Monthly Archives: December 2011

HEALTH REFORM: HHS Announces First Insurance Premium Rate Review Determinations: Implications for Insurance Carriers and Future Rate Reviews

On November 21, 2011, the Center for Consumer Information & Insurance Oversight (“CCIIO”), in the Centers for Medicare & Medicaid Services (“CMS”),[1] announced its determination that a health insurance premium rate increase of 11.58 percent in the small group market in Pennsylvania represented an “unreasonable” rate increase, while an 11.10 percent increase in the individual market in Montana did not. These long-awaited determinations represent the first application of CMS’s rate review regulations under federal health reform.[2] This Implementing Health and Insurance Reform alert discusses these first federal rate review determinations, and their implications for insurance carriers and future insurance premium rate reviews.

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HEALTH REFORM: Medicare Providers and Suppliers Continue in the Spotlight

In order to be prepared for upcoming changes and to respond to new initiatives, providers and suppliers participating in Medicare must be aware of recent Congressional activity that would hold the federal government accountable for its intended enforcement efforts designed to curb health care fraud, waste, and abuse, as well as an effort by the Centers for Medicare & Medicaid Services (“CMS”) to implement automated pre-enrollment provider and supplier screening in January 2012. One example of the pressures that providers and suppliers face in this enhanced regulatory and enforcement climate is the upcoming expansion of the Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (“DMEPOS”) Competitive Bidding Program, which is targeted to launch in July 2013 and for which the Round 2 bidding timeline was announced on November 30, 2011.

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Jason E. Tremblay writes article for University Business on Penn State scandal and the Clery Act

Arnstein & Lehr Attorney Jason E. Tremblay

Jason E. Tremblay

Chicago Partner Jason E. Tremblay has written an article titled “Clery Act Reminder – Why the Penn State Scandal Matters to the Academy” that appeared in the November 22 publication of University Business. It was the top story on the publication’s homepage last week. In the article, Mr. Tremblay discusses the U.S. Department of Education’s recent announcement that it will conduct an investigation into whether Penn State failed to comply with the Clery Act. Mr. Tremblay also reviews the various aspects of the Clery Act, which requires colleges and universities to keep a crime log of alleged offenses and to “timely” report criminal offenses that occur on campus.

To view the article in full, please click here.

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James A. Chatz quoted in Associated Press article on Jefferson County’s recent bankruptcy filing

Arnstein & Lehr Attorney James A. Chatz

James A. Chatz

Of Counsel Attorney James A. Chatz was recently interviewed and quoted in a November 10 article in the Associated Press titled “Biggest civil bankruptcy sows uncertainty in Ala.” The article discusses Jefferson County’s Chapter 9 bankruptcy filing and includes Jimmy’s observations. The article was picked up by numerous outlets online, including ABC News.com, Huffington Post, USA Today and Washington Post.

To view the article in full, please click here.

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U.S. Supreme Court Grants Review of the "Outside Sales" Exemption Found Applicable to Pharmaceutical Sales Representatives

By:      David Garland and Douglas Weiner

In February 2011, the U.S. Court of Appeals for the Ninth Circuit gave a resounding victory to employers in the pharmaceutical industry by finding that pharmaceutical sales representatives are covered by the outside sales exemption of the Fair Labor Standards Act (“FLSA”). Christopher v. SmithKline Beecham, No. 10-15257 (9th Cir. Feb. 14, 2011). Plaintiffs, and the U.S. Department of Labor (“DOL”) in an amicus brief, had argued the exemption did not apply because sales reps are prohibited from making the final sale. Prescription medicine in the heavily regulated pharmaceutical industry can only be sold to the ultimate consumer with the authorization of a licensed physician. Sales reps use their “selling skills” to persuade doctors to prescribe their employer’s products when the doctor’s patients have a medical need for them. Sales reps do not transfer title to the medicine themselves.

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RSS amongst the best !

With the designation by Best Lawyers in Canada of four (4) of its lawyers as “Lawyer of the Year in Montreal,” RSS has risen to second place in terms of the number of designations from a single law firm as “Lawyer of the Year in Montreal”, tied with one other much larger firm. RSS congratulates Louise Baillargeon, chosen in Transportation Law, Michel Green, chosen for Liability of Directors and Officers, Patrick Henry, chosen for Professional Liability of Lawyers, and Karen Kear-Jodoin, chosen in Family Law. Read the article in La Presse newspaper which highlights these well-deserved accolades.

Click on the following link to see the article.

\”Les meilleurs avocats de Montréal\”

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NLRB Approves Resolution to Make It Significantly Easier for Unions to Organize the Hospitality Industry

By:  Evan Rosen

Yesterday, the National Labor Relations Board (the “Board”) voted, 2-1, to approve its Resolution to drastically amend the rules governing union elections.  While the Board’s stated reason for the amendment is to reduce unnecessary litigation, it is apparent that this purpose is a sham, and that the real reason is to make it significantly easier for unions to organize employees, especially those in the highly targeted hospitality industry.

The Board did not vote on the entire proposal detailed in their June 22, 2011Notice of Proposed Rulemaking, but rather on a narrower version focused on representational hearings, appeals, and evidentiary issues. Importantly, however, the Resolution eliminates language restricting a Regional Director from scheduling an election until at least 25 days after the direction of an election. Finally, the other proposed amendments to shorten election times, which are identified in the June 22, 2011 Notice of Proposed Rulemaking, are not off the table; rather, the Board will continue to deliberate on them. The Board will now draft a final rule based on the Resolution and will vote again for the final rule to be issued.

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Virginia Supreme Court: An Enforceable Non-Compete Must be Narrowly Tailored to Protect Legitimate Business Interests

Invalidating a non-compete agreement it found enforceable over 20 years earlier, on November 4, 2011 the Supreme Court of Virginia, in Home Paramount Pest Control Companies, Inc. vs. Shaffer, No. 101837, 2011 Va. Lexis 222 (2011) reaffirmed the position that a non-compete is enforceable if it is “narrowly drawn to protect the employer’s legitimate business interest…”.

Justin Shaffer, an employee of Home Paramount Pest Control Companies, Inc. (“Home Paramount”) signed an employment agreement containing a non-compete provision. The relevant portion of the provision was as follows:

The Employee will not engage directly or indirectly or concern himself/herself in any manner whatsoever in the carrying on or conducting the business of exterminating, pest control, termite control and/or fumigation services as an owner, agent, servant, representative, or employee, and/or as a member of a partnership and/or as an officer, director or stockholder of any corporation, or in any manner whatsoever, …”

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