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Phillips Murrah recognized as Best Law Firm in 32 practice areas

2016 Best Law Firm
Phillips Murrah is proud to announce that our law firm has been recognized by U.S. News & World Report’s 2016 “Best Law Firms” for professional excellence for the Oklahoma City Metropolitan Area in the following practice areas:

Tier 1

  • Administrative / Regulatory Law
  • Banking and Finance Law
  • Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law
  • Commercial Litigation
  • Government Relations Practice
  • Land Use & Zoning Law
  • Litigation – Banking & Finance
  • Litigation – Bankruptcy
  • Litigation – Land Use & Zoning
  • Litigation – Real Estate
  • Litigation – Tax
  • Natural Resources Law
  • Product Liability Litigation – Defendants
  • Real Estate Law
  • Tax Law

Tier 2

  • Commercial Transactions / UCC Law
  • Energy Law
  • Litigation – Antitrust
  • Litigation – ERISA
  • Medical Malpractice Law – Defendants
  • Trusts & Estates Law
  • Workers’ Compensation Law – Employers

Tier 3

  • Construction Law
  • Environmental Law
  • Family Law
  • Litigation – Trusts & Estates
  • Mass Tort Litigation / Class Actions – Defendants
  • Oil & Gas Law
  • Personal Injury Litigation – Defendants
  • Public Finance Law
  • Securities / Capital Markets Law
  • Venture Capital Law

This list is for the Oklahoma City Metropolitan area. 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 U.S. Earlier in the year, Phillips Murrah announced that 35 of our attorneys are recognized by Best Lawyers in America for 2016.

Firms included in the 2016 “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.

 

 

 

Phillips Murrah attorneys judge Calvert Moot Court competition

Attorneys Robert Campbell, Cody Cooper, and Kayce Gisinger volunteer to judge OU College of Law’s Calvert Moot Court competition.

Phillips Murrah attorneys Robert Campbell, Cody Cooper, and Kayce Gisinger are flipping the script by judging in the University of Oklahoma College of Law’s Calvert Moot Court competition this week.

During the annual competition, second and third year law students compete as teams against one another in a series of rounds and those with the best records advance to the finals. Each attorney volunteered to act as a judge for preliminary rounds of competition.

“The students did an excellent job and their hard work and preparation definitely showed through their presentation and analysis of complex constitutional issues,” Cooper said. “I really enjoy getting to go back to the school and volunteer to help the law students because it is an opportunity to help students develop and also lets me take an objective look at what presentation methods are persuasive and effective so that I can carry those observations over into my own practice.”

This year the competition revolves around the case of Kansas v. Carr, No. 14-450, pending in the U.S. Supreme Court.  The arguments are centered around the appropriate weight given to mitigating circumstances in a capital sentencing, said Leann Farha, a student at OU College of Law who helped organize the teams for the competition.

“One of the most valuable aspects of a competition is the participation of the judges,” she said. “The judges in each round provide feedback that will not only help students during the competition, but will also impact their future legal careers.”

The prizes are as follows: $500 each for the winning team, $250 each for the first runner-up, and $100 for the best individual speaker, said Mitch McGrew, External Relations Director for the Board of Advocates at OU College of Law.

The final round of the competition will take place at noon on Friday, October 30 in OU’s Bell Courtroom for those interested in attending.

To follow along and get more information about the competition, visit the OU Board of Advocates Facebook page here or follow them on Twitter here.

 

 

Attorney Mary Holloway Richard moderates webcast for OBA

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.

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.

Phillips Murrah Health Care Attorney Mary Holloway Richard hosted a webcast October 28 for the Health Law Section of the Oklahoma Bar Association.

“The presentation is entitled ‘Representing Vulnerable Populations: Behavioral Health Patients and Families,’ Richard said. “The webcast covers psychiatric diagnoses, emergency detention and involuntary admissions, confidentiality of information and other topics which will be useful to attorneys across the state called upon to represent behavioral health patients and their families.”

Richard served as moderator and presenter along with Judge Don Andrews, District Judge Oklahoma County formerly assigned to the Mental Health docket; Dr. Britta Ostermeyer, chairman Department of Psychiatry at the University of Oklahoma College of Medicine; and Dewayne Moore, general counsel of the Oklahoma Department of Mental Health and Substance Abuse Services.

The presentation was offered for Continuing Legal Education credit and will be made available by the OBA here.

 

Director named to OSU Foundation Board of Governors

Terry L. Hawkins is a Director of the Firm and is Chair of the Public Finance Practice Group where he has more than 35 years experience in municipal finance projects.

Terry L. Hawkins is a Director of the Firm and is Chair of the Public Finance Practice Group where he has more than 35 years experience in municipal finance projects.

Phillips Murrah Director Terry Hawkins was appointed to the Board of Governors of Oklahoma State University Foundation in October for a six-year term.

To be appointed to the Board of Governors of the OSU Foundation, candidates have to be nominated by someone currently serving on the board.  Typically, nominees have been involved in raising funds for the foundation or assisting Oklahoma State University in its academic efforts.  A nominee must be approved by the Board of Trustees, which is the governing board of the Foundation.

“Over the years, I have served as bond counsel on over a dozen bond financings for various projects on the OSU campuses,” Hawkins said. “In addition, my wife Brenda and I established an endowed scholarship in memory of our son Andrew, who graduated from OSU in 2007.”

The foundation’s primary purpose is to raise funds for OSU, invest these funds prudently and maximize the support given to OSU by its alumni and current and prospective donors. These funds are critical for OSU as it fulfills its land grant mission to provide access to education for students, by providing scholarships, he said.

The OSU Foundation started in 1961 with one officer raising a few thousand dollars and growing to now exceeding $1 billion in total donations.

“As OSU’s needs have broadened, so has the fundraising mission of the foundation,” Hawkins said. “Gifts through the Foundation have provided hundreds of millions of dollars for buildings, scholarships, graduate fellowships, laboratory and classroom equipment, endowed faculty positions, lectureships and many other University programs.”

To learn more about the OSU Foundation or to contribute, visit osugiving.com.

Taxing behavior

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on Oct. 8, 2015.


Dawn M. Rahme represents individuals and businesses in an array of transactional matters. The focus of her practice is assisting corporations, partnerships and individuals in general tax planning.

Dawn M. Rahme represents individuals and businesses in an array of transactional matters. The focus of her practice is assisting corporations, partnerships and individuals in general tax planning.

By Phillips Murrah Director Dawn Rahme

Generally, people think of taxes as money that governments charge citizens in order to facilitate infrastructure. However, in many cases, governments also use the tax system to modify behavior by using the power of the purse.

Behavior is undoubtedly affected by the tax code. For example, when Congress increases the expense deduction for businesses, it encourages businesses to spend money through equipment purchases or other qualifying expenditures. When they allow for charitable deductions, it encourages giving to qualified organizations.

Oklahoma also offers a variety of tax incentives, including the Quality Jobs Program and the Oklahoma Film Act, which offer credits and rebates to make Oklahoma more attractive to those deciding where to do business.

On the flip side, behavior can also be discouraged by the tax code. Some excise taxes are imposed on items deemed unhealthy, commonly referred to as sin taxes. For example, Oklahoma levies an additional tax on tobacco products, including cigarettes. The intent is to discourage tobacco use with the implication of having an overall effect on health care. Additionally, according to Bloomberg, Oklahoma sin tax revenue has risen about 200 percent in the past decade.

Some argue that sin taxes are regressive, or that they have a disproportionately higher burden on the poor because they spend a larger share of their income on consumption. However, in the case of luxury taxes, or taxes on products or services that are deemed to be unnecessary or nonessential, it can be difficult to make the argument regressive taxes affect only lower tax brackets.

There are some rather notorious examples of efforts to influence behavior, including a poorly conceived idea in Dallas to place a 5-cent fee on disposable plastic grocery store bags. The tax passed, only to be repealed six months later. And who can forget New York City’s failed effort to ban sugary drinks from being sold in containers larger than 16 ounces? Although their efforts failed, the city of Berkley, California, was able to pass a 1-cent-per-ounce tax on soft drinks.

The next time you are making a purchase, it may be an interesting exercise to ask yourself how much of an influence taxes have on your decision.

Softball tournament raises money for director’s charity

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The Police Department Rookies and the Fire Department Recruits started out the Matt Terry Memorial Softball Tournament with the first head-to-head match-up.

Phillips Murrah Director Kathy Terry hosted the third annual Matt Terry Memorial Softball Tournament on Sunday, September 27 in memory of her late husband, a much-loved figure at the Edmond Police Department who passed away unexpectedly on October 2, 2013.

Sixteen co-ed teams, including the police department, the fire department, News 9, Oklahoma Christian, Edmond Memorial High School, and local businesses, took to the diamond.

“Starting off it was the Police Department Rookies vs. the Fire Recruits,” Terry said. “Mid-morning, the Rookies played the reigning champs at Edmond Police Department, the Dingers, while the Recruits went head-to-head with the Fire Department veterans.”

In the end, the Dingers were unseated and a new champion arose – a community team of friends and alums of Edmond Memorial High School.

“We raised over $12,500 for the Matt Terry Memorial Fund, a non-profit that supports law enforcement officers and families in times of unusual need or tragedy,” Terry said. “In 2014, we raised over $15,000 for the Oklahoma chapter of the American Heart Association.”

Four presenting sponsors, including Philips Murrah, OU Medical Center Edmond, Homeland, and the Edmond law firm of Nelson Terry Morton DeWitt Paruolo & Wood have lead the way each year with donations and support, she said.

“Every year, Eagle Rub BBQ serves up pulled pork and MOB Grill throws down onion burgers without so much as even a penny to cover costs,” Terry said. “Dance Party Productions provides the music and the DJ – also totally for free.”

Other local businesses, including BancFirst of Edmond, the Oklahoman, Crest Foods, Sarah Lee, Everything Barbeque, R Meyers of Nichols Hills, Jewels by Simpson, Weathers TV and more made contributions of money, raffle and auction items, and their time and support to contribute to the day.

 

 

Phillips Murrah welcomes two new attorneys

EKH AMS cutout

Erica K. Halley and Ashley M. Schovanec have joined the firm as associate attorneys.

Erica K. Halley has joined Phillips Murrah’s Transactional Practice Group as an associate attorney.

Halley represents individuals and businesses in a broad range of transactional matters.

Phillips Murrah also welcomed Ashley M. Schovanec to the firm’s Litigation Practice Group as an associate attorney.

Schovanec represents individuals and both privately-held and public companies in a wide range of civil litigation matters.

Halley and Schovanec are recent graduates of the University of Oklahoma School of Law.

Director Sally A. Hasenfratz featured on “The Exit Plan Show”

Recently, Director Sally A. Hasenfratz was featured on The Exit Plan Show, and online interview series hosted by financial adviser, Norman A. Hood.

From http://exitplanshow.tv/:

The Exit Plan Show – We interview America’s top advisors to help business owners enjoy more freedom, grow companies faster and retire on their own terms.

Sally is a member of the firm’s Real Estate, Tax, and Family Wealth and Business Succession Practice Groups. She represents individuals and both privately-held and public companies in a wide range of transactional matters.

See the video below by clicking on the PLAY button. Two more episodes are to be published and will be posted on this website as they are made available.


Director Jim Roth quoted in Journal Record

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice Group.

Jim Roth is a Director and Chair of the firm’s Clean Energy Practice Group.

Phillips Murrah Director and Chair of the firm’s Clean Energy Practice Group, Jim Roth, was used as a source in a Journal Record article by Sarah Terry-Cobo published on Sept. 8, 2015. Read the entire story here.

The article addressed regulations on saltwater spills resulting from oil well work.

Jim was quoted as follows:

Jim Roth, a former member of Oklahoma Corporation Commission and energy and environmental attorney, wrote in a statement to The Journal Record that regulators can be responsible and effective when the punishment deters the harm.

“Accidents will happen in any human activity, but the cop on the beat must patrol and must act authoritatively against bad operators to protect the general public and even good operators,” Roth wrote.

Taxes and new businesses

Gavel to Gavel appears in The Journal Record. This column was originally published in The Journal Record on Aug. 26, 2015.


Dawn M. Rahme represents individuals and businesses in an array of transactional matters. The focus of her practice is assisting corporations, partnerships and individuals in general tax planning.

Dawn M. Rahme represents individuals and businesses in an array of transactional matters. The focus of her practice is assisting corporations, partnerships and individuals in general tax planning.

By Phillips Murrah Director Dawn Rahme

Starting a new business can be exciting. However, it can also be overwhelming, especially when it comes to determining tax obligations.

While income tax obligations are the most obvious, other decisions you may make when starting out will affect your business. Below are some tax tips to consider.

Structure: When starting your business, you must choose a business structure that is right for you. Your choices are many, including sole proprietorships, limited liability companies, partnerships and corporations. The most common type of business structure is a limited liability company or corporation because of the potential benefit of liability protection offered to owners.

Business structure will also determine how business taxes will impact your business. Generally, there are four types of business taxes: income, self-employment, employment and excise tax. Depending on the type of business you operate, there may be additional state and local taxes that could apply. It’s important to determine those obligations at the start of your business so you can register with the appropriate federal or state agencies and obtain any licenses or permits necessary to run your business.

Accounting: Another item to consider when starting your new business is an accounting method, which your business will need to track the organization’s income and expenses. In most cases, you can choose the cash method or accrual method, as long as you use a consistent method.

As a business owner, you should know how each method works as well as the advantages and disadvantages of each so you can choose the better one for your business.

Health care: If your new business is going to have employees, make sure to consider the tax issues that come with employee health care. Depending on the number of employees you have, you may be subject to the Affordable Care Act and information reporting responsibilities to the Internal Revenue Service regarding minimum essential coverage that you offer.

These are just a few of the decisions that you will consider when starting your new business. With proper information and planning, you can get your new business up and running and minimize the risk of being caught off guard later.

Phillips Murrah legal assistant overcomes breast cancer and graduates paralegal program

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Darci Gregory holds her Legal Assistant Certificate for completing the University of Oklahoma’s Paralegal Program.

It’s never too late to learn something new, and Legal Assistant Darci Gregory embodied that mantra when she decided to further her education.

“After being in the legal field for a couple of years, I decided that I really didn’t know much,” she said. “I started researching paralegal programs and found the perfect match with OU’s Paralegal Program.”

The University of Oklahoma’s College of Law Legal Assistant Education program can be completed in two years by taking three Saturday classes each semester for a total of 23 credit hours.

“It sounded perfect for a full-time employee and mom of three,” Darci said. “So, in August of 2010 I applied and was accepted into the program.”

After getting into the program, a visit with her doctor unveiled an unfortunate diagnosis.

“Just a few short weeks later, I was diagnosed with Stage 3 breast cancer,” she said. “Knowing that there was no way I was going to be able to take classes, have the necessary surgeries and go through chemotherapy and radiation, I decided to put the whole idea of furthering my education on hold for a while.”

Darci then underwent a series of treatments: two surgeries to remove the cancer from her lymph nodes and breasts, six rounds of chemotherapy, seven weeks of radiation, and subsequent tests to make sure the cancer had been eliminated.

About a year after she was diagnosed, Darci was given a clean bill of health and was ready to get started on her paralegal journey again.

“Little did I know that by going and spending so many Saturdays I would learn as much as I have,” she said. “The program taught me how to use the enormous law library, dissect legal problems and apply the law, learn about contracts in ways I never thought were imaginable and so much more.”

The road was long and drawn out due to scheduling conflicts with classes and the ability to mentally get through the program after having chemotherapy, Darci said.

Despite all of the challenges, she was able to complete the program in five years and celebrated her graduation on August 8.

“Graduating, in general, can mean so many things to different people,” she said. “To me, graduating from this program showed my determination to not only finish what I started, but it was also a reminder of the journey I have taken along the way.”

Darci will celebrate five years being completely cancer free on September 3.

Surviving an Energy Industry Down-Cycle

This article was published in OIPA Wellhead, a publication produced by Oklahoma Independent Petroleum Association and distributed to its membership.

Resulting financial stress on your business can be survived

By Elizabeth K. Brown

brown-elizabeth-portrait

Liz Brown is a director at Phillips Murrah, P.C., where she has practiced for most of her legal career. Liz is primarily a tax and transactional lawyer with a special emphasis in the energy industry.

As we all know all too well, the profitability of the energy industry is dependent on oil and gas prices, which are often volatile and generally cyclical. Unfortunately, we in the oil and gas business are in the midst of another industry down-cycle.

According to the recent Baker Hughes’ North America Rig Count report, the number of rigs drilling for oil and natural gas has been cut in half since November. The price of oil has been cut by more than half as compared to last year. In response to lower prices, some oil and gas companies have reportedly reduced their capital expenditure budgets, reported substantial losses, and are selling off assets.  Service and drilling companies have announced major layoffs and so far appear to have been the hardest hit.

Under these circumstances, virtually all companies that are engaged in the Oklahoma energy sector, whether they are exploration and production or service companies, are dealing with reduced profitability and some are struggling to meet their financial obligations.

When a company that relies on a robust energy sector starts to feel the pinch of a down-cycle, restructuring debt or seeking relief through a Chapter 11 bankruptcy reorganization may be the way for the business to survive. Either the workout or a bankruptcy allows the business to have some time for the economy or business sector to recover or for the business to work through its financial difficulties.

What to do?

When a company is experiencing financial stress, the best course of action is to accept the reality of the situation and address it quickly. The first step is for the business to develop a budget so that it has a clear understanding of its current monthly revenues and expenses, its projected future revenues and expenses based upon reasonable assumptions, and the current and estimated future value of its assets. Once the business has that information, it can develop a pragmatic approach to dealing with its expenses and liabilities and will then be ready to approach it creditors with a plan for restructuring.

“If a company is having trouble meeting its obligations, creditors want to know why, what is being done to address the situation and, ultimately, what the overall prospects for recovery are for the business, both outside and through bankruptcy.” said Phillips Murrah bankruptcy attorney Stephen W. Elliott.

The Workout: Avoiding Bankruptcy

A workout is an out-of-court process through which the business owner and the creditors of the business try to reach an agreement to modify the terms of their contractual obligations. Workouts typically involve an agreement of the business’ primary lender to waive defaults or forbear on the lender’s rights to collect interest and principal payments on the loan for a period of time to give the business the opportunity to get back on its feet.  The workout terms may include debt forgiveness, changes in loan amortization, reduced interest rates, or deferred principal or interest payments.

The ultimate goal of the workout is to allow the business to continue operating so that (i) the creditors of the business can ultimately be paid more than they would have received if the business was shut down and the assets were sold at liquidation prices; and (ii) the business can recover from its financial difficulties, all without the costs, delays, and potential uncertainties frequently inherent in bankruptcy. If the workout would be as or more beneficial to the business and its primary creditors than a bankruptcy, then bankruptcy can often be avoided.

“In my experience, candid communication is often the key to avoiding bankruptcy and resolving financial issues through a workout,” Elliott continued.

What are Benefits of Bankruptcy?

Bankruptcy provides potential, wide-ranging benefits to the debtor not available through out-of-court workouts. In a Chapter 11, the debtor oftentimes acts as trustee of the business and continues to manage the company as the “debtor in possession.” Chapter 11 affords the business a number of tools to restructure its debt.

One of the best known is the automatic stay which stops collection efforts outside of the bankruptcy court and keeps the business and its assets from being picked apart piecemeal by creditors. Additionally, in bankruptcy, the business may be able to obtain financing on more favorable terms than it could outside of bankruptcy by giving the post-bankruptcy lender priority over other creditors. Also, there is the possibility in bankruptcy for the business to be able to rapidly sell assets free and clear of liens and even over creditors’ objections, which under some circumstances may be the only way for the business to be able to sell its assets for fair market (as opposed to liquidation) value or to obtain funds to continue the operations.

Finally, the bankruptcy process provides the business with the opportunity for the bankruptcy court to bind creditors involuntarily to the reorganization plan of the business.  The reorganization plan may restructure obligations and discharge debts of the business. This ability of the bankruptcy court to bind creditors can be critical if the business owner’s efforts to put a workout together have failed due to some creditors’ refusal to agree to the proposed workout terms or because there are too many creditors for the business to be able reach an agreement with them.

Action Beats Hesitation

The best course of action for the business owner to deal with financial stress on the business is to be proactive, regardless of whether the solution is in the form of a workout or entails a bankruptcy.  Communication among the business and its creditors is very important.  Generally the earlier the lines of communication are opened between the business and its creditors, the better the chances are of a successful resolution.  The failure of the business to communicate with its creditors concerning its financial stress will often result in creditors assuming the worst and taking legal action that the creditor might not have taken if the business owner had simply communicated with them.  Once those collection actions have begun, filing bankruptcy may be the only course of action available to save the business.

A business owner’s denial of the precarious financial situation of the business or inaction can result in a needless loss of business value and can potentially impair the business’ ability to restructure or reorganize and survive the financial crisis. If you find that your business is in a precarious financial situation, taking action now may minimize the problems created by the down-turn.

About the author:

Elizabeth K. Brown is an attorney and director of Phillips Murrah P.C., a member of the OIPA board of directors and CEO of The Gloria Corporation, an oil and natural gas exploration and production company.

 

NewsOK Q&A: E-players enter health market

From NewsOK / by Paula Burkes
Published: August 19, 2015
Click to see full story – E-players enter health market

Click to see Mary Holloway Richard’s attorney profile

Consumers can search for doctors and clinical experts on a new product of Google called “Helpouts.” The trial is limited to symptoms related to common conditions or diagnoses and a wide range of pediatric concerns.

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. She also has significant experience in representing providers in regulatory matters.

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. She also has significant experience in representing providers in regulatory matters.

Q: Is Google becoming a provider of health services?

A: One new Google product, “Helpouts,” allows consumers to search for clinical experts and then to video chat with those doctors. This project is in its final stages, and Google is working with some existing medical groups who are verifying the credentials of the doctors who are participating in the trial. The trial is limited to symptoms related to common conditions or diagnoses and a wide range of pediatric concerns. One pediatrician, for example, is available for free consultations with the goal of eliminating gaps created by isolated visits in favor of applied multidisciplinary expertise. Not all of the offerings are related to health care and not all of them are free.

Q: What’s the impetus for this expansion by Google and presumably other technology companies?

A: A consulting company, PWC, has referred to this trend as a move toward “… building a new health economy centered around the consumer.” Stated another way, there are patient needs to be met and patient populations to be built by providers. This is likely to bring new players into local, state and regional health care communities who may position themselves to receive revenue from shrinking health care dollars. For example, Walmart is experimenting with health conglomerate Kaiser Permanente to access physicians via Skype in two of its California locations. Providers who’ve petitioned the Department of Health and Human Services to allow Affordable Care Organizations to be reimbursed for “connect care” argue that it will improve quality and reduce costs. Providers participating in the Medicare Shared Savings Program can’t currently bill for services provided using advanced technology.

 

Attorney Cody Cooper accepted to OBA Leadership Academy

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Cody J. Cooper represents individuals and companies in a wide range of civil litigation matters. His practice concentrates on commercial litigation, intellectual property and labor and employment law.

The Oklahoma Bar Association (OBA) selected Attorney Cody Cooper as one of 22 emerging leaders in Oklahoma’s legal community to be members of the Oklahoma Bar Association Leadership Academy Class of 2016.

Participants have been selected from a pool of applicants spanning the state and will receive training in leadership, motivation and communication.

“I thought this would be a great opportunity to become more involved in the OBA, in general,” Cooper said. “I also see it as a good opportunity for personal growth, to expand my own knowledge and experience, and gain valuable leadership knowledge and skills.”

Originating from OBA’s Leadership Conference in 2007, the academy is aimed at developing the future leaders of the OBA by giving Oklahoma attorneys training in the core principles of effective leadership and how to communicate, motivate and succeed in their legal careers and as community leaders.

Fred Leibrock copy

Fred A. Leibrock is an experienced trial lawyer who has tried dozens of jury trials and has served as lead counsel in a number of significant cases involving complex, multi-jurisdiction issues.

“Almost all lawyers I know generously volunteer, serve and give of themselves,” Phillips Murrah Director Fred Leibrock said. “The OBA Leadership Academy helps train lawyers to sharpen their skills as community leaders. The Academy provides a great service not just to the Bar Association, but also to the communities in which Academy members live and practice. Cody Cooper is a brilliant young lawyer who has a servant’s heart.  He’s a perfect fit with the Academy’s goal of preparing those who want to serve our profession, our bar and our state.”

The OBA Leadership Academy will include five sessions, the first of which is set for September 2015 and the academy will conclude with its fifth and final session in April 2016.

The first session in September will kick off the first half of the academy with Herb Rubenstein, nationally known for his course work and book on Leadership for Lawyers.

“They will get an inside look at what we do here in our administrative offices and about the various ways they can serve,” said Susan Krug, OBA Director of Educational Programs. “They will participate in the OBA Annual Meeting where they will learn more about the workings of the Bar Association, the Board of Governors, Committees, Divisions and Departments.

“They will hear from a panel of lawyers that were in previous leadership academies and learn about special projects sponsored by the Young Lawyers Division, Law Day, Oklahoma Lawyers for America’s Heroes and opportunities within the ABA.”

The second half of the academy focuses more on leadership in action at the state, court and community level, ethics, the importance of selecting an independent judiciary, and servant leadership/diversity and community and life balance, Krug said.

“Being a lawyer is a calling that carries with it obligations that transcend the mere delivery of services,” OBA President David Poarch said in a press release about the 2016 class selection. “The Oklahoma Bar Association’s Leadership Academy prepares those who want to serve our profession, our bar and our state by providing them with tools to help them better communicate, motivate and succeed.”

There will be a graduation ceremony in April where academy graduates will hear from Supreme Court Chief Justice John Reif, the 2016 President of the Board of Governors, Garvin Isaacs and Mike Turpen. The 2015-2016 group will be the sixth class to graduate from the academy.

NewsOK Q&A: Sunshine Act applies to dentists, podiatrists, optometrists and chiropractors

From NewsOK / by Paula Burkes
Published: August 11, 2015
Click to see full story – Law also applies to dentists, podiatrists, optometrists and chiropractors

Click to see Mary Holloway Richard’s attorney profile

Physicians should review federal Open Payments database

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. She also has significant experience in representing providers in regulatory matters.

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. She also has significant experience in representing providers in regulatory matters.

Q: The Physicians Payments Sunshine Act (“Sunshine Act”) was passed with the intent of limiting the affect of prescribing and treatment practices by payments to providers by manufacturers or groups involved with product selection known as group purchaser organizations. Does this mean that payments to physicians are actually listed on this website?

A: Yes, but the law doesn’t just apply to physicians. It also applies to dentists, podiatrists, optometrists and chiropractors. It doesn’t apply to medical or osteopathic residents, physician assistant or nurse practitioners. This information is reported annually by manufacturers and purchasing groups and is available to anyone on the Centers for Medicare and Medicaid Services (“CMS”) website https://openpaymentsdata.cms.gov/. The database is part of the Open Payments program created as a result of the Sunshine Act.

Q: What options does a provider have if he or she believes that information about a reported payment is inaccurate or misleading to the public?

A: There is a process by which physicians and other providers can seek to correct information they believe to be false. A dispute resolution process begins with a 45-day period during which a provider reviews and works with manufacturers or purchasing organizations to correct the information. During the following fifteen days, the reporting entity (manufacturer or group purchasing organization) can submit corrections to the Open Payments database. This combined 60-day period is the only time that corrections can be submitted by manufacturers and purchasing organizations. CMS will not mediate such disputes but encourages the parties to work together to resolve their dispute. You can see from this description that it is the physician’s or other provider’s responsibility to monitor this information on the website.  Providers can locate relevant data by their names.

Q: What kinds of payments are included in the CMS Open Payments database?

A: First, it applies to payments by manufacturers. That means manufacturers of prescription drugs, biologic agents and medical devices and supplies. Second, it also applies, as I have mentioned, to groups formed to help providers such as hospitals, home health agencies and nursing homes save money and time by purchasing in volume and obtaining manufacturers’ discounts. These are the group purchasing organizations. Third, it applies to payments such as consulting fees, honoraria, food, travel, entertainment, education, research support, charitable contributions, investment interests, grant, and any direct compensation. That’s not even a complete list.

Q: What is the impact of this database?

A: Many physicians, dentists, podiatrist, optometrists and chiropractors regularly disclose to their patients their participation as lecturers, researchers and consultants to such manufacturers and purchasing organizations. Where that is the case, there is likely to be minimal impact from such information appearing on the CMS website. There a great deal of criticism of the Open Payments program, however. For example, a listing of a specific payment or group of payments may be taken out of context and appear unexplained and create in inaccurate impression and a negative response that is not merited. It seems clear that there will be continued refinement of both the regulations and the manner in which the data is presented to the public in the future.

NewsOK Q&A: Americans with Disabilities Act cites only dogs as service animals

From NewsOK / by Paula Burkes
Published: July 24, 2015
Click to see full story – Americans with Disabilities Act cites only dogs as service animals

Click to see Mary Holloway Richard’s attorney profile

Federal law has a narrow definition of what animals can be considered service animals under the Americans with Disabilities Act.

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. She also has significant experience in representing providers in regulatory matters.

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. She also has significant experience in representing providers in regulatory matters.

Q: Sunday is the 25th anniversary of the signing of the federal Americans with Disabilities Act (ADA). What animals are currently considered to be service animals?

A: The definition of “service animal” comes from the ADA and includes animals individually trained to perform tasks for individuals with disabilities. As of 2011, Titles II (state and local government services) and III (public accommodations and commercial facilities) of the ADA recognize only dogs as service animals, although there’s a separate provision about mini-horses. In addition to service dogs, there are sensory or social signal dogs, psychiatric service dogs and seizure response dogs.

Q: Is there a difference between a “service animal” and a “therapy animal?” 

A: Service dogs are trained to perform tasks or to do work for people with disabilities such as guiding the blind, alerting the deaf, pulling a wheelchair, reminding a person with a mental health diagnosis to take medications, or protecting a person who is having a seizure. The work must be directly related to the person’s disability. Therapy animals provide supports and comfort to people in many different types of situations.  There seems to be an impression among some members of the public that the service designation includes untrained animals providing comfort to owners of varying degrees of independence. It is generally true that a mental health provider may provide a letter indicating that a “regular” pet provides emotional support as needed by the owner who has a mental health condition or disability, and special training is not required. An  important distinction is that these are working animals and not pets. In my representation of hospitals over the years, I’ve been asked to advise concerning requests for visitation by a broad array of animals including burros, boutique cattle, and cats to serve specifically as therapy or emotional support animals. Some of the relevant case law from other jurisdictions involves monkeys and one involves a sugar glider, an Australian
opossum-like creature.

Q: Do these rules apply just to hospitals or do they also apply to other types of facilities and providers of health services?

A: The guidelines for service animals also apply to surgery centers, dental clinics, assisted living and long-term care facilities, and urgent care and outpatient clinics. The federal requirement is to allow service animals to accompany persons with disabilities in all areas of a facility or office where the public is normally allowed to go. It’s my experience that hospitals are better prepared than these other sites listed and physician offices to respond to these requests. Hospitals generally have policies and procedures that mirror state and federal laws and industry best practices.

Q: Are there limits to these ADA requirements?

A: When service dogs raise valid concerns about patient safety and quality of care, all providers in their distinct care settings will find it necessary to balance patient, staff, employee and public safety interests. Common valid concerns for institutional and non-institutional providers include infection control, allergies, animal control, safety of others, disruption of care or ability to safely provide quality services. An example of such a concern is a situation where a service dog’s presence is desired in a health care setting but there’s no one to provide the necessary care for the service dog. I also have encountered service animals with open wounds or otherwise in need of veterinary care that posed risks to patient care and to personnel that had to be considered. Another issue that has arisen is a service dog trained to be protective in a manner that impedes care by staff, such as a dog trained to place itself between the patient and others.

EEOC and Proposed Wellness Regulations: What is means to Healthcare Providers

By Mary Holloway Richard, Attorney

shutterstock_healthcareWellness is in the news again.  Large employers have inserted wellness protocols and metrics into the workplace with great enthusiasm.  Advertisements for webinars tout the importance of clinicians and counsel getting on the wellness bandwagon, and articles on the topic appear daily in local and national newspapers.

The wellness debate continues and focuses on these issues:

  1. Financial impact
  2. High risk diseases and conditions subject to detection and prevention such as diabetes, hypertension, obesity and smoking
  3. Impact of economic status on health and ability to access to programs supporting lifestyle change (e.g., no time to attend a course or to exercise.

The Equal Employee Opportunity Commission (“EEOC”) is the federal agency charged with oversight of employer compliance with the Americans with Disability Act (“ADA”) and specifically with guiding employers in properly complying with the ADA in the context of popular wellness programs.  The ADA is, of course, statutory; supporting regulations and interpretive guidelines are issued by the agency.  While the interpretive guidelines do not have the force of law, they are regularly instructive as a window into the agency’s perspective and intent in terms of review and enforcement

Recently, the EEOC proposed a rule change in which it will reverse its own policy on whether or not employer-sponsored wellness programs discriminate against employees.  The EEOC is now saying that such programs do not necessarily discriminate against workers. The agency also indicates that such employers have yet to show the financial benefits of such programs. The EEOC’s proposed rule change would allow for employers to decrease premiums as an incentive for employees to comply with recommended health screenings and to improve their health metrics without violating federal disabilities laws.

Presented in late April, 2015, the EEOC’s  proposed wellness regulations seek to establish how such a program must be structured in order to comply with the ADA’s rule permitting disability-related inquiries and medical exams by a “voluntary health program.”[i]  The proposed regulations require:

  • A cap on an employer-incentive or penalty at 30% of the total cost of employee-only coverage under the plan. [ii] Total cost refers to employer plus employee contributions.
  • Additional requirements for employers offering a wellness program in conjunction with a group health plan, including notice to employees of the medical information to be obtained and by whom and how the information will be used and how safeguards against improper disclosure.
  • New confidentiality provisions to be applied to information obtained in wellness programs by sponsors or wellness vendor.
  • The program itself must be created in such a way as to promote health status, prevent disease and not be overly burdensome on plan participants.

This does not relieve the employers from compliance with HITECH and HIPAA and the Affordable Care Act.  In addition and importantly, employers will be faced with differing requirements by the Internal Revenue Service, the Department of Labor and the Department of Health and Human Service — the agencies responsible for implementing the Affordable Care Act. These inconsistencies may be resolved at the close of the public comment period for these new EEOC proposed regulations. The period for public comment closes on June 19, 2015.


[i] It is likely that most wellness programs will fit into this category.

[ii] The Affordable Care Act’s non-tobacco incentive is held to the same limit for wellness programs including collection of health data.  The additional cap in the proposed regulations is for the same amount for the tobacco incentive for participation-only wellness programs unless the employer does not fall within the purview of the ADA (less than 50 employees.)  The policy ramification is that the EEOC does not distinguish between a tobacco-cessation wellness program where the participants are questioned about their tobacco use from one where a nicotine test is required of them to verify tobacco use or non-use.


Mary feat img 142x177

AuthorMary Holloway Richard is recognized as one of pioneers in healthcare law in Oklahoma. She has represented institutional and non-institutional providers of health services, as well as patients and their families. She also has significant experience in representing providers in regulatory matters.

Click to see her  attorney profile.

Tort reform shows how Oklahoma product liability law evolves

This Gavel to Gavel guest column, originally published in The Journal Record on June 4, 2015, contains insights by Phillips Murrah attorney Cody Cooper concerning Oklahoma Product Liability Law. Cody Cooper contributed to “An Overview of Oklahoma Product Liability Law,” co-authored by Phillips Murrah Directors Tom Wolfe and Lyndon Whitmire for the April 2015 edition of the Oklahoma Bar Journal.
View Cody Cooper’s attorney profile here.


Cody J. Cooper is an associate attorney with Phillips Murrah whose practice is concentrated in commercial litigation, product liability, and intellectual property.

Cody J. Cooper is an attorney with Phillips Murrah whose practice is concentrated in commercial litigation, product liability, and intellectual property.

Exploding gas cans, scolding-hot coffee, misfiring rifles, popping exercise balls and sticking gas pedals. What do these things have in common? Each of these products was the center of some of the most memorable product liability lawsuits.

Since Kirkland v. General Motors, the Oklahoma Supreme Court has recognized product liability claims and the law has continued to grow and evolve.

For simplicity’s sake, law develops primarily in two ways: the Oklahoma Legislature enacts statutes and case law is developed from courts’ opinions applying those statutes.

The Oklahoma Legislature creates the statutes by which claims and parties are governed and this has an obvious, direct impact in Oklahoma product liability actions.

Oklahoma courts then interpret these statutes and apply them in product liability lawsuits. The courts’ decisions provide guiding authority on issues and allow parties to understand how laws will be applied in the future.

Both play critical roles, but can lead to conflict over how the law will ultimately operate. Such is the case currently with tort reform. In the past few years, wide-ranging legislative changes have caused conflict and consternation at the Capitol and in the courtroom.

Tort reform statutes have had widespread implications in product liability lawsuits, including caps on potential recoverable damages, providing substantial protection for product sellers, requiring plaintiffs to provide medical records, and shielding manufacturers from claims regarding inherently unsafe products.

In 2009, the Oklahoma Legislature passed House Bill 2818 (the 2009 Act), followed by a 2011 statute amending many parts of the 2009 Act. In 2013, several individual cases held tort reform unconstitutional, which led to the Oklahoma Supreme Court striking the entire act as being unconstitutional for violation of the single-subject rule that requires that laws only address a single subject – to prevent logrolling. Later that year, the Oklahoma Legislature through a special session, modified and revived many of the laws struck down by the Oklahoma Supreme Court and enacted new ones.

The clash between legislators and Oklahoma courts make it difficult for parties to understand what the future holds for product liability law in Oklahoma. The only certainty is that the law will continue to evolve.

 

 

Phillips Murrah “Law & Oarder” rowing teams gear up for race day

PM rowing-oarsPhillips Murrah’s rowing teams, “Law & Oarder,” are on the home stretch as they prepare for their second annual corporate regatta.

This summer’s race will be held during the Stars & Stripes River Festival June 27th at the OKC Boathouse District. Corporate racing begins at 5 p.m.

Below is a brief interview with Melissa Gardner, co-captain and organizer of the Phillips Murrah corporate rowing program. Melissa is also an attorney in the Energy & Natural Resources practice group.

Q: How long has Phillips Murrah been participating in this?

2014 trophy and medal

2014 trophy and medal

A: We started in the Fall 2014 season, so this is our second season.

Q: What was the first race like?

A: It was our first race and because of two more experienced rowers, we were actually thrown into a category higher than our overall experience level.  It was an exciting environment because around 50 of our co-workers and friends had joined us and were so enthusiastic that we could hear them cheering from the starting line.  I think our speed and agility surprised even those people in the boat. It’s crazy how much faster you row in an actual race. Our co-workers were shocked that we beat our next competitor by three boat lengths! In fact, when we got off the water, I got a lot of comments like “wow, you guys really do know how to row.”  It’s impressive what you can learn in one season of rowing together.

rowing practice-2

The 2015 PM crew gets ready for practice.

Q: In your estimation, how has it helped our corporate culture here at the firm. One thing I noticed is that it is a great way to get attorneys and staff together into a cool team environment.

A: Yes, I agree that it’s helped blend attorneys and staff, but I will say that I think the best part was the race.  And the turn-out we had and the opportunity for all of the firm to join in a community-centric event and cheer on our own.  It joined everyone in a team, even those not rowing.

Q: What other teams compete in this? I assume there’s more levels than just novice, right?

A: Yes, a variety of categories: all men; all women; co-ed (4 of each); and open (at least 1 woman). And landlubber (first year); novice; intermediate; and experienced.  There are many corporations that I know participate…Devon, Chesapeake, MidFirst, St. Anthony’s, Mercy, OU Med Science, and lots of others I don’t know about.

 

 

 

NewsOK Q&A: Healthcare providers can use Oklahoma’s unclaimed property fund to collect on unpaid bills

From NewsOK / by Paula Burkes
Published: June 3, 2015
Click to see full story – Healthcare providers can use Oklahoma’s unclaimed property fund to collect on unpaid bills

Click to see Gretchen M. Latham’s attorney profile

Gretchen Latham, a litigator at Phillips Murrah law firm, talks about how physicians can recoup payment by making a claim to the state treasurer for unclaimed property.

Gretchen M. Latham’s practice focuses on representing creditors in foreclosure, bankruptcy, collection and replevin cases.

Gretchen M. Latham’s practice focuses on representing creditors in foreclosure, bankruptcy, collection and replevin cases.

Q: I understand it’s becoming increasingly difficult for healthcare providers to collect fees from patients and third-party payers for services rendered. What can they do?

A: Collection of these monies through the judicial system involves the filing of a lawsuit, and often times strict compliance with collection and privacy laws. And the time frame within which any significant collection activity takes place can be months or even years. Luckily, physicians, and nearly everyone, can make a claim with the state’s Unclaimed Property Fund to recoup funds in certain circumstances.

Q: What is unclaimed property?

A: Unclaimed property consists of obligations and liabilities for businesses which have been inactive, or have not been paid for a period of time. The funds may be in the form of a security deposit, an overpayment on an account, collateral pledged as security on a loan, payroll and wage obligations, or stocks and bonds.

Q: How does property attain unclaimed status?

A: When the rightful owner of the property fails to contact the holder of the property for a specified period of time, the property is considered unclaimed. A typical example is when an employee leaves his or her job prior to receiving the last paycheck, and there’s no forwarding address for the employer’s use in mailing final payment. Upon showing proof of ownership and making a valid claim, the state will relinquish the property to its rightful owner.

Q: How does the state come into possession of unclaimed property?

A: Holders of unclaimed property are required by law to make an annual report of the property being held. After the holder makes a diligent effort to contact the rightful owner both within and outside the state’s borders without success, the holder is then required to deliver the unclaimed property to the state treasurer.

Q: Can physicians and other providers rely on this claim process for more than clinic visit charges?

A: In the medical field, making a claim for unclaimed property can help physicians recover funds due them for a variety of reasons. Perhaps the practice has been sold and not all the funds due as part of the transaction have been paid. Although there’s no time limit on claiming the provider’s property, the sooner the claim is made, the sooner he or she will get paid.

PM attorney, distinguished BBBS advocate to attend national conference as Oklahoma State Governing Board Chair

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Byrona J. Maule is a litigation attorney and co-chair of the Labor and Employment Practice Group.

Byrona J. Maule, Phillips Murrah Director and co-chair of the firm’s Labor and Employment Practice Group, will be attending the 2015 Big Brothers Big Sisters National Conference as Oklahoma’s State Governing Board Chair. The conference will be held in Philadelphia, PA on June 2-3, 2015.

Byrona is a passionate community advocate who has devoted much of her life to volunteerism and philanthropy. Her distinguished service to Big Brothers Big Sisters began in 1990, when she became a Big Sister to Vanessa—a relationship that enriched Byrona’s life in ways she never imagined. To date, she’s had three Little Sisters complete the program. Byrona joined the BBBS Oklahoma City Area Resource Board in 2007. Since then, her devotion has garnered awards, including:

  • Big Sister of the Year, Oklahoma City (2009)
  • Big Sister of the Year, State of Oklahoma (2009)
  • Champion of the Year, State of Oklahoma (2011)

Upon winning Champion of the Year, she said: “Being a Champion of Big Brothers Big Sisters is easy; these young ones are my passion and my servant mission. To be recognized for this passion is wonderful, but to help open the world to a child otherwise forgotten – to help that child grow into a successful, responsible, caring adult – that is the reward I carry in my heart for all time.”

Byrona was elected to the state of Oklahoma governing board in 2012. Most recently in 2013, she was elected chair of the Governing Board. Along with her husband, Marvin Meyer, she won the Big Couple Match for their current match with little brother Quintin.

The 2015 Big Brothers Big Sisters National Conference will provide opportunities for attendees to engage in peer designed workshops and events that will reignite the purpose and put renewed energy around all aspects of mission attainment. This two-day conference will be packed with dynamic keynote speakers, insightful panel discussions and plenty of opportunities for learning and networking.

Big Brothers Big Sisters’ mission is to provide children facing adversity with strong and enduring, professionally supported one-to-one relationships that change their lives for the better, forever.

For more information or to speak with Byrona about the conference and her work with BBBS of Oklahoma,
contact David Rhea at 405-606-4746 or jdrhea@phillipsmurrah.com.

Regulation focuses on financial ties between physicians and industry

Phillips Murrah healthcare attorney, Mary Holloway Richard published an article about the Sunshine Act in the May/June 2015 issue of the Oklahoma County Medical Society publication, The Bulletin.


CMS seeks to mitigate potential impact on prescribing and treatment practices

Sunshine-Act-MHRThe Physicians Payments Sunshine Act (i) (“Sunshine Act”), despite its name, currently places no direct reporting requirements on physicians. Rather, the Sunshine Act requires that certain manufacturers of prescription drugs, biologic agents, medical devices and medical supplies (“Manufacturers”) and group purchasing organizations (“GPOs”) report to Centers for Medicare and Medicaid Services (“CMS”) payments in specified amounts (ii) and other transfers of value to physicians (iii) and to teaching hospitals (iv). In addition, ownership and investment interests in applicable Manufacturers and GPOs held by physicians (and immediate family members) must be reported annually by applicable Manufacturers and GPOs. Covered payments include cash (or cash equivalent, in-kind items or services), stock (including stock options or ownership interest dividend profit or other return on investment), and other forms of payment to be determined in the future by CMS. While it is not the physician’s duty to report, the reporting requirement directly impacts physicians who receive such payments as their names appear on a list on the CMS website accessible by patients and other consumers (v).

The purpose of the Sunshine Act is to identify potential biases in physician prescribing and treatment practices, to reveal conflicts of interest for clinical researchers and educators, and to identify transactions in which payments involving potential referrals by physicians exceed fair market value. The Sunshine Act creates the Open Payments Program for the actual reporting of the financial payments and transfers of value to physicians. Currently the burden is on the Manufacturers to report payments for consulting fees, contracted services, honoraria, gifts, entertainment, food, travel, education, research, charitable contributions, royalty or license, current or prospective ownership or investment interest, grants, direct compensation for serving as faculty or speaking at a medical education program, and any other nature of payment or transfer of value as defined by the Secretary of the Department of Health and Human Services (“HHS.”) The form of the payment and the nature of the payment must be reported. See Table 1 below. Data has been collected since August, 2013, and is due to CMS by March 31 of each year. The first report was available to the public on September 30, 2014, and the 2014 report is predicted to be available on June 30, 2015 (vi).

The regulations provide for a formal dispute resolution process whereby physicians can seek to correct inaccurate information. In September, 2014, representatives of pharmaceutical and biotechnology companies and organized medicine expressed concerns about the database and its presentation of data to the public in a potentially misleading manner. CMS shut down the Open Payments system for a period of time to address these issues. On October 30, 2014, CMS announced a procedure for Manufacturers and GPOs to report information not previously accepted by the system because of data errors, and CMS extended the reporting time accordingly. CMS has provided guides for Manufacturers to use to correct records and for covered recipients to correct information submitted in compliance with the regulations (vii).

Registration with CMS to receive notifications and information submitted by Manufacturers and GPOs is voluntary. This information is now available on the CMS website, to public and regulators alike, but the website itself continues to present issues of accuracy and ease of on-line accessibility. Physicians and teaching hospital representatives have the opportunity to review and, if appropriate, dispute information reported about them in the Open Payments System (viii).

open payments graph

Source: ttps://www.cms.gov/OpenPayments/About/How-Open-Payments-Works.html

It has been necessary to resolve a number of procedural and substantive issues with the reporting requirements including initial confusion about the information that had to be reported and by whom. Example of substantive issues to be resolved may be helpful is understanding the regulatory climate. Some confusion has surrounded the CMS treatment of payments related to continuing medical education. “Direct payments” have always been included in the Sunshine Act’s reporting requirements. “Indirect payments” refers to payments by a manufacturer to a continuing education organization where the Manufacturer directs that the third party provide the payment or transfer to a covered recipient. In the October, 2014, final regulations, CMS responded to widespread criticism of its treatment of the CME by requiring reporting in 2017 payments (direct and indirect) made to continuing education organizations in 2016 as long as the speaker can be identified (ix). Further, payments to physicians for speaking at CME programs need not be reported if the following conditions are met:

  • The CME program meets accreditation/certification standards of one of the following: (1) the Accreditation Council for Continuing Medical Education; (2) the American Academy of Family Physicians ; (3) the American Dental Association’s Continuing Education Recognition Program; (4) the American Medical Association; (5) the American Osteopathic Association; and
  • The Manufacturer or GPO does not pay the speaker directly; and
  • The Manufacturer or GPO does not select the speaker or provide the third party, such as the CME vendor, with a distinct, identifiable set of individuals to be considered as speakers for the CME program (x).

Other frequent questions concern Manufacturers providing meals and other event support and sponsorships to physicians. In this context the Open Payments program is very specific–e.g., where a Manufacturer’s sales representative brings a meal to a staff meeting or a community education event for a number of persons, the cost of the meal is divided by the number of persons who actually eat the meal and this benefit is reported only if it exceeds $10.00 per person. This does not include meals eaten by support staff. Financial support of buffet meals at large-scale medical conferences is not reportable. The “User Guide” for Open Payments published by CMS is over 350 pages long and provides additional guidance to those reporting and those reviewing reports. It is accessible on-line (xi).

The Open Payments System is expected to significantly impact historic financial support of provider, patient and community education by industry. Importantly, these regulations and reporting requirements echo federal policy designed to avoid improper payments and incentives and market influence. These are the same concerns that spawned the expansion of federal antitrust, Stark and Anti-kickback law within health care.

Ms. Richard is a health care lawyer at Phillips Murrah, P.C. in Oklahoma City and was formerly in house counsel with INTEGRIS Health, Inc.


The Natures of Payment that are of Interest to CMS

Nature of payment Definition Examples
Consulting fee Payments made to physicians for advice and expertise on a particular medical product or treatment, typically provided under a written agreement and in response to a particular business need. These payments often vary depending on the experience of the physician being consulted. Example 1: Company A has developed a drug to treat patients with a particular disease and wants advice from physicians on how to design a large study to test the drug on patients. Dr. J has a large number of patients with this disease and has experience doing research on how well medicines work for this condition. Company A asks Dr. J if he would spend about 10 hours per month to work with other physicians to create a new research study. Dr. J agrees and is paid for his time.Example 2: Company C has designed a new tool for surgeons to use when they are doing heart surgery. The company pays some physicians to give the new tool a “test drive” on a computer-simulated patient at the company headquarters. The physicians are paid an hourly fee for their time testing the tool and giving advice on how to make it work better. They are also paid for flights, hotel rooms and meals.
Compensation for services other than consulting, including serving as faculty or as a speaker at an event other than a continuing education program. Payments made to physicians for speaking, training, and education engagements that are not for continuing education. A physician who frequently prescribes a particular drug is invited by the company that makes that drug to talk about the medicine to other physicians at a local restaurant.  The physician is paid for preparation time as well as the time spent giving the talk.
Honoraria Similar to consulting fees, but generally reserved for a one-time, short duration activity. Also distinguishable in that they are generally provided for services which custom prohibits a price from being set. A medical device manufacturer representative goes to a medical meeting and asks some physicians there for an hour of their time to talk about features they would like to see to improve a particular device. This representative pays each physician a one-time honorarium.

Footnotes:

(i) The Physician Payment Sunshine Act is Section 6002 of the Patient Protection and Affordable Care Act, 42 U.S.C.§18001. The regulations can be found at: http://www.cms.gov/OpenPayments/Downloads/Affordable-Care-Act-Section-6002-Final-Rule.pdf.

(ii) There are specific reporting thresholds for applicable manufacturers and GPOs. The Open Payments reporting thresholds are adjusted based on the consumer price index. This means that for 2015 (January 1 – December 31), if a payment or other transfer of value is less than $10.21 ($10.00 for 2013, $10.18 for 2014), unless the aggregate amount transferred to, requested by, or designated on behalf of a physician or teaching hospital exceeds $102.07 in a calendar year ($100.00 for 2013, $101.75 for 2014), it is excluded from the reporting requirements under Open Payments. http://www.cms.gov/OpenPayments/Program-Participants/Applicable-Manufacturers-and-GPOs/Data-Collection.html.

(iii) This law applies to physicians and other providers, but, for the purposes of this article, we will only reference physicians. The other providers as defined in Section 1861(r) of the Social Security Act to whom this law applies include medical and osteopathic physicians, dentists, podiatrists, optometrists and chiropractors. Providers exempted include medical and osteopathic residents, physician assistants, nurse practitioners and allied health practitioners. However, in some circumstances, payments to these types of providers may be imputed to physicians, thereby triggering the Manufacturers’ obligations to report payments.

(iv) Manufacturers and GPOs may also be referred to in this paper as “covered recipients.”

(v) https://openpaymentsdata.cms.gov/.

(vi) http://www.cms.gov/OpenPayments/About/Resources.html

(vii) The American Medical Association offers a toolkit for physicians to use in reviewing and dispute reports at: http://www.ama-assn.org/ama/pub/advocacy/topics/sunshine-act-and-physician-financial-transparency-reports/sunshine-act-toolkit.page?

(viii) See Flow Chart 1 in content.

(ix) 42 C.F.R. §403.902.

(x) 42 C.F.R. §403.904(g).

(xi) www.cms.gov/Regulations-and-Guidance/Legislation/National-Physician-Payment-Transparenct-Program/Download/Open-Payments-User-Guide-%5BJuly-2014%5D.pdf.

Attorney mentors struggling student through tutoring program

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Attorney Dominic Williams with his Whiz Kid, Omar at a OKC Thunder game

When Omar failed the first grade and saw his friends move on, it became important to not only teach him the necessary information he needed to pass but to also not let him feel defeated.

“My biggest thing was to build confidence,” Phillips Murrah Associate Attorney Dominic Williams said. “I wanted him to feel good. I wanted him to feel like, ‘It doesn’t matter that I failed—I’m failing forward. I’m going to do something better because of this.’ ”

Dominic has been working with Omar through CityCare’s Whiz Kids program every Thursday for the past two school years.

“I know that passing the bar is not the sum of my own knowledge but rather people helping me along the way, so I need to give back. If I become a lawyer or if I become professional, that is not the end of the story. I cannot be focused on me.” – Dominic Williams

Whiz Kids is a one-on-one volunteer tutoring and mentoring program for elementary school students, targeting inner-city schools and students who are reading below grade level.

“I wanted to give my time and really give back because a lot of people didn’t have the same opportunities that I might have had,” Dominic said. “I want to present them with a different world.”

Mentors with their Whiz Kids on an outing

Mentors with their Whiz Kids on an outing

Tutors work in pairs to pick up their Whiz Kids from their homes and drive to a designated church to work with them on their problem areas. Whiz Kids is a faith-based program where kids are given lunch and bible study before working with their tutors for about an hour and a half.

“They bring their homework, their spelling words and their vocabulary words for the week,” he said. “We also work with them on reading. Usually, reading is their toughest, especially for Omar who comes from a Spanish-speaking household. We really work on trying to get him on track with English words and application of English translation.”

The one-on-one interaction Whiz Kids have with their mentors has a double benefit, allowing them to focus on the areas they need to improve while building a trusting relationship.

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Omar named “Star of the Week” at school

“It’s great to have someone to talk to the kids, because all they really want is attention,” Dominic said. “I talk to him about everything. He told me he was struggling with bullying. I gave him some advice and had an opportunity to meet the other kid with the teacher present and told him the importance of taking care of everyone and making sure you’re not singling out anyone because that wouldn’t feel good for you. And, as simple as that is, it actually helped out and they are best friends now.”

Thanks to the strides he has made, Omar will move on to the third grade in the coming school year.

“He has made significant changes in his reading, math and speech fluency testing scores,” Dominic said. “He is no longer considered to be academically at-risk.”

Those interested in volunteering or learning more about the Whiz Kids program can visit whizkidsok.org.

“The important to remember is that kids often need your help, they just don’t say it,” Dominic said. “Being focused on others is probably the most important thing anyone can be charged with.”

 

NewsOK Q&A: Laptop losses, misdirected faxes and phishing scams can lead to health information breaches

From NewsOK / by Paula Burkes
Published: May 1, 2015
Click to see full story – Laptop losses, misdirected faxes and phishing scams can lead to health information breaches

Click to see Mary Holloway Richard’s attorney profile

Phillips Murrah’s Mary Holloway Richard provides medical providers tips for minimizing risk and damages related to health information breaches.

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. She also has significant experience in representing providers in regulatory matters.

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. She also has significant experience in representing providers in regulatory matters.

Q: What do you recommend to hospitals, physicians and other providers to minimize the risk of a breach of confidential patient information and to lessen the degree of harm in the event of a breach?

A: I recommend creation in advance of a response process to enable a rapid, sensible response. The goals in such a plan (“Incident Response Plan” or “IRP”) are to demonstrate compliance with HIPAA (Health Insurance Portability and Accountability Act) and HITECH (Health Information Technology for Economic and Clinical Health) regulations and to mitigate any harm that may result from the breach.

Q: What specific steps should be taken to prepare for a breach?

A: The first step is to create an IRP that includes all appropriate parties and to appoint someone in the practice or facility who is knowledgeable about HIPAA and HITECH requirements. The second step is to make certain that the process created is a quick, sensible one. In addition, information technology (IT) components, such as encryption throughout the process, are imperative. The safe harbor provision of the breach notification rule establishes a certain standard of encryption and relieves the provider from breach notification responsibilities if the protected patient information has been properly encrypted. Most breaches result from lost IT assets such as phones, laptops and iPads. Fourth, the IRP must be supported by sufficient employee and staff training. I also recommend that you adequately document that this training took place. Finally, insurance should be in place to provide for risk transfer as needed. Cyberliability is a continually developing area along with a range of products that foresee types of breaches and predict costs that may be incurred.

Q: How do such losses occur?

A: Along with loss of IT assets, misdirected faxes, disposal of nonshredded records, inappropriate disposal or destruction of paper, such as placing material in a dumpster without shredding and mailing patient information to incorrect address. Intentional loss or compromise of data can occur through a combination of IT and social engineering, such as where a person is tricked into clicking on a hyperlink or revealing a password. This occurs with Spear phishing or false emails inserting malware in a system and is very difficult to control. In the case of Cryptolocker, the perpetrator makes a threat and requires payment to restore prevention. This also is called ransomware and can make the system and information completely inaccessible to everyone in your organization, effectively stymieing patient care and business operations.

NewsOK Q&A: Healthcare data hacking likely to require new state laws

From NewsOK / by Paula Burkes
Published: March 9, 2015
Click to see full story – Across the U.S., more state laws are likely for mandated encryption of health data

Phillips Murrah’s Joshua Edwards discusses healthcare data hacking

Hacking may bring more state laws, encryption of health data

Josh_Edwards-copy-300x300

Josh Edwards is a Director at Phillips Murrah law firm.

Q: How serious of a problem are healthcare data hacks for insurance companies, employer health plans and others in the healthcare industry?

A: Last month Anthem Inc., the second-largest health insurer in the U.S., announced hackers had stolen personal information, including names, dates of birth, member ID/Social Security numbers, addresses, phone numbers, email addresses and employment information of up to 80 million individuals covered under its health plans. The Anthem breach alone affects one out of every four Americans. This data can be sold on the black market and then used by identity thieves to commit financial crimes, as well as fraudulently obtain medical services and prescriptions. The FBI previously warned insurers and other companies in the healthcare industry that their data security systems lagged behind those of the financial and retail sectors and that they were particularly susceptible to cyberattacks given the value of such data to cybercriminals.

Q: What federal and state laws govern the security of healthcare data and a company’s obligations after discovery of a breach?

A: The primary federal law is the Health Insurance Portability and Accountability Act (HIPAA), which was amended in 2009 by the Health Information Technology for Economic and Clinical Health Act specifically to address electronic transmission and storage of protected health information (PHI). HIPAA governs the privacy and security of an individual’s PHI and requires certain kinds of technological safeguards to protect against unauthorized use and disclosure. In addition to HIPAA, earlier this year New Jersey passed a law requiring health insurers to encrypt all electronically-stored personally identifiable information of New Jersey residents, and it seems likely we will see similar laws passed by other states as well. HIPAA also requires a company to notify affected individuals after discovering a breach of PHI. Forty-seven states also have their own breach notification laws, each of which have their own unique content and timing requirements.

Q: How does an insurer’s data breach impact employers who use the insurer for their health plans?

A: Events such as the Anthem breach affect not only the insurer, but also companies that partner with the insurer to provide health coverage to their employees. For companies with a fully-insured health plan, the insurer will be a “covered entity” under HIPAA and have primary responsibility for protection of PHI and compliance with the breach notification requirements. However, for self-insured health plans, an insurer serving as a third-party administrator will be considered a “business associate” under HIPAA, meaning primary responsibility for protecting PHI and notifying affected individuals and government agencies would fall to the employer. Regardless, employers should have a plan to address such concerns and keep employees informed.

Q: What should insurers and employers do upon discovery of a breach of healthcare data?

A: After a breach, both insurers and employers should review their contracts, including any business associate agreements, to determine their relative responsibilities as well as any indemnification rights and obligations. It’s also essential for both parties to know their duties under HIPAA and state breach notification laws so that compliant and timely notifications can be crafted and delivered to affected individuals and applicable federal and state agencies. Finally, a plan should be implemented for keeping affected individuals informed of the ongoing investigation, as well as strategies for protecting against identity theft and credit monitoring options that may be available.

 

Phillips Murrah welcomes two attorneys

SMR, SJE

Scott M. Rayburn and Sidney J. Earnheart

OKLAHOMA CITY – Scott M. Rayburn has joined Phillips Murrah’s Transactional Practice Group as an of counsel attorney.

Rayburn’s practice will be focused on business transactions, entity formation and structure, and capital raising and formation.

He will also be representing clients in negotiating and structuring acquisitions and divestitures, private equity financing, contractual matters and other issues faced in general business and corporate affairs.

For 12 years prior to joining Phillips Murrah, Rayburn was General Counsel at Canaan Resources, an Oklahoma City based natural gas company.

Phillips Murrah also added Sidney J. Earnheart to the firm’s Energy & Natural Resources team as an associate attorney.

Earnheart 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.

Prior to joining Phillips Murrah, Earnheart worked as an attorney in Houston, Texas for a law firm that specializes in matters related to oil and gas.

Brown: Producing for Oklahoma

Guest article originally published in The Journal Record on Oct. 24, 2014.
Click to see Elizabeth K. Brown’s attorney profile


 

Elizabeth K. Brown’s practice is focused at a strategic level on serving her clients as outside counsel where she assists privately held companies in managing the many legal issues that arise in running a business.

Elizabeth K. Brown’s practice is focused at a strategic level on serving her clients as outside counsel where she assists privately held companies in managing the many legal issues that arise in running a business.

A vibrant and growing oil and natural gas industry is paying dividends for Oklahoma, the most recent example being the increased payments to the state’s General Revenue Fund from taxes on the oil and natural gas industry.

Gross collections to the General Revenue Fund increased during the third quarter, up by almost 10 percent from the previous year. A significant portion of that increase came from the state’s gross production tax on oil and natural gas production, which saw a 33.4-percent growth compared with the year before.

The General Revenue Fund is the key indicator of state government’s fiscal status and the predominant funding source for the annual state budget. Collections, reported by the Office of Management and Enterprise Services, are revenues that remain for the appropriated state budget after rebates, refunds and mandatory apportionments.

The growth of receipts from the state’s gross production tax is an important benchmark because Oklahoma’s oil and natural gas industry remains a critical component of the fiscal stability for both state and local governments. The Oklahoma Energy Resources Board’s May 2012 Oklahoma’s Oil and Natural Gas Industry Economic Impact and Jobs Report shows the industry, as a whole, accounts for approximately 25 percent of all taxes paid in the state.

The greatest single benefactor of direct apportionments of gross production tax revenues is the state’s education system. Data from the most recent OERB report released in September shows the oil and natural gas industry accounted for more than $325 million to local school districts across the state. Another $150 million was allocated to the Oklahoma Student Aid Revolving Fund, the Higher Education Capital Fund and the Common Education Technology Fund.

To put that in perspective, take the northern Oklahoma community of Alva. In the heart of the Mississippi Lime, the Class 2A school district received $3.7 million in state funding for the 2012-13 school year. Of that, $2.1 million came directly from the oil and natural gas industry.

This state’s oil and natural gas industry is producing for Oklahoma. A growing oil and natural gas industry means increased funding for Oklahoma’s students and ensures future generations can continue producing for Oklahoma.

Phillips Murrah Director Jim Roth featured in OKC’s Slice magazine

Jim-Roth-slice-photo

Photo of Jim Roth that appeared in Slice magazine, by J. Christopher Little.

Jim Roth, a Director and Chair of the firm’s Clean Energy Practice Group, was featured in a Q&A article in Oklahoma City entertainment/lifestyle magazine, SLICE.

From the story:

Anyone who has ever met Jim Roth knows there’s much more beneath the surface of the Oklahoma City attorney and former state Corporation Commissioner. Roth, an attorney at Phillips Murrah Law Firm, is an ardent champion for the advancement of cleaner energy for our state and country. At the same time, he knows what time of night the karaoke is just getting good at Cookie’s.

See the full article, which published Feb. 2013, here.

 

Leadership in Law profile: Dawn M. Rahme

From The Journal Record
Published: April 30, 2010
Click to see full story – Leadership in Law profile: Dawn M. Rahme

Dawn M. Rahme represents individuals and businesses in an array of transactional matters. The focus of her practice is assisting corporations, partnerships and individuals in general tax planning.

Dawn Rahme has seen countless stories of success accomplished through hard work, but the one that inspires her the most is that of her own father. At 25, he moved from Lebanon to the United States, with neither a high school education nor knowledge of the English language. Without money, education or employment, his chances of success were slim.

Yet he overcame the odds.

“Through hard work, perseverance, integrity and commitment, my father became an extraordinary successful man – in every aspect of the word. He came from humble beginnings, and this drove him to provide more for his family than he was ever able to have,” Rahme said.

“Along with my mother, he taught us to appreciate what we have and to work hard for what we need. … Though my life has been much easier than his – thanks to him and my mother – my goal remains to follow his example of life: take pride in what I do and work hard to achieve success,” she said.

Rahme earned her bachelor’s degree from the University of Tulsa in 1998 and her juris doctorate from the University of Oklahoma in 2001. She then went on to obtain her masters of law in taxation at New York University School of Law.

Today she is a shareholder and director of Phillips Murrah in Oklahoma City. She is a member of the firm’s tax, estate planning and corporate law practice groups and has been involved in several complex mergers and acquisitions and frequently advises clients on the best structure to hold existing assets as well as effects of tax planning with limited partnerships and limited liability companies. Rahme’s practice also includes the area of estate planning. In addition to drafting all types of estate planning documents, such as wills, trusts, advance directives and powers of attorney, she also utilized a number of sophisticated wealth transfer tax planning techniques in her practice, including sales to grantor trusts and valuation discount planning.

For her experience in tax law, Rahme was named an Oklahoma Rising Star by Super Lawyers magazine.

Rahme is a member of the American Bar Association, Oklahoma Bar Association and Oklahoma County Bar Association, where she serves on the board of its Young Lawyer Division. She also has presented seminars on Oklahoma’s sales and use tax for Lorman Educational Services.

Her civic involvement includes serving on the board of Positive Tomorrows, a private, tuition-free school for Oklahoma City homeless children, kindergarten through fifth grade. She also volunteers her time with Big Brothers Big Sisters, Oklahoma Family Network, Regional Food Bank and Susan G. Komen Foundation.

Education:

LL.M, New York University, 2002

J.D., University of Oklahoma, 2001

B.B.A., University of Tulsa, 1998

 

Primary practice areas:

Business, corporate, estate planning and probate, mergers and acquisitions, tax

 

Admitted to practice in:

Oklahoma, 2001

U.S. District Court, Western District of Oklahoma, 2001

U.S. Tax Court, 2001

 

Hobbies:

Spending time with her family and friends, traveling, and snow skiing

Leadership in Law profile: Ray E. Zschiesche

From The Journal Record
Published: April 30, 2010
Click to see full story – Leadership in Law profile: Ray E. Zschiesche

Ray E. Zschiesche’s practice is focused on complex state and federal litigation with extensive experience defending insurance companies, class actions mass tort and lender liability.

Advocating and defending a position on a particular issue was something Ray Zschiesche always enjoyed, and after participating on his high school debate team, he made up his mind to pursue a career in the legal profession.

Zschiesche has a bachelor’s degree in finance from Oklahoma State University and a juris doctorate with distinction from the University of Oklahoma College of Law.

The Oklahoma City native began his career as an attorney with Miller & Associates before joining a predecessor of Phillips Murrah in 1989. Today he is a shareholder and director in the firm’s litigation department and a member of its commercial law practice group. He represents individuals and both privately held and public companies in a wide range of complex litigation matters.

Zschiesche’s law practice centers on complex state and federal litigation at both the trial and appellate levels. In addition to extensive insurance defense experience, he has successfully defended cases involving class actions, mass tort liability, lender liability, fraud and bad faith. He also represents clients in pre-suit negotiations, mediation and arbitration.

His work in the legal field helped earn Zschiesche the George J. Fagin Municipal Law Endowment Award.

“Preparation is the key to success in litigation. You can be the best orator on the planet, but without proper preparation you won’t have much to say,” Zschiesche said.

Honesty and communication are also core factors in practicing law, he advised others entering the field.

“Other than dishonesty, nothing will sully your reputation in the legal community faster than others’ inability to rely on your word. Finally, communicate with your client. Lack of communication is the source of most problems between lawyers and clients.”

Zschiesche is a member of the Oklahoma County Bar Association, Oklahoma Bar Association, and American Bar Association and is active with the Defense Research Institute and the Community Service Committee of the Oklahoma County Bar Association.

He also is active in the community, serving as a board member of the Payne Education Center and executive council of the Jim Thorpe Association. In addition, he volunteers with the St. Baldrick Foundation, which raises money to fund grants for research concerning childhood cancer. Zschiesche was among this year’s group of volunteers to solicit donations and in exchange have their heads shaved at a scheduled event. He is also a volunteer attorney with Oklahoma Lawyers for Children.

“I try to affiliate myself with civic groups that aid children, particularly children who are disadvantaged physically, socially or economically,” Zschiesche said. “I have a special place in my heart for kids who are disadvantaged or labeled as ‘different’ by their peers.”

Education:

Oklahoma State University (B.S., 1982)

University of Oklahoma (J.D., with distinction, 1985)

Primary practice areas:

Commercial litigation

Admitted to practice in:

Oklahoma – 1985

Spouse:

Dana

Children:

Andrew 18; Allison 16

Hobbies:

Golf, spending time with family