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Brunini Welcomes George O’Connor

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Brunini, Grantham, Grower & Hewes, PLLC (Brunini) announced that George O’Connor, former trial attorney with the Federal Energy Regulatory Commission (FERC) and former Vice President for Entergy Corporation, is joining the law firm.  O’Connor will bring his extensive energy and regulatory experience to Brunini’s Washington, D.C. office.

“George knows Washington, energy litigation and federal energy policy,” said Brunini’s Curt Hebert, Jr who is former Federal Energy Regulatory Commission Chairman.  “Our country’s energy revolution is powering the American manufacturing renaissance.  George, with his extensive FERC experience, including his leadership role on the drafting and passage of the Energy Policy Act of 2005, as well as his corporate and private legal practice background, is the right person to assist our clients in taking advantage of that revolution. George has the objective experience to see clients’ needs through many prisms and we are delighted George has chosen to join Brunini.”

O’Connor served as an advisor to the Federal Energy Regulatory Commissioner Charles A. Trabandt from 1985-1993 prior to working in FERC’s Office of General Counsel.  George’s experience includes regulatory practice, FERC and Senate staff leadership and he has a proven record of working with Congress and at the FERC.  From March 2008-November 2010, he was hired by Entergy Corporation as Vice President of Federal Governmental Affairs.

Brunini’s Energy Practice is regarded as a premier regulatory practice.  In rating Brunini as a Band 1 Firm, Chambers USA 2012 Client’s Guide notes:  “[The Firm] has a wealth of experience in energy regulation and litigation.  Over the years, the team has undertaken a number of large projects throughout the South, providing a full range of services, including regulation, permitting, financing, real estate and contract advice.”

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CMS to Publish Physician Payment Data for Public Access

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The Centers for Medicare & Medicaid Services (“CMS”) will soon allow patients to compare their physicians with other physicians around the country.  On April 2, 2014, CMS announced that it will publish billing data on more than 880,000 health care professionals in all 50 states.  In a letter to the American Medical Association, the Principal Deputy Administrator at CMS, Jonathan Blum, said CMS intends to publish the data publicly on April 9 or earlier.

In the letter, Blum wrote:

Over the past 30 years, the landscape has changed with respect to physician information that is available to the public. The passage of the Affordable Care Act in 2010 extended health insurance coverage to millions of additional people and included a range of provisions which use transparency in the health care system as a tool to improve health care quality.  As a result, the health care system is changing from a system dominated by a dearth of usable, actionable information to one where care coordination and dramatically enhanced data availability and data exchange will power greater innovation, higher quality, increased productivity and lower costs.

Finally, Blum wrote that ” the data to be released would assist the public’s understanding of Medicare fraud, waste, and abuse, as well as shed light on payments to physicians for services furnished to Medicare beneficiaries . . . .”

For the full blog post and a copy of the letter to the American Medical Association, click here.

Brunini’s Hébert Contributes Article to Special Report for CNBC.com

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Curt Hébert, a partner at Brunini, Grantham, Grower & Hewes, PLLC was featured as a guest contributor for CNBC.com March 31, 2014. The article is titled “Risky business: Protecting US energy supplies”

Hébert is the former chairman of the Federal Energy Regulatory Commission and currently serves as the a co-chair of the Bipartisan Policy Center’s Electric Grid Cybersecurity Initiative.

Click here to read the article from CNBC.com

OIG Allows Premium Credits for Network Hospital Patients Under Medigap Policy

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Medical background with stethoscope and doctors prescription pad on heartbeat symbol background.The U.S. Department of Health & Human Services, Office of Inspector General (OIG) issued its second Advisory Opinion of the year on February 12, 2014.  In this opinion, the OIG concluded that it would not impose sanctions under the anti-kickback statute or civil monetary penalty law on Medicare supplemental health insurance (Medigap), preferred provider organizations (PPO’s) and hospitals participating in PPO networks.  The OIG conducted analyses under both the anti-kickback statute and civil monetary penalty law.The OIG determined that the arrangement failed to meet the safe harbor for waivers of beneficiary coinsurance and deductible amounts, or the safe harbor for health plan reduced premium amounts under the anti-kickback statute analysis.   Nevertheless, the OIG found the Proposed Arrangement presents a low risk of fraud or abuse because:  (1) Medicare payments for inpatient services are fixed and would not affect waivers or reductions in beneficiary cost sharing; (2) the arrangement was not likely to increase utilization because the amount waived by the hospital was owed by the insurer, not the patient; (3) hospital competition would not be adversely impacted because participation in the PPO networks would be open to all Medicare-certified hospitals that meet state law; (4) the remuneration would not affect medical judgment because patient would not incur any additional cost based on their hospital selection and the physicians and surgeons would receive no remuneration; and (5) the Policyholders would be informed that they may select any hospital without penalty or increased cost.The OIG next analyzed the arrangement under the civil monetary provision because the premium credits were incentives to choose a network hospital.  OIG concluded the premium credits are sufficiently similar in purpose and effect to differentials in coinsurance or deductible amounts and therefore, excepted from the definition of remuneration. The OIG also noted that the arrangement had the potential to decrease the costs to certain Medigap Policyholders without increasing costs to others and the potential to reduce state-insurance rates.

HHS Releases Guidance on Sharing Mental Health Information

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healthcare and medical concept - doctor and nurse with patient in hospital

healthcare and medical concept – doctor and nurse with patient in hospital

Recently, the U.S. Department of Health and Human Services (“HHS”) released guidance on the HIPAA Privacy Rule and sharing information related to mental health treatment.  While the information provided in the guidance was not new, HHS provided concise, practical advice on sharing protected health information of minors and individuals receiving mental health treatment.

HHS reiterated that a health care provider is permitted to communicate with a patient’s family, friends, or others who are involved in the patient’s care about the patient’s protected health information in a limited number of circumstances.  Typically, upon receiving treatment at a hospital or other health care entity, patients are provided an opportunity to designate other individuals, if any, who may be contacted with information regarding the patient’s health care treatment. At other times, patients may indicate their consent, express or implied, to a provider sharing information with family or friends who are present in a treatment room with the patient when the provider discusses the patient’s health care treatment.  Finally, when a patient is not present or is incapacitated, HHS acknowledged that a health care provider can share the patient’s information with family, friends, or others involved in the patient’s care or payment of care as long as the provider has determined, based on his professional judgment, that it is in the patient’s best interest to disclose the information.  However, for disclosures to individuals other than the patient, a provider should always limit such disclosure to the protected health information that is directly related to that individual’s involvement in the patient’s care or payment for care.

HHS also noted that special considerations are given under HIPAA to certain protected health information regarding mental health treatment.  Subject to a few exceptions, an individual must give a separate authorization for disclosure of psychotherapy notes even when the psychotherapy notes are being disclosed to another health care provider.  The Privacy Rule refers to psychotherapy notes as those notes recorded by a mental health professional during a private counseling session or a group, joint, or family counseling session.  Psychotherapy notes are kept separate from the remainder of a patient’s medical records.  These notes, however, may be disclosed without authorization if required by law, such as in the case of mandatory reporting of abuse or mandatory “duty to warn” situations in which threats of serious and imminent harm are made by the patient.  In situations where a health care provider believes a patient may harm himself or others, the Privacy Rule permits the provider to disclose necessary information about the patient to law enforcement, family, or other persons when the threat of serious and imminent harm is present and the health care provider believes in good faith that a warning is necessary to prevent or lessen the imminent threat to the health or safety of the patient or others.

In its guidance, HHS also addressed when a patient is considered “incapacitated” under the Privacy Rule such that the patient does not have the capacity to agree or object to a health care provider sharing information with the family member.  HHS stated that the permission to make disclosures in a patient’s best interests “clearly applies when a patient is unconscious.”  Nonetheless, it noted that there may be other situations when a health care provider, using his professional judgment, determines the patient does not have the capacity to agree or object to the sharing of protected health information and that the sharing is in the patient’s best interests.  For example, when a patient is suffering from temporary psychosis or is under the influence of alcohol or drugs, a patient may not be considered to have the capacity to make a decision regarding disclosures.  However, in these circumstances, HHS encourages the physician to take the patient’s prior expressed preferences regarding disclosures of their information into consideration.  Further, if and when a patient regains capacity, the provider should offer the patient the opportunity to decide whether future disclosures would be authorized.

To review the complete guidance from the HHS, click here.

What You Should Do When the Special Agent Comes

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IRS tax auditor man with a stern or mean expression

IRS tax auditor man with a stern or mean expression

Persons who have no criminal history and who would seem to be unlikely candidates for criminal accusations sometimes unexpectedly find themselves sitting across the desk from a Special Agent, Criminal Investigation Division (CID) of the Internal Revenue Service.  The Special Agent arrives with no warning.

In fact, according to CID statistics released recently, 5,314 cases were initiated in 2013 alone.  CID recommended 4,364 cases for prosecution during the same year.  IRS claims a  conviction rate of 93 percent on criminal cases during 2013. Of course, guilty pleas are considered convictions for statistical purposes.

“Our cases involved individuals and corporations from all segments of society,” Richard Weber, Chief of Criminal Investigation, said in the report. “They led us into corporate board rooms, offices of public officials, tax preparation businesses, identity theft  and narcotics trafficking organizations.”

So what does one do if a CID Special Agent shows up at your home or office, flashes a badge and states he wishes to ask you a few questions?  You should politely, but firmly, decline to answer any questions.  This is your right as guaranteed by the Constitution, and is assuredly in your best interest.

As one who has represented a number of CID “targets,” I can unequivocally tell you that many are the persons who thought they could talk their way out of this unpleasant situation, but instead created  lengthy and expensive investigations.  This is true even if prospective defendants are totally innocent.  The initial interview of the taxpayer target is frequently the most important step in the investigation for CID.  Accordingly, it is imperative that the target not answer any questions and proceed to engage an attorney who is experienced in criminal tax matters.  The attorney will be in a much better position to evaluate defenses and determine what, if any, information should be shared with CID.

Bipartisan Policy Center’s Electric Grid Cybersecurity Initiative, co-chaired by Brunini’s Hébert releases report

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On February 28, 2014, the Bipartisan Policy Center announced its Electric Grid Cybersecurity Initiative had prepared a report titled “Cybersecurity and the North American Electric Grid:  New Policy Approaches to Address an Evolving Threat.”  Brunini’s Curt Hébert serves as co-chairman for this initiative.

The report released discusses recommendations made by the initiative that could be put into place to protect the electronic grid from cyber-attacks.

Click here to read the entire report and here for the press release

Throughout the weekend, Mr. Hébert provided several interviews; follow the links below to view.

Reuters Interview

Bloomberg Business Week

Brunini Explains 2014 Gift Tax Exemption

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A pig bank and blocks remind people of the tax season.

The estate and gift tax exemption for 2014 has increased to $5,340,000. The rate remains at 40%. The gift tax exclusion remains at $14,000 per donee.

Just 20 short years ago, the estate and gift tax exemption was $600,000, the top rate was 55%, and the gift tax exclusion was $10,000 per donee.

So if a married couple collectively worth $10,680,000 both die in 2014, their estate tax bill will be $0. If that same couple with the same net worth both died in 1994, their estate tax bill would have been $5,322,000.

Final Regulations Issued on ACA’s 90 Day Waiting Period

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Calendar fragment with half-opened sheets in different angles

On February 20, 2014, the trio of Affordable Care Act implementing Agencies [the IRS, DOL and HHS] announced the 90 day waiting period final regulations. Press Release. The regulations are to be published in the Federal Register on February 24th.

Under the final regulations, group health plans (insured and self-funded) and group insurance issuers may not impose a waiting period of more than 90 days before coverage is offered to employees who are coverage eligible. Final Regulations.  The 90 day waiting period counts all calendar days, including weekends and holidays, and begins on the first date of enrollment.

The final regulations continue to allow a plan to establish substantive eligibility conditions such as certain job classifications, licensure requirements, minimum service hours and bona fide employment orientation periods.  For example, a plan may impose an hours of service requirement not to exceed 1,200 hours, and the plan may impose a 90 day waiting period beginning the first day after the hours of service requirement is met.

The final regulations also provide rules for “variable hour employees” – employees who might be full-time but, because their hours are uncertain, the employer has difficulty determining.  If a plan requires a minimum hours of service per period to be eligible for coverage (e.g., 30 hours per week), the employer may measure its variable hour employees for up to 12 months before determining whether they are eligible for coverage.  However, coverage must be made effective no later than 13 months after the variable hour employee’s start date plus, if the employee’s start date is not the first day of a calendar month, the time remaining until the first day of the next calendar month.

For example, under Employer’s group health plan, only full-time employees are eligible for coverage. Employee begins employment on November 26 of Year 1 as a variable hour employee. Under the plan’s terms, variable-hour employees are eligible to enroll in the plan if they are determined to be a full-time employee after a measurement period of 12 months that begins on the employee’s start date. Coverage is made effective no later than the first day of the first calendar month after the applicable enrollment forms are received. Employee’s 12-month measurement period ends November 25 of Year 2. Employee is determined to be a full-time employee and is notified of his plan eligibility. If he then elects coverage, Employee’s first day of coverage will be January 1 of Year 3.  This example is compliant with the final regulations.

The final regulations also provide that with respect to a HIPAA late enrollee or special enrollee, any period before the late or special enrollment date is not a waiting period and, thus, the 90 day waiting period can be imposed.

Contemporaneous with the issuance of the final regulations, proposed regulations were also published on February 20, 2014 seeking to clarify what constitutes a bona fide employment orientation period.  Proposed Regulations. The proposal opts for the imposition of a maximum orientation period of one month [calendar month minus one calendar day] before the 90 day waiting period begins.  Employers implementing these orientation periods should be prepared to demonstrate employment based reasons to prevent a finding they were attempting to avoid the 90 day waiting period.

President Obama Signs Executive Order Establishing Minimum Wage for Federal Contact Employees

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bigstock-Minimum-Wage-Word-Cloud-6561851-01772689-227x300Following through on a promise made in his State of the Union Address, President Barack Obama formally signed an Executive Order on February 12, 2014, establishing a separate minimum wage for employees of federal contract workers.  Effective January 1, 2015, the minimum wage for most Federal contractor employees shall be set at $10.10 per hour.  “Tipped workers,” employed pursuant to a Federal contract, are to be paid a minimum of $4.90 per hour, with incremental increases to begin in 2016.  Additionally, beginning January 1, 2016, the Executive Order allows for the Secretary of Labor to modify this separate minimum wage (after providing at least 90 days’ notice of such modification).  The Executive Order expressly incorporates existing definitions and regulations under the Fair Labor Standards Act (29 U.S.C. 201 et seq.), the Davis Bacon Act (40 U.S.C. 3141 et seq.) and the Service Contract Act (40 U.S.C. 6701 et. seq.).

While this increase does not impact employers of non-governmental contractors, President Obama stated that his ultimate goal is for passage of legislation increasing the federal minimum wage for allworkers to levels commensurate with this Executive Order.

Click here to read entire order.