WINDS OF CHANGE APPROACHING FOR PHYSICIANS AND MEDICAL OFFICES
by James A. Burton
and J. Thomas
Hamrick, Jr.
The change was initially wrought by the Health Insurance Portability and Accountability Act of 1996 (HIPPA). HIPPA provided that, unless Congress passed additional laws safeguarding the privacy and security of personal health information within three years, the Secretary of the Department of Health and Human Services (HHS) would thereafter be directed to craft regulations achieving the same effect. Further legislation was not forthcoming, and since 1999 it has fallen to the Secretary of HHS to design a regulatory scheme to implement the privacy protections and safeguards intended by HIPPA.
The regulations in this area generally encompass what is commonly referred to as the Federal Privacy Rule, or simply the Privacy Rule. The road to a final Privacy Rule was complicated by the change in administrations, and a resulting change in the philosophy of the federal administration on this issue. However, the changes are surely coming, and will cause hospitals and physicians to undertake a top-to-bottom review and overhaul of the manner in which they handle patient records and other confidential medical information.
Basically, the Privacy Rule applies to health information, which
is broadly defined to include any information, oral or recorded, created
or received by a health care provider and relating to the past, present or
future health or condition of a person, or relating to the past, present
or future payment for such health care.
In addition to specific new standards about the handling and security of such records, health care providers will also need to obtain a specific consent from the patient in order to share medical information with other providers (such as specialists) and a more specific authorization in order to sell information or provide it outside of the scope of the consent. A consent, once given, is valid until revoked, whereas a an authorization is valid only for a specific purpose and until a specific date.
Other aspects of HIPPA deal with the physical and technical security of protected records, notices and consents, and additional patient rights such as the right to inspect and copy records, the right to amend and request restrictions on the use of records, and the right to complain.
A nuts and bolts, day-long seminar on the Privacy Rule and related HIPPA requirements will be presented by the authors, in conjunction with the staff of LAMMICO, on seven different dates during the month of August in Shreveport, Monroe, Alexandria, Lake Charles, Lafayette, Baton Rouge and New Orleans.
SPSR’S WHITE HOUSE VISIT
Representatives of SPS&R were invited to an event with President George W. Bush in the East Room of the White House to highlight the firm’s involvement in the Welfare to Work Partnership programs and their participation in the New Orleans BizLink Law Project.
Partner Judy Perry Martinez, Sue Hughes, Special Projects Director, and Faye Harris Braddy represented the firm. Ms. Martinez was involved in the launch of the BizLink Law Project in New Orleans and encouraged other firms to join SPS&R in adopting the program. She asked Ms. Hughes to participate by serving as a mentor to Ms. Braddy. Ms. Hughes guided Braddy toward her position as a support staff member.
“It’s a wonderful program. It helps you become involved in the
community and when you are mentoring someone, it really makes you realize
that you can make a difference in an individual’s life,” explained Ms.
Hughes. “Faye is so dedicated. I am impressed with her work and proud of
her accomplishments. I think a big part of what makes this program work is
how well connected it is with other agencies. They are able to help
participants find childcare, homes and fulfill other personal needs as
well as helping them join the workforce.”
“Participating in the program
is hard work, but once you’ve completed it, the rewards are so gratifying.
The assistance you receive from the Welfare to Work Partnership is great.
They continually call to check on your progress and to see how things are
going,” said Ms. Braddy. “And Sue has been such a wonderful guide for me
through the program. I could not have asked for a better mentor.”
The Law Project, administered by The Welfare to Work Partnership’s New Orleans BizLink office, is a human resource tool for recruiting, hiring, retaining and advancing trained entry-level support personnel for firms. The three SPS&R representatives joined Senator John Breaux and 50 other employers from across the country at the White House where President Bush spoke for more than 20 minutes about the success of the Welfare to Work Partnership.
Earlier in the day, Ms. Martinez, Ms. Hughes and Ms. Braddy were welcomed to Washington by Senator Mary Landrieu, and met with her to talk about the program.
New Orleans BizLink is part of The Partnership’s BizLink Network in five cities –– Chicago, Los Angeles, Miami, New Orleans and New York. These offices engage and support employers, particularly small- and mid-sized businesses, to hire and retain individuals moving from welfare to work as well as other underutilized populations of workers. New Orleans is only the second city in the country to launch the BizLink Law Project.
Congratulations to Ms. Braddy for completing the program and thanks to Ms. Martinez and Ms. Hughes for their dedication to the project.
JUDY PERRY MARTINEZ CHOSEN AS THE 2001 DISTINGUISHED ATTORNEY BY THE LOUISIANA BAR FOUNDATION
Judy Perry
Martinez was honored as the Louisiana Bar Foundation's 2001 Distinguished
Attorney. She was selected for her many contributions to the legal
profession and the community by the Louisiana Bar Foundation's Board of
Directors. She is the first woman to receive this distinction in the
award's sixteen year history.
Ms. Martinez is engaged in a commercial litigation practice, handling matters involving environmental, employment discrimination, director and office liability, and fidelity and product liability claims.
She attended Louisiana State University, graduated from the University of New Orleans with a degree in marketing in 1979, and received her Juris Doctor, cum laude, from Tulane University Law School in 1982. Ms. Martinez has served as a member of the Trial Advocacy Faculty of the Tulane Law School and is a former Barrister of the Tulane Law School American Inns of Court.
Currently, she is a member of the Council of the American Bar Association Section of Litigation, the ABA House of Delegates, and the Council of the Fund for Justice and Education. She has served as chair of the American Bar Association's Commission on Domestic Violence, and from 1996-1999, Ms. Martinez served a three-year term on the ABA Board of Governors. In 1998-1999, she was named to the Executive Committee of the Board. She is a former chair of the ABA Young Lawyers Division and former member of the ABA Commission on Women, the ABA Nominating Committee, and has chaired several Louisiana State Bar Association and New Orleans Bar Association committees.
In 1993 and again in 1999, Ms. Martinez received the Louisiana State Bar Association President's Award. In 1997 she received the Sam Dalton Capital Defense Advocacy Award from the Louisiana Association of Criminal Defense Lawyers and in 1998 the Michelle Pitard Wynne Professionalism Award from the New Orleans Association for Women Attorneys. She was named one of the "Women of the Year" by New Orleans City Business magazine in 1999 in the inaugural year of the award, and received the YWCA Role Model Award for 2001.
INDEPENDENT ADMINISTRATION SIMPLIFIES SUCCESSION
ADMINISTRATION
by John F.
Shreves
The Louisiana legislature offered succession representatives an alternative to these cumbersome rules with the enactment of Act 974 of the 2001 Regular Session, effective August 15, 2001, dealing with the "Independent Administration of Estates". The basic thrust of these new provisions is found in LCCP art. 3396.15, which provides that an independent administrator "shall have all the rights, powers, authorities, privileges, and duties of a succession representative provided in Chapters 4 through 12 of this Title, but without the necessity of delay for objection, or application to, or any action in or by, the court." Therefore, a succession representative operating under the newly enacted independent administration statutes is no longer required to give notice, fulfill a publication requirement, or wait the statutory opposition period before receiving court authorization for his or her many actions involving the property of the estate. Because these independent administration provisions eliminate the theoretical safeguards provided by court supervision under the regular administration statutes, the new law also contains a number of provisions designed to protect those with an interest in a succession operated under independent administration.
For one, a Louisiana succession does not automatically fall under independent administration; the decedent must either provide for it in his testament, or those with an interest in the estate have to request independent administration. If the decedent's testament provides for independent administration, the "court shall enter an appropriate order granting independent administration of the estate." All that the testator need say in his testament is that the succession representative may act as an "independent administrator" or "independent executor" to constitute authorization for independent administration of the estate.
In addition, if the decedent's testament does not provide for independent administration, the statutes specify who may petition the court for independent administration for the estate. Generally, this will be all of the general and universal legatees of the decedent. When a decedent dies intestate, all of the intestate's successors have to request an independent administration and collectively designate, in the application for administration of the decedent's estate, or thereafter, a qualified person to serve as independent administrator.
The new Independent Administration of Estates law also identifies the appropriate party in the event that the testament creates a trust or a usufruct, or if a minor is involved. If the will does not provide for independent administration, and the general or universal legatee is a trust, then the trustee must consent to independent administration on behalf of the trust. If the will does not provide for independent administration, and creates a usufruct, both the usufructuary and the naked owner must consent to independent administration. Finally, if the will does not provide for independent administration, and the successor whose concurrence is required for independent administration is an unemancipated minor, the concurrence may be made on his or her behalf by the administrator of his or her estate or by his or her natural tutor, without the need for a formal tutorship proceeding and the concurrence of an undertutor.
Although the Independent Administration of Estates statutes do not specifically address the conversion of a Louisiana succession already under regular administration into a succession under independent administration, the language of LCCP arts. 3396.3 and 3396.5 clearly is broad enough to encompass this procedure upon the consent of the appropriate parties.
Independent administration may not be appropriate for all estates. Chapter 13 provides that the testator may expressly provide that no independent administration be allowed in his testament, in which case, the estate, if administered, shall be administered in accordance with the regular administration rules. Also, the court may order the independent administrator to furnish security as the court deems adequate upon the request of an heir, legatee or creditor of the estate and after a contradictory hearing.
In general, independent administration appears to be the preferred method to administer an estate in most circumstances. Independent administration provides a simpler, more cost effective and smoother alternative to general estate administration. As individuals and practitioners become more familiar with independent administration, this alternative will, in most cases, become a common (and welcome) feature of the Louisiana succession.
TAKE ME OUT TO THE BALL GAME! ANNUAL ZEPHYRS NIGHT
Friday, April 26, 2002, turned out to be a great evening for the firm members, their families and friends at our annual “Zephyrs Night”. Everyone met at the Home Run Porch for an enjoyable evening of baseball, food and comradeship. The weather even cooperated — breezy and not too hot — and the 167 staff, family members and friends all had a blast.
The evening ended with a brilliant fireworks display. It was a grand closing for an eventful day.
SPS&R WELCOMES NEW ASSOCIATE
Simon,
Peragine, Smith & Redfearn, L.L.P. is proud to announce the addition
of R. Dean Church, Jr. as an associate to the firm.
A native New Orleanian, Mr. Church received his Bachelor of Arts degree in Political Science from Louisiana State University in 1998, and his Juris Doctor degree from Louisiana State University Law School in 1991. He practices in the areas of toxic tort, entertainment law, products liability, insurance defense and general civil litigation.
Mr. Church is admitted to practice in all federal and state courts in Louisiana, and is a member of the Louisiana State Bar Association and the American Bar Association. He is also a member of the Phi Alpha Delta Legal Fraternity, and is a former faculty member of the National Institute for Trial Advocacy.
Mr. Church’s knowledge and skills will help the firm continue to grow and better serve clients. Welcome aboard!
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