Breazeale, Sachse & Wilson, L.L.P. RSS Feed

Management Update Newsletter Volume 12, Issue 12

01 Dec 2023 00:00:00 -0800

Don't Violate Louisiana's Governmental Ethics Laws This Holiday Gift-Giving Season When It Comes to Public Employees

27 Nov 2023 00:00:00 -0800

It is that time of the year again – governmental ethics violations when gift giving to public employees. Louisiana’s governmental ethics laws significantly restrict – in fact, virtually eliminate – the giving of gifts to public employees from businesses in the private sector that do business with them. That innocent holiday gift is actually against the law. Simply put, when it comes to gift giving and governmental ethics, they simply do not mix.

Louisiana law prohibits a public employee from being given “anything of economic value” by anyone seeking a contractual, business, or financial relationship with the public servant’s agency or anyone who is seeking to influence the passage or defeat legislation by the public servant’s agency. This means that traditional gift baskets of Louisiana spices, pecans, wine, or any other product is a violation of the governmental ethics law if the giver has a business relationship with the public employee’s agency. And it is not only a violation of the ethics law to give a public employee such a gift; rather, the public employee’s acceptance of the gift also violates Louisiana’s governmental ethics law.

Practically, the only thing that a person or company can give to a public employee with whom they have a contractual business or financial relationship is a greeting card; or a calendar or pen that does not have any resale value. But you can give your child’s teacher a nominal gift. You can also pay for a public employee’s meal as long as its value does not exceed $77.00 and you are dining with them.

But he/she is my friend! The standard excuse for violating the governmental ethics laws during the holiday season. Louisiana’s governmental ethics laws do not recognize this excuse as a defense to a violation. Simply put, friendship – no matter how close – does not matter.

Businesses need to keep in mind that they can probably not give the gift they may want to give to a public employee. Always check with legal counsel.

Otherwise, for each gift you give in violation of the governmental ethics laws you face a $10,000.00 fine and possible criminal charges. As for the recipient, the penalty can be all of those penalties and forfeiture of the gift. For both, the giver and receiver, the penalty always includes a public sanction – which could affect the giver’s ability to do business in the future in the State of Louisiana and, for the recipient, could be detrimental to their future success.

Holiday Party Useful Tips to Consider

27 Nov 2023 00:00:00 -0800

Some employers have moved away from holiday parties. However, many, including BS&W, continue to host holiday parties for employees, and some even continue to provide adult beverages at these parties. Below are some useful tips to consider if you do so.

Explain to management that they are “on duty”:

They must watch drinking and related behavior
Remember professional boundaries
Do not drive employees home after the party, regardless of how intoxicated they appear
Do not “after-party” with staff
“No” means no
Use the “mom test” (i.e. if you wouldn’t do/say it to your mom or in front of your mom, then don’t do/say it at the function.)

Remind employees that you want them to have fun, but:

Attendance is voluntary, but if they attend normal standards of conduct still apply
Misconduct at or after the party will lead to disciplinary action
Drink responsibly
“No” means no
No marijuana (even if they have a physician’s recommendation)
Encourage designated drivers or even provide free Uber or Lyft rides

For everyone:

Follow the “one wine, one water” rule (it is hard to get drunk if you drink a full glass or two of water between every alcoholic drink)
No dirty dancing
No sleep-overs after the party (or couch surfing)
And for goodness sake, please don’t hang mistletoe!

Management Update Newsletter Volume 12, Issue 11

08 Nov 2023 00:00:00 -0800

Recent OIG Advisory Opinions Address Physician Business Relationships with Hospitals and Physician Practices

31 Oct 2023 00:00:00 -0800

Several recent advisory opinions issued by the U.S. Department of Health and Human Services Office of Inspector General (OIG) have addressed common aspects to physician practice business relationships with hospitals and other providers. Although the OIG’s comments in an advisory opinion are limited to a specific proposed arrangement, the OIG’s comments indicate how certain aspects of a hospital’s current or proposed arrangement with physicians may be scrutinized under the Federal anti-kickback statute and other fraud and abuse laws.

OIG Unfavorable Advisory Opinion on Purchasing The Technical Component of Anatomic Pathology Services

On September 25, 2023, the OIG issued Advisory Opinion 23-06, in which the OIG concluded that the risk of fraud and abuse was not sufficiently low under the Federal anti-kickback statute in a proposed arrangement by the operator of several anatomic pathology laboratories to purchase the technical component (TC) of anatomic pathology services from other clinical laboratories for anatomic pathology tests for commercially insured patients.

Under the proposed arrangement, the operator of several anatomic pathology laboratories (Anatomic Path Labs) would enter into agreements with both physician-owned laboratories (Physician Labs) and non-physician owned laboratories (Non-Physician Labs) that would require the Anatomic Path Labs to purchase the TC of anatomic pathology services from the Physician Labs and the Non-Physician Labs for certain anatomic pathology tests provided to commercially insured patients.

The primary reason that the Physician Labs and Non-Physician Labs desired to enter into the proposed arrangements was because these labs either do not have a provider agreements with certain commercial payers or they are not in-network with certain commercial payers. This proposed arrangement would not involve the referral of or billing for anatomic pathology services reimbursable by Federal health care programs. In other words, the labs in their request for an advisory opinion provided that any lab tests for Federal health care program beneficiaries would be “carved out” of the proposed arrangement.

The parties also certified to the OIG that the fee that the labs would pay to the Physician Labs and Non-Physician Labs under the proposed arrangement would be fair market value for the TC services. The Anatomic Path Labs that purchased the TC services would purchase the professional component (PC) of the anatomic pathology tests and would bill commercial payers a global claim as an in-network provider for both the TC and PC of the anatomic pathology tests.

The Anatomic Path Labs also certified to OIG that its agreements with these other laboratories would satisfy the conditions set forth in the “personal services and management contracts and outcomes-based payment arrangements” safe harbor (42 C.F.R. § 1001.952(d)) to the Federal anti-kickback statute, except the requirement that the aggregate services contracted for would not exceed those which are reasonably necessary to accomplish the commercially reasonable business purpose of the services.

The takeaways that may be helpful to similar Hospital arrangements in this advisory opinion include:

· The OIG still considers arrangements that “care out” services provided to Federal health care program beneficiaries to implicate and potentially violate the Federal anti-kickback statute.

· A fair market value or FMV-based fee or compensation may still result in a potential violation of the Federal anti-kickback statute.

· Hospitals and other parties need to be able to demonstrate (and document in writing) that the aggregate services contracted for in an arrangement would not exceed those which are reasonably necessary to accomplish the commercially reasonable business purpose of an arrangement. In the proposed arrangement, the Anatomic Path Lab informed the OIG in requesting this advisory opinion that it was unable to certify the commercial reasonableness of this arrangement since the Anatomic Path Lab is capable of performing both components of anatomic pathology services without referring the TC to a third-party lab, and performing both components in-house is generally more efficient and cost efficient than referring to a third-party lab.

· The result of this advisory opinion (i.e., favorable instead of unfavorable) may have been different if the parties had articulated reasons for the arrangement unrelated to Federal health care program business, such as to avoid the administrative costs associated with billing patients for out-of-network fees or to leverage centrally located digital pathology scanners.

OIG Approves Paying Employed Physicians Profits from ASCs Operated by a Physician Practice Employer

On October 13, 2023, the OIG issued Advisory Opinion 23-07, approving a multi-specialty physician practice’s proposal to pay its employed physicians a portion of the profits from the facility fees profits from procedures the employed physicians perform at ambulatory surgical centers (ASCs) operated by the practice.

Under the proposed arrangement, the physician practice would pay each of its physician-employees a quarterly bonus equal to 30% of the practice’s net profits from the ASC’s facility fee collections attributable to the physician’s procedures performed at either of the practice’s ASCs for the preceding quarter. These bonuses would be in addition to the base compensation the physician practice pays the employees.

An important aspect to the background of this proposed arrangement is that the physician practice would operate the two ASC's as corporate divisions of the physician practice (I.e., as divisions within the same corporate legal entity and not as subsidiaries of the practice. The physician practice also certified to the OIG that each of the ASC's would be a “distinct entity” (pursuant to the definition of an ASC at 42 CFR § 416.2) and would otherwise comply with the Medicare conditions for coverage applicable to the ASC's.

The OIG concluded that the proposed bonus payments would be protected by the statutory exception and regulatory safe harbor bona fide employees to the Federal anti-kickback statute because: (1) the physician employees would be bona fide employees of the physician practice in accordance with the definition of employee in 26 USC §3121(d)(2); and (2) the bonus compensation would constitute an amount paid by an employer to an employee for employment in the furnishing of any item or service for which payment may be made in whole or part under Medicare, Medicaid, art other Federal health care programs.

Important takeaways from the advisory opinion include:

· The employment safe harbor to the Federal anti-kickback statute does not require payments to be consistent with fair market value, and it can protect payments that vary with the volume and value of Federal health care program business that a recipient generates.

· Similar compensation payments to independent contractor physicians or under a different corporate structure are not protected by the employment safe harbors, such as sales commissions for marketing services.

· An important aspect is that the physician practice certified that it did not furnish any of the “designated health services” that are subject to the Stark Law.

OIG Issues Unfavorable Advisory Opinion on Proposed Arrangement with a Physician-Owned Intraoperative Neuromonitoring Company

On August 18, 2023, the OIG issued Advisory Opinion 23-05, in which the OIG concluded that a proposed arrangement by a company to assist surgeons in forming an entity to perform intraoperative neuromonitoring (IONM) services in conjunction with surgeries performed by the surgeons could result in prohibited remuneration in violation of the Federal anti-kickback statute.

The OIG emphasized in this advisory opinion that this proposed arrangement included many of the long-standing issues raised by the OIG under fraud and abuse laws regarding contractual arrangements with physician-owned entities that are dependent in part on referrals from physician investors and substantially all of the operations of the physician-owned entity are obtained on a turnkey basis from other entities already in the same type of business.

Under the proposed arrangement, the requestor of the advisory opinion proposed to assist physicians who perform surgeries for which IONM is used, and who currently make referrals to the requester for IONM services, with the formation and operation of a turnkey entity that would perform IONM services. The surgeon owners of this IONM service entity would have limited participation in the entities day-to-day business operation and would instead contract with the requester of the advisory opinion and a physician practice for the performance of the technical and professional components of IONM services for surgeries at ASC's and Hospitals. The proposed arrangement would also not be utilized for patients covered under a Federal health care program.

The OIG commented that the proposed arrangement would involve several forms of remuneration that could induce the surgeon owners of this new IONM service entity to make referrals of IONM services for which payment would be made by a Federal health care program. The forms of revenue of concern to the OIG included:

1. Discounts offered to the new IONM service entity for its purchase of professional IONM services.

2. The opportunity for the new IONM service entity to generate “substantial profits” through the difference between the IONM service entity’s payments for administrative and professional services and the new IONM service entity’s revenue from billing payors directly for IONM services that were previously billed by the company that would form the new IONM service entity for the surgeons.

3. Returns on investment interests in the new IONM service entity to the surgeon-owners.

The OIG concluded that the proposed arrangement would present a significant risk of fraud and abuse under the Federal anti-kickback statute, including patient steering, unfair competition, inappropriate utilization, and increased costs to Federal health care programs.

The OIG also commented that the “carve out” of the Federal health care program patients not be dispositive with respect to whether the proposed arrangement would implicate and potentially violate the federal anti-kickback statute. The OIG reiterated its long standing and continuing concerns about arrangements under which parties carve out referrals of federal healthcare program beneficiaries from otherwise questionable financial arrangements.

This advisory opinion offers hospitals and other providers guidance on the OIG’s scrutiny of arrangements with physician-owned providers, as well as potential distinguishable facts and safeguards that may be included in a compliant arrangement.

Clay J. Countryman is a partner in the Baton Rouge office of Breazeale, Sachse & Wilson LLP. He can be reached at 223.381.8037 or Clay.Countryman@bswllp.com.

EEOC Guidance on Workplace Harassment and 2023 Litigation Statistics: What Employers Need to Know

25 Oct 2023 00:00:00 -0800

As the EEOC enters the final quarter of 2023, it recently issued two publications: its Proposed Enforcement Guidance on Harassment in the Workplace (“Harassment Guidance”) and its preliminary report on EEOC litigation for 2023. The Harassment Guidance details how the EEOC defines workplace harassment and provides detailed examples of what workplace harassment can look like on the basis of race, color, sex, gender identity, and other protected characteristics. Managers and Supervisors need to be trained about various scenarios to ensure that the employer does not become a target for the EEOC.

Preliminary 2023 Litigation Statistics Show EEOC’s Enforcement Focus

The EEOC’s preliminary 2023 litigation statistics show a substantial increase in litigation by the Commission. So far in 2023, the EEOC has filed 143 new lawsuits, a more than 50% increase in new lawsuits compared to 2022. One factor leading to this increase in lawsuits is the EEOC’s focus on systemic discrimination, which is discrimination based on a “pattern or practice” of employer discrimination. In 2023, the EEOC filed 25 systemic lawsuits, the largest number of systemic lawsuits in the past 5 years. Additionally, the EEOC has filed another 32 lawsuits seeking relief for multiple harmed parties. The remaining 86 cases filed by the EEOC constituted lawsuits brought on behalf of individuals.

Normally, the EEOC’s litigation efforts demonstrate a focus on a specific category of discrimination, such as sexual harassment, race discrimination, or discrimination regarding a specific benefit such as wages or leave. However, the preliminary 2023 litigation report provides that the EEOC’s 2023 lawsuits challenged workplace discrimination under “all of the statutes” enforced by the EEOC and demonstrate a broad array of workplace issues. Therefore, as always, employers should be careful of violating any employment discrimination laws, and certainly any systemic violations which will continue to be a focus of the EEOC in 2024.

Workplace Harassment Guidance

On the heels of its 2023 litigation report, the EEOC also issued its Harassment Guidance for employers, which provides detailed examples of harassment in the workplace based on many different protected characteristics. While this Harassment Guidance is not a legal obligation, it does provide guidance on how the EEOC will likely categorize and handle workplace harassment situations, and can be an important tool for employers in training their workplace to avoid harassment claims.

One focus of the report is that the increase in virtual workplace activities, such as virtual meetings, electronic communications, and collaborative work performed across computer platforms, can lead to an increase in virtual workplace harassment.

The guidance also addresses examples of workplace harassment based on specific protected characteristics. One example of such workplace harassment is intentionally and repeatedly misgendering or misnaming someone inconsistent with their gender identity. The Harassment Guidance also gives an example of race-based harassment based on an employee’s name, accent, cultural dress, and/or grooming practices. For sex-based harassment, the Harassment Guidance gives examples of both sexual harassment that is “same-sex” in nature, such as men sexually harassing another man, and opposite-sex harassment, with women facing sex-based epithets about women working in construction.

Employers should carefully review this Harassment Guidance and have supervisors trained to avoid such conduct, because the EEOC has demonstrated that it will likely target such conduct in future investigations, charges, and lawsuits. The EEOC is continuing to actively pursue and litigate all forms of discrimination, and employers should ensure that they have a proper preventive maintenance program in place to maintain compliance with discrimination and harassment laws and reduce exposure to lawsuits.

E. Fredrick Preis, Jr. and Philip Giorlando are attorneys in the Labor & Employment Section of the Breazeale, Sachse & Wilson law firm, which represents management. They can be reached at the following e-mail addresses: fred.preis@bswllp.com and philip.giorlando@bswllp.com.

COVID-19 On the Rise: What Should Employers Do?

25 Oct 2023 00:00:00 -0800

With the school year now in full swing, people finding their sweaters in the back of their closets, and COVID-19 cases and hospitalizations rising across the United States, employers should prepare for a potential increase in employees taking sick days and using medical leave under the Family and Medical Leave Act. To prepare, policies and procedures should be reviewed to possibly be revised to ensure that they are in compliance with all laws and should consider the updated COVID-19 guidelines.

Family and Medical Leave Act

Policies should be reviewed/amended and supervisors should be trained to address the possibility that COVID-19 related symptoms and illnesses could rise to the level of a “serious health condition” such that it is covered under the Family and Medical Leave Act. In the event that an employee or dependent for whom the employee cares becomes severely sick with COVID-19 and must receive medical treatment, it is possible that the employee will be entitled to take the leave afforded under the Family and Medical Leave Act.

Supervisors should also be trained on the sick leave policy, which could provide expanded benefits to employees to take leave for any illness, including COVID-19.

Testing and Masking

As has been the case since the COVID-19 pandemic was at its peak, COVID-19 remains a contagious virus, and employers should encourage employees to get tested to avoid exposing others in the workplace to the virus. In the event an employee tests positive, current guidelines state that that employee should remain home for five days and can return to work if they have been symptom free for 24 hours.

Additionally, current guidelines advise that those who test positive should wear a mask for 11 days when indoors. This means that, if an employee returns to work following a five-day isolation period, employers should ensure that returning employee wears a mask for 6 additional days.

Possible Accommodations

As has been the case since the beginning of COVID-19, employers should ensure that their COVID-19 policies and guidelines consider the legal obligations on employers to accommodate employees on the basis of a disability or a religious belief.

While COVID-19 has fortunately decreased in its severity and scope, it remains a medical concern and will likely be a continuing reason for employees to take sick leave or leave under the Family and Medical Leave Act. Employers should maintain up-to-date policies, procedures, and training regarding leave, and should ensure their policies are up-to-date to prevent the spread of COVID-19 in the workplace.

Harassment Redefined: EEOC's Progressive Approach to Workplace Harassment

25 Oct 2023 00:00:00 -0800

In this era of evolving workplace culture, marked by significant shifts due to legislative changes, pivotal Supreme Court decisions, the transformative #MeToo movement, and the disruptive impact of COVID-19, the Equal Employment Opportunity Commission (EEOC) has chosen not to be left behind. In response to these developments, the EEOC has issued proposed guidance which provides its contemporary interpretation of workplace harassment.

While this proposed guidance, if adopted, will not automatically have the force and effect of law, the guidelines should be used by employers when updating and drafting workplace policies.

Expansive Definition of Workplace Harassment to Protect Gender Identity

The proposed EEOC guidance expands the definition of sex-based harassment to extend protection to the LGBTQIA+ community. Based on a 2020 Supreme Court decision, sex-based discrimination extends to a person’s sexual orientation and gender identity.

As the new guidance makes clear, harassment based on sex could include using epithets regarding sexual orientation or gender identity; intentionally and repeatedly using a name or pronoun inconsistent with an employee’s gender identity (misgendering); denying an employee access to a bathroom or other sex-segregated facility consistent with the employee’s gender identity; harassing an employee due to their not presenting in a manner that would stereotypically be associated with that person’s gender.

Expansive Definition of Workplace Harassment to Protect Women’s Reproductive Rights

Harassment based on sex now includes harassment based on pregnancy, childbirth, or related medical conditions, such as lactation. This change harmonizes the proposed EEOC guidance with the recently enacted Federal Pregnant Workers Fairness Act.

Additionally, harassing a woman based on her reproductive right decisions, such as her use or non-use of contraceptives or decisions concerning abortions, may also constitute unlawful conduct under Federal anti-discrimination laws.

Expansion of Places Where Workplace Harassment May Occur

The EEOC’s proposed guidance clarifies that harassment may include conduct that occurs in a work-related context outside of an employee’s regular workplace. Per the guidance, an employer could be responsible for harassment occurring during an annual holiday party in a private restaurant, or at an employer-required training that is not conducted at the employer’s place of business.

Similarly, conduct within a virtual work environment or conveyed using work-related systems, such as an employer’s email, instant messaging, video conferencing, or intranet, could give rise to a harassment claim.

Even conduct that is not work related may constitute harassment if such conduct has an impact on the workplace. The proposed guidance suggests that employee encounters outside of the workplace and on social media platforms could create an unlawful hostile work environment.

Key Takeaways

Overall, the proposed EEOC guidance is not a startling revelation, but merely a reflection of the current legal landscape impacting the modern workplace. The proposed guidance also serves as a signal to employers to regularly review and update policies/handbooks and to conduct supervisor and employee training to remain in compliance with the ever-changing Federal law and guidelines.

Use Trade Secrets Law to Protect Your Business -- While the FTC Considers Banning Non-Compete Agreements Nationwide

20 Oct 2023 00:00:00 -0800

On January 5, 2023, the Federal Trade Commission (“FTC”) issued a proposed new rule banning non-compete agreements. The proposed rule seeks not only a ban of future non-compete agreements, but also the required rescission of existing agreements. The FTC sought public comment on the proposed rule before modifying the rule or issuing a final rule. It appears that any final rule by the FTC won’t be issued before the Spring of 2024. Serious legal challenges are expected if the FTC actually bans non-compete agreements nationwide.

Questions regarding the enforceability of non-compete agreements are currently left to the individual states. Louisiana non-compete law is crafted to create a “delicate balance” between business protection and protecting individuals. Non-compete agreements can be difficult to enforce in Louisiana. While enforceable, their use in Louisiana is limited to certain relationships and are only enforceable if drafted correctly.

With the potential ban of non-compete agreements pending, Louisiana businesses should rely upon trade secret law to protect their company. Louisiana’s Uniform Trade Secrets Act prevents a person or business from profiting from a trade secret developed by another. The threshold question in every trade secret dispute is whether a legally protectable trade secret actually exists. What information is considered a legally protectable trade secret?

The Operative definition appears in La. R.S. 51:1431(4). It provides:

(4) “Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
(a) derives independent economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and
(b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

How should businesses protect their sensitive trade secret information? First make sure that reasonable efforts have been taken to maintain the secrecy of that information, in order to qualify as a trade secret. Is it limited to “need to know” employees? Is it withheld from the general public? As an example, distributing price sheets to customers eliminates any trade secret protection regarding pricing. Additionally, readily ascertainable information is not subject to trade secret protection.

If your information qualifies as a trade secret subject to protection under Louisiana law, misappropriation of such information is actionable. What qualifies as misappropriation? Misappropriation includes the acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means. It also includes the disclosure or use of a trade secret of another without express or implied consent to do so.

In the competitive marketplace, it is critical for Louisiana businesses to protect their sensitive, trade secret information. Today’s efforts to maintain trade secret protection for your sensitive information will prove critical in later alleging misappropriation of your company’s most important information.

Management Update Newsletter Volume 12, Issue 10

02 Oct 2023 00:00:00 -0800