills in Texas are “self-proved,” making them easier to admit to probate following the testator’s death.  Up until September 1, 2011, this required the testator and both witnesses to sign the will twice.  Last year, the legislature simplified the process.

On February 24, 2012 the Centers for Medicare & Medicaid Services (“CMS”) released a Notice of Proposed Rulemaking setting forth the “Stage 2” Meaningful Use requirements.  The proposed rule specifies the Stage 2 criteria that eligible providers must meet in order to qualify for Medicare and/or Medicaid EHR incentive payments.

The three-day payment window policy which formally only applied to hospital payments, will now also apply to hospital-affiliated entities including physician practices, ambulatory surgery centers, or clinical lab facilities which provide Medicare Part B services.  Specifically, the Centers for Medicare and Medicaid Services (“CMS”) has expanded the three-day payment window to cover any hospital-associated entity that provides Medicare Part B billed services.  As of July 1, 2012, these entities will be required to be paid at the facility rate for the controlling hospital, instead of their current rates, if the services provided were both related to the reason for admission …

With development picking up, this seems like a good time to remind my developer and general contractor friends to take this simple step to help protect yourself if you get into a fuss over mechanic’s liens in Texas...

Outpatient Surgery Magazine recently published an article describing a case in New Jersey in which an ASC successfully defended an action brought by three physicians who were forced to sell their ownership interests in the ASC due to the physicians' failure to meet the "one-third procedures test" under the applicable federal anti-kickback statute safe harbor.

The National Law Review recently posted a good article on HIPAA Audits.

Today the Centers for Medicare and Medicaid Services (CMS) posted a pre-publication version of a proposed rule regarding the reporting and returning of overpayments. 

First, Happy Valentine’s Day!  Second, the rest of this post has absolutely nothing to do with Valentine’s Day.

In the 2011 regular legislative session, Senate Bill 1661 was passed, and as of January 1 of 2012, is law.  The law requires that Non-Profit Health Organizations (“NPHO”) (formerly known as 5.01(a)’s), ensure through policies, that their employed physicians’ professional judgments are not interfered with, controlled, or otherwise directed by the NPHO. 

Senate Bill 192 Protects Texas Nurses from Retaliation For Engaging in Patient Advocacy Activities

Effective September 1, 2011, SB 192 expands Section 301.52 of the Texas Occupations Code to protect nurses who engage in patient advocacy activities from retaliation by any person.  Acts of retaliation include discipline, discrimination, or enforcing criminal liability.  Protected patient advocacy activities include making good faith reports of another health care provider’s wrong doing to:  (i) the applicable licensing board; (ii) a supervisor or manager; or (iii) hospital/facility officials.  SB 192 also protects nurses who advise other nurses about SB 192’s protections.

Yesterday, the IRS announced certain extension and penalty relief provisions applicable to the estates of persons dying in 2010 and the beneficiaries of those estates.

As readers of my legislative update are aware, our Texas Probate Code is not a real “Code.”  It was first enacted in 1955, effective January 1, 1956, before Texas had adopted any organized system of statutory codification.  It’s slated for replacement with the new Estates Code in just over two years.

As flu season approaches, health care employers who have not done so should assess whether they want to implement a mandatory flu vaccine policy.  The answer requires consideration of several factors, including the success rate of voluntary vaccination programs, legal implications, patient and employee safety, liability risks, workplace efficiency, employee rights, and employee morale.  

Recent stories highlight the need for providers to be diligent in preventing unintended release of protected health information (PHI).  Tragic losses of PHI occur through theft, accident or malfunctioning equipment.  To protect the privacy of PHI,  providers must be alert to behaviors of their employees, patients, and even individuals who have no relationship to the facility.

Effective March 25, 2011, all Medicare providers must report a change in ownership, practice location, or an adverse legal action within 30 days. 

Here’s a way to speed up your deals that I think more sellers should consider…

Somewhat to our surprise, at the end of the First Called Session (more commonly known as the special session), the legislature added some guardianship provisions from H.B. 2900 (that failed to pass in the Regular Session) to S.B. 1, the “fiscal matters” bill that was the primary reason for the special session in the first place.

The fact situation can play out in a million ways, but for our purposes let's just dial back to the 1980s to illustrate the point.  The economy is booming.  Demand has spiked for commercial real estate – especially office buildings and retail centers.  City centers are being transformed by new trophy buildings that pierce and alter the skylines of Dallas and Houston.

Want to save on a significant portion of your title insurance cost in Florida?  Try this…

Over the last two months the health care lawyers of implant and medical device manufacturers, traditional distribution companies, and physician-owned distributors have been arguing over the legality of “physician-owned distributorships” or “PODs” as they are commonly called.  That argument has become very public lately, with articles in the Wall Street Journal and industry publications.  Most recently several United StatesSenators have inserted themselves into the debate.

Sunday, June 19^th, was Governor Perry’s deadline for signing or vetoing bills that were sent to him during the waning days of the 2011 Texas Legislative Session.  In the past, he has typically waited until that day to take action on the majority of bills awaiting action.  However, this year he probably wanted to enjoy his Father’s Day, since he acted on all of the bills on Friday, June 17^th.

Here’s an idea that could save you some time and money on your ALTA surveys…

I thought this article from themultifamilyexecutive.com dealing with a potential up tick in hiring at multifamily developers was interesting…

The 2011 Texas Legislative Session  -- at least the Regular Session – is now history.  We’ve posted a revised version of our legislative update that describes all of the legislation that passed relating to probate, guardianships, trusts, powers of attorney, and other areas of interest to estate planning and probate practitioners.  You can download the legislative update here.

The Patient Protection and Affordable Care Act (PPACA) established a voluntary insurance program that is not funded with tax dollars, known as the Community Living Assistance Service and Supports Act (CLASS).  CLASS provides contributing individuals a method to remain in their community by providing funding for community living services and supports.  The services and supports eligible for CLASS benefits include home health care, adult day care, assistive technology, home modifications, personal assistance and transportation.  CLASS is not designed to fully cover all costs associated with long-term care or replace basic health insurance, rather CLASS acts as a supplement to offset …

In Part 1, I discussed a title company’s common roles in a real estate deal.  In Part 2, I covered some of the normal risks that a title company assumes in the base title policy.  Now, lets see what a title company will do for a little extra money…

Earlier this year, we presented a TexasBarCLE webcast with Al Golden.  The paper we prepared for that webcast, entitled The Two-Year “Solution” – An Introduction to the Solutions Provided and Issues Raised by the Estate, Gift, and GST Tax Provisions of the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010, used the earlier translation as a starting point.  It has subsequently been used by a number of other presenters at many other seminars.  So, due to the “popularity” of The Two-Year “Solution”, we’re providing you a copy here.

In Part 1, I responded to a reader question about the basic roles that a title company plays in a commercial real estate deal.  Now, I’ll discuss the risks that a title company typically assumes for the land owner and its lender with a basic title policy.

You've probably noticed that I haven't posted anything for a few weeks.  Things have been a little hectic around here and I didn't break free long enough to share my random ramblings wisdom with you.  (I know, with as little wisdom as I have it shouldn't take long to come up with a post.) 

On June 22, 2010, the United States Attorney’s Office for the Southern District of Texas announced by a press release that it had obtained an indictment against Gary Morgan Swartz, DDS, a prominent oral surgeon in McAllen, Texas, for Medicaid fraud.  It announced a 22 count indictment, which included two of his employees, and it further indicted two unaffiliated dentists asserting an illegal kickback arrangement between them and Dr. Swartz.  The Texas Attorney General’s Office assisted in the investigation leading to the indictments.

As you might imagine, there are some recurring issues in construction litigation.  One of those issues – because it can make, break, or just plain weaken a case – is the statute of limitations.  Regardless of which side of a construction claim you may find yourself, and regardless of whether the claim(s) will be governed by a two-year limitations (torts and Texas Deceptive Trade Practices Act) or a four-year limitations (contract and breach of warranty claims), it is good to be aware of when the limitations clock begins ticking.

Last month, the Centers for Medicare & Medicaid Services (CMS) issued the long-awaited proposed rule relating to Accountable Care Organizations (ACOs).  The Proposed Rule would implement the portion of the ACA that requires a Medicare Shared Savings Program (the “MSSP”) to be implemented no later than January 1, 2012.  Basically, the MSSP allows providers that receive traditional Medicare fee-for-service payments to be eligible for additional payment based on meeting certain quality performance and reporting requirements.  The proposed rule sets forth general eligibility and governance requirements, which include the requirement that the ACO and its ACO providers/suppliers commit to a three-year agreement with CMS.  Medicare …

Welcome to the first installment of our new blog - The Health Care Record.  The goal of our team of bloggers is to provide you with up-to-date information on new developments in health care law and help you with the changes spurred by health care reform. 

It is no surprise that contractors want to protect themselves against claims from owners concerning construction defects.  Such claims can be costly in terms of time and money.  In some cases, owners can make unreasonable demands and allege that a construction contract has certain requirements that it may not have.  Perhaps they have a skewed sense of aesthetic that calls for a look that was not contemplated by the parties, or the defects are so minor as to be inconsequential.  Conversely, there may be major construction defects that affect the structural integrity of the building, or the health and safety …

A reader recently asked me what role a title company plays in real estate deals, what liability they assume and what fees are negotiable.  Here goes…

Here are some thoughts and numbers which you may find interesting from a panel discussion on REO opportunities that I recently attended…

Is a certificate of merit required for a non-negligence claim against an engineer or an architect? 

On Tuesday, March 22, I plan on attending a panel discussion here in Dallasat the Tower Club (ThanksgivingTower, 1601 Elm Street, Suite 4800).  This is a part of the Blackacre 48 Commercial Real Estate Breakfast series sponsored in part by my friend Carl Pankratz with Capital Title of Texas.  The subject is …

We’ve been discussing title insurance in Texas in Parts I and II in this series.  Here are some steps to take if the title commitment shows you a potential problem.

Payment and performance bonds are creatures of statute and contract law. On Texas public projects, they are in a form approved by the Attorney General of Texas and the Texas Department of Insurance. On Miller Act Projects, they are generally in a form approved by the Federal Acquisition Regulation System.

In Part I in this series, I explained the basics of title insurance.  Here are the first steps to getting title insurance in Texas:  

It’s been a while since our last post.  The 2011 Texas Legislative Session is in full swing, and I am the chair of the Legislative Committee – Probate of the Real Estate, Probate, and Trust Law Section of the State Bar of Texas.  We’ve previously linked to a preview of the session here.  That “preview” is now an “update” of the legislation currently filed relating to probate, guardianships, trusts, powers of attorney, and other areas of interest to estate planning and probate practitioners.  You can download the latest version here.

I was reminded recently of an insurance pitfall that I see in many commercial agreements that could cause you to be in a technical default.

You may consider title insurance worse than boring – it’s confusing too, and what does it really do for you?!    

A reader recently asked for a basic outline of the commercial real estate foreclosure process in Texas. Hope this helps. Also, in light of the President’s Day holiday, I would like to share some advice from President Lincoln that still rings true today. 

Claimants asserting bond claims must take great care to properly perfect such claims. The first step any surety will take in analyzing such claims is to determine if a claim may be denied for failure to properly perfect. Claimants asserting bond claims must take great care to properly perfect such claims. The first step any surety will take in analyzing such claims is to determine if a claim may be denied for failure to properly perfect. Under the Texas Insurance Code, a surety has specific duties and obligations to investigate, accept or reject, and, if perfected, pay a bond claim.

This post is the first in a three-part series regarding the role of surety companies in construction projects. Parts 1 and 2 will address sureties in general, including the different types of bond claims and the surety company’s duties when a claim is made. In Part 3, we look at the issues that may arise for surety companies when a contractor files bankruptcy.

I received this interesting foreclosure question from a reader: Tyler, what are your thoughts on a 1st lien foreclosure wiping out subordinate liens with a subsequent sale of the property from the senior lender to the original owner?  Would this be subject to challenge?

In parts one  and two I answered a reader’s question about what attorneys mean by “specific performance”.  Below is an example of when this may come into play when buying a home.

One of the trickier things about buying an apartment project is accounting for all of the existing service contracts.  For that matter it’s also pretty tricky as a seller to get a list of all the service contracts from your property manager.  Here is an easy way to see if you’ve uncovered all of the service contracts for a property.

A week ago, we let you know that President Obama and the GOP leadership had reached a compromise on the extension of the Bush tax cuts, and that proposed language implementing that compromise had been released.  You can reread that post here.

Since then, on Tuesday, December 14^th, the Senate passed the legislation.  On Thursday, December 16^th, the House passed the legislation – without amendment, but not after some significant legislative arm-twisting.  On Friday, December 17^th, President Obama signed the bill into law (using 11 pens – one for each letter in his name).

The days of handshakes and verbal agreements may be a thing of the past, but surprisingly some folks still conduct business this way only to be disappointed when they realize that they and their consultant disagree on the details of a project.  With that in mind, here is a list of some basics I think you should focus on as an owner when you negotiate an architectural, engineering or other professional services contract:

Ever since the 2001 tax act passed, with its built-in increase of the tax-free amount to $3.5 million by 2009, and repeal of the estate tax in 2010, only to be followed by reinstatement of a $1 million tax-free amount in 2011, we knew that surely, Congress would fix this confusing mess long before we got to 2009.  All I can say, is “Please don’t call me Shirley!”  (Apologies to the late Leslie Nielsen.)

In light of the recent WikiLeak fiasco and under the category of "Don't let this happen to you...", I felt it would be a good idea to address proper protocol and a couple of good "rules of thumb" to follow with regard to transmission of business emails containing sensitive information.
 

Recently I received a request for a list of basic due diligence items that a buyer should consider when purchasing a real estate loan.  Here is a short list to help you get started:

 

In part one, I gave you a basic definition of specific performance.  In this post, I’ll give you an example of when this becomes important in commercial deals.  In part three I’ll go over an example of when you should care about specific performance when buying a home. 

Why does my lawyer use the term “specific performance” so much?  Does he charge me extra every time he says that?  I’ve had several requests to demystify what we’re talking about when we say “specific performance”.  (As a warning, I’m charging you extra for this post.) 

In this economy you may be willing to lease to an industrial tenant who you wouldn’t have considered otherwise.  I attended an excellent presentation the other day by Mark McPherson about environmental issues with commercial leasing. Here are a few points from the presentation and random thoughts that I had, which will hopefully be useful.

Let’s continue with our discussion from my last post, and now focus on the seller’s perspective.  If I were the seller and my attorney sent me a multifamily disposition contract, the following are key provisions I would focus on.    

What do you do when you receive a multifamily acquisition contract from your attorney and you don’t have much time before the broker needs to send it to the seller? 

First, a warning.  This may get a bit complicated.  Don’t try this at home!  We’re going to begin with the tax benefits of large lifetime gifts, and then discuss the additional benefits that appear to be available for large gifts during the remainder of 2010.

An LOI is a great tool to commit the parties to a deal psychologically.  In its most basic form, an LOI sets out the key business points to begin negotiating a contract. In this post, I’ll address the items you should consider in your LOIs for acquisitions, dispositions and development deals.  I plan to discuss leasing LOIs in a future post.

The world of real estate is constantly evolving.  As a commercial real estate professional, you may find yourself entering new areas of real estate outside your normal expertise.  While challenging, these new opportunities may very well serve as a catalyst to keep you on the cutting edge of real estate trends while also increasing your community exposure and knowledge base. My goal is to help you in this transition. 

A brief diversion from our continuing discussion of the current state of the estate tax (begun here).  As many of you know, I am the co-chair of the Legislative Committee – Probate of the Real Estate, Probate, and Trust Law Section of the State Bar of Texas.  In that capacity, I have prepared a preview of legislation in the 2011 session affecting probate, guardianships, trusts, powers of attorney, and other areas of interest to estate planning and probate practitioners.  You can download a copy here.

Let’s continue our discussion of the current state of the estate tax (begun here) with a discussion of basis.  Not a particularly exciting subject, at least not until you end up paying capital gains taxes you didn’t realize you’d owe.

Many architects and design professionals may not realize that federal copyright law protection extends to their work. This protection includes not just an architect’s drawings and plans, but also buildings constructed from those plans. Because copyright laws can have considerable impact when determining legal rights with respect to architectural design and construction, architects should be familiar with their rights under copyright law.

We began our blog with a  look back at the current state of the estate tax, with a promise to discuss pending estate tax proposals, planning opportunities – and pitfalls, and more, in future installments.  Today, we take a brief side trip inspired by the recent death of George Steinbrenner, the principal owner of the New York Yankees baseball club.

Securing a mechanic’s lien can be tricky.  There are deadlines imposed by statute for sending out notices of non-payment, filing lien affidavits, serving notices that a lien has been filed, and suing to foreclose on a lien.  Furthermore, notices of non-payment and lien affidavits must contain certain information and be sent a certain way in order to be considered valid.  If these requirements are not met, you could lose your right to enforce your lien.

The following are six steps you should take in enforcing your lien rights, based upon pertinent sections of the Texas Property Code. …

Welcome to the first installment of our new blog – Estate of the Union!  In this space we will periodically cover a variety of topics related in some way to estate planning and probate issues.  These will relate to wills, trusts, guardianships, disability documents (such as financial and medical powers of attorneys and advance directives, or “living wills”), transfer taxes (such as the dreaded “death tax), business succession planning, and more.  Later this year, we anticipate entries focusing on anticipated Texas legislative developments related to these matters.  But first, we’d like to introduce you to the topic that’s at the …