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405 Magazine selects Phillips Murrah for 2020 Oklahoma Top Attorneys

Phillips Murrah is honored to have 13 attorneys selected as Oklahoma Top Attorneys for 2020 by 405 Magazine. Attorneys are selected for the list by an online peer-voting and research process facilitated by DataJoe Research across various practice areas.

For more information on each listed attorney, visit their profile by clicking on their portrait or contact information below:

Oklahoma Top Attorney for Banking and Financial Law:

. Mark Lovelace Oklahoma Top Attorney Banking and Financial Law

J. Mark Lovelace, Director
405.552.2404
jmlovelace@phillipsmurrah.com

 

Donald A. Pape Oklahoma Top Attorney Banking and Financial Law

Donald A. Pape, Of Counsel
405.364.3346
dapape@phillipsmurrah.com


Oklahoma Top Attorney for Business Law:

Robert O. O'Bannon Oklahoma Top Attorney Business Law

Robert O. O’Bannon, Director
405.552.2483
roobannon@phillipsmurrah.com


Oklahoma Top Attorney for Civil Law Transactional:

A. Michelle Campney Oklahoma Top Attorney Civil Law Transactional

A. Michelle Campney, Of Counsel
405.552.2487
amcampney@phillipsmurrah.com


Oklahoma Top Attorney for Commercial Litigation:

Thomas G. Wolfe Oklahoma Top Attorney Commercial Litigation

Thomas G. Wolfe, Director
405.552.2401
tgwolfe@phillipsmurrah.com


Oklahoma Top Attorney for Health Care Law:

Mary Holloway Richard Oklahoma Top Attorney Health Care Law

Mary Holloway Richard, Of Counsel
405.552.2403
mhrichard@phillipsmurrah.com


Oklahoma Top Attorney for Intellectual Property Rights:

Martin G. Ozinga Oklahoma Top Attorney Intellectual Property Rights

Martin G. Ozinga, Of Counsel
405.606.4721
mgozinga@phillipsmurrah.com


Oklahoma Top Attorney for Labor and Employment:

Byrona J. Maule Oklahoma Top Attorney Labor and Employment

Byrona J. Maule, Director
405.552.2453
bjmaule@phillipsmurrah.com


Oklahoma Top Attorney for Land Use – Environment:

Jim A. Roth Oklahoma Top Attorney Land Use Environment

Jim A. Roth, Director
405.552.2417
jaroth@phillipsmurrah.com


Oklahoma Top Attorney for Medical Malpractice Defense:

G. Calvin Sharpe Oklahoma Top Attorney Medical Malpractice Defense

G. Calvin Sharpe, Director
405.552.2413
gcsharpe@phillipsmurrah.com


Oklahoma Top Attorney for Oil and Gas:

Elizabeth K Brown Oklahoma Top Attorney Oil and Gas

Elizabeth K. Brown, Director
405.552.2423
ekbrown@phillipsmurrah.com


Oklahoma Top Attorney for Real Estate:

Sally A. Hasenfratz Oklahoma Top Attorney Real Estate

Sally A. Hasenfratz, Director
405.552.2431
sahasenfratz@phillipsmurrah.com


Oklahoma Top Attorney for Tax Law:

Robert O. O'Bannon Oklahoma Top Attorney Business Law

Robert O. O’Bannon, Director
405.552.2483
roobannon@phillipsmurrah.com

 

Dawn M. Rahme Oklahoma Top Attorney Tax Law

Dawn M. Rahme, Director
405.606.4770
dmrahme@phillipsmurrah.com

 

View the full list of attorneys here:

Phillips Murrah sponsors OU Law’s 2020 Best Brief Award

Eight first-year law students at the University of Oklahoma received awards for their prowess in writing legal briefs through Phillips Murrah’s ongoing sponsorship of the Best Brief Award.

OU law best brief 2020

Three recipients of OU Law’s 2020 Best Brief Award: Jordan Stroh, Jen Mook, and Trae Havens

“We appreciate Phillips Murrah for their unwavering support for the OU College of Law,” said Interim Dean Katheleen Guzman.  “The Phillips Murrah Best Brief Awards illustrate their commitment to helping us fulfill our mission:  educating the next great generation of lawyers and leaders to serve our community.

“That our students continue to excel in the classroom and the courtroom is directly attributable to extraordinary partners like Phillips Murrah, and we are truly grateful.”

$500 First Place and $250 Second Place prizes were awarded to students in each of the four sections of the 1L Class.

“I’m beyond grateful to this firm for the award money they gifted me and for recognizing me for my writing skills I have developed through my time thus far at OU Law,” said Jordan Stroh, First Place recipient.

Though awards are typically given during an awards luncheon, this year’s ceremony was hosted via a Zoom video conference on April 16.

“I am so appreciative of winning the Phillips Murrah Best Brief Writing Award during my first year of law school,” said Jen Mook, Second Place recipient. “Being a strong legal advocate requires many skills; however, none may be as useful as effective persuasive writing.

”I am grateful that Phillips Murrah recognizes this by awarding students for our writing efforts early in our law schools careers.”

Awards are given to top appellate briefs following judging from the 1L Moot Court Competition.

“I’m incredibly grateful for Phillips Murrah and their dedication to lifting up the next generation of legal professionals,” said Trae Havens, First Place recipient. “It’s a unique honor to receive the Phillips Murrah Best Brief Writing Award!

“I’m working hard to improve my legal research and writing skills, always taking inspiration from the amazing attorneys at Phillips Murrah.”

Read More: Phillips Murrah sponsors 2019 Best Brief Award

CARES Act and independent contractors – How businesses can mitigate risk related to CARES Act unemployment claims

By Phillips Murrah Attorney Martin J. Lopez III 

Below is an expanded version of a Gavel to Gavel column that appeared in The Journal Record on May 14, 2019.

attorney Martin J Lopez III

Martin J. Lopez III is a litigation attorney who represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

Businesses should identify and mitigate risk related to CARES Act independent contractor unemployment claims

In response to the COVID-19 national emergency, Congress has taken the extraordinary measure to allow independent contractors, gig-workers, and self-employed individuals access to unemployment insurance benefits for which they are generally ineligible. This article is geared towards businesses that regularly use independent contractors who may file claims for unemployment insurance benefits—discussing the risks involved and how businesses can mitigate those risks.

Background Regarding Relevant CARES Act Provisions

On March 27, 2020 President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). Among other provisions, the CARES Act significantly expands the availability of unemployment insurance benefits to include workers affected by the COVID-19 national public health emergency who would not otherwise qualify for such benefits—including independent contractors. This increased accessibility to unemployment insurance benefits theoretically provides an avenue for a state unemployment agency to find an independent contractor applicant to be an employee. Such a finding introduces the risk of the state unemployment agency assessing unpaid employment and payroll taxes for those a business previously treated as independent contractors. Tangentially, such a finding could serve to establish or bolster independent contractors’ claims in wage and hour litigation.

To qualify as a “covered individual” under the Pandemic Unemployment Assistance (“PUA”) provisions of the CARES Act, a self-employed individual must self-certify that she is self-employed, is seeking part-time employment, and does not have sufficient work history or otherwise would not qualify for unemployment benefits under another state unemployment program. Further, the self-employed individual must certify that she is otherwise able to work and is available for work within the meaning of applicable state law, but is “unemployed, partially unemployed or unable or unavailable to work” because of one of the following COVID-19 related reasons:

  • The individual has been diagnosed with COVID-19 and is seeking a medical diagnosis;
  • A member of the individual’s household has been diagnosed with COVID-19;
  • The individual is providing care for a family member or member of the individual’s household who has been diagnosed with COVID-19;
  • A child or other person in the household for which the individual has primary caregiving responsibility is unable to attend school or another facility that is closed as a direct result of the COVID-19 public health emergency and such school or facility care is required for the individual to work;
  • The individual is unable to reach the place of employment because of a quarantine imposed as a direct result of the COVID-19 public health emergency;
  • The individual is unable to reach the place of employment because the individual has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  • The individual was scheduled to commence employment and does not have a job as a direct result of the COVID-19 public health emergency;
  • The individual has become the breadwinner or major support for a household has died as a direct result of COVID-19;
  • The individual has to quit his or her job as a direct result of the COVID-19 public health emergency;
  • The individual’s place of employment is closed as a direct result of the COVID-19 public health emergency.

If the individual meets the above criterion, she is a “covered individual” and is eligible for unemployment assistance authorized by the PUA provisions of the CARES Act. Such assistance was available beginning January 27, 2020 and provides for up to thirty-nine (39) weeks of unemployment benefits extending through December 31, 2020. Covered individuals’ unemployment benefits are calculated state-by-state, according to each state’s conventional unemployment compensation system. In addition, under the PUA provisions of the CARES Act, covered individuals may receive an additional $600 for each week of unemployment until July 31, 2020.

What Businesses Can Do to Protect Themselves

To counteract the risks discussed above, I recommend a business implement the following best practices when responding to a claim of unemployment by an independent contractor:

  • respond proactively to unemployment claim notices for independent contractors;
  • state clearly in the response that the relevant individual-claimants were independent contractors and not employees of the business;
  • affirmatively state that each independent contractor claimant was an independent contractor to whom the business occasionally (or routinely) provided work, but that it is unable to provide the same volume (or any) work to the individual at present because of the COVID-19 national emergency;
  • specify in the response that the individual’s eligibility for unemployment benefits must be entirely predicated on the PUA provisions of the CARES Act allowing for independent contractor participation in the program; and
  • provide the claimant’s independent contractor agreement to the state unemployment agency.

In providing this information and documentation to the state unemployment agency, the business will be able to demonstrate its independent contractor relationship with the individual. Together with the fact that these individuals’ eligibility to receive unemployment income rests exclusively on relevant CARES Act provisions, the business should be well-positioned to avoid the typical risks that can result from a successful unemployment claim by an independent contractor.

Martin J. Lopez III is an attorney at the law firm of Phillips Murrah.

Edwards named OCU Law’s Distinguished Practitioner for Fall semester

Nicholle Jones Edwards attorneyt

Nicholle Jones Edwards’ practice focuses on family law, labor law and general civil litigation. Her family law practice includes litigation, complex custody issues and valuation issues.

Oklahoma City University School of Law recently named Director Nikki Edwards the Distinguished Practitioner in Residence for the upcoming Fall semester.

“The role of Distinguished Practitioner in Residence is an exciting opportunity to interact with the students in a meaningful, interactive way, as opposed to a lecture format,” Edwards said. “I’m most looking forward to being able to play a small role in the exciting futures of our future lawyers.”

Edwards will be the third person and first female to hold the position, Jim Roth, OCU School of Law Dean and Phillips Murrah Director said.

“We at OCU School of Law are thrilled to host Nikki Edwards as our Distinguished Practitioner in Residence for the upcoming Academic Year ‘20-‘21 where she will lead our lucky students through a Litigation Practicum covering all issues from A to Z,” Roth said. “As our first female lawyer in this role, it’s an extra special way to highlight not only her wonderful skills, but to bring attention to the under-representation of women in litigation practices.

“We have tremendous faith that Nikki will educate and inspire men and women to become great practitioners for their clients and the profession.”

Highlighting the Firm’s focus on gender equity in law firm leadership, Edwards hopes her role can bring more visibility to women in the legal field.

“I am honored to be the first female to serve as Distinguished Practitioner In Residence,” Edwards said. “Today more than 50 percent of law students are women, yet a very small percentage of trial lawyers are female.

“I would love my students to realize that women can be strong, effective, trial lawyers, and the courtroom is not only a place for men. A big part of my life’s work is supporting other women as a mentor, friend and colleague. As a shareholder of Phillips Murrah P.C., our firm has a much larger percentage of female shareholders than the state and national average, which is something I am very proud of. I think the future should and will have more female litigators, and that is why being chosen by Dean Roth and OCU Law for this position is such a high honor.”

Enrollment for the course is now open. Learn more at OCU School of Law’s website.

“I hope students learn to love the practice of law and not just the substantive case law found in various subjects,” she said. “A significant takeaway will be that as lawyers in litigation we have the ability to really change lives and that the students realize how important our representation is to our clients, the public and the judiciary.

“Importantly, litigation and trial work can be extremely exhilarating and exciting, but also very frightening for new lawyers, so I hope each student feels a basic comfort level with the process at the conclusion of the class.”

Click here to learn more about Nikki’s practice.

Firm selects Employee of the Month for March 2020

donna anderson eotm

Donna Anderson

Donna Anderson, Legal Assistant, is Phillips Murrah’s Employee of the Month for March 2020.

“It is an honor to be nominated as Employee of the Month,” Donna said. “I am extremely grateful and blessed to be a part of this loving work family!”

The Employee of the Month is selected anonymously by Phillips Murrah staff on merits of teamwork and overall contributions to the Firm.

“Donna is more than just a legal assistant to me, she feels like family,” Attorney Molly E. Tipton said. “She is reliable, diligent, positive and very smart.”

The Firm makes a donation to the winner’s charity of choice, and Donna chose National Kidney Foundation.

To learn more about National Kidney Foundation, click here.

 

Read more: Firm selects Employee of the Month for February 2020


Phillips Murrah has been recognized as an Oklahoma Top Work Place by The Oklahoman/Energage five years in a row. Our Firm strives to recognize and reward our employees for excellence.

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Firm selects Employee of the Month for February 2020

eotm Abby Tompkins

Abby Tompkins

Abby Tompkins, Legal Assistant, is Phillips Murrah’s Employee of the Month for February 2020.

“It is a privilege to work with such a great group of people and for them to recognize me as Employee of the Month is an honor,” Abby said.

The Employee of the Month is selected anonymously by Phillips Murrah staff on merits of teamwork and overall contributions to the Firm.

“I am thrilled that Abby was recognized as Employee of the Month,” Director Sally A. Hasenfratz said. “Those who work with her closely know that she is a hard worker, she has her head in the game and helps spot issues, she has a keen willingness to learn new things and she is poised and great with clients. A well-deserved honor!”

The Firm recently began making a donation to the winner’s charity of choice, and Abby chose Focus on Home.

To learn more about Focus on Home, click here.


Phillips Murrah has been recognized as an Oklahoma Top Work Place by The Oklahoman/Energage five years in a row. Our Firm strives to recognize and reward our employees for excellence.

 
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Medicare Reimbursement Actions by the Government: Relief for Providers?

This article was originally published in the American Bar Association’s Health eSource newsletter in February 2020.


Oklahoma Opioid Decision by Phillips Murrah healthcare attorney Mary Holloway

Mary Richard is recognized as one of pioneers in health care law in Oklahoma. She has represented institutional and non-institutional providers of health services, as well as patients and their families.

By Mary Holloway Richard, Phillips Murrah, and
Anna Stewart Whites, Attorney at Law, Frankfort, KY

The tension between the government’s need to ensure appropriate use of Medicare funds and the need of providers to receive reasonable compensation for services to Medicare beneficiaries is an ongoing issue.  Providers are subject to demands for repayment or recoupment of compensation paid to providers based upon claims filed.  Providers are also pressed to keep up with the continually developing arsenal of vast data mining, increasingly restrictive federal reimbursement policies, and oversight tools, including a plethora of audit options available to the Department of Health and Human Services (HHS) and Centers for Medicare & Medicaid Services (CMS) programs that can lead to penalties and mandatory exclusion.  Locating the applicable guidance — statutes, regulations, guidelines, reimbursement policies — can be challenging, with the information upon which CMS actions are based sometimes emanating from data gathered across the country, which allows for identification of trends to be pursued by the regulators.

The focus of this article is to explore the tools available to counsel for providers seeking to place appropriate limits on CMS in connection with statutory and regulatory limits on HHS rulemaking authority as interpreted by recent case law.

Proper Rulemaking as a Limit to Regulatory Authority

Providers who have received payment under the CMS fee schedules may, even years later (1) be faced with demands by CMS for repayment of amounts received due to an after-the-fact reduction in the fees payable to the provider, or (2) experience a downward adjustment in payments.1  These changes by CMS, both prospective and retrospective, are frequently transmitted via electronic manuals or by local or national coverage determinations (LCDs or NCDs).

Providers argue that the retrospective changes by fiat can be likened to ex post facto laws penalizing the provider for actions occurring before the regulation, policy or change in interpretation of the law existed.  When a government entity or agency determines that such a change is necessary, and when those changes are substantive or can adversely impact providers or patients, an opportunity for all affected parties to comment is advisable to support wise decision-making within the government’s scope of authority, and to facilitate smooth transitions within the industry.2  The existing structured rulemaking process offers providers and other interested parties the opportunity to comment on the proposed change prior to its implementation, thereby facilitating the avoidance of bad rulemaking or rulemaking with unintended consequences.

The Rulemaking Process:  An Overview

The rulemaking process is formal and includes the notice-and-comment period so that public awareness and input are parts of the making of any enforceable regulatory change.3  Under the Social Security Act, a notice-and-comment period is required for a “rule, requirement or statement of policy” that establishes or changes a “substantive legal standard governing the scope of benefits, the payment for services, or the eligibility of individuals, entities, or organizations to furnish or receive services or benefits.”4 This requirement is stricter than the more common notice-and-comment requirements of the Administrative Procedures Act (APA). The APA employs different nomenclature and holds that no notice-and-comment period is required where the change is merely an “interpretive rule” or “general statement of policy.”  That exception had been relied upon by agencies to change rules via policy manual updates or internal regulatory interpretations.5

Informal rulemaking under the APA requires development of a proposed rule and a published notice of the proposed rule or changes to an existing rule.  Following that, there is a comment period of at least 30 days.  Members of the public, including but not limited to those impacted by the change, have the opportunity to comment on the proposal. Codification of the final rule may take place only after the comment period has passed and the agency has made any final revisions to the rule.6 Typically, rule and regulation changes have a future, rather than retroactive, effective date.  Where the change to a law or regulation is “substantive,” formal rulemaking under the APA requires an additional opportunity for an agency hearing on the proposal before it can be made effective.

Historically, providers faced with recoupment demands from a federal payor had little choice but to accede to the payor’s demands within a specified, limited timeframe.  Providers could argue against such recoupment or denial, but such arguments in reality were limited to proving that the recoupment demand was in error.. The provider was thus placed in a defensive posture and required to operate from the premise that the recoupment request was correct, but for an obvious calculation or medical necessity oversight by the payor during its review.8

From the agency perspective, however, rulemaking takes significant time and effort and can be administratively debilitating.  It requires publication of the proposed changes, a lengthy comment period (often as much as several months long), opportunity for live comments as well as written comments, and then an analysis of the comments by the agency and publication of the agency’s responses to the comments.  If the comments result in an amendment to the policy, the rulemaking process may have to begin again to allow comment on those amendments newly proposed or on the resolution of issues raised during the comment period.  Because of the complexity of that rulemaking, agencies may choose to draft minor changes instead, and implement those via an announcement to providers/patients, thereby eliminating any delay in implementation or any requirement that those affected be allowed to speak.  Implementing minor changes is a necessary way to keep policies and regulations current, and is an acceptable part of the agency’s process.  Over time, however, there may be a blurring of the applicable procedures, where an agency implements a substantive change informally for an item that required the complete rulemaking process, particularly under the Medicare Act.  Providers have begun to pay more attention to the correct application of the rulemaking process and to challenge agencies ignoring required rulemaking.

Judicial Interpretation of Rulemaking Requirements Related to Healthcare

In Clarian Health West, LLC v. Hargan,9 the Court required adherence to the rulemaking process before a recoupment of payments could be enforced.  Under Part A of the Medicare program, hospitals are compensated prospectively based on the estimated likely cost of patient care.10 The hospitals may also receive supplemental or “outlier” payments.11 The regulatory changes enacted by HHS in 2003, which included notice-and-comment rule making, altered the way such “outlier payments” are calculated.12  The Court found that an agency decision is arbitrary and unenforceable as such where the agency “has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”13

Two recent cases, Azar v. Allina Health Services14 and Polansky v. Executive Health Resources, Inc.,15 have provided validation for that argument, finding that absent the required rulemaking process and an opportunity for providers to comment on and be aware of the effect of the changes to the law, recoupment of funds properly paid exceeds CMS authority.

Provider Litigation to Enforce Rulemaking

In Azar v. Allina Health Services, the United States Supreme Court held that the decision to retroactively reduce Medicare disproportionate share hospital (DSH) payments according to a newly revised formula and practice must be vacated due to HHS’s failure to provide an opportunity for notice and comment in the context of revised payment rules.16 The DSH payment is calculated based upon a Medicare Fraction which establishes a proportion of low income patients provided services at the hospital for a certain time period and is the basis for the hospital’s final reimbursement adjustments.

By way of explanation, a DSH payment is a sum awarded a hospital pursuant to 42 C.F.R. 412.106.  Under Section 1886(d) (5) (F) of the Medicare Act, hospital DSH payments are calculated by the formula:

  • DSH Patient Percent = (Medicare SSI Days / Total Medicare Days) + (Medicaid, Non-Medicare Days / Total Patient Days)17

A new CMS rate calculation affected the way the applicable payments were made, and was therefore considered by the Court to be a ‟substantive legal standard” under the Medicare Act requiring notice-and-comment rulemaking prior to enforcement.18  The Court found that HHS had promulgated a retroactive Medicare rate calculation methodology and that this was not a change that could be enacted without opportunity for comment and discussion.As explained by the Court of Appeals for the D.C. Circuit, in 2004 HHS decreed that Medicare Part C patients would now be included in DSH calculations along with patients entitled to Medicare Part A benefits, and this change would have been applied prospectively for all Medicare Fraction calculations from 2005 onward. However, this change was successfully challenged and vacated by the D.C. Circuit.19 In response, in 2013 HHS promulgated the same rule to be applied prospectively from 2014. This left fiscal year 2012 at issue, and in 2014 HHS posted the Medicare Fraction on the CMS website, including Part C patients and Part A patients.20

CMS clarified that the 2012 determination that Medicare Part C days would be included in the calculations, thereby lowering the DSH calculation by including Medicare Advantage subscribers who generally represented higher income, resulting in a reduction of the DSH payments to hospitals.21

The proposed change underwent notice and comment in 2013 and eventually was adopted as a valid way to calculate those payments prospectively, beginning in 2014.  Rather than simply implementing the changed standard from 2014 onward, CMS looked back at earlier years and claimed that the change should apply retroactively.  There was no notice and comment period in 2012 on that change.  Following the changes, CMS used this ability to look back and demanded recoupment from provider hospitals, applying the changed law or interpretation of the law retroactively to 2012.

A group of  hospitals  challenged the changes made without notice and the opportunity to comment and sought to stop the recoupment, which represented billions of dollars.22  They argued that absent such timely rulemaking procedures, the change should not apply to years prior to 2014. HHS’s response was that it was not required to hold a notice-and-comment period for the new rule, since it was only advising the public on an existing interpretation of the law.  HHS relied on the less stringent standards of the APA23 to permit the recoupment.

The DC Circuit Court ruled in favor of HHS, and the hospitals appealed to the United States Court of Appeals for the District of Columbia, which reversed the lower court ruling and held that the new payment schedule amounted to a “statement of policy” that required the notice-and-comment period specified by the Social Security Act.24

The Supreme Court, quoting the Social Security Act, held that “[n]o rule, requirement, or other statement of policy (other than an NCD) that establishes or changes a substantive legal standard governing the scope of benefits, the payment for services, or the eligibility of individuals, entities, or organizations to furnish or receive services or benefits under this title shall take effect unless it is promulgated by the Secretary by regulation.…”25 “Substantive rules” refer to the Supreme Court phrase “substantive legal standard” as encompassing more than just the “substantive rules” that already require notice and comment under the APA.26 The Supreme Court noted in particular that the many manuals that provide guidance to participants in the Medicare program might contain substantive legal standards that require notice and comment, and that its decision applied broadly across those fields.27

The Allina ruling established that substantive changes to the law should not be applied retroactively to time periods in which there has been no rulemaking process.  Providers faced with any retroactive application of a change in the law that occurred after a payment to the provider which was valid at the time of payment could now claim that absent rulemaking at that time, the change should only be prospectively applied.

That doctrine was expanded in Polansky v. Executive Health Resources, Inc.,28 where the provider faced a False Claims Act (FCA) action based upon allegations that the provider’s billing was fraudulent for failure to comply with Medicare reimbursement guidelines. The provider argued that the Medicare criteria being applied had not gone through appropriate rulemaking prior to implementation.  The Court agreed, holding that Medicare reimbursement criteria must be established through notice-and-comment rulemaking to provide the basis for enforcement actions under the FCA. Because the reimbursement policy at issue had been established solely in the 1989 edition of the Medicare Hospital Manual and not via the rulemaking process including questions and comments, the court found that it “cannot withstand scrutiny under Allina’s interpretation of the Medicare Act.”29

The Court based its findings in part on Bowen v. Michigan Academy of Physicians,30 which held that a provider demanding administrative or judicial review of a recoupment of a Medicare Part B claim or payment must show that the matter is reviewable by challenging the method by which the claim was determined under 42 U.S.C.A. § 1395ff(b)(1)(C) (Supp.1990).  While courts may not “improperly impose on agencies an obligation beyond the `maximum procedural requirements’ specified by [statute or regulation],” the rulemaking standards must have applied to the creation of the statute or regulation.31  The District Court in Polansky relied upon the Allina decision to grant summary judgment in favor of the defendant, holding that the method by which a change is implemented may be challenged by an affected party where the agency failed to comply with the process required.32  The provider must show first that this is a matter to which the rulemaking standard applies, and secondly, that the method used by the agency was flawed in that it did not use the correct standard, before being allowed to attack the change or any related financial impact created by the change.33

The Allina and Polansky decisions establish an additional strategy for providers to defend enforcement actions that are part of a recoupment or recalculation, rather than attempting to prove that the government’s audit determinations or interpretations are in error. This, in effect, places the burden of defense back on CMS (or another governmental agency or payor) by requiring it to prove that the law or regulation was properly created in compliance with required rulemaking procedures.  Importantly, these decisions offer that, where providers did not have opportunity to comment on or object to implementation of a rule or regulation, they should not be found to have either had notice of it or be bound by its terms.

In response to Allina, the Department of Justice (DOJ) provided notice of DOJ policy in a memorandum to U.S. Attorneys from former Associate Attorney General Rachel Brand dated January 25, 2018. Known as the Brand Memo, it announced that “Department litigators may not use noncompliance with guidance documents as a basis for proving violations of applicable law in affirmative civil enforcement (ACE) cases.”34 The effect of the Brand Memo is to place agencies on notice that they may not rely upon sub-regulatory guidance to re-frame, expand, or enforce requirements established by statute or regulation.35  Specifically, the Brand Memo prohibits coercing regulated parties from taking or refraining from taking actions beyond the requirements of applicable statute or “lawful regulation.”36 The Brand Memo further pointedly provides that “the Department may not use its enforcement authority to effectively convert agency guidance documents into binding rules.”37

A new internal memorandum from HHS dated October 31, 2019 is instructive. That Memo says that it’s important for CMS to conform its guidance documents to the rulemaking obligations set forth in Allina.  For instance, HHS personnel are discouraged from basing enforcement actions on guidance documents, specifically the Internet-only manuals, that are not “closely tied to statutory or regulatory standards.”38  This Memo suggests to counsel for providers a few new tools when dealing with Medicare payment issues, including the limits of the impact of formerly formidable sub-regulatory or “non-regulatory” guidance, the amelioration of LCDs as the single basis for enforcement actions and judicial support for these limitations.

Conclusion

Recoupment and reimbursement demands, audits, exclusions, prosecutions and targeting by CMS, its contractors or other federal and state agencies are substantive, significant matters.  Adherence to the regulatory protections, including the notice and opportunity to provide input, allows all affected parties to have an understanding of the law or regulation and to be prepared for its impact.  The Allina case and its progeny are likely to benefit providers and patients alike as the country continues to grapple with healthcare reform.

  1. 42 U.S.C. § 1886(d)(5)(F); 42 C.F.R. § 412.106.
  2. See discussion below comparing the rulemaking requirements of the Medicare Act, 42 U.S.C. § 1395(h), which was passed as an amendment to the Social Security Act, 5 U.S.C. Chapter 5, §§ 551-559.
  3. See generally, https://www.federalregister.gov/uploads/2011/01/the_rulemaking_process.pdf, “A Guide to the Rulemaking Process” (last accessed Jan. 24, 2020).
  4. 5 U.S.C. § 1395hh(a)(2)  (emphasis added).
  5. See, e.g., acus.gov/research-projects/agency-guidance-through-interpretive-rules, “Agency Guidance Through Interpretive Rules” (Administrative Conference of the United States) Adopted June 13, 2019 (last accessed Jan. 19, 2020).
  6. 5 U.S.C. §§ 551-559.
  7. 5 U.S.C. § 553.
  8. See, e.g., “Tricare Recoupment Steps Outline”(Guidance provided to Tricare Beneficiaries), https://tricare.mil/Resources/Recoupment?p=1 (last accessed Jan. 15, 2020).
  9. 878 F3d. 346 (D.C. Cir. 2017).
  10. 49 Fed. Reg. 234 (Jan. 3, 1984); 42 U.S.C. § 1395ww(d)(2), “Prospective Payment for Medicare Inpatient Hospital Services.”
  11. 42 U.S.C. § 1395ww(d)(5)(A)(ii); See also Dist. Hosp. Partners, L.P. v. Burwell, 786 F.3d 46,  49 (D.C. Cir. 2015).
  12. See Change in Methodology for Determining Payment for Extraordinarily High-Cost Cases (Cost Outliers) Under the Acute Care Hospital Inpatient and Long-Term Care Hospital Prospective Payment Systems Final Rule.  Fed. Reg. June 9, 2003 at 34493-515; https://www.ncbi.nlm.nih.gov/pubmed/12795306 (last accessed Dec. 27, 2019).
  13. See Hawaii Helicopter Operators Ass’n v. F.A.A, 51 F.3d 212, 214-15 (9th Cir.1995). See also n. 1 supra and accompanying text.
  14. 863 F.3d 937 (D.C. Cir. 2017), aff’d, 139 S.Ct. 1804 (2019).
  15. 2019 WL 5790061 (E.D. Pa. Nov. 5, 2019).
  16. 587 U.S. ___, 139 S.Ct. 1804 (2019), 42 U.S.C. §§ 1395 ww(d)(5)(k)(I); 42 C.F.R. § 412.106; cms.gov/Medicare/Medicare.Fee.For.Service.Payment /Acute InpatientPPS/dsh (last accessed Jan. 15, 2020).  See S.Ct. at 1309 quoting Petition for Cert; “So counting makes the fraction smaller and reduces hospitals’ payments considerably–by between $3 and $4 billion over a 9-year period, according to the government.”
  17. https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/AcuteInPatientPPS/dsh. Hospitals rely on DSH payments, as calculated annually, for a significant part of the yearly budget and income. The change in the method in which HHS was calculating those payments, applied retroactively, reduced the sum HHS found should have been paid each hospital in 2012 and 2013, resulting in a CMS demand for recoupment (paying back) of those funds to Medicare. There is an alternate special exception method for large urban hospitals that can demonstrate that more than 30 percent of their total net inpatient care revenues come from state and local governments for indigent care (other than Medicare or Medicaid). Because Medicaid monies are funds designated to serve a specific group in accordance with CMS payment guidelines, CMS is permitted up to 10 years to recoup funds which it believes were paid in error.
  18. Allina at 1810-1815.
  19. Allina Health Services v. Sebelius, 746 F.3d 1102, 1107-9 (D.C. Cir. 2014), as quoted in Allina Health Services v. Sebelius, 863 F.3d 937 (D.C. Ct.App. 2017).
  20. Allina at 1810.
  21. Part A Benefits refers to inpatient benefits (42 U.S.C. § 1395ww(9)(5)(F)(vi)(I). Part C Benefits refer to Medicare Advantage beneficiaries, who generally have more financial resources. Including Part C patients in the DSH calculation lowers hospital payments markedly. See Northeast Hospital Corp. v. Sebelius, 657 F.3d 1, 5 (D.C. Cir. 2011).
  22. See n. 17 and accompanying material.
  23. 42 U.S.C. Chapter 5, §§ 551 – 559. See Allina at 1813.  See also Perez v. Mortgage Bankers Ass’n, 575 U.S. 92, 95 (discussion of “interpretive rules” to which the APA notice and comment rulemaking requirements do not apply.)
  24. See Allina Health Servs. v. Price, 863 F.3d 937, 949 (D.C. 2017).
  25. 42 U.S.C. § 1395hh(a)(2) (emphasis added).
  26. See Allina Health, 139 S. Ct. at 1814.
  27. Id. At 1816.
  28. No. 12-4239, 2019 WL 5790061 (E.D. Pa. Nov. 5, 2019).
  29. Polansky at 7. See generally Allina at 1816. (discussion of CMS Provider Manual).
  30. 476 U.S. 667, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986).
  31. See Perez v. Mortg. Bankers Ass’n, 135 S.Ct. 1206, 191 L.Ed.2d 186 (2015).
  32. ___ F.Supp.3d___, 13 (2019); 2019 WL 579006 (at 12-13).
  33. Id. at 16.
  34. https://www.justice.gov/opa/press-release/file/1028756/download . See also Executive Order, https://www.whitehouse.gov/presidential-actions/executive-orders-promoting-rule-law-improved-agency-documents/.
  35. See Attorney General Memo on the Prohibition on Improper Guidance Documents, https://www.justice.gov/opa/press-release/file/1012271/download (last accessed Dec. 27, 2019).
  36. Brand Memo at Page 1.
  37. Id. at Page 2. The Brand Memo has been incorporated into the Justice Manual, the guidebook for DOJ attorneys. See https://www.justice.gov/jm/1-20000-limitation-use-guidance-documents-litigation (last accessed Dec. 27, 2019).
  38.  https://fcablog.sidley.com/wp-content/uploads/2019/11/1222000-1222453-allina-memo-cms.pdf.

About the Authors

Mary Holloway Richard represents both institutional and non-institutional providers of health services. Her career has included work at hospitals, outpatient clinics, behavioral health facilities and rehabilitation facilities and clinics. She has significant experience in health services contracting, reimbursement audits and appeals, OIG investigations, and regulatory and corporate matters. She lectures and has written on numerous healthcare topics including nonprofit operations, telehealth and behavioral health law, confidentiality and criminal justice reform. She was the driving force behind the first Oklahoma Women’s Law Manual as well as a contributor and editor.  She is currently a member of the faculty of the Oklahoma City University School of Law teaching an introduction to Healthcare Law and Behavioral Health Law. She has been in the leadership of the Behavioral Health Task Force of the American Hospital Association since its inception and is currently Vice Chair. She is Chair of the Oklahoma Bar Association’s Health Law Section. She may be reached at mhrichard@phillipsmurrah.com.

Anna Whites is the owner of Anna Whites Law Office and a graduate of Centre College and the University of Kentucky College of Law.  Her practice concentrates on health law, with a focus on laboratories, rural hospitals and behavioral health.  She advises providers on reimbursement, compliance and transactional issues.  Ms. Whites works with the Kentucky State Legislature and advocates in Kentucky and nationally to advance policies on prompt payment, uniform provider credentialing, telehealth advances and laws providing broad coverage to vulnerable populations. She is the Co-Chair of the Rural Health Subcommittee of AHLA’s Behavioral Health Task Force and speaks and writes for HCCA, ABA and AHLA on behavioral and compliance health law topics. She may be reached at annawhites@aol.com.

Banks may be liable for negligent transfer of hacked accounts

This column was originally published in The Journal Record on March 9, 2020.


Justin G. Bates is a litigation attorney who represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

By Justin G. Bates, Phillips Murrah Attorney

When asked by a reporter why he robs banks, notorious criminal “Slick Willie” Sutton replied, “Because that’s where the money is.” While banks still have the money, the nature of the crime has evolved with technology. Today’s modern bank robber is often armed with nothing more than a mouse and keyboard, and the preferred tools and techniques of their trade are phishing and malware.

Hackers infiltrate businesses and individuals alike, typically using “social engineering” tactics to gain trust and access to an employee’s email account, to cite a common example, and re-route money from the rightful owner’s bank account to their own. While there are stiff penalties for a criminal caught in the act, it may come as a surprise that a bank that authorizes a wire transfer to a hacker’s account could be liable to the rightful owner.

Article 4A of the Uniform Commercial Code was enacted in response to the growth of electronic funds transfers and the crime that evolved in its wake. Under Article 4A, a bank is liable to a customer for the full amount of a negligently processed wire received by a hacker, including interest.

In the most basic terms, a bank is liable to its customer for a negligent wire transfer when (1) the customer did not authorize the transfer and (2) the transfer cannot be enforced against the customer because either (a) the transfer was not authorized by an employee of the customer or (b) a third party (outside hacker) initiated the transfer. At first glance, this may seem to be a slam-dunk trigger for liability to an aggrieved customer. But banks can take proper steps to insulate themselves from any liability under Article 4A.

To avoid liability, the bank must first prove three things: First, that it and the customer had an “agreed security procedure,” which are steps put in place, to which both the bank and customer agree by contract, to verify that a payment order or communication is between the bank and the customer. This is most commonly accomplished in the customer and bank’s initial account agreement.

Second, the bank must prove that it complied with the agreed security procedure and that such procedure is “commercially reasonable.” In other words, the procedures are to be in line with that which someone familiar with the industry would regard as sufficient and realistic. Examples of what constitutes “commercially reasonable” are explored below.

Finally, the bank must prove that it not only followed the security procedure, but that it initiated the wire transfer in “good faith.” In other words, the bank must prove that it acted with honesty in fact and observance of reasonable commercial standards of fair dealing.

So how does a bank best avoid liability?

In practice, cases under Article 4A often hinge on whether the bank’s security procedure is commercially reasonable. In order to meet this threshold, a bank is expected to have better than single-factor identification. The wire transfer should require the customer to input at least two of the following: (1) something the customer knows, such as a password; (2) something the customer has, such as an IP address; or (3) something the customer is, such as a fingerprint or voice scan.

With cybercrime on the rise, it is crucial for any bank to both protect its customers and insulate itself from potential liability. Requiring multi-factor identification is no guarantee for a bank to avoid liability under Section 4A, but it is one relatively easy way for a bank to better protect itself and its customers.

Justin G. Bates is a civil litigation attorney at the law firm of Phillips Murrah in Oklahoma City.

Attorneys continue winning streak at annual OCBA Chili Cook-off

Phillips Murrah attorneys team up for OCBA’s annual chili cookoff

Another year, another recipe vying for a coveted trophy at the Oklahoma County Bar Association’s annual Chili Cook-off.

Phillips Murrah attorneys competed against local law firms in OCBA’s Young Lawyers Division on Feb. 28 at the Leadership Square Atrium in downtown Oklahoma City.

Representing Phillips Murrah were attorneys Cody J. CooperC. Eric DavisMark E. Hornbeek, Kara K. Laster, Martin J. Lopez III, Phoebe B. Mitchell, Ashley M. Schovanec, and Molly E. Tipton.

“I always love participating in the chili cook-off, not just because I am a very competitive person (and not a sore loser at all),” Tipton said. “I always find myself making new acquaintances that I look forward to seeing again in the court house or out and about!”

Attorney Phoebe Mitchell poses with her prize-winning chili and “Hottest Chili” trophy

The Firm’s team continued their winning streak, scoring the “Hottest Chili” prize with Mitchell’s recipe.

“The secret ingredient to my chili was definitely the spicy Mexican chocolate,” she said. “We had so much fun participating in the OCBA YLD chili cook-off. It is always great to come together and compete to raise money for a worthy cause like the Regional Food Bank.”

Phillips Murrah has had at least one team compete in the Chili Cook-Off each year since it first started more than ten years ago.

In 2019, the OCBA YLD named Phillips Murrah “Friend of the YLD” for the Firm’s consistent support of their charitable efforts.

To learn more about the YLD, visit OCBA’s website here.


See more: Phillips Murrah’s Commitment to the Community

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Phillips Murrah Directors to team up with Animal Legal Defense Fund at OCU Law symposium

Heather Hintz

Heather L. Hintz primarily represents banks, commercial entities and municipalities in litigation in state and federal courts with an emphasis on protecting hard-fought rulings throughout the appeals process.

Two Phillips Murrah Directors will participate in the upcoming “Animal Law Symposium: Oklahoma City,” supported by Animal Legal Defense Fund and Oklahoma City University School of Law.

“OCU Law is glad to partner with Animal Legal Defense Fund to host this symposium,” said Jim Roth, Phillips Murrah Director and OCU School of Law Dean. “With the launch of our Animal Law Program last fall through the generosity of the Kirkpatrick Foundation, our students have shown incredible interest in this growing area of law.

“The symposium will provide an important opportunity for students to connect with practitioners and learn more about the different aspects of Animal Law.”

The symposium will take place at Oklahoma City Law School on March 6 from 8:45 a.m. to 5 p.m. Roth will kick off the symposium with welcoming remarks. Heather L. Hintz, Phillips Murrah Director and Shareholder, will participate in the “Farmed Animals and the Law: Challenges and Opportunities for Change” panel set to begin at 1:45 p.m.

“Oklahoma is deeply rooted in agriculture and resource stewardship,” Hintz said. “A 2016 study published in the U.S. National Institutes of Health’s National Library of Medicine states that the general public has a high level of concern for animal welfare in food production, but lacks corresponding knowledge.

“The study further suggests that if provided information, the public may be encouraged to translate its concerns into market decisions that will improve farmed animal welfare. My studies prior to law school focused on how information leads to educated market decisions that can impact social change. I remain interested in that concept. I also agree with the philosopher Anne Conway (1631-1679) that every part of nature is in sympathetic harmony with every other, and if we harm one part, we harm the others, including ourselves.  I anticipate the Symposium will better enable participants to make informed decisions that can help improve farmed animal welfare and in turn, the welfare of us all.”

The day-long event is set to provide attendees insight from top voices within the animal law community, and the Oklahoma State Bar has approved the symposium for 7 CLE credits.

Learn more about the symposium and Animal Legal Defense Fund at their website here.

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animal law symposium ocu law march 6

 

Gardner named to Journal Record’s 2020 Achievers Under 40

Melissa Gardner is a Director who practices in the Energy & Natural Resources Practice Group. She represents both privately-owned and public companies in a wide variety of oil and gas matters, with a strong emphasis on oil and gas title examination.

The Journal Record will honor Melissa Gardner, Phillips Murrah Director and Shareholder, and 44 others as part of its 17th class of Achievers Under 40.

The 45 honorees will be recognized at the Achievers Under 40 event on May 29 at the Embassy Suites Oklahoma City Downtown/Medical Center at 741 N. Phillips Ave.

“Young leaders in Oklahoma set the pace of progress in our state,” said Russell Ray, editor of The Journal Record. “Choosing the 45 honorees was difficult. Many of these honorees will undoubtedly be the chief architects of change in our state.”

The Journal Record’s 2020 Achievers Under 40 are:

  • Maurianna Adams, Progress OKC.
  • Cinthya Allen, University of Oklahoma.
  • Rob Allen, Sage Sotheby’s International Realty.
  • Laura Aufleger, OnCue.
  • Katy Battiest, One Gas Inc.
  • Merleyn Bell, Oklahoma House of Representatives.
  • Hailey Benton-Thomas, TBS Factoring Service LLC.
  • Carrie Blumert, Oklahoma County.
  • Mickey Dollens, Oklahoma House of Representatives and Energy Assist Foundation.
  • Andrea Durbin, MA+Architecture.
  • Lori Elms, The First State Bank.
  • Ryan Forsythe, Verizon.
  • Kelley Gann, Freestyle Creative.
  • Melissa Gardner, Phillips Murrah.
  • Aundria Goree, Oklahoma City-County Health Department.
  • Jonathan Gray, Enel North America.
  • Rachael Gruntmeir, The Black Scintilla.
  • Jordan Haygood, SSM Health – Oklahoma.
  • Alison Heasley, ADG P.C.
  • Carri Hicks, State of Oklahoma.
  • Marcus High, Mercy Hospital Ardmore.
  • Jonathan Hillman, BKD CPAs & Advisors.
  • Alex Kaiser, Simmons Bank.
  • Stephanie Keller, Eide Bailly.
  • Jake Krattiger, GableGotwals.
  • Jennifer Lepard, State Chamber Research Foundation.
  • Lisa McLarty, Mabrey Bank.
  • Autumn McMahon, Oklahoma Electric Cooperative.
  • Mark McMullen, Tulsa Community College.
  • Nikki Nice, City of Oklahoma City.
  • Travis Noland, Cherokee Nation.
  • Matthew Peacock, Peacock Design.
  • Melissa Phillips, AT&T.
  • Jonas Rabel, Integris Grove & Miami Hospital.
  • Brent Rempe, Allegiance Credit Union.
  • Diana Reynolds, Love’s Travel Stops & Country Stores.
  • Melanie Rughani, Crowe & Dunlevy.
  • Becky Samples, Oklahoma Farm Bureau Insurance.
  • James Sanchez, Regent Bank.
  • Trista Shomo, Manhattan Construction Co.
  • Brady Sidwell, Enid Brewing Co.
  • Clay Taylor, Oklahoma Lobby Group.
  • Vincent Venincasa, Edmond Regional Eye Associates.
  • Cornell Wesley, Fiscal Fundamentals Inc.
  • Jonna Whetsel, Network for Pets of Domestic Violence Victims.

Read more about the Achievers Under 40 event here.
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Dealing with domestic violence in divorce proceedings

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on February 20, 2020.


Molly Tipton

Molly Tipton is an attorney in the Energy & Natural Resources Practice Group. She represents both privately-owned and public companies in a wide variety of oil and gas matters, with a strong emphasis on oil and gas title examination.

By Phillips Murrah Attorney Molly E. Tipton

Domestic violence. In the context of divorce proceedings, these notorious words too often either fly under the radar or are misunderstood and improperly handled. This highlights the importance of training for those who work in the legal system to recognize the signs of domestic violence, especially since it is a factor that may not present apparent evidence such as physical injuries.

At a recent Family Law lunch-and-learn, Oklahoma Court of Civil Appeals Judge Barbara Swinton presented on the topic of domestic violence. The first question raised was, “Can we please call it something else, like domestic terrorism or domestic abuse?”

This question raises an excellent point, as not all domestic violence is physical. Emotional abuse, for example, rises to the level of domestic violence and is a consideration at hearings on victim protection orders and divorce hearings. Think along the lines of stalking, such as placing a GPS tracking device in an ex-spouse’s vehicle. This activity could be considered domestic violence and can amount to one spouse being banned from visitation privileges with minor children.

Many of the judges across the state of Oklahoma already participate in domestic violence training. Attorneys can also receive similar training with the Oklahoma Guardian ad Litem Institute. As a result of proper training, attorneys and judges are able to properly recognize the signs and get those experiencing divorce the appropriate care and treatment they need.

This need for clarity about domestic violence also applies to clients, many of whom are unaware of the helpful and free services of Palomar, located in Midtown Oklahoma City, or of the YWCA. Both of these organizations offer victim services and resources and can provide an advocate to appear in the courtroom to protect victims of domestic violence.

Further, for attorneys representing perpetrators of domestic violence, those clients also benefit from help and guidance. For such persons, there are batterer’s intervention programs across the state that provide assessment and counseling services.

Family law attorneys often find themselves on both ends of the spectrum – sometimes representing a victim and other times a perpetrator. Therefore, it is vital to the safety, well-being and mental health of clients to be able to recognize signs of domestic violence. The better Oklahoma’s attorneys become at recognizing the signs of domestic violence – even those that are not physical in nature – the better we can help our clients and community.

Molly Tipton is a family law attorney at the law firm of Phillips Murrah in Oklahoma City.

Firm selects Employee of the Month for January 2020

Nancy Walker

Nancy Walker, Paralegal, is Phillips Murrah’s Employee of the Month for January 2020.

“It is truly an honor to be recognized by your peers, especially by such a great group of talented people with whom I have the privilege of working,” Nancy said. “I am continually challenged and enhanced by my experiences here each and every day, and am very lucky to be a part of such an incredible team!”

The Employee of the Month is selected anonymously by Phillips Murrah staff on merits of teamwork and overall contributions to the Firm.

“The Firm has been extremely lucky to have Nancy here since the very beginning,” Executive Director Michelle Munda said. “Her professionalism, vast experience and knowledge, and willingness to help others are invaluable.  Thank you Nancy!”

The Firm recently began making a donation to the winner’s charity of choice, and Nancy chose Tenaciously Teal.

“A few years back, I was challenged with the fight against Stage III colon cancer, and I found out quickly that I was not alone in my battle,” Nancy said. “In addition to the incredible support of friends and family, I became aware of a locally-operated organization by the unique name of Tenaciously Teal, founded by a courageous young woman who fought her own battle against cancer.

“This organization provides thoughtful care packages of personal items to cancer patients across the state of Oklahoma, as well as other types of support, based upon on the need. I know from personal experience that these care packages, which are given in a teal-colored drawstring bags, are not only practical but they also give an incredible message of hope, courage, and support. This is the worthwhile organization I choose to support.”

To learn more about Tenaciously Teal, click here.


Phillips Murrah has been recognized as an Oklahoma Top Work Place by The Oklahoman/Energage five years in a row. Our Firm strives to recognize and reward our employees for excellence.

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Phillips Murrah attorney gives sixth graders glimpse into lawyer life

Students and Attorney Kendra Norman at Canyon Ridge Career Fair

Sixth graders at Canyon Ridge Intermediate School ask Phillips Murrah Attorney Kendra Norman questions about her profession as part of a “career fair.”

Attorney Kendra M. Norman gave students at Canyon Ridge Intermediate School a rare peek into the legal field.

The school hosted a “Career Fair” on Jan. 24 to help expose 6th grade students to different career options.

“I want to educate these students on the education and other requirements needed to be an attorney, but also about the vast number of different kinds of attorneys and practice areas out there,” Norman said. “I hope to differentiate what I, and other attorneys, do on a daily basis from the portrayals these students may have seen on TV or the internet.

“I also want to let them know that my profession is attainable for them even though college and ultimately deciding what they want to do is far off in the future for them right now.”

Other featured professions were those of an engineer, physical therapist, home inspector, bounty hunter, and recruiter.

“The students were very kind and respectful, and they asked wonderful questions like what my favorite thing about my job is,” Norman said. “I had a wonderful time, and I’m so glad that I had this opportunity to share my experience with the students.”

For more information about Norman’s practice, click here.

Voth participates in Leadership OKC medical marijuana panel

attorney lauren voth and other leadership oklahoma city panelists

Attorney Lauren S. Voth with the other Leadership OKC panelists

Attorney Lauren S. Voth joined other panelists to discuss issues related to medical marijuana in Oklahoma.

St. Luke’s United Methodist Church hosted the Leadership Oklahoma City panel on Jan. 23. Voth rounded out the panel of industry leaders including:

  • David Lewis, Chief Operating Officer of Stability Growth
  • Stephen Prescott, MD, President of Oklahoma Medical Research Foundation
  • Scott Shaeffer, D.Ph., DABAT, Managing Director of Oklahoma Center for Poison and Drug Information

The panel was moderated by David Dishman, Business Writer for The Oklahoman newspaper.

To learn more about Leadership OKC and other upcoming events, visit their website here.

 

Director presents at Oklahoma Agricultural Aviation Association annual meeting

Patrick Hullum

Patrick Hullum is a Director and a litigation attorney who represents individuals and public and private companies in a wide range of complex litigation matters.

Phillips Murrah Director Patrick L. Hullum advised Oklahoma Agricultural Aviation Association members on legal issues related to aerial spray applicators at the 2020 OAAA Conference and Trade Show on Jan. 21 at the Embassy Suites in Norman, OK.

Aptly titled “How to Defend Yourself in Court,” Hullum’s presentation relayed steps individuals and businesses can take to protect themselves from claims of alleged “drift” from aerial spray.

Hullum spoke to OAAA members in 2019 on similar issues.

Phillips Murrah was a Platinum-level Sponsor at this year’s convention.

To learn more about the Oklahoma Agricultural Aviation Association, click here.

Court to interpret provisions of gaming compact

This column was originally published in The Journal Record on January 20, 2020.


Attorney Ashley Schovanec Web

Ashley M. Schovanec is a litigation attorney who represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

By Phillips Murrah Attorney Ashley M. Schovanec

On Dec. 31, the Cherokee, Chickasaw and Choctaw nations filed suit against the governor, asking a federal judge to determine whether Oklahoma tribes have the right to continue gaming activities under the tribal-state gaming compact offered by the state of Oklahoma to the tribes in 2004.

What is the tribal-state gaming compact?

In 1988, Congress enacted the Indian Gaming Regulatory Act to create a framework for states and Indian tribes to cooperate in regulating on-reservation tribal gaming. The IGRA provides a tribal-state compact as the mechanism for facilitating the unusual relationship in which a tribe might affirmatively seek the extension of state jurisdiction and the application of state laws to activities conducted on Indian land. The tribal-state compact provides the state with the only lawful means for directly asserting any governmental interests related to tribal gaming activities.

Absent a negotiated compact between the tribes and the state, Class III gaming (casino games, slot machines and horse racing) is forbidden by the IGRA. While tribes are incentivized to negotiate compacts to gain permission to conduct Class III gaming, the state is incentivized to negotiate compacts to gain a share of the gaming revenue.

In 2004, Oklahoma and the tribes entered into a compact that would allow the tribes to conduct Class III gaming activity on Indian lands in exchange for the tribes’ disbursement of periodic revenue-share payments to the State. Part 15.A. of the compact sets forth the requirements that must be met for the compact to go into effect. Part 15.B. provides that the compact’s initial term will expire on Jan. 1, 2020, and “shall automatically renew” for successive 15-year terms on that same date, if at that time “organizational licensees” (e.g. horse race tracks and others) are authorized to conduct certain electronic gaming pursuant to any governmental action of the state or court order following the effective date of the compact. Part 15.C. states that the compact will remain in effect until either its term expires without renewal or it is terminated by mutual consent of the parties.

What is the central issue of the dispute?

The tribes are seeking a declaratory judgment on the single question of whether the compact was renewed on Jan. 1 for another 15-year term. The tribes argue the state has taken actions that satisfy Part 15.B.’s conditions for automatic renewal – through the actions of the Oklahoma Horse Racing Commission’s issuance of licenses for electronic gaming and the state’s enactment of changes in state-regulated electronic gaming. On the opposite side, Gov. Stitt believes that the requirements that allow for automatic renewal have not been met. Since the summer of 2019, Stitt has maintained the compact would expire Dec. 31, 2019, and gambling at tribal casinos would become illegal as of Jan. 1, 2020.

Why is this a high-stakes lawsuit?

The dispute between the state and the tribes is significant. In Fiscal 2018, 31 tribes operated 131 facilities offering Class III games and collected $2.3 billion in revenue, with approximately $139 million paid to the state. If Chief Federal Judge Timothy DeGiusti determines the compact was not renewed, the future of Class III gaming is unclear. While the tribes would absorb the brunt of a non-renewal declaration, those that conduct business with the tribes and gaming facility patrons would likely see substantial changes to the gaming landscape they once knew – whether it be an elimination of Class III gaming in Oklahoma or an alteration of the terms of the 2004 compact. Regardless of the outcome of the lawsuit, the court’s declaration will likely have a lasting effect upon the tribal-state relationship.

Ashley M. Schovanec is an attorney at the law firm of Phillips Murrah.

Firm selects Employee of the Month for December 2019

Kat Mach

Kat Mach, Legal Assistant, is Phillips Murrah’s Employee of the Month for December 2019.

“I find that a little bit of kindness and respect will get you so much further in the world,” Kat said. “It is really nice to have that noticed. Hopefully, we can start a movement in the world starting with just our Firm.”

The Employee of the Month is selected anonymously by Phillips Murrah staff on merits of teamwork and overall contributions to the Firm.

“Kat is smart, willing to help and has a great attitude,” Director Dawn M. Rahme said. “She keeps things running smoothly, and we are lucky to have her as part of our team!”

The Firm recently began making a donation to the winner’s charity of choice, and Kat chose METAvivor.

To learn more about METAvivor, click here.


Phillips Murrah has been recognized as an Oklahoma Top Work Place by The Oklahoman/Energage five years in a row. Our Firm strives to recognize and reward our employees for excellence.

 

Mindfulness in the legal profession

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on January 9, 2020.


Kendra Norman Web

Kendra M. Norman represents individuals and businesses in a broad range of transactional matters.

By Phillips Murrah Attorney Kendra M. Norman

Every morning, my Apple Watch vibrates on my wrist and tells me to start the Breathe app. My instinct is to ignore it, feeling like taking a few moments to just breathe is a waste of precious time that could be spent more productively – such as on contributing to my billable-hour requirement.

Despite this instinct, spending time on our mental health is far from wasted time. The legal industry is fact-focused, but when it comes to our own well-being, we’re very good at ignoring facts. We zealously represent our clients, but we often don’t advocate on our own behalf.

Generally, attorneys are driven pessimists and perfectionists in a difficult profession that puts us almost always on-call. We tend to romanticize stress and brag about how late we stay at the office and how often we work on weekends. Too often, we sacrifice our well-being as we scramble to meet unrealistic expectations of ourselves and others.

A recent American Bar Association/Hazelden Betty Ford study concluded that licensed, employed attorneys have alcohol issues and problems with anxiety and depression at a rate high above most other professions. There has also been a historical stigma in legal culture that discourages help-seeking behaviors, which tends to exacerbate feelings of isolation and increase emotional suffering.

The good news is that there is a recent-but-slow shift in attorney culture toward a greater focus on mental health and self-care, including mindfulness. In late 2018, the ABA launched a campaign to improve mental health, and over 90 law firms and corporate law departments agreed to follow a framework to improve our industry in this regard. Some law firms have even hired staff specifically devoted to addressing their employees’ mental health.

I’ve been trying to actively meditate for about a year now, and I don’t always find time to fit it in. However, if I’ve had a particularly challenging day or can’t get work off my mind, I reach for the meditation app on my phone to bring myself some peace of mind. Meditation helps me live in the present rather than ruminating about the past or the future.

In a profession that is mentally and emotionally challenging, healthy coping mechanisms like meditation, yoga, exercise, and even journaling can make a great difference. Remember – it’s not wasted time to take a few moments, close your eyes and just breathe.

Kendra M. Norman is an attorney at the law firm of Phillips Murrah.

Phillips Murrah law firm names newest Director, Shareholder

Cody J. Cooper

OKLAHOMA CITY (January 2, 2020) – Phillips Murrah proudly announces the promotion of Cody J. Cooper to a Director and Shareholder for the Firm. Cooper’s selection brings the Firm’s total number of Directors to 38.

Cody is a member of the Firm’s Intellectual Property and Commercial Litigation Practice Groups. His practice primarily concentrates on intellectual property, including patent prosecution and litigation, trademark and copyright matters, and commercial litigation in state and federal courts.

“I am honored and excited to transition from associate to director. I have spent my entire legal career at the Firm and I cannot imagine a better, more supporting place to develop as a person and attorney,” Cody said. “I am so proud to be associated with all of the individuals at the firm and look forward to continuing to help move the Firm forward and continue the sustained success it has had since its founding.

Cody graduated from the University of Oklahoma College of Law with Honors. While in law school, he served as the managing editor of the American Indian Law Review, Magister (President) of the legal honors fraternity Phi Delta Phi and was on the Dean’s Honor Roll. He was also a mentor on the Dean’s Leadership Council for incoming law students and earned the American Jurisprudence Award for Civil Procedure II. He was a semi-finalist at the University of West Virginia Energy Law Moot Court Competition.

Cody received his bachelor’s degree in Business Administration from the University of Oklahoma, majoring in Finance and Management Information Systems. He has a general science and engineering background, which qualified him to become registered before the United States Patent and Trademark Office as a practicing patent attorney. As an undergraduate student, he worked for a Fortune 100 company as a systems analyst intern in the business and technology group, working with a number of complex software suites that provided critical services to the business.

“Cody has proven himself to be a proactive and diligent attorney since joining the Firm straight from law school,” said Thomas G. Wolfe, President and Managing Partner. “His hard work and commitment to his legal practice are signs that he will make the Firm proud as our newest Director and Shareholder.”

Cody is actively involved in community and charitable organizations and has volunteered with a number of organizations including Camp Cavett, NewView Oklahoma, Salvation Army, various public schools throughout the Oklahoma City Metro and others.

Born and raised in Norman, Oklahoma, Cody now lives in Oklahoma City with his wife, daughter and two dogs. In his free time, he enjoys spending time with friends and family, playing sports and attending Oklahoma City Thunder and Sooner sporting events.

Davis to explore Oklahoma Public Utility Division’s procedures, rules of practice

Eric Davis

Eric Davis is an attorney in the Firm’s Clean Energy Practice Group and the Government Relations and Compliance Practice Group. He represents clients in a range of regulatory and energy matters.

C. Eric Davis, an attorney in the Firm’s Government Relations and Compliance Practice Group, will give a presentation on Dec. 6 for Continuing Legal Education individuals.

Davis will present at 8:30 a.m. at HalfMoon Education Inc.’s seminar titled “Issues in Oklahoma Energy and Electric Utility Regulation,” discussing Oklahoma Public Utility Division rules of practice and procedure.

“The Corporation Commission determines what many of us pay for electricity and natural gas, and it influences utility companies’ multimillion dollar investment decisions ranging from building new power plants to deploying advanced meters,” Davis said. “Because of its impact, it’s useful to understand how the Commission makes decisions and how its hearings work.”

The seminar will run from 8:30 a.m. to 4:00 p.m. Friday in Oklahoma City. Those interested in registering can find more information here. Attendees receive CLE credit for participating.

Federal Medicaid match matters to state’s healthcare providers

Introducing Becky-Pasternik-Ikard

Rebecca “Becky” Pasternik-Ikard is a lawyer, a nurse and a Medicaid program director who brings decades of experience to assist Phillips Murrah healthcare clients in copy with reimbursement, including negotiating payments, audits and appeals, and other regulatory issues related to governmental payments of providers.

In this article, Oklahoma City Attorney Rebecca Pasternik-Ikard answers questions about state and federal government’s role in funding Oklahoma’s Medicaid program.

What is the Federal Medical Assistance Percentage (FMAP)?

The Federal Medical Assistance Percentage is the federal government’s share of the expenditures for medical services and administrative costs for a state Medicaid program and is often called the “federal match.”

Why does it matter to Oklahoma’s healthcare providers?

FMAP matters because each state’s Medicaid program is funded jointly by state and federal dollars. Generally, states receiving a higher FMAP for medical services need fewer state dollars. But a state must have state dollars to leverage federal matching dollars. On a quarterly basis, a state submits to the federal government its Medicaid expenditures paid by state dollars seeking to “draw down” the federal matching dollars.

How often does the FMAP change?

The FMAP for medical services for all states is calculated annually by U.S. Department of Health and Human Services (HHS), based on a formula in the Social Security Act, and is effective from Oct. 1 through Sept. 30 of each year. The FMAP varies from state to state; it can be no lower than 50% and no higher than 83%. So, for every $1 states spend on Medicaid, states can “draw down” at least $1 from the federal government. However, the FMAP for a state’s Medicaid administrative costs is fixed, generally at 50% FMAP. States do receive enhanced FMAP for certain populations, services and a variety of administrative functions.

How does the FMAP specifically impact physicians, hospitals and other healthcare providers?

Fluctuations in the FMAP for medical services can have significant impact on all healthcare providers. Significant increases often allow a state to restore, increase or add benefits compensable under the Medicaid program, as well as adjust upward the rates paid to providers. Conversely, depending on a state’s ability to offset the loss of federal funds, a decrease in the FMAP can trigger the elimination or reduction in certain benefits provided to Medicaid enrollees, as well as a decrease in provider rates.

How is the FMAP for medical services calculated?

The FMAP is based on a rolling three-year average of the per capita income of each state as compared to the national average per capita income. However, there is a lag in the data used. For instance, for FY 2019 (effective Oct 1, 2018-Sept. 30, 2019) the FMAP calculation for states was based on state per capita personal income data for 2014, 2015 and 2016. Generally, what this means is that for states with lower per capita incomes relative to the national average, the federal government contributes more to the Medicaid program. Conversely, the federal government contributes less to the Medicaid program in those states with higher per capita incomes. However, the formula is not responsive quickly when a state experiences an economic downturn.

How does the FMAP work in Oklahoma?

With the exception of the FY 2014 FMAP of 64.02%, Oklahoma’s FMAP declined overall from 64.00% in FY 2013 to 58.57% in FY 2018. Oklahoma experienced the largest cumulative FMAP decrease in the nation over this period. This significant loss of federal dollars prompted the Oklahoma Health Care Authority (OHCA) to implement administrative and operational strategies to continue to operate the Medicaid program, resulting in physician and other provider rate reductions of 7.75% in July 2015 and 3% in January 2016. From FY 2018 to FY 2019, Oklahoma had the greatest FMAP increase of any state of 3.81%, from 58.57% ($1.43 in federal dollars for every state dollar spent in medical services) to 62.38% ($1.66 in federal dollars for every state dollar spent in medical services). This influx of federal matching dollars and OHCA’s management of its administrative and program budgets allowed OHCA to restore the last provider rate reduction of 3%. From FY 2019 to FY 2020, Oklahoma experienced another significant FMAP increase of 3.64% from 62.38% ($1.66 in federal dollars for every state dollar spent in medical services) to 66.02% ($1.94 in federal dollars for every state dollar spent in medical services). Once again, provider rates were increased. The good news is that, due to Oklahoma’s experience with shifting FMAPs, a Rate Preservation Fund of $29.4 million was created this year, to help offset future FMAP decreases and mitigate potential provider rate reductions.

Rebecca Pasternik-Ikard is an attorney at Phillips Murrah.

Medicaid, work and community engagement

This column was originally published in The Journal Record on November 27, 2019.


Introducing Becky-Pasternik-Ikard

Rebecca “Becky” Pasternik-Ikard is a lawyer, a nurse and a Medicaid program director who brings decades of experience to assist Phillips Murrah healthcare clients in copy with reimbursement, including negotiating payments, audits and appeals, and other regulatory issues related to governmental payments of providers.

By Phillips Murrah Of Counsel Attorney Becky Pasternik-Ikard

Physicians, hospitals and other health care providers continue to experience not only shrinking reimbursement rates, but also an increasingly formidable regulatory presence. A recent controversial Centers for Medicare and Medicaid Services policy reform permits states to require certain Medicaid beneficiaries to engage in meaningful work or in volunteer activities as a condition for continued eligibility.

This policy is a fundamental shift in Medicaid eligibility, eliciting criticism from the health care community that employment should not be a condition for coverage and access to medical treatment.

Although overall Medicaid enrollment has declined over the past two years, Medicaid enrollment has increased since the Affordable Care Act, driven primarily by newly eligible adults gaining coverage under Medicaid expansion, with the highest enrollment increases seen in Medicaid expansion states. This increase includes not only the Medicaid expansion population, but also those individuals who were currently eligible, but not enrolled. These people learned of coverage due to extensive outreach efforts by expansion states.

In its Jan. 11, 2018 State Medicaid Director letter entitled Opportunities to Promote Work and Community Engagement among Medicaid Beneficiaries, CMS announced the new policy and clarified that states could predicate continued Medicaid eligibility on participation in work requirements, including community service, caregiving, education, job training, and substance use disorder treatment. The basis for this policy is Section 1901 of the Social Security Act. Divisive reactions have opponents characterizing it as inconsistent with Medicaid’s objective of health coverage and an impermissible Medicaid enrollment reduction strategy.

Eighteen states have sought approval to implement work requirements. Although CMS has approved all requests submitted by Medicaid expansion states, the implementation of three, Arkansas, Kentucky and New Hampshire, has been interrupted or stopped due to legal challenge.

Kentucky, a Medicaid expansion state, received CMS approval the day after the new policy was announced. Kentucky had submitted a Section 1115 waiver authority request in 2017 incorporating work requirements. Shortly after Kentucky’s January 2018 approval, a legal challenge was filed. Kentucky’s implementation has been blocked twice by a federal district court judge and is under appeal. Kentucky Gov.-elect Andy Beshear has declared plans to rescind Medicaid work requirements.

In July 2017, Indiana submitted its request to CMS proposing work requirements for its Medicaid expansion enrollees. Although Indiana received CMS approval in February 2018, implementation did not begin until January 2019. In September 2019, a lawsuit was filed challenging Indiana’s program. Indiana has suspended its work requirements pending the outcome of the litigation.

In March 2018, CMS approved Arkansas’ June 2017 request to amend its Section 1115 waiver to implement work requirements. Implementation began in June 2018. In August 2018, a lawsuit was filed challenging Arkansas’ approval. A year after approval, the federal district court set it aside. The matter is under appeal.

In May 2018, New Hampshire became the fourth state to win approval for work requirements, with implementation scheduled in March, but it was postponed due to a lawsuit filed the same month. Consistent with the rulings for Kentucky and Arkansas, in July 2019, the same federal district court judge set aside the approval for New Hampshire.

State leadership and Medicaid programs nationwide await the outcome following the Oct. 11 oral arguments related to the appeals for Arkansas and Kentucky. Oklahoma, a non-expansion state, has a pending waiver request to impose work requirements on certain Medicaid beneficiaries. If approved, this would add barriers to access and continuity of care, which are likely to place additional administrative and financial burdens on hospitals, physicians and other health care providers.

Becky Pasternik-Ikard is the former CEO of the Oklahoma Health Care Authority and former state Medicaid director. She currently practices Of Counsel for Phillips Murrah law firm in Oklahoma City.

Your Racehorse Tested Positive for a Regulated Substance, Time Is of the Essence

Mary Westman is an Oklahoma attorney, Morgan horse breeder and registered nurse with an MBA. Mary provides legal representation in all aspects of equine-related businesses and activities including legal advising, business formations, preparing or reviewing contracts, litigating equine disputes and equine welfare advocacy.

This article will briefly discuss the regulation of drugs in Oklahoma horse racing and the critical steps to be followed should a test come back positive for a regulated substance.

The Oklahoma Horse Racing Act (OHRA), Okla. Stat. tit 3A, §200 et seq., provides the framework by which horse racing is conducted in Oklahoma. Among other things, the OHRA establishes the Oklahoma Horse Racing Commission (the Commission), which is charged with regulating horse racing within the state by creating and enforcing rules and regulations. The OHRA’s stated purpose and intent is set forth as follows:

In the interest of the public health, safety, and welfare, it is hereby declared to be the purpose and intent of the Oklahoma Horse Racing Act to vest in the Commission plenary power to promulgate rules and regulations for the forceful control of race meetings held in this state. The rules and regulations shall:

  1. encourage agriculture and the breeding of horses in this state; and
  2. maintain race meetings held in this state of the highest quality and free of any horse racing practices which are corrupt, incompetent, dishonest, or unprincipled; and
  3. dissipate any cloud of association with the undesirable and maintain the appearance as well as the fact of complete honesty and integrity of horse racing in this state; and
  4. generate public revenues. Okla. Stat. tit. 3A, § 203.7.

Under the authority granted to it by the Oklahoma legislature, the Commission creates and periodically changes the rules of racing. The rules, revised in both August and September of this year, are comprehensive and can be found on the Commission’s website. Rules and regulations related to prohibited practices and equine testing are outlined in chapter 45. According to the Commission’s rules, the purpose of chapter 45 is “to protect the integrity of horse racing, safeguard the health of horses, and defend the interests of the public and racing participants through the prohibition or control of all substances. …” OAC 325:45-1-1.

It is beyond the scope of this article to list each prohibited or controlled substance outlined in chapter 45, but anyone licensed to race horses in Oklahoma should be well acquainted with all that chapter 45 regulates. When a horse tests positive for a regulated substance, the burden to prove no violation occurred shifts to the trainer or owner. OAC 325:45-1-4(g).

As mentioned above, the Commission not only creates the rules of racing, it also enforces them through a quasi-judicial process. Just as chapter 45 outlines the rules for regulating substances, the Commission rules also outline the process for investigating and appealing a positive drug test. Failure to follow the rules, to include the time frames for requesting a split test, will result in a waiver of the right to appeal any action that is taken because of the positive test.

In addition to preserving the right to appeal, timely investigation of a positive drug test is also important from the standpoint of evaluating whether or not the horse’s environment contributed to the positive drug test. To introduce mitigating evidence of environmental contamination, you must be able to test the stall, bedding, feed, supplements and even the horse’s handlers in order to show the horse was not intentionally given a prohibited or regulated substance. The more time that passes between the date of collection and the date of investigation, the more difficult it will be for a credible argument of environmental contamination to be made.

In case an investigation is necessary, good records should be kept of stall management, feed and supplement lot numbers, medication administration, and when grooms and other handlers worked with the horse, etc. Moreover, trainers should ensure that measures are taken to restrict access to the horses in their charge to protect against the nefarious actions of third parties.

Timeliness is the theme of this article on defending against a positive drug test. It all starts with keeping timely and accurate records on the management of the horse. In the event of a positive drug test, it then moves to the timely, written request for a split sample testing. And then, of course, it moves on to the timely appeal process. A well-researched and drafted appeal can go nowhere if the time frames outlined in the Commission’s rules are not strictly observed.

This article is intended for educational purposes only and does not constitute legal advice. This article originally appeared in Oklahoma Horses magazine as a part of Mary’s regular legal column.

The ABCs of the FLSA’s new overtime rules

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on November 21, 2019.


attorney Martin J Lopez III

Martin J. Lopez III is a litigation attorney who represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

By Phillips Murrah Attorney Martin J. Lopez III

The Fair Labor Standards Act is the federal law regulating employee pay. Among other things, the FLSA covers minimum wages, maximum hours, overtime compensation and child labor.

The current federal minimum wage for most employees is $7.25 per hour. The FLSA requires employers to pay overtime, one-and-a-half times an employee’s regular hourly rate, when employees work more than 40 hours in a workweek. The FLSA also establishes categories of employees who are exempt from its overtime pay requirements, one of which is known as the white collar exemption. This includes executives, administrative employees, educational establishments, professional employees, computer employees and highly compensated employees.

Currently, exempt employees must be paid a salary of at least $455 per week. Being paid on a salary basis means that an employee must receive a full salary for any week in which work is performed, and they are not eligible for overtime. An exempt employee’s salary may not be reduced due to absences from work except in specific limited situations.

On Sept. 24, the U.S. Department of Labor announced its final rules for the revisions to the overtime regulations for the white collar exemptions. This change, effective Jan. 1, prospectively makes roughly 1.3 million American workers newly eligible for overtime pay. The rule updates the earnings thresholds necessary to exempt employees from the FLSA’s overtime pay requirements and allows employers to count a portion of certain bonuses and commissions toward meeting the salary level. These thresholds were last updated in 2004.

In the final rule, the Department of Labor is:

• Raising the standard salary level from the currently enforced weekly level of $455 to $684 (equivalent to $35,568 per year for a full-year worker).

• Raising the total annual compensation requirement for highly compensated employees from the currently enforced annual level of $100,000 to $107,432.

• Allowing employers to use nondiscretionary bonuses and incentive payments (including commissions) paid at least annually to satisfy up to 10% of the standard salary level, in recognition of evolving pay practices.

• Revising the special salary levels for workers in U.S. territories and the motion picture industry.

In light of this, employers should review their employee records for any of its exempt workers making less than the new salary threshold level and determine what changes should be made.

Martin J. Lopez III is an attorney at the law firm of Phillips Murrah.

Phillips Murrah named among 2020 Best Law Firms in 45 practice areas

Phillips Murrah is proud to announce that our law firm has been recognized by U.S. News & World Report’s 2020 “Best Law Firms” for professional excellence for the Oklahoma City Metropolitan Area and, for the first time, the Dallas/Fort Worth area in the following practice areas:

Oklahoma City

Tier 1

  • Administrative / Regulatory Law
  • Banking and Finance Law
  • Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law
  • Business Organizations (including LLCs and Partnerships)
  • Commercial Litigation
  • Commercial Transactions / UCC Law
  • Corporate Law
  • Energy Law
  • Energy Regulatory Law
  • Government Relations Practice
  • Insurance Law
  • Litigation – Bankruptcy
  • Litigation – Real Estate
  • Litigation – Tax
  • Natural Resources Law
  • Oil & Gas Law
  • Product Liability Litigation – Defendants
  • Real Estate Law
  • Trusts & Estates Law

Tier 2

  • Construction Law
  • Employment Law – Management
  • Health Care Law
  • Land Use & Zoning Law
  • Litigation – Banking & Finance
  • Litigation – Labor & Employment
  • Litigation – Land Use & Zoning
  • Mergers & Acquisitions Law
  • Public Finance Law
  • Securities Regulation
  • Tax Law
  • Workers’ Compensation Law – Employers

Tier 3

  • Bet-the-Company Litigation
  • Environmental Law
  • Family Law
  • Labor Law – Management
  • Litigation – Antitrust
  • Litigation – ERISA
  • Litigation – Trusts & Estates
  • Mass Tort Litigation / Class Actions – Defendants
  • Medical Malpractice Law – Defendants
  • Personal Injury Litigation – Defendants
  • Securities / Capital Markets Law
  • Technology Law
  • Venture Capital Law

Dallas/Fort Worth

Tier 3

  • Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law

 

To be eligible for a ranking, a law firm must have a lawyer listed in The Best Lawyers in America, which recognizes the top four percent of practicing attorneys in the United States.

Earlier in the year, Phillips Murrah announced that 48 of our attorneys are recognized by Best Lawyers in America for 2020.

Firms included in the 2020 “Best Law Firms” list are recognized for professional excellence, quality law practice and breadth of legal expertise. The “Best Law Firms” rankings are based on a combination of client feedback, information provided on the Law Firm Survey and the Law Firm Leaders Survey and Best Lawyers peer-review.

Wolfe reflects on Law Firm growth in Dallas market for Texas Lawyer article

Thomas G. Wolfe, Managing Partner at Phillips Murrah law firm, was interviewed by Brenda Sapino Jeffreys for an article for Texas Lawyer on Law.com, giving insights on the Firm’s venture into the Texas legal market and on business strategies the Firm has found successful in Dallas.

Tom Wolfe is a trial attorney and commercial litigator whose practice is focused on complex business cases including product liability, oil and gas, mass tort and class action defense. Tom is also the president and managing partner at Phillips Murrah.

Read more below:

What do you view as the two biggest opportunities for your firm, and what are the two biggest threats?

For Phillips Murrah, our biggest opportunity is easy: TEXAS.  We opened our Dallas law firm about a year-and-a-half ago, and as a new entrant to the Texas legal market, we see virtually unlimited opportunities to gain clients, expand existing relationships and add top talent. Over the past 18 months, we have grown our Texas office from one full-time lawyer to five while increasing the quantity of work being handled for Texas-based companies more than tenfold. While much of that work is for new clients, we are also providing an expanding range of service to existing clients based in Texas and elsewhere.

The second opportunity for the firm is the ability to provide existing Oklahoma-based clients with niche services from Texas-based lawyers. In some cases, there are only a handful of Oklahoma lawyers in a niche practice while the pool of practitioners in Texas is much larger.

While Texas presents a huge opportunity, the size of the legal market and the number of competitors also serve as a threat. As a roughly 75-lawyer firm, we cannot chase every opportunity. We must remain focused and chose carefully.

Growth also presents a challenge to our firm culture, which has been a cornerstone for our success. As Phillips Murrah added, and then added to, a second office, we have worked diligently to include Oklahoma lawyers on teams serving Texas-based clients and vice versa. Since opening in Dallas, half of our Oklahoma lawyers have worked on relationships managed by a Texas lawyer while everyone in our Dallas office has worked on a relationship managed from our Oklahoma City headquarters. Fortunately, Oklahoma City is as close to Dallas as Austin and much closer than Houston.

The full article is exclusive to Law.com subscribers. Click here to view the full article.

Davis to present on Oklahoma open records laws issues

Eric Davis

Eric Davis is an attorney in the Firm’s Clean Energy Practice Group and the Government Relations and Compliance Practice Group. He represents clients in a range of regulatory and energy matters.

C. Eric Davis, an attorney in the Firm’s Government Relations and Compliance Practice Group, will give a presentation on Oklahoma open records laws Oct. 18 for Continuing Legal Education individuals.

Davis will present at 10:15 a.m. at the National Business Institute’s seminar titled “Ensuring Local Governments Comply with the Law,” focusing on public records issues.

“Oklahoma’s open records laws help make government more transparent,” Davis said. “Most documents generated when conducting government business are subject to disclosure, even texts and emails.

“Whether you’re a public official needing to maintain records, or a member of the public seeking access, it’s important to understand the public’s right to see government documents.”

The seminar will run from 9 a.m. to 4:30 p.m. Friday in Oklahoma City. Those interested in registering can find more information here. Attendees receive CLE credit for participating.

Phillips Murrah rowing team takes silver in 2019 Oklahoma Regatta Festival

Law & Oarder, Phillips Murrah’s rowing team, wins Second Place in the 2019 Oklahoma Regatta Festival.

Phillips Murrah’s rowing team Law & Oarder ended the Fall 2019 season on top, placing second in the annual regatta competition.

The team competed on Oct. 4 at the 2019 Oklahoma Regatta Festival held at the OKC Boathouse District and achieved a 500-meter run of 2:00:06, up five seconds from last year.

“Another great season in the books,” said Deena Baker, Legal Assistant and Law & Oarder team captain. “We had a few new team members this season which is always exciting, and then to top it off with another medal after a lot of hard work.

“Friday night was a blast, being in a neck-in-neck race in the finale between First and Third Place. Way to go team Law & Oarder!”

In all eleven seasons the Firm’s rowing team has competed, team members consisted of both attorneys and staff members.

“This being my first season on the rowing team, I was thrilled to stand on the winners’ podium after a hard fought race,” Attorney Martin J. Lopez III said. “Being a part of the rowing team was a phenomenal opportunity to compete alongside my coworkers against other Oklahoma City companies.

“There’s so much excitement about the end-of-season regatta—it was a thrilling experience to take part in it.”

The team will resume practice in the Spring for the Stars & Stripes Festival in June 2020.

Check out video of the team crossing the finishline here.


Phillips Murrah has been recognized as an Oklahoma Top Work Place by The Oklahoman/Energage four years in a row. Our Firm strives to recognize and reward our employees for excellence.

 

Three main methods of acquiring business

Acquiring a business is done through three main methods: merging with the selling company, referred to as the target company; purchasing the assets of the target company; or purchasing the stock or other equity interests of the target company. Each method has pros and cons depending on the legal, tax and business implications. Therefore, it is imperative the parties carefully consider these at the outset.

Travis Harrison

Travis E. Harrison is a transactional attorney who represents individuals and both privately-held and public companies in a wide range of transactional matters.

A business merger is simply a combination of two legal entities becoming one. The one that survives the merger, called the surviving entity, assumes all assets and liabilities of the other. The logistics of a merger are driven by state statute and case law, which informs the parties of the legal requirements and procedures. For example, an Oklahoma limited liability company that is the surviving entity must file articles of merger or consolidation with the Oklahoma Secretary of State containing details of the merger and entities involved. Additionally, the parties should review the organizational documents to ensure compliance with any contractual procedures.

Purchasing the assets of the target company means the buyer acquires the assets of the target company, including real property, IP, equipment, inventory, and licenses. The buyer also acquires contractual liabilities and tax obligations. This method affords the parties great flexibility for the buyer to choose specific assets and liabilities, and to carve out liabilities the target company should keep. However, this method can be more complicated because it may need preparation of ancillary agreements to transfer contracts, tangible property, and title to certain assets.

Purchasing the stock of the target company means the buyer acquires all of the target company’s assets and liabilities. In this method, the stock purchase buyer essentially acquires the target company rather than the components of the business. A stock sale can benefit sellers where it effectively transfers all liabilities without requiring all of the formalities in an asset purchase agreement, such as documents to retitle assets to the buyer. A stock acquisition generally will not have the same statutory constraints of a merger.

Each method has unique advantages and disadvantages depending on the specifics of the acquisition deal. The parties need to analyze and evaluate all the implications for each method. Careful consideration and planning lead to the best deal for both sides and prevents unnecessary complications down the line.


By Phillips Murrah Attorney Travis E. Harrison

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on October 10, 2019.

Travis E. Harrison is an attorney with the law firm of Phillips Murrah.