Medical participation in control of certain open-panel medical prepayment plans: Federal Trade Commission. Request for comment and advance notice of proposed rulemaking

This Notice requests comments on two staff reports dealing with medical participation in control of Blue Shield and certain other open-panel medical prepayment plans and on alternative courses of action that the Commission might take to deal with this subject, one of which might be rulemaking.     

Promises to keep: Enforcement of prepublication agreements and first amendment rights

Since the Supreme Court's ruling in Cohen v. Cowles Media, several courts have found that prepublication agreements are legally binding promises between journalists and their sources of information, and that the First Amendment does not protect journalists from civil sanction for the breach of such agreements. An agreement between a journalist and a private individual not to disclose a source's information or the source's identity might constitute a legally binding commitment, especially if the plaintiff is able to show that a clear and specific commitment was made not to reveal certain information and that as a result of the breach of promise the plaintiff suffered specific harm.

However, the Court's analysis of enforcement of confidentiality promises as having merely incidental effects is flawed. Because it did not balance the enforcement of prepublication agreements against the First Amendment interests in nonenforcement of the agreements, the Court in Cohen departed from its compelling interest analysis of prepublication agreements in Snepp v. United States as well as its previous standards in finding incidental effects of generally applicable laws.     

Physician organizations: two years under the FTC/DOJ guidelines

The joint antitrust enforcement statement for physician networks was designed in part to dispel uncertainty in the physician community about antitrust agency law enforcement intentions. In the two years since its issuance, the antitrust agencies have generally, but not always, been consistent in applying the methodology and standards set forth in their enforcement statement. Even though agency pronouncements like the enforcement statement are not binding on private parties or the federal courts, both the statement and subsequent advisory opinions and business review letters have been exceptionally helpful, if not always encouraging, to health care providers in their antitrust planning efforts.     

Imperatives for the enforceability of collective agreements in Nigera

This article examines the rationale behind the non-enforcement of collective agreements in Nigeria, theories propounded for the enforceability of collective agreements, and the need for courts in Nigeria to adopt a more liberal approach towards enforcement. This article argues that contrary to the position of the law in Nigeria that collective agreements are not enforceable, this parties, especially trade union leaders, academics and notable oil companies in Nigeria such as Shell, Chevron, etc. do intend to enter into legal relations whenever a collective agreement is arrived at and this is the reason why there is less industrial unrest in the private sector of the oil and gas industry in Nigeria. This article argues that multinational oil companies honour collective agreements entered into with their trade unions because they see such agreements as intended to create legal relations. It is the Nigerian government and its agencies that have failed to honour collective agreements freely entered into with trade unions, despite the time and resources that have been expended to arrive at such collective agreements. This article argues that collective agreements do not fall within the purview of social or domestic arrangements, but business transactions. This article takes a look at the position of collective agreements in other jurisdictions such as the USA, Great Britain, South Africa and The Netherlands, and urges the court in Nigeria to expound the law relating to collective agreement since there are several legislations in Nigeria touching on collective agreements which the courts can expound.     

Enforcing compliance with international environmental agreements using a deposit-refund system

Whether nations are able to cooperatively manage shared resources through international environmental agreements (IEAs) depends on whether compliance with voluntary commitments can be enforced. Given that nations are sovereign enforcing compliance with IEAs cannot rely on the presence of a strong sanctioning body. Nonetheless, enforcement provisions must be effective in the sense that they will deter non-compliance and credible in the sense that they will actually be imposed. In this paper, we address the problem of enforcing compliance with IEAs by examining one promising mechanism—a deposit-refund system—that exhibits the necessary features for effective enforcement. We analyze a simple model to demonstrate the desirable properties of the mechanism and then consider the effects of imperfect monitoring, uncertainty, partial participation and reputation on the effectiveness of a deposit-refund system.     

Unwanted cohabitation agreements

Given the predominant role in American law of cohabitation agreements in protecting cohabitants, this Article presents an informal study that measured attitudes toward such agreements. The results confirm the literature findings that people generally are not inclined to want cohabitation agreements upon cohabitation. Further studies might explore the reasons for the unpopularity of cohabitation agreements and the ways to improve the protection of cohabitants, and this Article offers potential considerations.     

Plans established or maintained pursuant to collective bargaining agreements under section 3(40)(A)--Pension and Welfare Benefits Administration. Notice of intent to form a negotiated rulemaking advisory committee

The Department of Labor (Department) intends to form a Negotiated Rulemaking Advisory Committee (Committee) in accordance with the Negotiated Rulemaking Act of 1990 and the Federal Advisory Committee Act. The Committee will negotiate the development of a proposed rule implementing the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. 1001-1461 (ERISA). The purpose of the proposed rule is to establish a process and criteria for a finding by the Secretary of Labor that an agreement is a collective bargaining agreement for purposes of section 3(40) of ERISA. The proposed rule will also provide guidance for determining when an employee benefit plan is established or maintained under or pursuant to such an agreement. Employee benefit plans that are established or maintained for the purpose of providing benefits to the employees of more than one employer are "multiple employer welfare arrangements" under section 3(40) of ERISA, and therefore are subject to certain state regulations, unless they meet one of the exceptions set forth in section 3(40)(A). At issue in this regulation is the exception for plans or arrangements that are established or maintained under one or more agreements which the Secretary finds to be collective bargaining agreements. If adopted, the proposed rule would affect employee welfare benefit plans, their sponsors, participants and beneficiaries, as well as service providers to plans. It may also affect plan fiduciaries, unions, employer organizations, the insurance industry, and state insurance regulators.     

TBOR2 compliance plans: from rebuttable presumption to enforcement

This Article analyzes the implications and strategies of incorporating the Taxpayer Bill of Rights 2 ("TBOR2") into tax-exempt healthcare organizations' compliance plans. Beginning with a brief overview of TBOR2, the author examines the presumption of fair market value, how such organizations establish safe harbors, the current Internal Revenue Service (IRS or Service) position regarding enforcement of TBOR2, and the lurking potential for "whistleblowers" to start auditory procedures with an eye toward IRS bounties. Mr. Griffith concludes that the best advice for exempt organizations is to follow the rebuttable presumption procedure for all transactions involving potential disqualified persons, including staff and employed physicians, and seek to fit within the safe harbors for the less routine and larger of those transactions.     

Risk-sharing agreements to cover environmental damage: theory and practice

Mordernization has witnessed increasingly new industrial sectors which have the potential to create environmental disasters. The insolvency of risk creators in case of such disasters may lead to insufficient compensation as well as to a dilution of preventive incentives. Insurance is a traditional instrument to address these problems, but is subject to limitations such as the lack of information by the insurers on the risk and limited insurance capacity. The risk-sharing agreement is an alternative which is widely used in high-risk sectors but it received relative little attention in academic literature. This paper analyses the potential of risk-sharing agreements in minimizing total social costs of environmental harmful activities, in comparison with insurance. The comparison shows the advantage of risk-sharing agreements in terms of less demanding information requirements, allowing for mutual monitoring and the potential to reduce administrative costs. However, the analysis also shows that a few conditions need to be met for such advantages to be materialized. This paper then discusses a typology of various risk-sharing agreements and illustrates the different categories with examples from the maritime and nuclear sectors. Based on these experiences, this paper explores the possibilities to expand risk-sharing agreements to other policy areas where environmental risks may emerge.     

CLOUD act agreements from an EU perspective

For many years, transatlantic cooperation between the EU and the US in the area of personal data exchange has been a subject of special interest on the part of lawmakers, courts – including supranational ones – NGOs and the public. When implementing recent reform of data protection law, the European Union decided to further strengthen guarantees of the protection of privacy in cyberspace. At the same time, however, it faced the practical problem of how to ensure compliance with these principles in relation to third countries. The approach proposed in the GDPR, which is based on a newly-defined territorial scope of application, clearly indicates an attempt to apply EU rules extraterritorially in relation to data processors in third countries.Irrespective of EU activity, the United States has also introduced its own regulations addressing the same problem. An example is the federal law adopted in 2018, specifying how to execute national court orders for the transfer of electronic data. The CLOUD Act was established in response to legal doubts raised in the Microsoft v United States case regarding the transfer of electronic data stored in the cloud by US obliged entities to law enforcement authorities, as well as in cases where this data is physically located in another country and its transfer could result in violating the legal norms of a foreign jurisdiction. The CLOUD Act also facilitates bilateral international agreements that enable the cross-border transfer of e-evidence for the purposes of ongoing criminal proceedings. Both the content of the new regulations and the model proposed by the US legislature for future agreements concluded on the basis of the CLOUD Act can be seen as an alternative to regulations arising from EU law.The purpose of this paper is to analyse the CLOUD Act and CLOUD Act Agreements from the perspective of EU law and, in particular, attempt to answer the question as to whether this new legal mechanism brings the EU and the USA closer to finding common ground with regard to a coherent model of exchange and protection of personal data.     

Expanding ADA coverage to employee benefit plans: recent judicial and administrative developments

The Americans with Disabilities Act has been heralded as the Emancipation Proclamation for persons with disabilities. The purpose of the law is to provide nothing less than a "clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." Precisely how the nondiscrimination principles of the ADA will be applied to an employer's provision of health benefits to its employees has been the subject of much debate since the Act's passage in 1990. Although the statutory language and the legislative history support a limited application of the ADA to benefits issues, recent court decisions and enforcement actions by the Equal Employment Opportunity Commission indicate that the ADA may have a much more profound impact in the area of benefits plan design and administration. Moreover, as benefits administrators take a much more active role in managing health care decisions, the ADA may become a vehicle for legal challenges to those decisions that affect the disabled.     

Medicare and Medicaid programs; requirements for physician incentive plans in prepaid health care organizations--HCFA. Final rule

This final rule amends the regulations established by a March 27, 1996, final rule with comment period. The regulations govern physician incentive plans operated by Federally-qualified health maintenance organizations and competitive medical plans contracting with the Medicare program, and certain health maintenance organizations and health insuring organizations contracting with the Medicaid program. As explained in the March 27 rule, the provisions of this final rule will also have an effect on certain entities subject to the physician referral rules in section 1877 of the Social Security Act.     

COMPARING ANTITRUST ENFORCEMENT IN THE UNITED STATES AND EUROPE

Among the many important changes wrought by Regulation 1/2003are the decentralization of responsibility for enforcing EUcompetition law from Brussels to Member States and the creationof the European Competition Network to encourage coordinationand information-sharing among the 26 competition authoritiesin the EU. This article contrasts Europe's new system of competitionenforcement under Regulation 1/2003 with that of the UnitedStates. I focus upon two of the more significant features ofthe U.S. system: the dual legislative and enforcement authorityof the States and the Federal Government, and private enforcement.The Commission is presently evaluating measures to facilitateprivate enforcement and is set to release a Green Paper on thattopic later this year. I highlight a few characteristics thathave made private enforcement such a significant component ofthe U.S. antitrust regime, in some ways and at some times providingtoo much incentive for plaintiffs, at the expense of neutralor procompetitive business activity.     

Collusion and Facilitating Practices: A New Perspective in Antitrust Analysis

A systematic revision of the notion of facilitating practices is put forward in this paper, with the purpose of relaxing the long-debated tension between economic and legal perspectives on oligopoly. Whereas the law knows of just one collusive illegal conduct, namely agreements, in economic theory the focus on internal enforcement makes the distinction between agreements and other behaviour resulting in the collusive outcome irrelevant. However, the tension may be relaxed, at least in a number of relevant circumstances, provided the focus of competition law shifts from straightforward co-ordination on market strategies to the firms' concerted efforts in the design and implementation of given organisational arrangements of the oligopolistic industry, to which an anticompetitive object can be attached. The theoretical analysis is extensively supported by examples drawn from some recent decisions of the European Commission and the Italian Competition Authority.     

Medicare program; changes to the requirement for annual physician acknowledgement of physician attestation responsibilities--HCFA. Final rule with comment period

Existing Medicare regulations require a hospital to obtain, on an annual basis, from each attending physician, a signed acknowledgement that the physician understands the penalty for misrepresenting the information on an attestation statement relating to principal and secondary diagnoses and major procedures performed on patients. This final rule with comment period eliminates the requirement for an annual acknowledgement statement and instead requires that a physician sign an acknowledgement statement only upon being granted admitting privileges at a hospital. The purpose of this change is to reduce the paperwork burden associated with processing claims under Medicare.     

Medicare program; revision of the deadline for submission of emergency graduate medical education affiliation agreements. Final rule

This final rule responds to comments on and revises the deadline for submission of the 2006 emergency Medicare graduate medical education (GME) affiliation agreements. The deadlines to submit the emergency Medicare GME affiliation agreements for the 2005 through 2006 and 2006 through 2007 academic years are changed from on or before June 30, 2006 and July 1, 2006, respectively, to on or before October 9, 2006.     

Medicare program; establishment of an expedited review process for Medicare beneficiaries enrolled in health maintenance organizations, competitive medical plans, and health care prepayment plans--HCFA. Final rule with comment period

This final rule with comment period establishes a new administrative review requirement for Medicare beneficiaries enrolled in health maintenance organizations (HMOs), competitive medical plans (CMPs), and health care prepayment plans (HCPPs). This rule implements section 1876(c)(5) of the Social Security Act, which specifies the appeal and grievance rights for Medicare enrollees in HMOs and CMPs. This rule requires that an HMO, CMP, or HCPP establish and maintain, as part of the health plan's appeals procedures, an expedited process for making organization determinations and reconsidered determinations when an adverse determination could seriously jeopardize the life or health of the enrollee or the enrollee's ability to regain maximum function. This rule also revises the definition of appealable determinations to clarify that it includes a decision to discontinue services.     

Parallel trade and free trade agreements

Legal context. Free trade agreements seek to remove unjustifiedbarriers to trade. Normally barriers to trade are imposed bystates, such as quotas, tariffs, subsidies and regulatory restrictions.However, sometimes barriers will be imposed by private partiesseeking to prevent parallel trade (arbitrage) of their own products.The aim of this article is to examine the way in which freetrade agreements deal with private barriers to parallel tradeand thus to consider to what extent parallel trade is possiblewithin free trade areas. Key points. The article considers first the situation withinthe European Community, which has long supported parallel tradethrough its provisions on the free movement of goods and competitionlaw, before turning to the approach taken in the Community'sfree trade agreements with third countries. It carries out thesame exercise in relation to the United States and then considershow parallel trade is dealt with by the World Trade Organisation.Finally, as free trade agreements only seek to remove unjustifiedbarriers, it considers possible justifications for the differentapproaches before drawing some tentative conclusions. Practical significance. This article considers the impact whichthe overlap between intellectual property, competition law andtrade law has in relation to parallel trade. As well as reviewingthe current position, which will be of use to businesses andlegal practitioners on both sides of parallel trade, it assessesthe underlying justifications which are relevant to policy makingin this field.     

Practitioner fraud and abuse in medical benefit programs: government regulation and professional white-collar crime

Physicians who defraud and abuse medical benefit programs provide a unique group of lawbreakers for scientific study. They could be considered to epitomize white collar criminals given their exceedingly high socioeconomic status and power as a professional group. Using official reports and documents, as well as interviews with enforcement and program personnel at both state and federal levels, this study examines the problem of physician fraud and abuse in Medicare and Medicaid. Major areas relevant to understanding this phenomenon and its control are presented and policy implications of present knowledge in the area are discussed.