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Accountable Care Organizations and the Admissibility of Guidelines in Malpractice Cases

By Joseph C. Vitale

The fundamental purpose of the Patient Protection and Affordable Care Act (the ACA) is to “increase the number of Americans covered by health insurance and decrease the cost of health care.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S.Ct. 2566, 2580 (2012). Accordingly, the ACA has expanded a program for Accountable Care Organizations (ACOs), which are organizations of health care providers responsible for the quality, cost, and overall care of the whole patient. Federal law requires that ACOs establish and implement guidelines to promote “evidence-based medicine” and “patient engagement.” 42 C.F.R. § 425.112.

The Threat of ACO Guidelines in Malpractice Litigation

Without limitations in place, ACOs and their federally-mandated guidelines may prove problematic for health care providers in malpractice cases. Of primary concern is that medical guidelines could be used to actually establish the standard of care. Moreover, these guidelines present a potential Catch-22 for ACOs and their physicians. Guidelines may expose physicians to liability for failure to comply. Yet if the physician comports with the guidelines, a plaintiff might argue that cost savings were prioritized over the medical needs of the patient, as guidelines are implemented in part to cut costs. The financial benefit to ACOs may cause physicians to become hesitant of cost-saving guidelines. Guidelines can be particularly concerning when they entail a deviation from a physician’s current practice, as physicians may be ultimately held negligent in adhering to the guidelines.

Limited Admissibility of Guidelines

On April 16, 2015, President Obama signed into law the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA). Under MACRA, federally-required guidelines cannot be used to establish the standard of care owed by a health care provider in a malpractice claim. 114 P.L. 10, 129 Stat. 87 (2015).


MACRA does not entirely prevent the use of guidelines in malpractice claims. For example, the law does not expressly prohibit plaintiffs from (1) using other guidelines not adopted by ACOs as evidence pertaining to standards of care; (2) using adopted guidelines to buttress or rebut expert testimony regarding the standard of care; or (3) using guidelines to demonstrate cost-cutting measures. While these questions remain unanswered, MACRA resolves the most significant concern of ACOs by ensuring that professional liability cannot be determined simply by assessing outlined metrics, rather than by treating patients according to their specific needs.


Employee or Independent Contractor? The Pitfalls of Worker Misclassification

By Jason W. Kinser

The challenge of properly classifying workers as “employees” or “independent contractors” is drawing increased attention as of late, as both state and federal agencies have been more focused on investigation and enforcement.

Advantages of Independent Contractors

There are certainly financial incentives for organizations to classify workers as independent contractors rather than employees. Typically, independent contractors are reported to the IRS on a Form 1099 instead of a Form W-2. Consequently, employers are not required to withhold taxes, make Medicare or Social Security contributions, or pay unemployment and workers’ compensation premiums for independent contractors. Further, employee benefit plans—including group health insurance, paid leave, and 401(k) plans—only cover employees and do not typically extend to independent contractors.

The Expense of Misclassifying Workers

Unfortunately, misclassifying workers as independent contractors can end up costing an employer plenty. Therefore, it is so important to properly classify workers and avoid hefty fines, penalties, and potential litigation and reputation issues related to noncompliance.

Factors for Properly Classifying Workers

It can be difficult for an employer to properly classify a worker as an employee or independent contractor. The determination is fact intensive, and no single factor is dispositive. Perhaps the most important factor in the determination is the element of control — does the employer retain control over the manner in which the work is being performed? The more control the employer exerts over how the work is performed, the more likely the worker will be deemed an employee and not an independent contractor. Other examples include monitoring, training, and exclusivity. Does a manager typically direct the individual’s work? Does the employer provide training, tools, or other assistance to the worker? Is the individual prohibited from performing similar work for other companies? If the answer to these questions is yes, it is more likely the worker is an employee and not and independent contractor.


Because of increased federal and state enforcement activity, and the severity of the fines and penalties associated with misclassifying workers, it is important to talk to a skilled employment attorney who can analyze the relevant factors and assist in the proper classification of workers to avoid potentially significant risks and liabilities to the organization.


Do You Need to Form a Limited Liability Company?

By Brandon A. DeWitt

Today, the most popular form of business entity is the limited liability company (LLC). LLCs have become the entity of choice because LLCs offer numerous benefits to its owners. Such benefits include personal liability and asset protection, credibility, tax savings, anonymity, the ease of raising capital, creating a separate legal entity for personal protection, separate liability for corporate debts, and perpetual duration. If you are starting a company or currently operating an unincorporated business, this article will provide you with a basic understanding of whether you would benefit from forming an LLC.

Brief History

LLCs were first recognized in the United States in 1977. Today, LLCs are recognized as a form of business entity in all 50 states and the District of Columbia. An LLC is a form of business entity designed to combine the corporate attribute of limited liability for its owners with the partnership attribute of “pass-through” tax treatment. By combining the most attractive attributes of corporations and partnerships, the LLC has become a popular alternative to the more traditional corporate and partnership forms.

Personal Liability and Asset Protection

When you form an LLC, you create a separate “person” under the law. Most importantly, forming an LLC provides personal liability protection to the LLC owners. The LLC can provide a strong shield to protect the personal assets of the owners. Those who choose not to form an LLC put themselves at significant risk of personally liability.

Tax Advantages

An LLC can also offer several tax benefits. For example, an LLC can choose how it will be taxed. An LLC is typically taxed at the same rate as a sole proprietorship. An LLC can, however, elect to be taxed as a corporation if it so chooses. Also, many tax deductions are available after forming an LLC.


Selecting the right type of business entity is important to maximizing the financial and operational success for your business. If you are currently operating an unincorporated business or starting a new business, we strongly recommend that you contact an attorney and accountant to discuss the costs and benefits of forming an LLC.

The Hidden Dangers of Unsolicited Fax Messages

By:  Brandon A. DeWitt

Any Company or individual that uses a fax machine to send advertisements should be aware of the Federal Telephone Consumer and Protection Act (TCPA) and the Junk Fax Prevention Act (JFPA) (collectively referred to as the “Rules”).  The Rules state that it is unlawful to send unsolicited advertisements to any fax machine, including those at both businesses and residences, without the recipient’s prior express invitation or permission.  Under these Rules, any entity that sends an unsolicited fax to a business or individual without their permission is subject to a fine of $500.00 for every junk fax sent, which is increased to $1,500.00 if the recipient can show knowledge and intent on behalf of the sender.  In addition to these penalties, a recipient is often entitled to recover their attorney’s fees from the sender.

Under very limited circumstances, a company or individual is allowed to send unsolicited fax messages without violating the Rules.  Under the Rules, unsolicited fax messages are lawful if there exists both (a) an established business relationship and (b) an opt-out notice meeting the requirements of 47 U.S.C. § 227(b).  While this exception seems straight forward, it has been highly scrutinized by both the Federal Communications Commission and the Federal Courts, and, as a result, complex body of law has developed which requires fact intensive analysis to determine whether a sender falls under the exception.  In order to fall under the protection of this exception, a sender must be careful to follow these strict guidelines that have been set forth in numerous FCC and Federal Court Opinions.

One must also be aware that insurance policies typically exclude coverage for any violations of these Rules.  Therefore, unless you purchased a special policy from your insurance agent that specifically applies to violations of these Rules, it is very likely that you do not currently possess any applicable insurance coverage.  As a result, if you are sued for violating the Rules, your insurance carrier will decline to defend you and will decline to pay any judgment entered against you.  Many companies have been forced into bankruptcy as a result of such judgments.

For further information we recommend that you review the Rules and the FCC Advisory Opinions which can be found at https://www.fcc.gov/guides/fax-advertising.  If your company regularly sends unsolicited faxes, we would strongly recommend that you consult with your attorney before sending any further unsolicited faxes so that you can determine whether you are complying with the Rules and whether you have sufficient insurance coverage to protect you in the event you violate these Rules in some way.

Continuous Wage Garnishment

By Andrew J. Kriegshauser

Recent legislation passed in Missouri will allow for a judgment creditor to impose a continuous wage garnishment on its judgment debtor’s wages.  Missouri’s continuous wage garnishment statute is codified in Missouri Revised Statute § 525.040 [Effective January 15, 2015] (hereafter referred to as the “Statute”). The Statute and the proposed Supreme Court Rules submitted to accompany it[1] impose new duties and obligations on judgment creditors and employers.

Under the Statute, the judgment creditor to serve its judgment debtor’s employer with a notice of continuous wage garnishment first will be entitled to garnish the debtor’s wages “until the judgment is paid in full or until the employment relationship is terminated, whichever occurs first[.]” See Mo. Rev. Stat. § 525.040.1. Priority will be determined by the date which garnishments are served. Under Proposed Missouri Supreme Court Rule 90.19, judgment creditors are required to file a statement of judgment balance, which shall indicate all payments received within the preceding six months and the remaining unsatisfied portions of the balance. The statement of judgment balance needs to be filed not later than fifteen days of the six month mark of the issuance of the garnishment. Failure to file a statement of judgment balance will lead to termination of the garnishment and loss of priority status.

The Statute and Proposed Rule 90.07 require an employer receiving a continuous wage garnishment to inform all inferior garnishors[2], if any, of the existence and case number of all senior garnishments that have already been served on its employee’s wages. Employers must also state the gross amount of earnings due to the employee debtor and the non-exempt portion of the earnings subject to garnishment. Proposed Rule 90.07 treats garnishment interrogatories as other discovery and, therefore, requires employers to file a certificate of service with the Court.

The Statute and Proposed Rules create an added importance to priority of garnishments. Continuous wage garnishments will allow a judgment creditor to file just one garnishment and, assuming the judgment creditor was to first to serve the garnishment, receive garnished wages until the judgment balance is paid in full or the employment relationship between the garnishee employer and judgment debtor employee terminates. The Continuous Wage Garnishment provides judgment creditors with a useful tool of judgment collection.


[1] The Proposed Supreme Court Rules have been submitted to the Clerk of the Supreme Court of Missouri and are being reviewed by the Civil Rules Committee.

[2] Garnishor(s) that serve Notice of Garnishment on an employer after a Continuous Wage Garnishment has already been served on the employer for the same judgment debtor’s/employee’s wages.

“Belt and Suspenders”: Protecting Your Interests through Settlement and Beyond

By Joel O. Christensen

Not every dispute requires the time and expense of a lawsuit litigated through trial. As the number of cases resolved through settlement increases, so too does the importance of avoiding pitfalls in the drafting of settlement agreements.  The bedrock of an effective settlement agreement is twofold: clarity and anticipation.  As the adage goes, an ounce of prevention is worth a pound of cure.  The principles of clarity and anticipation underlie every provision of every agreement, as ambiguities in a settlement agreement are strictly construed against the drafting party, and the disputes that may arise under your agreement months and years down the road may surprise even the most conscientious party.  The greater the clarity and anticipation injected into the settlement document before execution, the greater the likelihood of favorable resolution of later disputes.  This article highlights and explains key provisions that should be included in settlement agreements as a matter of course, in order to best ensure that the parties’ intent materializes and expectations are satisfied.

Definitions and Details. The easiest and most effective way to ensure clarity and to avoid a later misunderstanding is to remove all doubt as to the meaning and scope of every provision in your settlement document.  Examples of best practices include: identifying the legal capacity in which each party enters the agreement and agrees to be bound thereunder (e.g., the LLC, as opposed to its members), defining every term of art, specifying the exact address(es) to which notices should be sent or payments received, expressly stating the manner of delivery of notices and payments, clarifying the date(s) on which notices must be sent or payments received (including the effect of weekends and legal holidays), and establishing an unambiguous, detailed road map with respect to dispute resolution.

Waivers and Releases. The agreement should provide for mutual, reciprocal releases between the parties.  If a party presents you with a settlement agreement purporting to release only that party, and not you, your interests are not being adequately protected.

Confidentiality. If the subject matter of an agreement merits a confidentiality provision, the agreement should make clear that such confidentiality provision applies mutually to the parties and their attorneys, officers, directors, heirs, successors, assigns, agents, and employees.  To avoid an unintentional breach of the agreement, the parties should clarify that the confidentiality provision does not preclude disclosure of the agreement in response to a court order or subpoena, in connection with an audit, or if disclosure is incidental to enforcing the terms of the agreement.

Disposition of Ongoing Litigation. Where a negotiated settlement is preceded by litigation between the parties, the settlement agreement should clarify what becomes of the lawsuit.  Most agreements provide for dismissal of the lawsuit “without prejudice” (such that failure by one party to honor its obligations under the agreement does not preclude re-filing of a similar suit by the non-breaching party).  The language addressing disposition of litigation should clarify when a dismissal “with prejudice” must be filed (i.e., upon receipt of the final settlement payment), and whether and on what terms a consent judgment may be entered.

Governing Law and Forum Selection. Although the goal of settlement is to fully and finally resolve all claims between the parties, there are times that the agreement itself becomes the focus of a new claim or a new lawsuit.  Your agreement should protect you by expressly stating the governing law (e.g., Missouri) and venue (e.g., St. Louis County Circuit Court) in which disputes will be heard.

Each settlement is unique; the concepts discussed above are not comprehensive, but they are intended as an overview of protective measures you can take to ensure your interests are best served in the short, medium, and long term.

Lex’s Que Tips – Cranberry-Jalapeno Cream Cheese Dip

By Joey Vitale


12 ounces fresh cranberries
4-5 green onions, chopped
1/4 cup chopped fresh cilantro
2 jalapeno peppers, seeded and finely diced
1 cup sugar (more or less to taste)
2 tablespoons fresh lemon juice
1/8 teaspoon salt
2 packages of cream cheese, ligh or regular, softened
Crackers or tortilla chips, for serving

Read the rest of this entry »

Meet Joey Vitale

JVitale-108-ColorWeb - Copy

Joseph C. (Joey) Vitale joined the firm in September 2014 after clerking here as a law student for two years.  He previously served as a legal intern for the Honorable Donald G. Wilkerson of the United States District Court, Southern District of Illinois.  Joey has also interned for the United States Senate.

Born and raised in Saint Louis, Joey is an alumnus of Saint Louis University High School.  He graduated from Xavier University in 2011 and earned an Honors B.A., magna cum laude, with majors in English as well as the “Philosophy, Politics & the Public” honors program.

Joey graduated cum laude from Saint Louis University School of Law in 2014.  While in law school, he earned several awards and was the Online Editor of the Saint Louis University Law Journal.

Joey and his wife, Kat, reside in the Forest Park Southeast neighborhood.

Firm News – Winter 2015

Tony Behr, Dudley McCarter, and Steve Potter have each been named 2014 Super Lawyers, and they have also been selected to Best Lawyers in America 2015.

Elizabeth (Liz) Grana has been named President of the Women Lawyers’ Association of Greater St. Louis (“WLA”).   Liz has also been named a Super Lawyers Rising Star of 2014.

Joel Christensen was recently appointed to a three-year term as a member of the Lupus Foundation of America, Heartland Chapter’s Board of Directors.

This past July, Richard Behr successfully represented the Missouri Department of Transportation (MoDOT) against a former employee’s retaliatory discharge claim.


Firm News – Summer 2014

  • “Liz Grana is finishing up a term as the President-Elect for the Women Lawyers’ Association of Greater St. Louis (“WLA”). Liz will be installed as President of the WLA in September 2014.
  • Ed Crites and his daughter Annie ran in the 2014 Boston Marathon.  It was Ed’s third Boston and Annie’s first. The memory of the 2013 bombing gave this year’s marathon a deeper sense of purpose, with many moving tributes to the victims.  The theme was “Boston Strong” and it seemed the entire city turned out in support.  Boston’s sense of pride was heightened by an American winning the men’s race for the first time in 31 years.  All in all it was a great experience.
  • Ed Crites has been reappointed to the City of Warson Woods Board of Adjustment and as Provisional Municipal Judge.
  • Dudley McCarter elected President of the University of Missouri Alumni Association.





Vendor: Microsoft Exam Code: 070-410 dumps Exam Name: Implementing a Data Warehouse with Microsoft SQL Server 2012 Version: DemoDEMO

QUESTION 1 You are developing a SQL Server Integration Services (SSIS) package to implement an incremental data load strategy. The package reads data from a source system. Depending on the value in a source column, the package redirects rows to one of five 70-696 dumps different data flow paths. You need to add a data flow transformation to support the package redirection. Which data flow transformation should you use? A. Conditional Split B. pjvot C. Multicast D. Lookup Correct Answer: A

QUESTION 2 You are developing a SQL Server 070-463 dumps Integration Services (SSIS) project that contains a project Connection Manager and multiple packages. All packages in the project must connect to the same database. The server name for the database must be set by using a parameter named ParamConnection when any package in the project is executed. You need to develop this project with the least amount of development effort. What should you do? (Each answer presents a part of the solution. Choose all that apply.) A. Create a package parameter named ConnectionName in each package. B. Edit each package Connection Manager. Set the ConnectionName property to @ [$Project::ParamConnection]. C. Edit the project Connection Manager 70-410 dumps in Solution Explorer. Set the ConnectionName property to @ [$Project::ParamConnection]. D. Set the Sensitive property of the parameter to True. E. Create a project parameter named ConnectionName. F. Set the Required property of the parameter to True. Correct Answer: BEF

QUESTION 3 You develop a SQL Server Integration Services (SSIS) package in a project by using the Project Deployment Model. It is regularly executed within a multi-step SQL Server Agent job. You make changes to the package that should improve performance. You need to establish if there is a trend in the durations of the next 10 successful executions of the package. You need to use the least amount of administrative effort to achieve this goal. What should you do? A. After 10 executions, view the job history for the SQL Server Agent job. B. After 10 executions, in SQL Server Management Studio, view the Execution Performance subsection of the All Executions report for the project. C. Enable logging to the Application Event Log in the package control flow for the Onlnformation event. After 10 executions, view the Application Event Log. D. Enable logging to an XML file in the package control flow for the OnPostExecute event. After 10executions, view the XML file. Correct Answer: B

QUESTION 4 A SQL Server Integration Services (SSIS) 2012 package currently downloads sales data from a Windows Azure SQL Database database. To improve sales data accuracy, exchange rates must be downloaded daily from a public HTTP website instead of from a weekly flat file. The public website hosts a comma- separated values (CSV) file that contains one row per currency. You need to download the CSV file to the environment. What should you use to retrieve the document from the website? A. a Script component B. a Web Service 70-331 dumps task C. a Web Service source D. a Script task Correct Answer: D

QUESTION 5 You are preparing to install SQL Server 2012 Master Data Services (MDS). You need to ensure that the database requirements are met. What should you install? A. Microsoft SharePoint Server 2010 Standard Edition SP1 B. Microsoft SharePoint Server 2010 Enterprise 070-489 dumps Edition SP1 C. SQL Server 2012 Data Center (64-bit) x64 on the database server D. SQL Server 2012 Enterprise (64-bit) x64 on the database server Correct Answer: D

QUESTION 6 You are designing an Extract, Transform and Load (ETL) solution that loads data into dimension tables. The ETL process involves many transformation steps. You need to ensure that the design can provide: Auditing information for compliance and business user acceptance Tracking and unique identification of records for troubleshooting and error correction What should you do? A. Develop a Master 70-414 dumps Data Services (MDS) solution. B. Develop a Data Quality Services (DQS) solution. C. Create a version control repository for the ETL solution. D. Develop a custom data lineage solution. Correct Answer: D

QUESTION 7 You are designing a SQL Server Integration Services (SSIS) project that uses the Project Deployment Model. The project will contain 10 packages. All the packages must connect to the same data source anddestination. You need to define and reuse the connection 70-486 dumps managers in all the packages by using the least development effort. What should you do? A. Implement parent package variables. B. Copy and paste connection managers from one package to the others. C. Implement project connection managers. D. Implement package connection managers. Correct Answer: C

QUESTION 8 You have a secured database that contains all of the customer data for your company. You plan to use a project deployment model. You need to create a SQL Server 1ntegration Services (SS1S) package that connects to the database by using a dedicated username and password. 70-487 dumps The solution must ensure that the password used for the connection string is encrypted. Which two actions should you perform? (Select Two) A. Select the Sensitive check box for the catalog environment. B. Set the sensitive property of the package parameter to True. C. Modify the set_execution parameter_value stored procedure. D. Set the package protection level to EncrypSensitiveWithPassword. Correct Answer: CD

QUESTION 9 You are developing a SQL Server 1ntegration Services (SS1S) package. The package sources data from an HTML web page that lists product stock levels. You need to implement a data flow task that reads the product stock levels from the HTML web page. Which data flow sources should 70-480 dumps you use? Select Two A. Raw File source B. XML source C. Custom source component D. Flat File source E. script component Correct Answer: CE

QUESTION 10 You develop a SQL Server Integration Services (SSIS) package in a project by using the Project Deployment Model. It is regularly executed within a multi-step SQL Server Agent job. You make changes to the package that should improve performance. You need to establish if there is a trend in the durations of the next 10 successful executions of the package. You need to use the least 70-412 dumps amount of administrative effort to achieve this goal. What should you do? A. Enable logging to an XML file in the package control flow for the Onlnformation event. After 10 executions, view the XML file. B. After 10 executions, view the job history for the SQL Server Agent job. C. After 10 executions, in SQL Server Management Studio, view the Execution Performance subsection of the All Executions report for the package.D. Enable logging to an XML file in the package control flow for the OnPostExecute event. After 10 executions, view the XML file. Correct Answer: C

QUESTION 11 You are editing a SQL Server Integration Services (SSIS) package that contains a task with a sensitive property. You need to create a project parameter and configure it so that its value is encrypted when it is deployed to the SSIS catalog. Which three steps should you perform in sequence? (To answer, move the appropriate actions from the list of actions to the answer area and arrange them in the correct order.) Select and Place: Correct Answer: QUESTION 12 You are building a SQL Server Integration Services (SSIS) package to load data from all files that are automatically copied to a directory each night through an external FTP process. You need to load data from all copied files to a destination table in SQL Server. Which three steps should you perform in sequence? (To answer, move the appropriate actions from the list of actions to the answer area and arrange 70-532 dumps them in the correct order.) Select and Place:Correct Answer:

QUESTION 13 You are creating a sales data warehouse. When a product exists in the product dimension, you update the product name. When a product does not exist, you insert a new record. In the current implementation, the DimProduct table must be scanned twice, once for the insert and again for the update. As a result, inserts and updates to the DimProduct table take longer than expected. You need to create a solution that uses a single 070-413 dumps command to perform an update and an insert. How should you use a MERGE T-SQL statement to accomplish this goal? (To answer, drag the appropriate answer choice from the list of options to the correct location or locations in the answer area. You may need to drag the split bar between panes or scroll to view content.)Select and Place:Correct Answer:

control flow is shown in the answer area.