Dallas Bar Association
HEADNOTES
Focus Health Law/Employee Benefits
March 2013 Volume 38 Number 3
Focus
Health Law/Employee Benefits
Mike Baggett Selected for 2013 DBF Fellows Award Six Things Every Lawyer Should In the midst of Mike’s many professional and community accomplishments, his status On Wednesday, March 27, 2013, the as a super lawyer sometimes gets overlooked. Dallas Bar Foundation will honor Mike He’s the author of leading treatises published Baggett, of Winstead PC, as this year’s recip- by Matthew Bender: Texas Foreclosure Law ient of the Fellows Award, at a luncheon to and Practice, Real Estate Litigation and Lender be held at the Belo Mansion. The award Liability Law and Litigation, all of which have honors an attorney “who has adhered to the been cited often by appellate courts all over highest principles and traditions of the legal Texas. He is a board certified (and recertiprofession, and has served the community fied) Civil Trial Law specialist, who has first chaired over 50 jury trials, and the profession with the won six cases before the Texas highest ethical standards.” Supreme Court and served Timothy Mountz, this as chairman of three Texas year’s Chair of the Dallas Supreme Court Task Forces. Bar Foundation, explained Such achievements have why Mike is a good choice to caused Mike Baggett to be recreceive the Fellows Award: ognized as a recipient of “Who’s “Mike Baggett is a role model Who in American Law,” the for every lawyer in Dallas. One “Best Lawyers in America,” a of Mike’s core values is loy“Super Lawyer,” the “Top 10 alty—to his family, his firm, Business Litigators in Dallas/ his school, to the profession Fort Worth,” and the State Bar and to our community. He of Texas’ Judge Sam Williams has achieved so much in his Bar Leadership Award. remarkable career, and done Miike Baggett Mike believes a lawyer’s it in a way that has made our profession better. He is proud to be a lawyer, most important talent is problem solving, and he constantly reminds everyone around and it has been the key to his success in leadhim of everything our profession stands for. ing area groups through times of crisis. When There is no one more deserving of the Fel- the DBA’s need for more meeting rooms and parking became critical over 15 years ago, lows award than Mike Baggett.” The wide-ranging respect Mike has Mike and Robert Jordan began the drive received from his peers in the legal profes- for “Mansion Expansion,” which resulted in sion and the community over the course of the construction of The Pavilion at the Belo his 40-year career is demonstrated by the Mansion and underground parking facility. frequency with which he has been asked to When the Cotton Bowl Classic faced the lead organizations. For the Dallas Bar Asso- loss of Mobil Oil as a sponsor, Mike helped ciation, Mike has served as President of the find a successor sponsor in Southwestern Bell DBA in 2000 and Chairman of its Board (now AT&T). He also helped persuade the of Directors in 1996 and also served on board to transfer the game from the stadium the Board of Directors for the State Bar of at Fair Park to Cowboys Stadium, a move Texas. In the Dallas community, he has been likely to put the AT&T Cotton Bowl into Chairman of the Dallas Regional Chamber the BCS in the near future. And as head of in 2010; Chairman of the Cotton Bowl the Chamber’s Transportation Committee Athletic Association in 1996-1998; Chair- during a time of massive population growth, man of Downtown Dallas from 1999‑2000; Mike successfully persuaded Austin legislaand President and Chairman of many asso- tors and the North Texas Tollway Authority ciations and foundations connected with his to provide additional funding for new and alma maters, Texas A&M University and improved tollways and highways. Though Mike Baggett has many years Baylor University Law School. On the business side, Mike served as ahead of him as a top-flight lawyer who CEO of the Winstead PC law firm from makes a positive contribution to his profes1992-2006, where he led his colleagues to sion and the citizens of North Texas year-in always strive to succeed through teamwork and year-out, he already knows his ultimate because “We Strengthens Me.” Current goals, “At the end of my life, I want to look Winstead PC CEO Kevin Sullivan, who has back and feel like my contributions made my practiced law with Mike Baggett for over 30 profession and my community better.” The years, gives this perspective on Mike’s con- Dallas legal profession and the community tributions in so many areas: “Whether it’s have become better places because Mike the practice of law, his service to the bar or Baggett came to town in 1973, and what he his involvement in many civic arenas, Mike has done, and continues to do, make him does them all the same way: with energy, a worthy recipient of this year’s Dallas Bar HN effectiveness and humor. All of us at Win- Foundation Fellows Award. stead have always been proud of Mike for his many accomplishments, and congratulate Talmage Boston is a shareholder at Winstead PC, and can be reached him on his well-deserved Fellows Award.” at tboston@winstead.com. by Talmage Boston
Know About Health Law by Chuck Blanchard, Jennie Knapp and Debrán O’Neil
Most lawyers do not represent healthcare providers; fewer delve deeply into healthcare regulations. Nonetheless, every lawyer should have a basic understanding of several health law topics. 1. Treatment Decisions. Individuals can make future medical treatment wishes known and generally enforceable through directives, medical powers of attorney (MPOA) and do not resuscitate orders (DNRs). Directives and DNRs instruct healthcare providers whether to administer life-sustaining treatment. MPOAs designate agents to make healthcare decisions in the event of incapacity. These tools are governed by Texas Health and Safety Code Chapter 166. Without them, the attending physician makes treatment decisions in consultation with a patient’s relative, or, if no relative can be found, another physician. If a physician refuses to follow directives or if there is disagreement, the statute provides some process for resolution. Other legal remedies (such as guardianship) may also be available. 2. Anti-Kickbacks and Stark. The Anti-Kickback statute (42 U.S.C. § 1320a-7b(b)) prohibits giving or receiving payments aimed to influence the referral of Medicare and Medicaid patients to particular healthcare providers. Stark laws (42 U.S.C. § 1395nn) restrict physicians from referring patients to providers with which the physician has a financial relationship. Texas has similar laws—Texas Occupation Code Chapter 102 and Texas Human Resources Code Chapter 32—applicable to patients covered by federal programs and private insurance. These statutes are implicated in situations that are not always obvious. For example, they have been considered in cases involving municipalities structuring services for residents, grocers providing rewards for prescription purchases and charities assisting the sick. Entities doing business with healthcare providers should consider the application of these laws, and proposed business arrangements can be submitted to the Office of the Attorney General for opinions on whether they will violate Antikickback and Stark statutes. 3. Privacy. HIPAA and the HITECH Act establish federal protections for patient information. Texas Health and Safety Code Chapter 181 provides additional requirements, particularly regarding training for employees handling protected information. While these statutes focus on healthcare providers, they also cover “business associates” —those who perform functions involving protected information, such as legal, accounting and information technology services. All covered entities may face civil or criminal penalties for violations of these privacy laws and are required to follow mandated security, training
Inside 5 The Employer’s Health Care Reform To Do List for 2013 7 Legal Obstacles to Care Coordination Remain 9 Inherited IRAs in Texas & Creditors’ Rights
and disclosure provisions. Any entity that comes into contact with protected health information should take steps to ensure compliance. 4. Medicare Reimbursement. The Medicare Secondary Payer Act (MSPA) requests that Medicare be reimbursed when patients receive payments from third parties for bills Medicare already paid. MSPA applies to payments on final judgments or settlements that include compensation for bills paid through Medicare. Any case where the plaintiff’s damages may be paid through Medicare (in whole or in part) could trigger a right to reimbursement of the full Medicare amount, although the reimbursement can be negotiated to account for attorneys’ fees or other costs. For past medical bills, documentation of the amount Medicare spent should be obtained. Medicare is commonly reimbursed by writing a check payable to plaintiff’s counsel and Medicare for the amount. For future Medicare expenses, defendants might seek indemnification or the establishment of a Medicare Set Aside, which makes reimbursement payments to Medicare as they become due. 5. Chapter 74. Texas Civil Practice and Remedies Code Chapter 74 places additional requirements and limitations, such as expert reports and damage caps, on health care liability claims (HCLCs). Courts have struggled to define HCLCs, sometimes dismissing cases brought by lawyers who assumed that Chapter 74 did not apply. In 2012, the Texas Supreme Court extended Chapter 74 to both the complaint of an employee of a healthcare facility injured by a patient and to complaints of sexual assault against a physician. If a claimant has any uncertainty as to whether Chapter 74 applies, she would be well served to produce an expert report out of caution and then argue that the claim is not subject to Chapter 74’s requirements. 6. Complaints. Clients with complaints regarding healthcare services may wish to contact the following: For physicians: Texas Medical Board (www. tmb.state.tx.us) For hospitals, surgery centers, mental health centers and other facilities: Texas Department of State Health Services (www.dshs.state.tx.us) For nursing homes, assisted living facilities, home health and hospice: Texas Department of Aging and Disability Services (www.dads.state. tx.us) For health insurance: Texas Department of Insurance, www.tdi.state.tx.us For consumer complaints, including products, access to healthcare, Medicaid fraud and insurance: Office of the Attorney General HN (www.oag.state.tx.us) Chuck Blanchard, Jennie Knapp and Debrán O’Neil practice at Carrington, Coleman, Sloman & Blumenthal, L.L.P. They can be reached at cblancha@ ccsb.com, jbauman@ccsb.com and doneil@ccsb.com, respectively.
March Focus Topics: Health Law/ Employee Benefits & Executive Compensation Law This month’s Headnotes articles focus on the topic of Health Law and Employee Benefits & Executive Compensation Law. The Health Law Section welcomes lawyers from all segments of the health care law industry and offers CLEs addressing current issues in this complex and diverse area of law. The Employee Benefits & Executive Compensation Law Section offers CLEs on pensions, profit-sharing plans, ESOPs, health coverage, disability plans and state law. Join these Sections for $20, by contacting kwatson@dallasbar.org.