Local Law Blogs

IRS Issues Safeharbor Relief for Those Impacted by "Chinese Drywall"

Posted on October 12, 2010
By Kevin C. Curry On September 30, 2010, the Internal Revenue Service issued guidance providing relief to homeowners who have suffered property losses due to the effects of certain imported drywall installed in homes between 2001 and 2009.  In particular, the IRS issued Revenue Procedure 2010-36 which enables affected taxpayers to treat damages from corrosive drywall as a casualty loss and provides a 'safe harbor' formula for determining the amount of the loss...

Recent Developments in E-Discovery in Louisiana

Posted on October 07, 2010
By Katie D. Bell Electronic Discovery, or 'E-Discovery', is not considered the 'novel issue' it once was. However, E-Discovery still presents problems that litigants and courts struggle with. Below is a summary of recent Louisiana Federal Court opinions dealing with the issues surrounding E-Discovery...

New Compliance and Accountability Requirements For Nursing Homes

Posted on October 05, 2010
By Deborah J. Juneau The Patient Protection and Affordable Care Act (the Act) included a new requirement that nursing homes have in operation a compliance and ethics program within 36 months of the effective date of the Act, or by March 23, 2013. The Secretary and the Inspector General of the Department of Health and Human Services must promulgate regulations by March 23, 2012 for an effective compliance and ethics program...

Nursing Home Bill of Rights Changes

Posted on September 20, 2010
By Deborah J. Juneau The Nursing Home Residents' Bill of Rights (La. R. S. 40:2010.8) was amended effective June 8, 2010 to provide more freedom and more choice to residents and to remove some reasonable restrictions imposed by nursing homes. Nursing homes must now provide the right to 'immediate access' to certain state and federal government workers, the resident's individual physician, immediate family members or other relatives of the resident, the resident's clergy, and other visitors...

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

Posted on September 15, 2010
By Clay J. Countryman 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)...

Louisiana Supreme Court Interprets Unfair Trade Practices Act

Posted on September 14, 2010
By James R. "Sonny" Chastain and Linda Perez Clark 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...

Failure to Report and Return Identified Overpayment can be a False Claim

Posted on September 07, 2010
By Linda G. Rodrigue and Deborah J. Juneau 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...

Louisiana Law Blog Upgrades Notification System

Posted on September 07, 2010
We recently upgraded the e-mail notification system for the Louisiana Law Blog.  If you signed up to receive notifications in the past, you will need to re-confirm your subscription for the new system. We sent an email to all subscribers with a link to click to re-confirm...

Recovery Audit Contractor Program Will Be Expanded to Medicaid

Posted on September 02, 2010
By Deborah J. Juneau 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...

Legislature Changes Permit Process at the Louisiana Department of Environmental Quality

Posted on August 23, 2010
By Tokesha M. Collins 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...

Louisiana Courts Rule on New Home Warranty Act and Dismiss Chinese Drywall Claims Against Contractors

Posted on August 18, 2010
By Mark D. Mese 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...

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

Posted on August 18, 2010
By Linda G. Rodrigue 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...

Immigration Status is Irrelevent Under the Longshore and Harbor Workers' Compensation Act

Posted on August 12, 2010
By Amanda L. Howard 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...

United States Fifth Circuit Reiterates Rule That Crew Members Are Not Entitled to a Salvage Award for Assistance Rendered to Their Own Vessel

Posted on August 06, 2010
By Michael J. O'Brien 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...

Structuring the Purchase of a Vessel Through a Corporate Entity for Tax Purposes Can Have Unintended Consequences

Posted on August 04, 2010
By Sean T. McLaughlin It is a fairly common practice for individuals purchasing pleasure yachts to take calculated steps to minimize sales taxes on their purchases. In fact, a simple 'Google' search on the subject reveals many websites offering free advice on this issue...

Office of Conservation Rules for Groundwater Evaluation and Remediation at E&P Sites Incorrectly Published

Posted on July 21, 2010
By Esteban Herrera, Jr. The July 20, 2010 Louisiana Register contained a notice from the Office of Conservation, Louisiana Department of Natural Resources that purported to promulgate rules amending Statewide Order 29-B to add a new Chapter 8 on procedures for evaluation and remediation of groundwater at E&P sites...

New Law Requires Public Works Contract Bidders to Certify They Have Not Pleaded Guilty to Certain Crimes

Posted on July 19, 2010
By Lisa A. Easterling A law passed by the Legislature and signed by Governor Bobby Jindal (Act 945) requires all bidders for public works contracts to certify that they have not entered a plea of either guilty or nolo contendre to certain crimes...

New Law Requires Contractors to Disclose the Sharing of Contract Commission/Fees in No-Bid State and Local Government Contracts

Posted on July 15, 2010
By Lisa A. Easterling A new law (Act 868) passed by the Legislature and signed by Governor Bobby Jindal on July 2, 2010 requires contractors who are awarded no-bid contracts with state and local entities, or $10,000-plus bid contracts with local entities, to disclose all commissions and fees in writing...

Building Permit Requirements Changed for Non-Resident Contractors

Posted on July 13, 2010
By Lisa A. Easterling A new Louisiana law requires non-resident/out-of-state contractors to provide additional information before a building permit can be issued. The new law, amending La. Rev. Stat. 37:2171.2 (Act No. 67), has been signed by the governor...

Louisiana Supreme Court Dismisses Environmental Property Damages Case Based on One-Year Prescriptive Period

Posted on July 08, 2010
  In Hogg v. Chevron U.S.A. Inc., Docket No. 09-CC-2635 (see opinion here), a case handled by Kean Miller attorneys, Leonard L. Kilgore, III and Richard D. McConnell, Jr., the Louisiana Supreme Court reversed the trial court's denial of a motion for summary judgment based on a prescription (statute of limitations) defense...

CMS Issues Proposed Rule Regarding Hospital Patient Visitation Rights

Posted on June 30, 2010
By Lyn S. Savoie On April 15, 2010, President Barack Obama issued a memorandum to the U.S. Department of Health and Human Services ("HHS") calling for the initiation of rulemaking designed to ensure that Medicare and Medicaid participating hospitals respect the rights of patients to designate visitors, regardless of whether the visitors are legally related to the patient...

The "We Can Help" Campaign

Posted on June 24, 2010
By Mike Garrard, David Whitaker and Terry McCay Employers covered by the Fair Labor Standards Act should take note of references on the Web site of the U.S. Department of Labor ('DOL') about the 'We Can Help' nationwide campaign. A 'News Release,' dated April 1, 2010, on the DOL Web site refers to the '`We Can Help' nationwide campaign' and states that '[t]he effort, which is being spearheaded by the department's Wage and Hour Division, will help connect America's most vulnerable and low-wage workers with the broad array of services offered by the Department of Labor...

EPA Significantly Tightens National Sulfur Dioxide Standard - Affects Louisiana Parishes

Posted on June 16, 2010
By Maureen N. Harbourt On June 2, 2010, the Environmental Protection Agency adopted a final rule which significantly lowers the primary National Ambient Air Quality Standard ('NAAQS') for sulfur dioxide ('SO2 '). EPA is phasing out both the annual standard (0...

Kean Miller "Connects" College Students to Legal Profession via Kean Miller Connection

Posted on June 03, 2010
For many minority college students, entering law school and becoming an attorney may seem out of reach.  Three years ago, Kean Miller law firm launched the Kean Miller Connection program to educate minority college students on the legal profession and inform them that becoming a lawyer is an attainable opportunity...

Limitation of Liability - Effect of Notice to a Single Co-Owner

Posted on May 19, 2010
By William M. Burst The Limitation of Liability Act provides, inter alia, that a vessel owner may petition a district court of competent jurisdiction for limitation of liability within six months of receiving written notice of a claim.  See generally 46 U...

A Jones Act Seaman Does Not Have Greater Remedies Against A Non-Employer Than He Does Against His Employer

Posted on May 14, 2010
By Sean T. McLaughlin It is well known that a seaman who is injured on the job can file suit against his employer in negligence due to the statutory provisions of the Jones Act. 45 U.S.C.A §§ 30104.  However, in a Jones Act suit, the injured seaman is prohibited from recovering 'non-pecuniary' damages from his employer, a category which includes punitive damages and loss of consortium...

Medical Bills Are Not Admissible to Prove Pain and Suffering

Posted on May 11, 2010
By Michael J. O'Brien Due to the non-pecuniary nature of pain and suffering, Jones Act seamen will often use various methods to provide the trier of fact with a concrete basis for a damage award for pain and suffering.  One method that Plaintiffs may utilize is to introduce their medical bills for the sole purpose of highlighting the cost of their medical care...

Supreme Court Clarifies Definition of a Corporation's "Principal Place of Business"

Posted on April 29, 2010
By Bradley C. Myers   The United States Supreme Court recently resolved conflicts among the Circuit Courts about the citizenship of a corporation for determining diversity of citizenship jurisdiction (1). This will allow corporations to analyze with more predictable results whether to remove a case to federal court...

Is Act 312 Applicable to My Operation?

Posted on April 26, 2010
By Victor J. Suane, Jr. In 2006, the Louisiana Legislature enacted Louisiana Revised Statute 30:29 ('Act 312') to provide a procedure for judicial resolution of claims for environmental damage to property. The provisions of Act 312 are applicable whenever there is 'any litigation or pleading making a judicial demand arising from or alleging environmental damage' involving 'contamination resulting from activities associated with oilfield sites or exploration and production ('E&P') sites,' regardless of whether claims for remediation arise under the Louisiana Mineral Code or Civil Code...

Louisiana Supreme Court Reaffirms Availability of Concursus Procedure for Royalty Payors, But Leaves Questions Concerning Provisions of the Mineral Code Governing Claims for Failure to Pay Royalties Unanswered

Posted on April 14, 2010
By Linda S. Akchin On Friday, April 9, 2010, the Louisiana Supreme Court (1) reversed the Third Circuit Court of Appeal's decision in Cimarex Energy Co. v. Mauboules (2), in which the Circuit Court held that (1) a royalty interest vendors' oral assertion to a mineral lessee that the royalty interest vendee fraudulently inserted a prescription interruption provision in the royalty deed, and that therefore the royalty interest had reverted back to the vendors, is not a reasonable basis for the mineral lessee to initiate a concursus proceeding to determine the ownership of royalty payments because the innocent third party purchaser of the royalty interests is protected by the public records doctrine; and (2) the mineral lessee is liable not only for the royalties paid into the registry of the court, but also for an additional sum equal to double the amount of royalties paid into the registry of the court, as damages...

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