2015 News

  • Attorney Mark Feldhaus wins Affordable Housing Administrative Appeal

    On December 11, 2015, the Director of the National Appeals Division of the United States Department of Agriculture (“NAD”) affirmed an Administrative Judge’s ruling in favor of Lashly & Baer Affordable Housing Owner clients who appealed the denial of a property’s yearly budget and rental increase. Attorney Mark Feldhaus successfully argued before the Director of the National Appeals Division that Rural Development’s Rural Housing Service improperly denied the property’s budget based upon property manager pay and administrative expense ratios. The Director determined that the record reflected that the property manager pay and administrative expense ratio were both reasonable and adequately documented. The decision addresses the types of evidence that may be persuasive in these administrative hearings, as well as the type of record that will be sufficient to uphold an Administrative Judge’s decision. A full discussion of the case can be found in the NAD’s published opinion, In the Matter of [an Affordable Housing Property], Appellant, and Rural Development, Agency, NAD Case No. 2015E000342 (Dir. Rev., December 11, 2015).

  • Defending Motor Carriers Performing Oversize Load and Heavy Haul Operations

    Attorneys Patrick E. Foppe and Kevin L. Fritz co-authored, “Defending Motor Carriers Performing Oversize Load And Heavy Haul Operations,” in the USLAW NETWORK, Inc. Magazine, Winter/Fall 2015. View the link above to read a pdf copy of the article.

  • Defending Against Attempts to Impose Liability

    Patrick E. Foppe recently authored, “Defending Against Attempts to Impose Liability through the Broad Definitions under 49 C.F.R. § 390.5,” TLA’s The Transportation Lawyer, December 2015. Please view the above link to read a PDF copy of the article.

  • Provision of Complimentary Transportation Services: OIG Weighs In and Provides Additional Guidance

    Monday, November 2, 2015 – Stuart J. Vogelsmeier published an article, “Provision of Complimentary Transportation Services: OIG Weighs In and Provides Additional Guidance” in the Fall 2015 issue of Gateway Gatherings, which is the newsletter of the Greater St. Louis Chapter of the Healthcare Financial Management Association. Visit the HFMA – St. Louis website to view Gateway Gatherings.

  • Kenneth C. Brostron Earns Top Marks in the 2015 Missouri & Kansas Super Lawyers Listing

    Kenneth C. Brostron has been selected by his peers as one of the Top 50: 2015 St. Louis Super Lawyers and Top 100: 2015 Missouri & Kansas Super Lawyers. Brostron ranked top of the list in both the Top 50 St. Louis and Top 100 categories, having been among those who received the highest point totals in the Missouri nominations, research and blue ribbon review process.

    A total of ten lawyers from Lashly & Baer, P.C. were selected for inclusion into the 2015 Missouri & Kansas Super Lawyers edition. They are Kenneth C. BrostronKevin L. Fritz, Stefan J. Glynias, Terrance J. Good, James C. Hetlage, Stephen G. Reuter and Richard D. Watters.

    In addition, Missouri & Kansas Rising Stars has selected Mark R. Feldhaus, and Patrick E. Foppe as top young lawyers in Missouri and Kansas for 2015.


  • Lashly & Baer Attorney Named St. Louis Medical Malpractice Lawyer of the Year

    Monday, August 17, 2015 – Lashly & Baer, P.C. congratulates Kenneth C. Brostron on being named 2016 “Lawyer of the Year” for Medical Malpractice – Defendants in the St. Louis area by Best Lawyers®, one of the oldest and most respected peer-review publications in the legal profession. Only a single lawyer in each practice area and designated metropolitan area is honored as the “Lawyer of the Year,” making this accolade particularly significant. Receiving this designation reflects the high level of respect a lawyer has earned among other leading lawyers in the same communities and the same practice areas for their abilities, their professionalism, and their integrity. In addition to the 2016 “Lawyer of the Year” award, Brostron is also recognized by The Best Lawyers of America® in the area of Personal Injury Litigation – Defendants.

    Brostron recently celebrated his 40th year of trial work. He defends health care providers and attorneys in professional negligence claims. He counsels businesses and government agencies in all aspects of their operations. He is also well-known for his work in education law, as well as state and United States constitutional matters. He earned his J.D. from Saint Louis University School of Law. Since 1999, he has been included on each year’s St. Louis – Best Lawyers in America® List.

  • Five Lashly & Baer, P.C. Attorneys Included in The Best Lawyers in America® 2016

    We are proud to announce Stephen L. Beimdiek has been selected by his peers for inclusion in The Best Lawyers in America® 2016 for his work in Personal Injury Litigation – Defendants.  He joins John Fox Arnold (Corporate Law); Kenneth C. Brostron (Medical Malpractice Law – Defendants and Personal Injury Litigation – Defendants); James C. Hetlage (Employment Law – Management); and Richard D. Watters (Health Care Law).

  • Lashly & Baer, P.C. Attorney Rhonda O’Brien Takes Part In Affordable Care Act Education

    This Fall, Rhonda A. O’Brien will host a webinar on the Affordable Care Act in conjunction with the Missouri Hospital Association – Center for Education. She will discuss the importance of ongoing employer compliance. The ACA imposes, upon covered employers, health care coverage rules for full-time and part-time employees.  The law is in effect now! The ACA required employer reporting and various legal documentation requirements that require ongoing data collection, analysis and monitoring.  Strategic decisions and compliance will be easier for the employer whose staff is very familiar with the requirements. The webinar will cover the following subjects:

    • Summarize the employer “play or pay” mandate
    • Review of the requirements to offer affordable and minimum value health coverage to full-time employees and their dependents
    • Address employee eligibility hot spots
    • Review of the penalties that may be imposed upon employers under the ACA
    • Review Health Coverage information reporting – including IRS Forms 1094-C and 1095-C.
    • Discussion of the documentation requirements including the SBC, employee notices and wrap documents
    • Address the importance of establishing and maintaining ongoing compliance systems and monitoring these systems.
  • Misclassification Of Workers As Independent Contractors Can Have Unintended Consequences Under The Affordable Care Act

    In an attempt to simplify payroll or attempt to control cost, employers are sometimes motivated to classify workers as independent contractors.  Employers are often unaware of the criteria for proper classification.  Inappropriate classification has always posed a great financial risk, which has grown event greater with the passage of the Affordable Care Act (sometimes known as Obama Care).

    Workers misclassified as independent contractors lose access to family and medical leave, overtime, minimum wage protection and unemployment insurance. Employee misclassification also affects withholding, payment of Social Security and Medicare tax, unemployment tax and workers compensation funds and proper classification is therefore of great interest to regulators.  Employers are subject to investigation by state agencies, the Internal Revenue Service and the U.S. Department of Labor.  There may be monetary sanctions in the form of interest and penalties as well as an obligation for the employer to pay taxes or fund benefits that they sought to avoid.

    Under the Affordable Care Act, an employer with 50 or more full time equivalent employees must offer health coverage or be subject to penalties (as of the applicable effective date).  An employer who is close to the threshold and who intentionally misclassifies workers to stay under the threshold may find itself to have violated Act’s employer mandate and subject to sanction.  In addition, misclassification likely would cause the employer to fail to make an offer of coverage to such workers.  If, due to misclassification as an independent contractor, the full-time worker is not offered employer coverage and obtains coverage on an exchange and receives a subsidy, the employer can be assessed an excise tax penalty for that worker.  If an employer subject to the Act does not offer minimum essential coverage to at least 95% of its full-time employees (70% in plan year 2015) and one full-time employee obtains coverage on an exchange, the Act’s excise tax penalties may be out of proportion with the number of misclassified workers since the penalties are based on the entire full-time workforce.

    The determination of worker classification is very complex and fact driven.  The Internal Revenue Service, the Department of Labor and state agencies all have criteria they use to determine employment status.  For example, the IRS in employment tax situations uses a 20 factor test to make the determination.  It is still unclear what criteria will be used for Affordable Care Act purposes although it will be based upon common law standards. Employers are urged to review their roster of independent contractors and consult with counsel if there is doubt regarding the status of any individual.

    Note:  The Affordable Care Act is extremely complex and its requirements have been simplified in this summary. Do not rely upon this summary as legal advice

    If you would like more information, please contact Rhonda O’Brien at raobrien@lashlybaer.com or your Lashly & Baer attorney.

  • Attorneys Matt Eddy and Mark Feldhaus Prevail in Insurance Coverage Appeal

    On May 26, 2015, the U.S. Court of Appeals for the Eighth Circuit affirmed a $1,000,000 judgment obtained for Lashly & Baer clients involved in an insurance coverage dispute with a commercial general liability insurer. Attorneys Matt Eddy and Mark Feldhaus successfully argued before the federal appellate court that automobile and assault and battery exclusions contained in a CGL insurance policy did not apply to preclude coverage for fatal injuries suffered by our clients’ family member who was struck by an automobile on the premises of an insured tavern owner. A tort suit was filed in state court against multiple parties and included a claim that the tavern owner’s dangerous parking lot design contributed to cause the accident. In addition to the $1 million policy limits, the judgment in the insurance coverage action also included over $400,000 of post-judgment interest accruing from the underlying state court judgment covered by the CGL policy. The decision addresses legal issues of first impression in Missouri and creates new law on the applicability of common coverage exclusions written by insurers into CGL policies. A full discussion of the case can be found in the Eighth Circuit’s published opinion in Minden et al. v. Atain Specialty Insurance Company, ___ F.3d ___ (8th Cir. 2015). 141112P.pdf 

  • Lashly & Baer, P.C. Named to Small Business Monthly’s 2015 Best Law Firms List

    Small Business Monthly’s Best in Business section features Lashly & Baer, P.C. among companies nominated by SBM readers as being one of the Best Law Firms in St. Louis. The list has been published in the June 2015 issue. Click here for a complete listing of Best Law Firms.

  • Lashly & Baer Attorneys Win Appeal for Assisted Living Facility

    Attorneys Mark Feldhaus and Matt Eddy recently successfully appealed a trial court’s decision denying enforcement of an arbitration clause in an assisted living facility’s admission agreement signed by a resident’s health care attorney-in-fact.  The decision rendered by Appellate Court of Illinois Second District has important changes in how a health care provider may want to amend their admission contracts in order to enforce an arbitration clause.  Fiala v. Bickford Senior Living Grp., LLC, 2015 IL App (2d) 141160 (Ill. App. April 30, 2015).

  • Lashly & Baer, P.C. Attorney Rhonda O’Brien Takes Part In Affordable Care Act Education

    This Spring, Rhonda A. O’Brien participated in three webinar programs on the Affordable Care Act in conjunction with Healthcare Services Group, the Wallstreet Group and  Benetrac – a Paychex Company.  She also delivered a presentation on plan sponsor risks and fiduciary duty at the annual Retirement Plan Advisors Conference for governmental defined contribution sponsors.

  • Lashly & Baer, P.C. Attorney Dan Doyle Co-Authored Book

    A Practitioner’s Guide to Liquidation and Litigation Trusts, co-authored by Dan Doyle, has been published by The American Bankruptcy Institute.  The two-year collaborative effort provides practical advice on the formation, operation, and tax consequences of trusts established specifically to bring lawsuits and liquidate assets whose proceeds are to be distributed to creditors pursuant to the trust instrument, a common technique used in negotiated settlements and Chapter 11 plans of liquidation. The link to the book is http://www.abi.org/bookstore/practitioners-guide-liquidation-and-litigation-trusts.

  • Nancy Vidal Elected President of the Saint Louis Association of Healthcare Risk Managers

    Lashly & Baer, P.C. attorney, Nancy R. Vidal, has been elected to serve as President of the Saint Louis Association of Healthcare Risk Managers for the 2015 calendar year.  S.L.A.H.R.M. is an organization that helps risk managers, patient safety officers, and healthcare advocates work together to deal with challenging situations through presentations, educational opportunities, and networking forums.

  • Practical Compliance Guidance for Health Care Governing Boards

    Lashly & Baer attorney, Stuart J. Vogelsmeier, published the article “Practical Compliance Guidance for Health Care Governing Boards” in the Healthcare Financial Management Association (HFMA) Greater St. Louis Chapter Spring 2015 Newsletter. Download a copy of the article, or visit the HFMA Greater St. Louis Chapter website to view the article.

    For more information, please contact Stuart J. Vogelsmeier at 314-621-2939, or at sjvogels@lashlybaer.com.


  • New House Bill Seeks to Reform FMCSA’s CSA Scores

    Representative Lou Barletta a Republican from Pennsylvania recently introduced a bill titled “Safer Trucks and Buses Act of 2015” (H.R. 1371) that seeks to reform the Compliance, Safety, Accountability (CSA) program. If passed, the Department of Transportation’s (DOT) Federal Motor Carrier Safety Administration (FMCSA) would be forced to remove from public view the current motor carrier ranking system. In addition, the program and the rankings would be restructured as part of the bill.

    The trucking industry has applied pressure to the legislature to revise the current CSA ranking system. Some organizations have called for it to be removed from public view.

    The overall criticism is that the general public is able to see the scores. Many in the trucking industry believe the CSA scores are flawed and may cause bias against certain carriers. It is further contended that the public nature of the scores may prevent motor carriers and truckers from being hired, insured or be able to hire employees.

    Barletta asserts his bill can fix the CSA scoring problems. Specifically, the bill will change the way the data is collected and used to calculate the CSA scores. If passed, the bill would require that the FMCSA work with the National Academy of Public Administration (NAPA), which is based in Washington DC) to rework CSA scoring system. Some items included in the directive for the FMCSA to work with the NAPA is:

    • Limit the data used to calculate the CSA score to “safety data determined to be predictive of motor carrier crashes,” with a purported emphasis on accuracy;
    • Address the differences between bus and truck companies;
    • Rework the system to reduce the alleged hard cause to small motor carriers: “as a result of limited safety data availability;”
    • Put in place better controls over the data that is reported by the State as well as the motor carrier agencies themselves; and
    • To adjust scores based upon “geographical differences with respect to enforcement.”

    A full copy of the bill can be found at https://www.govtrack.us/congress/bills/114/hr1371.

  • Lashly & Baer Attorney Presents at the Physician Leadership Institute

    On March 7, 2015, Lashly & Baer attorney, Stuart J. Vogelsmeier, presented, “Should Compliance Be So Hard?  A Discussion About Legal Issues Related to Your Practice,” at the Physician Leadership Institute. The Physician Leadership Institute is a joint effort of the St. Louis Metropolitan Medical Society and Anders CPAs + Advisors. This is a five-week, high-intensity program that focuses on the business side of medical practice, with a specific slant toward developing those leadership and management skills that will drive the ever-changing industry.

    Click here to download Mr. Vogelsmeier’s presentation, or click on the link  http://anderscpa.com/physician-leadership-institute-information/ to learn more about the Physician Leadership Institute.

  • Congratulations to Michael D. Regan on being named one of the Best M&A Providers by Small Business Monthly

    March 2, 2015 – Congratulations to Michael D. Regan on being named one of the Best Mergers & Acquisitions Providers by Small Business Monthly. Nominees were chosen by Small Business Monthly Readers for being the best advisers for business owners in St. Louis.


  • Defense Verdict for Lashly & Baer Attorney, Kenneth C. Brostron

    February 23, 2015 – Kenneth C. Brostron successfully defended a physician in a recent six day jury trial in Cape Girardeau, Missouri. The patient had a ten year history of lymphedema in her legs and then began experiencing increased pain. Her family practice physician referred her to Ken’s client, a Neurologist, who was asked to consult because of the increased leg pain. The Neurologist ordered a CT scan of the pelvis. The CT scan showed no growths but suggested an abnormal finding in the venous system and suggested a Doppler study of the lower extremity. That study was done and showed no DVT. The patient underwent an above the knee amputation a year later after suffering Phlegmasia Cerulea Dolens. The patient sued claiming that the Neurologist failed to refer the patient to a vascular surgeon or hospitalize her at the time the Neurologist saw her because of findings on a CT scan. The jury deliberated for 1 hour and 20 minutes before returning their verdict.

  • Two Lashly & Baer, P.C. attorneys Selected as Top 100 St. Louisans To Know To Succeed in Business

    February 19, 2015 – Lashly & Baer attorneys, James C. Hetlage and Stuart J. Vogelsmeier, have been selected by Small Business Monthly as one of the Top 100 St. Louisans To Know To Succeed in Business. Mr. Hetlage and Mr. Vogelsmeier were selected by a team of editors and community leaders who identified these individuals based on their contributions to the area businesses and the overall business community.

  • 2014 News from the FMCSA and a Look Down the Road

    February 17, 2015 – Lashly & Baer attorney, Patrick E. Foppe, published an article in the December 2014 issue of the Defense Research Institute’s For The Defense Magazine entitled, “2014 News from the FMCSA and a Look Down the Road.”

    CLICK HERE to download a copy of the article.


  • Congratulations to Kenneth C. Brostron on Missouri Lawyers Weekly V&S Award Honor

    February 5, 2015 – Congratulations to Kenneth C. Brostron for being recognized as one of Missouri Lawyers Weekly’s 2015 Top Verdicts & Settlements Award Honorees, stemming from a defense verdict awarded in 2014. This prestigious recognition places Kenneth Brostron among an influential group of attorneys securing the largest reported defense verdicts/judgments in the state, thus contributing to the betterment of the legal profession in Missouri.


  • 2015 OIG Work Plan Provides Insight For Providers

    Lashly & Baer attorney, Stuart J. Vogelsmeier, published the article “2015 OIG Work Plan Provides Insight For Providers” in the Healthcare Financial Management Association (HFMA) Greater St. Louis Chapter Winter 2015 Newsletter. CLICK HERE to download a copy of the article, or visit the HFMA Greater St. Louis Chapter website to view the article.

    For more information, please contact Stuart J. Vogelsmeier at 314-621-2939, or at sjvogels@lashlybaer.com.

  • FMCSA Releases Crash Weighting Analysis And Seeks Public Input

    On January 21, 2015, the Federal Motor Carrier Safety Administration (FMCSA) announced through the Federal Register a study that examined (1) whether Police Accident Reports provide sufficient, consistent, and reliable information to support crash weighting determinations, (2) whether a crash weighting determination process would offer an even stronger predictor of carrier crash risk than the current assessment method, and (3) how the agency might reasonably manage and support a process for making crash weighting determinations, including the acceptance of public input. The announcement invites public comment along with a request for feedback on what steps the agency should take regarding the weighting of crash data in the agency’s systems based on the carrier’s role in a crash.

    Presently, the agency considers all recordable crashes involving a commercial motor vehicle occurring in the preceding 24 months as an assessment within its Safety Measurement System, which quantifies the on-the-road safety performance of motor carriers to prioritize enforcement resources.

    FMCSA maintains that independent research has demonstrated that a motor carrier’s involvement in a crash, regardless of their role in the crash, is a strong indicator of their future crash risk.

    The study examined Police Accident Reports obtained from two national datasets: the National Highway Traffic Safety Administration (NHTSA) Fatality Analysis Reporting System (FARS) and the National Motor Vehicle Crash Causation Survey (NMVCCS). Various statistical and analytical approaches were employed to assess crash weighting benefits including an analysis of motor carriers involved in single-vehicle fatal crashes over time.

    According to the FMCSA, changing the crash weights based on a motor carrier’s role in the crash did not appear to improve the ability to predict future crash rates when all crashes are considered.  FMCSA was also concerned about the reliability of using Police Accident Reports to make this determination. The study pointed out that implementing a crash weighting effort on a national scale would require a method for uniformly acquiring final Police Accident Reports, a process and system for uniform analysis, and a method for receiving and analyzing public input.

    FMCSA estimates that the annual costs for operating a system to process Police Accident Reports, including the acceptance of public input and reviewing appeals, would be between $3.9 million and $11.2 million. FMCSA has invited the public to review the full report and provide feedback.

    For more information, please contact Patrick E. Foppe at 314-621-2939, or at pfoppe@lashlybaer.com, or contact your Lashly & Baer attorney.

  • Daniel D. Doyle Joins Lashly & Baer, P.C.

    Friday, January 9, 2015 (St. Louis, Missouri) – Daniel D. Doyle has recently joined Lashly & Baer, P.C. as Of Counsel. Doyle holds a J.D. from Washington University School of Law and primarily concentrates his practice in business litigation with an emphasis in bankruptcy. His numerous successes range from multi-national finance companies to tribal sovereigns, from federal circuit courts to state courts, and from local disputes to a billion-dollar lawsuit with national implications. Doyle has been selected for inclusion in Missouri & Kansas Super Lawyers (Bankruptcy)and is peer rated AV® PreeminentTM with Martindale Hubbell. He is a member of the American Bar Association, The Missouri Bar, and the Bar Association of Metropolitan St. Louis.

    Click Here to download the press release.

  • New Eavesdropping Restrictions in Illinois

    On December 30, 2014, Gov. Quinn signed SB 1342 into law as P.A. 98-1142 (720 ILCS 5/14-1 et seq.); the measure puts new eavesdropping restrictions into place after the Illinois Supreme Court threw out the previous eavesdropping law last March. As a result of the March court ruling, all Illinois residents had absolutely no expectation of privacy in regards to eavesdropping or digital recordings in public or private, not just law enforcement officers. There were no protections in place for anyone in Illinois against being recorded against their wishes.

    Under the previous law, recording anyone against their will in Illinois could be punishable under a Class 4 felony with a one to three years sentence. For eavesdropping upon law enforcement (State’s Attorneys, Police Officers, and agents of the Attorney General) that punishment was significantly higher at a Class 1 Felony punishable with a four to 15 year sentence. SB 1342 reinstates the Class 4 felony for concealing the recording of private interactions between Illinois residents, and actually reduces the punishment for recording law enforcement officials from a Class 1 to a Class 3 felony.

    SB 1342 re-defines “private conversation” as:

    any oral communication between 2 or more persons, whether in person or transmitted between the parties by wire or other means, when one or more of the parties intended the communication to be of a private nature under circumstances reasonably justifying that expectation. A reasonable expectation shall include any expectation recognized by law, including, but not limited to, an expectation derived from a privilege, immunity, or right established by common law, Supreme Court rule, or the Illinois or United States Constitution.

    This new law incorporates provisions that do allow citizens to record police in an open and public manner. In addition, in situations that are in public, even if a person is concealing what he or she is doing, the courts have found there is no expectation of privacy for law enforcement. A controversial aspect of the new law remains its list of exemptions, albeit now somewhat curtailed. The new law became effective December 30, 2014.

    For more information, please contact Patrick E. Foppe at (314) 621-2939, or at pfoppe@lashlybaer.com, or, contact your Lashly & Baer attorney.

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