The Knudsen Law Firm

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Managing Partner

"We help you deal with it"

Lexington Public Schools receives summary judgment

2010-05-25T07:54:00.000-07:00

Yesterday Judge Doyle in the District Court of Dawson County issued
summary judgment to the Lexington Public Schools finding the school not
liable for injuries to one of its students. The Lexington Public
Schools was represented by Jeanelle Lust of the Knudsen Law Firm.

The student alleged that she fell into a manhole on Lexington Public
School's property while participating in an out-door gym class. The
school maintained throughout the litigation that it did not know of any
defects or problems with the manhole (or in fact that a manhole was even
on its property). Judge Doyle agreed and dismissed the plaintiff's
case.

Jeanelle R. Lust

Knudsen, Berkheimer, Richardson & Endacott, LLP

3800 VerMaas Pl

Suite 200

Lincoln NE 68502

402 475 7011

402 440 3731 (M)

402 475 8912 (F)

www.knudsenlaw.com <http://www.knudsenlaw.com>

Managing Partner

"We help you deal with it"

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Supreme Court Refuses to Hear Nursing Home Civil Rights Case

2010-03-17T13:14:00.000-07:00

By: Laura E. Troshynski

Can alleged inadequate nursing home care lead to a civil
rights lawsuit? According to the United States Court of Appeals for the
Third Circuit, the answer is "yes." In July of 2009, in the case of
John J. Kane Regional Centers-Glen Hazel v. Grammer, the Third Circuit
held that the Federal Nursing Home Reform Amendments (FNHRA) guarantee a
nursing home resident's civil rights. Consequently, according to the
Third Circuit, private civil rights lawsuits may be brought against
nursing homes in the event of alleged wrongful death or inadequate
patient care. Recently, the United States Supreme Court declined to
review the case, allowing the Third Circuit decision to stand.

The Third Circuit's ruling was the result of a claim brought
by Sarah Grammer against a Pittsburgh-area nursing home in which Grammer
alleged that her mother, Melvinteen Daniels, was neglected by the John
J. Kane Regional Center. According to Ms. Grammer, the facility
provided inadequate care which eventually resulted in her mother's
death. Instead of filing a typical negligence claim against the nursing
home, Ms. Grammer chose to sue under the Federal Nursing Home Reform
Amendments. According to Ms. Grammer, the FNHRA guarantee various
patient rights, including the right to quality care. Therefore, Ms.
Grammer contended that the alleged inadequate care received by her
mother constituted a civil rights violation for which she could bring a
civil rights lawsuit under the FNHRA. The nursing home, however,
contended that the FNHRA were simply meant to outline requirements for
Medicaid and Medicare certification.

Initially, the District Court ruled in favor of the nursing
home facility. However, the Third Circuit overturned the District
Court's ruling, holding that the FNHRA creates the right to a private
civil rights lawsuit in the event of inadequate care. Various groups,
including the AHCA, the American Association of Homes and Services for
the Aging, and various individual states petitioned the Supreme Court to
review the holding of the Third District. However, despite this
petition, the Supreme Court refused to hear the case. Therefore, it
appears as if nursing homes throughout the country may be exposed to
potential civil rights lawsuits in the event of alleged inadequate
patient care.

2010-03-08T14:03:00.000-08:00

What to do when a Loved One Passes

Although first taken aback by shock and grief, you may be called upon to handle the necessary details surrounding the loss of your loved one and it is important to know what to do.

First, you have to get help and depending on the scenario, local law enforcement may have to be contacted first (i.e. if the death was not attended or due to unknown circumstances.) In most other circumstances various parties must be immediately notified, including:

The attending physician, a coroner or medical examiner to officially pronounce the death. If the deceased was in a hospital or other care facility, this is typically arranged by the staff.
Family members or a legal representative of the deceased. They will need to locate the deceased's pre-arranged funeral plan, if one exists, for direction in how to proceed with funeral arrangements.
A Funeral Director to transfer the body from the place of death to a funeral home or comparable care facility. Funeral directors are available through funeral homes and other funeral service organizations.

In the absence of instructions from the loved one, or a pre-arranged funeral plan, you'll need to make a series of decisions relatively quickly. If there are several family members and friends assembled, make a list of the necessary tasks and delegate responsibility. Organizing a funeral usually entails planning the funeral ceremony and the disposition of the deceased's body, accommodating guests and, usually, arranging for a subsequent gathering.

If it is too difficult or you want it handled by a Funeral Director and one hasn't been pre-selected, you should call a recommended funeral home, cremation service or other service provider that will handle all the funeral arrangements. Funeral directors help you plan the funeral ceremonies and then direct the ceremonies in accordance with your wishes, including coordinating with the cemetery. A typical cemetery offers various types of grave spaces for earth burial and mausoleum crypts for entombment. Similar options are available for burial or entombment of cremated remains. The cemetery also provides services to open and close the grave or crypt and to install grave markers. Some cemeteries charge recurring fees for the perpetual maintenance of the grounds. Since you are likely to visit the cemetery periodically to remember your loved one, location is an important consideration in selecting a cemetery. Many people purchase cemetery property in advance to relieve their survivors of this responsibility. There are several cemeteries available in Lincoln and you should decide where you may want the "final resting place" for your loved one. A few local cemeteries are listed below:

Wyuka Cemetery & Funeral Home

www.wyuka.com - (402) 474-3600

Fairview Cemetery

(402) 474-4500

Calvary Cemetery & Mausoleum

(402) 476-8787

Yankee Hill Cemetery

(402) 441-0585

Lincoln Memorial Park

www.lincolnfh.com - (402) 423-3826

Some choices will influence others. If the deceased is to be directly cremated before a funeral, then you may opt for a simple casket to transport the body to the crematorium, but choose an attractive urn if the cremated remains are to be present at the subsequent service. If there is to be an open casket for viewings, then embalming becomes a consideration, as does the type of casket. A cemetery interment means choosing between ground burial and entombment in a mausoleum, whereas a scattering of ashes raises the question of location and accompanying ceremony. If you want a funeral or memorial service held at a church or other place of worship, you'll need to make such arrangements with the appropriate officials, and you'll need to discuss the nature of the service. Some of the choices that must be made when arranging a funeral are set forth below:

Method of interment

· Will the deceased be buried or entombed?

· Will the deceased be cremated? If so, will the cremated remains be buried, entombed, scattered or kept by the family?

· Will the body be donated to science? Will organs be donated?

Ceremonies

· Will there be a traditional funeral with the casket present or a memorial service without the presence of the casket? Will both types of services be held or no ceremonies at all?

· Where will the ceremonies be held? At a funeral home? At a place of worship? At the graveside?

· Will there be one or more visitations? If so, will the casket be open or closed?

· Will the deceased be embalmed?

· Should a DNA sample be taken?

· Who will participate in the funeral ceremonies? Clergy? Pallbearers? Speakers? Musicians or vocalists?

· Will the ceremonies feature certain music, readings, or tributes?

· Will there be a procession to the cemetery? Will the deceased be transported in a hearse? Will family travel in a limousine?

Following the funeral a variety of financial, legal and administrative matters must be addressed. The tasks you may need to do include:

Sending acknowledgement notes expressing gratitude for flowers, donations and special assistance.
Commencing estate proceedings. Whether an extensive Probate proceeding is necessary is determined by the size of the estate and the existence of a will and living trusts. An Executor, named in the will or appointed by the Probate Court will shepherd the estate through this process. Also, it may be necessary to hire an estate planning attorney to provide legal guidance.
Accounting for all assets and debts of the deceased. Make arrangements to pay outstanding bills. It may be necessary to have the Probate Court release short-term funds to cover these bills.
Filing death benefit claims with insurance companies, Social Security, the Veterans Administration, pension/retirement funds, unions, etc. Certified copies of the death certificate are usually required in making these claims. See http://www.socialsecurity.gov/pubs/10084.html.
Changing all jointly held accounts including, bank accounts, credit cards, mortgages, loans, brokerage accounts, stocks, bonds and other investments.
Sending notifications of death to:

Employers.
Fraternal, social, and religious organizations.
State and local agencies, such as the Department of Motor Vehicles, to transfer all licenses and titles.
Telephone, utility, newspaper and any other services that are registered in the deceased's name.

Try not to take on the entire responsibility for organizing a loved one's funeral and post-funeral yourself. Others will want to help, to share the experience as a way to feel connected to the one who has died and to make a contribution to the memorial, and you need to allow yourself time to grieve.

NEBRASKA FUNERAL & BURIAL REQUIREMENTS

DO YOU KNOW WHAT YOUR STATE REQUIRES?

Does the law of your state require a licensed professional (such as a funeral director) to prepare a body for burial?

In Connecticut, Indiana, Louisiana, Michigan, Nebraska and New York, laws require that a funeral director handle human remains at some point in the process. In the 44 other states and the District of Columbia, loved ones can be responsible for the body themselves. The state of Nebraska requires a licensed Funeral Director to care for human remains. See below, Neb Rev. St. § 71-605.

Does the law of your state require embalming for an open casket funeral service?

In Nebraska, funeral homes have their own rules and factors (such as time) regarding whether or not to embalm. Required embalming depends on such factors as whether the family selected a service with a public or private viewing of the body with an open casket; if the body is going to be transported by air or rail; or because of the length of time prior to the burial or cremation. If a funeral home charges for embalming, they must explain why in writing. EXAMPLES: (i) Selected a service with a viewing or (ii) Arranged for shipment by common carrier or (iii) Selected arrangements that require the funeral home to hold the remains for more than 24 hours provided that no refrigeration is available or a hermetically sealed container is not used and provided that embalming does not conflict with religious beliefs or medical examination.

According to the Federal Trade Commission Funeral Rule, all funeral homes are required to get permission to embalm. If you select a funeral service which requires embalming, such as a funeral with a viewing, you may have to pay for embalming. You are not required to have embalming if you selected arrangements such as direct cremation or immediate burial. If a funeral home charges for embalming, they must explain why in writing. EXAMPLES: (i) Selected a service with a viewing or (ii) Arranged for shipment by common carrier or (iii) Selected arrangements that require the funeral home to hold the remains for more than 24 hours provided that no refrigeration is available or a hermetically sealed container is not used and provided that embalming does not conflict with religious beliefs or medical examination.

Truth about Embalming

Preparing the body for public viewing nearly always involved embalming and cosmetic restoration, processes that can add $600 or more to a funeral bill. Is embalming otherwise necessary or required? Not really.

Embalming generally is not necessary if the body is buried or cremated within a reasonable time after death.
Embalming is not required by law except in certain cases when a body is transported across state lines.
Embalming does not preserve the deceased’s body indefinitely; it merely masks the appearance of death and temporarily postpones decomposition.
Embalming chemicals are highly toxic. Embalmers must wear a respirator and full-body covering while performing the procedure.
Refrigeration is an alternative to embalming for maintaining a body intact while awaiting a funeral service. Although not all funeral homes have refrigeration facilities, most hospitals do.
Embalming is common only in the United States and Canada. Orthodox Jews and Muslims consider the procedure a desecration of the body. — From the Funeral Consumers Alliance.

Does the law of your state require the use of a vault or grave liner?

No state law requires a grave-liner or vault, but many cemeteries require them, to keep the grave from caving in. It's a maintenance convenience for the cemetery.

Does the law of your state license or restrict the disposition of cremated human remains?

There are no “cremains police” in any state to ensure proper etiquette, permits, or permission are obtained and used. There are no health, safety or environmental issues to be concerned about. However, if your scattering ceremony is to be held within a city or town limits, city/town ordinances and bylaws should be consulted. See Neb Rev. St. § 71-1381, § 71-1382.

Does the law of your state prohibit the kind of "home funeral" commonly experienced 100 years ago (i.e. a calling in the home of the deceased and burial by the family)?

Home funerals are legal in all states except five. Connecticut, Delaware, Indiana, Nebraska, and New York have restrictions. See Neb Rev. St. § 71-605.

SOURCES:

Nebraska Department of Health and Human Services- Statutes relating to Funeral Directing and Embalming Practice Act Cremation of Human Remains Act..

http://www.dhhs.ne.gov/crl/statutes/Funeral%20Directing%20and%20Embalming.pdf

NEBRASKA REVISED STATUTES

Neb Rev. St. § 71-605 Death certificate; cause of death; sudden infant death syndrome; how treated; cremation, disinterment, or transit permits; how executed; filing; requirements.

Neb Rev. St. § 71-1381 Cremated remains; how treated.

Neb Rev. St. § 71-1382 Cremated remains; final disposition.

Michael W. Khalili
Associate Attorney
*Licensed in Washington State & the U.S. District Court of Nebraska

http://www.knudsenlaw.com/Att_Bio_MWK.htm

New Nurses Don't Feel Comfortable Implementing Quality Improvement Measures

2010-03-02T06:26:00.000-08:00

An analysis of survey responses by researchers at New York University's
College of Nursing has found that a large number of new nurses feel
ill-prepared to implement quality improvement measures and more than 12%
have never heard of "quality improvement".

The survey was sent to 436 newly graduated nurses with bachelor and
associate's degrees from around the country. The study found that 38.6%
of those surveyed felt that their degree courses either "poorly" or
"very poorly" prepared them to implement quality improvement measures
and 41.7% didn't feel prepared at all to use national patient safety
resources including the National Quality Forum.

The researchers defined quality improvement as the "use of data to
monitor the outcomes of care processes and use of improvement methods to
design and test changes to continuously improve the quality and safety
of health care systems." There is debate over just exactly who should
be responsible for teaching quality improvement with some believing it
should be the school and others believe it should fall to the employer.
However, the study's authors note that only 23.3% of those surveyed said
that their employer provided quality improvement training was "very
helpful."

<http://www.knudsenlaw.com/Att_Bio_JRL.htm>
<http://www.knudsenlaw.com/>

Jeanelle R. Lust

Knudsen, Berkheimer, Richardson & Endacott, LLP

3800 VerMaas Pl

Suite 200

Lincoln NE 68502

402 475 7011

402 423 4768 (H)

402 440 3731 (M)

402 475 8912 (F)

Wrongful Termination

2010-02-24T08:08:00.000-08:00

We are often contacted by people who have been fired from their job and who want to know if they have a potential lawsuit against their employer for wrongful termination. It is important to remember that Nebraska is an at-will employment state. That means that if your private employer fires you, and you are not part of a union and do not otherwise have a written contract, your employer may generally fire you for any reason, as long as that reason is not illegal or in violation of certain public policies. In other words, your employer can be the world’s biggest jerk, have had no reason for firing you, and your firing can be completely “unfair,” but in most cases there is no legal remedy for your firing. The most common exception for this general rule is when your employer has violated your civil rights. Therefore, when you’ve been let go by your employer, you may want to ask yourself these questions before contacting the lawyer:

1) Is a union involved, or did you have an employment contract with your employer?

2) Was your firing on account of your race, color, religion, national origin, sex, age, physical or mental disability (or perceived disability), marital status, genetics, service in the uniformed services, or any other classification protected by law?

3) Was your firing in relation to having recently been injured at work or making a workers compensation claim?

4) Have you complained about not being paid overtime, minimum wage, or similar concerns?

5) Have you reported your employer to any authorities because of illegal conduct or unsafe working conditions?

Jeanelle R. Lust

Knudsen, Berkheimer, Richardson & Endacott, LLP

3800 VerMaas Pl

Suite 200

Lincoln NE 68502

402 475 7011

402 423 4768 (H)

402 440 3731 (M)

402 475 8912 (F)

Managing Partner

Federal court compels arbitration in nursing home dispute despite unavailability of the NAF

2010-02-16T07:22:00.000-08:00

Earlier this month in Jones v. GGNSC Pierre, LLC, the U.S. District Court for the District of South Dakota agreed with arguments made by the Knudsen Law Firm, compelling the parties to arbitrate pursuant to their arbitration agreement despite the unavailability of the named National Arbitration Forum (NAF). Arbitration agreements naming the NAF are rapidly being challenged nationwide as a result of that entity’s unavailability under the terms of a recent consent judgment with the State of Minnesota. In Jones, the Court noted the parties’ arbitration agreement incorporated the NAF Code of Procedure, but found no reason to believe that specification was integral to the agreement, relying instead on the parties’ primary promise to resolve any future disputes “exclusively by binding arbitration” and “not by a lawsuit or resort to court process.” The Court also noted the agreement’s severance clause as further evidence of their intention to arbitrate if a portion of the agreement was unenforceable.

Kevin R. McManaman

402/475-7011

Arbitration in favor of Nursing Home

2010-02-15T07:12:00.000-08:00

The AHCA reported the following this week.

February 12, 2010 Vol. VIII Issue 6
Long Term Care
Arbitrator Rules In Favor Of Nursing Home In Negligence Action, Awards
Attorney's Fees

An arbitrator rejected February 4 a complaint against a nursing home for
medical malpractice and other allegations, finding "the great weight of
the evidence" suggested the resident in question "died of natural causes
while on her nocturnal ventilator."
Pursuant to the arbitration agreement executed as part of the admissions
process, the arbitrator also awarded the nursing home, as the prevailing
party, attorney's fees totaling over $259,000. The cost of the
arbitration was split between the two parties.

Jason Bring and Robert Strang of Arnall Golden Gregory LLP defended the
nursing home defendants in the three-day arbitration. "The attorney's
fees represented a major victory for the defendants, and their award
demonstrates that these cases are not without risk for the plaintiffs,"
Bring said.
The surviving spouse and estate of Mae Frances Holmes Reed initially
sued Heritage Healthcare of Savannah, LLC, which operates the nursing
home where Reed resided, in a Georgia trial court.
The nursing home sought to enforce the parties' arbitration agreement
and filed suit in a South Carolina federal district court. The claimants
then conceded that the case should be arbitrated and the district court
entered an order compelling arbitration.

The complaint alleged that Reed died because her nocturnal ventilator
was not connected per her physician's orders. The complaint relied on an
affidavit of a certified nurse assistant (CNA) who worked for Heritage
Park but who was terminated roughly two weeks after Reed's death.
According to the CNA, the ventilator was not connected and the nursing
home engaged in a conspiracy to cover up the incident.
The arbitrator found, however, that the evidence demonstrated Reed's
ventilator was connected and operating appropriately. The arbitrator
also noted that no other witnesses came forward to corroborate the CNA's
allegations.
"In addition, [the CNA's] credibility was seriously undermined by
inconsistent statements that she made and by the lack of plausibility of
her accounts," the arbitrator said.

Nebraska New Hire Reporting Act Now Includes Independent Contractors

2010-02-12T09:30:00.000-08:00

Effective January 1, 2010, the definition of "employee" under the Nebraska New Hire Reporting Act, for the first time, expressly included "independent contractors." Nebraska law requires all employers to report any newly hired or rehired employees, including, their name, address, social security number, and the date of hire or rehire, within 20 days of the date of hire or rehire. Nebraska employers must now perform new hire reporting when hiring independent contractors. This is required regardless of how little money is involved because there is no de minimis standard like the $600 threshold for 1099-MISC. Also, independent contractors who are paid after January 1, 2010 need to be reported, regardless of how long the employer has done business with the contractor in the past.

For reasons unknown the Nebraska amendment adding "independent contractor" to the definition of "employee" did not include a definition of the term "independent contractor." Other states have expressly adopted such a definition, and the Nebraska's website (www.nenewhire.com/) has described an independent contractor using the definition used by other states as "an individual who provides goods or services to an employer under terms specified in a contract or within a verbal agreement for compensation that is reported as income other than wages and who is an individual, the sole shareholder of a corporation, or the sole member of a limited liability company.” However, Nebraska did not adopt that language in its statute, and as of this writing (February 2010) there are no regulations or proposed regulations addressing this oversight. The precise language of the law requires a hiring or rehiring report for any contractor providing goods or services for compensation, with nothing in law expressly limiting that to individuals, sole proprietors, or single member corporations or LLCs.

Submitting a copy of an employee’s W-4 form, with a notation of the date of hire or rehire, is typically be sufficient for the requirements of this Act. However, employers may now want to consider using the new federal Form W-9 which has been revised to now require such independent contractors providers to list their first and last names, and FEIN or SSN. Importantly, employers need to submit their reports using the social security number of self-employed individuals, even if they operate with a company having a FEIN. Therefore, while employers may ask independent contractors to complete the new Form W-9, if the individual’s social security number is still not known after reviewing the W-9, the employer should ask the independent contractor for it. If refused, the employer is probably best to decline to hire the contractor. Employers are advised to seek advice from their attorney on how to proceed given the unanswered questions arising from this amendment.

Kevin R. McManaman

402/475-7011

The CLASS Act

2010-02-12T08:37:00.000-08:00

The Community Living Assistance Services and Supports (CLASS) Act is
currently in both the House and Senate healthcare reform bills. Its
purpose is to increase access to long-term care.

The CLASS Act would create a voluntary long-term care and disability
benefit for workers. Panelists at a briefing on January 5, 2010 state
that more actions need to be taken to overcome problems facing the
field. Those panelists agree the bill benefits the long-term care field
but they suggest other ways to improve the industry as a whole.

One of the panelist identified the need for expanding the long-term care
workforce and providing increased education and training. Another
panelist stated there should be additional funding available for
existing programs to strengthen the relationship between family
caregivers and formal caregivers.

Supporters of the Act state that it will help seniors and the disabled
pay for things such as in-home caretakers all while supposedly lowering
the federal budget deficit. The Congressional Budget Office (CBO) says
that over the first decade the CLASS Act would lower the federal deficit
by $72.5 billion. Others state that the CBO used some creative math to
come up with that "savings" and that after the first decade of the
program, costs would actually increase.

The CLASS program is voluntary and open to all Americans and various
government analysts estimate that 2-6% of those eligible will sign up
for the program. CMS' analysis of the CLASS provision in the House bill
finds that there is a significant risk that the CLASS program will
become unsustainable and is at risk for failure. CMS calculated that
the CLASS program's premiums could initially be as high as $180 a month.

James Firman, President and CEO of the National Council on Aging, has
countered the critics in a letter to the Wall Street Journal stating
that there are several safeguards within the CLASS Act to guarantee that
the program is solvent over a 75 year period after the addition of an
amendment of Sen. Judd Gregg (R-NH) that the critics fail to mention.
He states that few understand that the program would be self-funded,
would promote personal responsibility, would create a new private
supplemental market and would prohibit taxpayer dollars being used to
pay for benefits. Firman says that the CLASS Act also has the potential
in health reform to bend the Medicaid cost curve downward.

Your Therapy Allowance is Shrinking, Healthcare Reform Already!

2010-02-11T13:42:00.000-08:00

Long term care residents started fresh this year with their
annual allowance for therapy on January 1, 2010. This is due to the
expiration of Medicare Part B therapy exceptions. The spending limits
are $1,860 for combined speech and physical therapy, and $1,860 for
occupational therapy. But how long will the allowance really last? If,
however, healthcare reform should pass, it would extend the therapy caps
exceptions process.

When a resident exhausts the therapy benefit, it causes a
problem for the resident who needs the therapy and the nursing home
which provides it. The options the residents have are not very appealing
but they include: the resident privately funding the therapy; the
facility could continue to provide the therapy with the expectation it
will be reimbursed when the bill passes; or it could altogether suspend
the therapy. Another option is to send a resident to a hospital
outpatient facility where there is no limit on the therapy because
Hospitals are not subject to the therapy caps rule. However, there can
be many problems transporting residents who may be frail or unwilling.
The resident who most likely would feel the impact of the allowance cap
would be someone who suffered a high-acuity event, such as a stroke or
hip or knee replacement, and needs intensive, short-term therapy.

Although there is no cause for alarm just yet, with each day
that passes residents and nursing homes are stuck with the dilemma of
what happens next. At this point it seems that the best option for
residents in need of regular therapy is for Congress to pull together
and pass the healthcare bill. As each day passes, the health needs of
residents are depending on it. Some are optimistic in swift action by
Congress, such as Peter Clendenin, executive vice president for the
National Association for the Support of Long Term Care, stating "I think
they'll [Congress] get to it early this month, but we're sort of hanging
out there until that gets done." The Senate bill would extend the
exceptions process for one year, while the House bill would extend it
for two.

Thus, whether or not you are a fan of healthcare reform,
this is at least one reason you may consider supporting it.

Michael Khalili

mwk@knudsenlaw.com

Royal College of Physicians Releases New Report Regarding Use of Feeding Tubes for Terminally Ill Patients

2010-02-09T11:41:00.000-08:00

According to a recent report from the Royal College of Physicians,
tube-feeding may not be the most beneficial option for feeding
terminally ill patients.

The report, which is entitled 'Oral feeding difficulties and
dilemmas: A guide to practical care, particularly towards the end of
life,' was issued by the Royal College of Physicians and the British
Society of Gastroenterology in early January in order to address the
appropriateness of feeding tubes for patients approaching the end of
life. According to the report, hand feeding, modified if necessary,
should be the primary aim of a nutrition strategy for terminally ill
patients. In addition, the report states that even in situations where
tube feeding is necessary, oral intake should be additional whenever
possible. The report also makes several other recommendations,
including the recommendation that a risk management approach be used to
evaluate all patients deemed to have "unsafe swallow." Additionally,
the authors of the report recommend that there be a clear agreement
between the parties involved regarding the aims of any nutritional
regimen.

According to the Royal Academy of Physicians, the report was
prepared to respond to the lack of consensus among physicians and others
regarding the appropriateness of artificial nutrition and hydration in
certain situations.

Laura Troshynski

http://www.mcknights.com/advocates-urge-ftc-to-exempt-healthcare-from-re
d-flags-rule-following-federal-court-decision/article/163019/?utm_source
=feedburner&utm_medium=feed&utm_campaign=Feed%3A+McKnights+%28McKnights+
Home%29&utm_content=Google+Feedfetcher

Red Flags Rule update

2010-02-03T08:29:00.000-08:00

The Red Flags Rule could be held to not apply to the health care setting
based on a federal court ruling exempting attorneys.

<http://www.knudsenlaw.com/Att_Bio_JRL.htm>
<http://www.knudsenlaw.com/>

Jeanelle R. Lust

Knudsen, Berkheimer, Richardson & Endacott, LLP

3800 VerMaas Pl

Suite 200

Lincoln NE 68502

402 475 7011

402 423 4768 (H)

402 440 3731 (M)

402 475 8912 (F)

<http://www.knudsenlaw.com/Att_Bio_KRM.htm>
<http://www.knudsenlaw.com/>

Managing Partner

Ms. Lust is a charter fellow in the Litigation Counsel of America
http://www.trialcounsel.org <http://www.trialcounsel.org/> and is
admitted in Colorado, Nebraska and South Dakota. Circular 230
Disclosure: Pursuant to recently-enacted U.S. Treasury Dept Regulations,
we are now required to advise you that, unless otherwise expressly
indicated, any federal tax advice contained in this communication,
including attachments and enclosures, is not intended or written to be
used, and may not be used, for the purpose of (i) avoiding tax-related
penalties under the Internal Revenue Code or (ii) promoting, marketing
or recommending to another party any tax-related matters addressed
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FW: NSHHRA Update re Nebraska New Hire Reporting Act - please send to the membership.

2010-02-01T15:11:00.000-08:00

Nebraska New Reporting Requirements Now Include Independent Contractors

Effective January 1, 2010, the definition of "employee" under the
Nebraska New Hire Reporting Act, for the first time, expressly included
"independent contractors." Nebraska law requires all employers to report
any newly hired or rehired employees, including, their name, address,
social security number, and the date of hire or rehire, within 20 days
of the date of hire or rehire. Nebraska employers should now perform
new hire reporting when hiring independent contractors. This is
required regardless of how little money is involved because there is no
de minimis standard like the $600 threshold for 1099-MISC. Also,
independent contractors who are paid after January 1, 2010 need to be
reported, regardless of how long the employer has done business with the
contractor in the past.

For reasons unknown the Nebraska amendment adding "independent
contractor" to the definition of "employee" did not include a definition
of the term "independent contractor." Other states have expressly
adopted such a definition, and the Nebraska's website
(www.nenewhire.com/) describes an independent contractor using the
definition used by other states as "an individual who provides goods or
services to an employer under terms specified in a contract or within a
verbal agreement for compensation that is reported as income other than
wages and who is an individual, the sole shareholder of a corporation,
or the sole member of a limited liability company." However, Nebraska
did not adopt that language in its statute, and there are no current
regulations addressing this oversight. Therefore, the language of the
law requires broad reporting, and employers must report hiring or
rehiring any contractor providing goods or services for compensation,
with nothing in law expressly limiting that to individuals, sole
proprietors, or single member corporations or LLCs.

Submitting a copy of an employee's W-4 form, with a notation of the date
of hire or rehire, is typically be sufficient for the requirements of
this Act. However, employers may now want to use the new federal Form
W-9 which has been revised to now require such independent contractor
service providers to list their first and last names, and FEIN or SSN.
Importantly, employers need to submit their reports using the social
security number of self-employed individuals, even if they operate with
a company having a FEIN. Therefore, while employers should ask
independent contractors to complete the new Form W-9, if the
individual's social security number is still not known after reviewing
the W-9, the employer should ask the independent contractor for it. If
refused, the employer is probably best to decline to hire the
contractor.

Employers are advised to seek advice from their attorney on how to
proceed given the myriad unanswered questions arising from this
amendment.

Kevin R. McManaman

krm@knudsenlaw.com <mailto:krm@knudsenlaw.com>

Knudsen, Berkheimer, Richardson & Endacott, LLP

3800 VerMaas Place, Suite 200

<http://www.knudsenlaw.com/Att_Bio_JRL.htm>
<http://www.knudsenlaw.com/>

Lincoln, NE 68502

402/475-7011 (office)

402/475-8912 (fax)

402/440-2982 (cell)

Happy New Year

2010-01-05T13:05:00.000-08:00

In this time of resolution making, consider resolving to make sure your
legal house is in order:

1) Do you have a will? Do you need one?

2) Do you have powers of attorney that will allow another person to
manage your financial affairs if you should become incapacitated?

3) Do you have medical health care powers of attorney that spell out
what your wishes are should you be unable to express your own wishes?

4) Is your business structured appropriately?

5) Have you made provisions for caring for your children should
something happen to you?

6) Do you have more debt than you can handle?

Jeanelle R. Lust

Knudsen, Berkheimer, Richardson & Endacott, LLP

3800 VerMaas Pl

Suite 200

Lincoln NE 68502

402 475 7011

402 423 4768 (H)

402 440 3731 (M)

402 475 8912 (F)

Managing Partner

GINA in the bottle? Employers need to know about changes in the law.

2009-12-07T13:41:00.000-08:00

Employers became subject to the provisions of the Genetic Information
Nondiscrimination Act of 2008 (GINA) on November 21, 2009. Employers
need to be familiar with the basic provisions of this Act.

Under GINA employers:

* Are prohibited from requesting, requiring or otherwise acquiring
genetic information from applicants, employees and former employees;

* Are prohibited from using genetic information in making decisions
related to any terms, conditions, or privileges of employment; and

* Are prohibited from retaliating against employees for opposing or
complaining about unlawful employment practices and/or filing a claim
pursuant to GINA.

* Are required to maintain confidentiality with respect to
genetic information.

GINA defines genetic information to include information about an
individual's genetic tests, genetic tests of a family member, family
medical history, and information about "the manifestation of disease or
disorder in family members of the individual."

Employers must be able to recognize when a trigger of GINA's provisions
may have occurred. The inclusion of "family medical history" in GINA's
provisions may be a trap for the unwary. For example, if an employer
learns that a particular form of cancer runs in an employee's family,
the information may trigger GINA's protections against employment
discrimination, even though no information specifically related to the
employee has been revealed.

GINA does have provisions protecting employers if they inadvertently
obtain genetic information (e.g. the employee reveals genetic
information in casual conversation). However, if such information is
obtained, employers must keep the information strictly confidential and,
if in writing, must maintain such information in a confidential medical
file which is separate from other personnel information and which is
properly secured by restricted access.

The biggest area of concern regarding GINA will be for employers that
have been requiring post-offer medical/physical examinations. An a
employer must not obtain ANY family medical history as part of those
physical examinations even if the employer may feel that such
information is vital to evaluating the employee for duty (safety
concerns etc.).

Here is what an employer should do to make sure they are complying with
GINA:

1. Train, train, train. Train all staff about GINA's provisions.

2. Post the new "Equal Employment Opportunity is the Law" poster in all
Company facilities.
http://www.eeoc.gov/employers/upload/eeoc_self_print_poster.pdf

3. Review your Company's employee manual to make sure the policies list
genetic discrimination as a prohibited activity. Make sure the policies
also include a prohibition on retaliation for making a complaint about
genetic discrimination.

4. Review your Company's record-keeping procedures, and make sure that
all medical information is maintained in a confidential medical file
separate from personnel files and properly secured.

5. Review your Company's employment forms to ensure they do not request
genetic information. This review should include all medical leave
request forms.

6. Take steps to limit the risks of employee "self-disclosure." Inform
staff that such information is protected and not to be discussed.

7. Ensure that if your Company requires employees to have fitness for
duty exams that no genetic information - including family history -- is
requested.

8. Review your Company's wellness program to ensure that no genetic
information is being requested or revealed.

Jeanelle R. Lust

Knudsen, Berkheimer, Richardson & Endacott, LLP

3800 VerMaas Pl

Suite 200

Lincoln NE 68502

402 475 7011

402 423 4768 (H)

402 440 3731 (M)

402 475 8912 (F)

Managing Partner

HIPAA Breach Notification Rule: Safe Harbor & Current Obligations

2009-11-19T13:41:00.000-08:00

Interim HIPAA breach notification regulations from the U.S. Department
of Health and Human Services, ("HHS") became effective September 23,
2009, requiring entities to give notice to affected individuals of any
breach of unsecured, protected health information. These rules originate
with the Stimulus Bill and are part of the administration's promotion of
"electronic health records."

Safe Harbor

The new rules contain a safe-harbor. Entities that use HHS-approved
technologies and methodologies that result in the encryption and
destruction of certain health records need not comply with the
notification rules (although notification is still considered a best
practice).

Key to the safe-harbor is the fact that the rules apply only to
breaches of "unsecured" Protected Health Information ("PHI"). The term
"unsecured" refers to PHI that has not been secured through the use of
technology or methodology approved by HHS. HHS Guidance (called the
"HITECH Breach Notification Guidance") describes those approved
technologies and methodologies, making PHI "unusable, unreadable, or
indecipherable to unauthorized individuals". Electronic PHI is secured
when it has been adequately encrypted. Hard copies of PHI can only be
secured when shredded or destroyed such that they cannot be read or
reconstructed.

Current Obligations

A covered entity and a business associate must be able to identify,
record, investigate and report to an affected individual and HHS any
breach occurring after September 23, 2009. A covered entity's work
force must be trained on the new breach notification regulations.
Additionally, a covered entity must include sanctions for violating the
new breach of notification rules, and the sanction must be included in
the covered entity's policies. Therefore, covered entities should
examine their handbooks or other provisions regarding sanctions to
insure that they are broad enough to include sanctions relating to the
breach of notification rules. If not, they need to be updated.

Definition of Breach

If there is a saving grace in all of this, it is that the definition
of a "breach" has been modified as well. The regulations now provide
that a "breach" exists if there is an acquisition, access, use, or
disclosure of PHI in a manner not permitted by the Privacy Rules and
such action "compromises" the security or the privacy of the PHI. The
definition of "compromise" now includes a helpful risk analysis, and
under that analysis the PHI is compromised only if the event poses "a
significant risk of financial, reputational, or other harm to the
individual." In other words, many minor or insignificant breaches may
not pose a significant risk of such harm, and need not be reported to
the affected individual or to HHS. A breach of unsecured PHI is also not
considered to have occurred under certain exceptions:

1. If an unauthorized person to whom the unsecure PHI is disclosed would
not reasonably have been able to retain the PHI;

2. An unintentional acquisition, access, or use of unsecured PHI occurs
by an employee or individual acting under the authority of a HIPAA
covered entity or business associate, but only if (a) the acquisition,
access or use is made in good faith and within the course and scope of
employment or other professional relationship with the covered entity or
business associate and (b) such unsecured PHI is not further acquired,
accessed, used, disclosed by anyone; or

3. Where the inadvertent disclosure occurs from an individual who is
otherwise authorized access to unsecure PHI at a facility operated by a
HIPAA covered entity or business associate, to another similarly
situated individual at the same facility, but only if the unsecured PHI
is not further accessed, acquired, used or disclosed without
authorization.

HIPAA covered entities and business associates should each identify
their business associates, agents and sub-contractors and review their
agreements to include compliance with the new regulations. Handbooks
and training need to be updated as well.

Kevin McManaman

Knudsen, Berkheimer, Richardson & Endacott, LLP

3800 VerMaas Pl

Suite 200

Lincoln NE 68502

402 475 7011

402 475 8912 (F)

Long-Term Care Insurance Provisions in the Pension Protection Act Take Effect January 1, 2010

2009-11-17T13:25:00.000-08:00

The Pension Protection Act of 2006 (PPA) was signed into law on
August 17, 2006. Included among the many provisions in the PPA is
Section 844 which, in part, encourages individuals to purchase insurance
for future long-term care needs. This Section takes effect January 1,
2010 and is effective for contracts issued after December 31, 1996.

Section 844 of the PPA addresses the treatment of long-term care
insurance riders that are added to annuity contracts or life insurance
policies. In the past, the Tax Code has prohibited combinations of
long-term care insurance policies with annuity contracts because payouts
from these policies were taxed differently under the Code. However,
beginning January 1, 2010, the PPA permits long-term care insurance
riders to be attached to annuity contracts. Once these riders are
attached, they will be treated as separate contracts which are
independent from the original annuity contracts. Accordingly, when a
rider attached to an annuity contract is a tax-qualified long-term care
rider, benefits paid out under the rider for long-term care will
generally be paid as tax-free long-term care insurance benefits, if
certain triggering events occur.

These new "combination" policies are expected to be desirable to
individuals previously concerned with the "use-it-or-lose-it" feature
which is found in most stand alone long-term care insurance policies
because the annuities included in the policies can be utilized, even if
no long-term care services are ever needed by the policyholders.

Laura Troshynski

Knudsen, Berkheimer, Richardson & Endacott, LLP

3800 VerMaas Pl

Suite 200

Lincoln NE 68502

402 475 7011

402 475 8912 (F)

Making Sure Arbitration Agreements are Enforceable

2009-11-04T09:04:00.000-08:00

Long term care facilities have recently begun offering residents the
option of agreeing to arbitrate disputes that arise during residency.
An arbitration agreement may benefit both facilities and residents as an
alternative to litigation, by reducing the expense, delay and emotional
stress associated with court trials. These agreements are usually
enforceable under the Federal Arbitration Act.

Arbitration agreements typically are signed upon admission to the
facility, along with other agreements covering residency and care.
Often they are signed by family members or others who accompany the
resident. This may occur because of physical infirmity, mental
incapacity or other reasons.

The Nebraska Supreme Court recently held an arbitration agreement
invalid that was signed by a nursing home resident's son in Koricic v.
Beverly Enterprises. The son wasn't the resident's appointed
conservator or guardian and had no power of attorney. Even so, the
trial court had found the resident had given her son permission to sign
papers for her admission to the nursing home.

On appeal the Nebraska high court reversed, concluding the mother's
statements authorizing her son to sign papers didn't include the
arbitration agreement, because it wasn't required as a condition for her
admission. Since the son wasn't legally authorized to sign the
arbitration agreement it was not binding on his mother's estate.

Koricic demonstrates that nursing home admissions personnel have to
insure that anyone signing an arbitration agreement has legal capacity
to enter into a binding commitment for the resident.

Unless the resident is incompetent, the best practice generally calls
for the resident to personally sign the arbitration agreement and other
admissions documents.

If someone other than a resident must sign admissions documents, they
must have legal authority to sign for the resident. That generally
means the one signing must be a court-appointed conservator or guardian,
or else possess a power of attorney, signed when the resident was
competent, authorizing the signer to execute the document on the
resident's behalf.

Knudsen Law Firm can provide long term care facilities with properly
drafted arbitration agreements. Just as important, we can advise on
training admissions staff to insure a legally authorized person signs
the agreement, to make it enforceable and effective.

Knudsen, Berkheimer, Richardson & Endacott, LLP

3800 VerMaas Pl

Suite 200

Lincoln NE 68502

402 475 7011

402 423 4768 (H)

402 440 3731 (M)

402 475 8912 (F)

New Standards for Determining RETALIATION

2009-09-03T10:47:00.000-07:00

Retaliation Standard Pre and Post 2006 Burlington

(BNSF Railway Co. v. White, 548 U.S. 53, 57 (2006))

EMPLOYER RETALIATION

Title VII’s anti-retaliation provision, which is set forth in 42 U.S.C. §2000e-3(a), prohibits an employer from discriminating against an employee or job applicant because that individual opposed a practice made unlawful by Title VII or made a charge, testified, assisted, or participated in a Title VII proceeding or investigation.

PRE 2006 BNSF DECISION

Prior to the 2006 Burlington (BNSF) decision there were different standards in analyzing Title VII retaliation claims used by different Circuits. The “Expansive Approach” which defined adverse employment action broadly to include any action that is reasonably likely to deter alleged victims or others from engaging in future protected activity. The “Intermediate Approach” which held that adverse employment action in the retaliation context includes any decision that materially affects the terms and conditions of employment, and finally the “Restrictive Approach.” The Eighth Circuit followed the Restrictive Approach which basically held that only ultimate employment decisions—such as hiring, firing, promoting, and demoting—constitute[d] actionable adverse employment actions is no longer applicable since BNSF Railway Co. v. White, 548 U.S. 53, 57 (2006)(BNSF).

POST 2006 BNSF DECISION

After surveying differing frameworks previously used by the circuit courts in evaluating Title VII retaliation claims and reviewing the legislative history of Title VII and Supreme Court precedent, the Court adopted a modified version of the expansive approach (defined adverse employment action broadly to include any action that is reasonably likely to deter alleged victims or others from engaging in future protected activity).

The questions the Supreme Court sought to answer were:

Does that provision (Title VII) confine actionable retaliation to activity that affects the terms and conditions of employment? and;
How harmful must the adverse actions be to fall within its scope?

The Supreme Court answered the first question in the negative, concluding that “Title VII’s substantive provision and its anti-retaliation provision are not coterminous. The scope of the anti-retaliation provision extends beyond workplace–related or employment-related retaliatory acts and harm.” BNSF, 548 at 67. Indeed, a covered retaliatory act could occur inside or outside of the workplace. Id. at 57.

The provision covers those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. Id. At 57. “We speak of material adversity because we believe it is important to separate significant from trivial harms. The touchstone for determining whether an adverse action was material depended on whether it was conduct that “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Id. at 57.

ACTIONABLE RETALIATION EXAMPLES

Conceding that the distinction between material adversity, which is actionable, and trivial harm, which is not actionable, is no easy task, the Court pointed to context as a critical factor. Id. at 69. The court provided two examples in which context could mean the difference between a successful Title VII retaliation claim and a pretrial dismissal:

A schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school-age children. Id.
A supervisor’s refusal to invite an employee to lunch is normally trivial, a nonactionable, petty slight. But to retaliate by excluding an employee from a weekly training lunch that contributes significantly to the employee’s professional advancement might well deter a reasonable employee from complaining about discrimination. Id.

EightH Circuit ACTIONABLE Examples post BNSF

The Eighth Circuit considered a Title VII retaliations claim under the BNSF standard for the first time in Higgins v. Gonzales, 481 F.34d 578 (8th Cir. 2007). In that case a former Assistant United States Attorney alleged two forms of retaliation:

1. a fundamental lack of supervision and mentoring; and

2. a transfer to a different office.

Id. at 90.

As to the first form of alleged retaliation, a fundamental absence of supervision and mentoring, the plaintiff claimed that the lack of supervision and left her to flounder, which she characterized as a materially adverse action. Id. The Eighth Circuit stated that floundering “might” qualify as a materially adverse action, but held that the employee failed to establish that she was actually left to flounder to such an extent that it would qualify as materially adverse under BNSF: “[The] lack of mentoring or supervision might constitute an adverse employment action under the standard if [the plaintiff] could establish she was actually left to ‘flounder’ or was negatively impacted by the lack of supervision or mentoring.” Id. On the second type of alleged retaliation—transfer to a different office—the court found that this particular lateral transfer did not rise to the level of material adversity because there was “no evidence [the plaintiff’s] new duties were more difficult, less desirable or less prestigious.” Id. at 591.

The Eighth Circuit confronted another Title VII retaliation claim in Recio v. Creighton University, 521 F.3d 934 (8^th Cir. 2008). There, the employee, a college professor, cited nine incidents that she claimed were materially adverse.

1. extending the duration of the counseling requirement of her probation

2. requiring that she maintain a (“M-W-F”) teaching schedule

3. shunning by faculty

4. failing to provide her prior notification of vacancy in the Spanish faculty

5. keeping the temperature in her office too cold

6. requiring her to acknowledge her probation in her employment contract

7. failing to assign her to teach advanced classes

8. denying her the opportunity to teach summer courses

9. denying her opportunities to participate in a study program in Spain

All were deemed trivial harms that do not rise to the level of retaliation. Id. at 940.

CONCLUSION

BNSF helped to more aptly define the line separating materially adverse actions from trivial harms and petty slights in the American workplace, but that border is still very blurry. While ignoring an employee’s repeated phone calls and delegating “difficult work” may constitute trivial harms, leaving an employee to “flounder” under a crush of that work might potentially qualify as materially adverse. The distinction depends on context and it is not easy to discern.

Given these factors, BNSF illuminates the difficult question employers and employment law attorneys should ask themselves in these scenarios—whether a particular action would dissuade a reasonable person from complaining or supporting a compliant about discrimination?

Michael W. Khalili | Associate Attorney

Knudsen Berkheimer, Richardson & Endacott LLP
3800 VerMaas Place, Suite 200, Lincoln, NE 68502

( 402.475.7011 | Fax 402.475.8912

* mkhalili@knudsenlaw.com | www.knudsenlaw.com

2009-09-02T05:42:00.000-07:00

Red Flags Rule: Another Delay

By Kevin R. McManaman

The April 30, and July 31, 2009 editions of the Long Term Care Newsletter contained articles regarding the new “Red Flags Rule” being implemented by the Federal Trade Commission (FTC). The Red Flags Rule will affect nearly half of the healthcare providers in America, and will require written procedures and policies pertaining to identity theft. The implementation date had previously been extended from November of 2008 until May 1, 2009. Late on April 30, 2009, after the Long Term Care Newsletter had been mailed, the FTC announced that it was extending the implementation three months from May 1, 2009 to August 1, 2009. Subsequently, the FTC again delayed enforcement until November 1, 2009.

Long term care clients should continue preparing to implement the Red Flags Rule, and should now be targeting the November 1, 2009 date. Additional information should be reviewed at: www.ftc.gov/redflagsrule, including the FTC’s templates for “low risk” entities.

The FTC believes this three-month extension, along with the new guidance it is providing to help creditors and financial institutions, will help to bring about a better understanding of the Red Flag Rule and allow companies to write and then implement written Identify Theft Prevention Programs.

I'm Not A Money Girl!

2009-09-01T11:40:00.000-07:00

Have you heard your friends say, "I can't afford this, but it's
Prada...." Or "I wonder which credit card I have isn't at its limit?"
Then this seminar might just be what your friends need. (Or maybe you
too)

Money is an uncomfortable subject for most of us. We love

money, we hate money. We can't live with it, and we can't

live without it. Money touches almost every aspect of living:

work, leisure time, creative activities, home, family, and

spiritual pursuits. Everything we do and dream of is affected

by our relationship with this powerful form of energy.

This workshop is designed for women who want to

consciously focus their money energy and wake up to

handling all kinds of energy - not only money but time,

physical vitality, enjoyment, creativity and the support of

friends. You will discover that you are a hero - and how to

bring your natural strengths and virtues to your relationship

with money.

Attend this workshop and you will:

*Learn why worry about money is normal and what you can do about it.

*Discover how to take the easiest course of action when moving towards
your own personal money goals.

*Discover ways to make decisions about money that are based on what is
truly important to you.

*Learn how to create a support team that will guarantee your success.

When: Oct. 3, 2009 Time: 9:00 a.m. - 3:00 p.m.

Where: College of Saint Mary - Lincoln Campus
1109 Cotner Blvd. Lincoln, NE.

Jeanelle R. Lust

Knudsen, Berkheimer, Richardson & Endacott, LLP

3800 VerMaas Pl

Suite 200

Lincoln NE 68502

402 475 7011

402 423 4768 (H)

402 440 3731 (M)

402 475 8912 (F)

2009-06-18T08:45:00.000-07:00

Red Flags Rule: Another Delay

The April 30, 2009 edition of the Long Term Care Newsletter contained an article regarding the new “Red Flags Rule” being implemented by the Federal Trade Commission (FTC). The Red Flags Rule will affect nearly half of the healthcare providers in America, and will require written procedures and policies pertaining to identity theft. The implementation date had previously been extended from November of 2008 until May 1, 2009. Late on April 30, 2009, after the Long Term Care Newsletter had been mailed, the FTC announced that it was extending the implementation three months from May 1, 2009 to August 1, 2009. The announcement did not affect other federal agencies’ enforcement of the original November 2008 compliance deadline.

The FTC explained that it was delaying enforcement of the new “Red Flags Rule” until August 1, 2009 so as to give creditors and financial institutions more time to develop and implement the written identify theft prevention programs, which we described in the April 30, 2009 Long Term Care Newsletter.

Notably, the FTC also indicates that for entities with a low risk of identity theft, such as business that know their customers personally, it will soon release a template to help with compliance.

The FTC’s explanation further questions whether or not Congress intended to write its rule as broadly as it has been interpreted, and in a very frank statement, the FTC Chairman Leibowitz said that the extension was also designed to give Congress and opportunity to reexamine the issue.

Long term care clients should continue preparing to implement the Red Flags Rule, and should now be targeting the August 1, 2009 date. The reprieve is welcome considering many entities had yet to finalize their written program. Additional information should be reviewed at: www.ftc.gov/redflagsrule, including the FTC’s templates for “low risk” entities.

Tammy Schroeder

	Paralegal Office: 402-475-7011 Fax: 402-475-8912 tschroeder@knudsenlaw.com

Knudsen, Berkheimer, Richardson & Endacott LLP 3800 VerMaas Place, Suite 200, Lincoln, NE 68502
http://www.knudsenlaw.com

2009-06-18T08:43:00.000-07:00

Tammy Schroeder

	Paralegal Office: 402-475-7011 Fax: 402-475-8912 tschroeder@knudsenlaw.com

Knudsen, Berkheimer, Richardson & Endacott LLP 3800 VerMaas Place, Suite 200, Lincoln, NE 68502
http://www.knudsenlaw.com

Circular 230 Disclosure: Pursuant to recently-enacted U.S. Treasury Dept. Regulations, we are now required to advise you that, unless otherwise expressly indicated, any federal tax advice contained in this communication, including attachments and enclosures, is not intended or written to be used, and may not be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein.

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Nursing Home Transparency Bill Reintroduced

2009-05-07T07:00:00.000-07:00

Senators Chuck Grassley (R-IA) and Herb Kohl (D-WI) have decided to give
the Nursing Home Transparency & Improvement Act of 2009 another try at
passing. Their goal with the bill...increase accountability in the
nursing home industry and sort out the network of owners that run many
facilities.

The bill comes out of growing concerns about homes owned by
large private equity firms who often build complex corporate structures
to shield them from liability. Under this legislation nursing homes
would have to name the members of the groups that own them, give the
organizational structures of all affiliated entities and give
information about those involved in the management, operation and
financing

The bill would require a real time system for reporting
staffing information to the US DHHS cutting down on a facility trying to
manipulate its staffing numbers. The CMS website would be able to
provide more information on its Nursing Home Compare website including
the ownership information, staffing data and a standardized complaint
reporting form.

The legislation would also give the government more
enforcement options including flexibility in assessing penalties and
collecting money sooner. It would require facilities to come up with
compliance and ethics plans to prevent civil, criminal and
administrative violations. Facilities would also have to develop
internal quality assurance standards.

The last thing the legislation would do is require HHS to
come up with a national monitoring program to watch over multi-state and
large intrastate nursing home chains.

The goal is more transparency, better enforcement and
improved staff training according to Sen. Grassley. Currently the bill
is pending before the Finance Committee.

Tammy Schroeder

tjs@knudsenlaw.com

Nursing Assistant Regulations Updates

2009-05-07T06:57:00.000-07:00

The State of Nebraska has recently revised its Nursing
Assistant Regulations. (For continuity with licensure regulations, they
have also been transferred to the Health Professional and Occupational
Licensure Title of the Nebraska Administrative Code (172 NAC).) The new
regulations pertain primarily to training, approval of training courses,
and the Nursing Assistant Registry. A summary follows.

Nursing assistant training programs must now be approved
through application to the Department (using the Department's form)
outlining the curriculum of the course. The curriculum must be in
compliance with the regulations, including 75 hours of instruction, 16
hours of supervised practical training and focus on the prescribed
topics including at least one hour of instruction on the responsibility
to report suspected abuse or neglect. (The specifics are outlined in
172 NAC 108-003.01.)

The application for approval of a training course must
include the names and authors of all textbooks to be used (including
publisher and edition), or if no textbooks will be used, a list of
written materials that will be used including the source of such
materials. Applicants must specify the specific topic units to be
covered in the course as set forth in the regulations, and the hours to
be spent on each. The method of instruction for each unit has to be
specified (e.g. lecture, demonstration, simulation, slide presentation,
film strip, etc.) as well as a description of the practical training
provided for each unit required by the regulations. Reading
assignments, evaluation methods (written exams, demonstrations,
competency check-off, etc.), an explanation of the grading system to be
used, and other matters must be specified in the application, which must
be submitted by the Executive Director at least 30 days prior to when
the courses are to start.

Once approved, the courses do not require re-approval unless
the course, or the law, are changed. If a nursing assistant training
course is not approved, or such approval is suspended or revoked, the
regulations provide notice and opportunity to be heard for the
applicants. Attendance records are subject to review by the Department
upon request and must be maintained for at least two years from the date
of completion of each course. The nursing assistant training courses
are also subject to on-site periodic review by the Department, and
sponsors must provide written notices to the Department of the dates and
location that a basic course will be held at least five working days
before it is scheduled to begin.

In addition to other requirements, Nursing Assistants have
to successfully complete an approved training course within 120 days of
employment. Interestingly, a Nursing Assistant who becomes a Licensed
Practical Nurse or a Registered Nurse his/her Nursing Assistant
registration become null and void. Subsequently, if the Registered
Nurse or a Licensed Practical Nurse nurse's license is revoked,
suspended, or voluntarily suspended in lieu of discipline, he/she cannot
act as a Nursing Assistant in a nursing home either.

Of course, Nursing Assistants cannot have been convicted of
a crime involving moral perpitude rationally related to his/her
practice, and the Department documents such convictions on its Registry,
making the Nursing Assistant ineligible for employment in a nursing
home. The Department will give written notice of the reasons for the
proposed finding and will place the name on the Registry 30 days after
receipt of the notice unless a hearing is requested. Notably, after a
year has passed from the date the Nursing Assistant was placed on the
Registry, he/she may petition the Department to have the finding
removed.

Nursing homes should become fully conversant with the
training approval program requirements and organize accordingly. For a
copy of the regulations, or to discuss any of the implications, feel
free to contact the Knudsen Law Firm.

Kevin McManaman

http://www.knudsenlaw.com/Att_Bio_KRM.htm
http://www.knudsenlaw.com/

Jeanelle Lust to speak at upcoming seminar

2009-04-28T13:58:00.000-07:00

Prince Charming has left the building... becoming your own money hero.

June 13, 2009

10:30 am to 3:30 pm

1523 N. 33rd

Lincoln NE

This workshop is designed for women facing the life transition of
divorce or the death of a husband. Despite the swirl of uncertainty that
can sometimes surround you at this time, your life's journey continues.
Some of that uncertainty can be dealing with the financial end of
things. This workshop will help clarify what truly matters to you right
now, right here in this moment of your life. You will discover that you
have the courage and ability to make wise decisions in regards to your
money and how to begin to take action using your natural strengths and
virtues. No matter what you're dealing with financially and emotionally
there is a way to move forward and see all sorts of possibilities.
Attend this workshop and you will:

1. Learn why worry about money is normal and what you can do about it.

2. Discover how to take the easiest course of action when moving towards
your own personal money goals.

3. Discover ways to make decisions about money that are based on what's
truly important to you.

4. Learn how to create a support team that will guarantee your success.

Location:

This workshop will be held at the International Quilt Study Center and
Museum. The Quilt Museum is located on the northwest corner of the
intersection of 33rd and Holdrege Streets. Enter off 33rd Street.
Parking is north of the building (west of the fire station). Parking is
free in the entire lot north of the building (not just those spots
specifically reserved for museum visitors). Jot down your license plate
number to note at the admissions desk. For more information, to find
a map, or to link to the Quilt museum's website go to
www.beamoneyhero.com

MONEY HERO TEAM

Members Kris Thaller, Maria Pruitt, and Jeanelle Lust are dedicated to
empowering women in regards to their life's journey with money. Their
one of a kind interactive workshops acknowledge the incredible journey
women are on while facing life transitions such as getting married,
divorce, the death of a husband, retirement or career change. Each
workshop is a unique blend of life coaching, financial advice and legal
expertise.

Jeanelle Lust is the managing partner at the Knudsen Law Firm where she
practices in general commercial law with an emphasis on litigation.

Maria Pruitt is the District Manager of United First Financial, and is a
Certified Financial Budgeting Coach.

Kris Thaller is Owner of Coaching Dimensions and a Certified Life Coach
and Organizational Coach.

Special Guest Speaker:

Jody Hunke is a Financial Advisor for Smith Barney and a Certified
Divorce Financial Analyst. She works with clients to financially plan
for retirement, college expenses, and wealth management

Registration:

Name____________________________________

Address___________________________________

City _____________________________________

State_____________________________________

Zip______________________________________

Phone____________________________________

Return with check for registration fee to:

Coaching Dimensions, 10200 Weeks Dr., Lincoln, NE 68516

Credit cards accepted on-line via PayPal

Questions -call 402.890.5741

Early bird registration: $59.95.

After May 31, 2009: $69.95 (no later than June 7, 2009)

Registration fee includes Quilt museum tour and a box lunch

Email jlust@knudsenlaw.com if you have questions.

Jeanelle Lust

NSHHRA Update 4-1-09 (use of SSNs)

2009-04-15T14:20:00.000-07:00

Employer Use of Social Security Numbers

Many Nebraska employers are unaware they now have restrictions on the use of social security numbers. See Neb. Rev. Stat. § 48-237.

Under Nebraska law employers may not:

(a) Publicly post or publicly display in any manner more than the last four digits of an employee's social security number, including intentional communication of more than the last four digits of the social security number or otherwise making more than the last four digits of the social security number available to the general public or to an employee's coworkers;

(b) Require an employee to transmit more than the last four digits of his or her social security number of the Internet unless the communication is secure or the information is encrypted;

(c) Require an employee to use more than the last four digits of his or her social security number to access an Internet web site unless a password, unique personal identification number, or other authentication device is also required to access the Internet web site; or

(d) Require an employee to use more than the last four digits of his or her social security number as an employee number for any type of employment-related activity.

Employers may still use more than the last four digits of a social security number for:

(i) Compliance with state or federal laws, rules, or regulations;

(ii) Internal administrative purposes, including provision of more than the last four digits of social security numbers to third parties for such purposes as administration of personnel benefit provisions for the employer and employment screening and staffing; and

(iii) Commercial transactions freely and voluntarily entered into by the employee with the employer for the purchase of goods or services.

However, in using the social security numbers for internal administrative purposes, employers may not use the:

(i) As an identification number for occupational licensing;

(ii) As an identification number for drug-testing purposes except when required by state or federal law;

(iii) As an identification number for company meetings;

(iv) In files with unrestricted access within the company;

(v) In files accessible by any temporary employee unless the temporary employee is bonded or insured under a blanket corporate surety bond or equivalent commercial insurance; and

(vi) For posting any type of company information.

A violation of the statute is guilty of a Class V misdemeanor, and evidence of such a conviction is admissible in a civil trial as evidence of the employer's negligence.

As a consequence of § 48-237, employers are cautioned to only collect, retain and use social security numbers for legitimate purposes. Employer procedures should restrict access to documents containing social security number, and use should be limited as set forth in this law.

Kevin McManaman

Red Flags Rule

2009-04-15T12:24:00.000-07:00

<http://www.knudsenlaw.com/Att_Bio_KRM.htm>
<http://www.knudsenlaw.com/>

The Red Flags Rule

By some estimates, nearly half of the health care providers in America
will soon be in violation of new federal identity theft rules. The
so-called "Red Flags Rule" was developed pursuant to the Fair and
Accurate Credit Transactions (FACT) Act of 2003, under the authority of
the Federal Trade Commission (FTC). See 16 CFR 681 (which can be found
at:
http://ecfr.gpoaccess.gov/cgi/t/text/text-dx?c=ecfr&tpl=/ecfrbrowse/Titl
e16/16cfr681_main_02.tpl). Many health care providers have still never
heard of the Red Flags Rule, and many others are nevertheless unsure
whether the law applies. Even fewer are ready now to comply. Quick
action may be needed.

Under the rule, financial institutions and other "creditors" with
covered accounts must have implemented written identity theft prevention
programs designed to identify, detect and respond to patterns, practices
or specific activities that could indicate identify theft. The
definition of "creditor" is very broad and can be read to apply to many
healthcare companies (recent AMA challenges to this interpretation
failed - see attached FTC letter). Any entity that provides goods or
services and then later bills for the goods and services is a
"creditor," so incidental bills to patients, private pay, and insurance
claims can all fall under the rule because they often defer payment for
goods or services. As a creditor with covered accounts, health care
providers need to comply.

The FTC issued relatively little pre-implementation guidance
compared to entities that typically regulate health care (such as CMS).
In fact, the FTC delayed enforcement of the Red Flag Rules because of
reports that numerous companies were not even aware they were covered.
Originally, the plan was set to be implemented November 1, 2008 but the
six month delay until May 1, 2008, was put into place to give
non-financial institutions an opportunity to develop a program. Despite
further attempts to delay implementation, May 1, 2009 remains the
deadline for compliance, and fines can range from $2,500.00 to
$11,000.00 per violation. While it is unlikely enforcers will be at
your door on May 2, eventually you will probably be asked to present
your plan, either during an audit or in a courtroom, and in any event it
would be best to present a plan that was at first initially implemented
on time.

A program designed to identify and prevent identity theft must
be in writing, and tailored to the particular institution. The red
flags in the program may include, for example, unusual account activity,
fraud alerts on a consumer report, or attempted use of suspicious
account application documents. When a patient claims they are receiving
a bill for a provider that never served them or even a service that was
never provided, for example, a red flag has likely been raised. The
program must also describe the appropriate responses that would prevent
and/or mitigate the crime and a detailed plan to update the program.
Furthermore, senior employees or the Board of Directors should provide
oversight, staff and training.

In the health care setting, it is possible that existing HIPAA
required mechanisms can satisfy some of the requirements given the
purported FTC "flexibility" of what a written program should be. HIPAA
rules primarily address medical records, however, the Red Flag Rules
also focus on financial matters. Moreover, the Red Flag Rules require
an affirmative attempt by the creditors to respond to evidence of
medical identity theft. A mere document will not due when a written
program is called for, and HIPAA is merely a supplement, not a
substitute for a proper program.

The FTC insists that that Red Flags Rule is flexible and allow creditors
the opportunity to design a program appropriate to their size and
complexity, as well as to the nature of the operations. In some
circumstances, the FTC says, a "simple streamlined" program would be
adequate, such as a requirement of checking a photo identification when
services are sought, and having procedures designed to appropriately
respond if alerted by law enforcement to some identity misuse. Such
procedures might be common-sense. For example, when learning of
identity theft, a creditor should not try to collect the debt from the
person whose identity was stolen, nor reporting the debt to a credit
agency, and medical providers must keep the medical information separate
from the tainted financial information. It must be remembered, however,
the program must be written.

Larger institutions will likely need correspondingly more robust
programs given the larger likelihood of identity theft. Robust programs
for larger institutions may require a privacy committee headed by a
privacy officer, with members chosen from discrete departments
including, for example, representatives from a pharmacy, administration,
nursing, admissions, billing, etc. Formal risk assessments would likely
be needed, along with reporting mechanisms, action plans, formalized
procedures, employee training, oversight and periodic review.

More information can be obtained from the Federal Trade Commission
website, including guidelines that the FTC believes should be helpful in
assisting covered entities in designing their programs. On April 2, the
FTC provided additional guidance on its new Red Flags Rule website
<http://ftc.gov/redflagsrule> , including a new "How To"
<http://ftc.gov/bcp/edu/microsites/redflagsrule/link-to-us.shtm> guide.

Kevin R. McManaman

krm@knudsenlaw.com <mailto:krm@knudsenlaw.com>

Knudsen, Berkheimer, Richardson & Endacott, LLP

3800 VerMaas Place, Suite 200

Lincoln, NE 68502

402/475-7011 (office)

402/475-8912 (fax)

402/440-2982 (cell)

Res Judicata and Collateral Estoppel

2009-04-14T12:04:00.000-07:00

There are two separate but related doctrines that bar relitigation of
claims: claim preclusion and issue preclusion. Claim preclusion is most
often called res judicata (or sometimes merger and bar), while issue
preclusion is most often called collateral estoppel.

In most situations, whether the facts are analyzed under the name of res
judicata or issue preclusion, the end result may be the same, but there
still is a considerable difference. The doctrine of res judicata
provides that a final judgment on the merits is conclusive upon the
parties in any later litigation involving the same cause of action.
Collateral estoppel applies when an issue of ultimate fact has been
determined by a final judgment, and that issue cannot again be litigated
between the same parties in a future lawsuit

Pipe and Piling Supplies (USA), Ltd v. Betterman & Kattelman, 8 Neb.
App. 475, 478-79, 596 N.W.2d 24, 28 (1999).

Res Judicata

The doctrine of res judicata provides that a final judgment on the
merits is conclusive upon the parties in any later litigation involving
the same cause of action. Kerndt v. Ronan,
<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=595&FindType
=Y&SerialNum=1990121648> 236 Neb. 26, 458 N.W.2d 466 (1990)
<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=595&FindType
=Y&SerialNum=1990121648> . The real issue is what is the cause or causes
of action involved in the disputes between the parties in both cases?

Pipe and Piling Supplies (USA), Ltd. v. Betterman & Kattelman, 8 Neb.
App. 475, 479, 596 N.W.2d 24, 29 (1999) citing Swift v. Dairyland Ins.
Co.,
<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=595&FindType
=Y&SerialNum=1996112898> 250 Neb. 31, 547 N.W.2d 147 (1996)
<http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&DB=595&FindType
=Y&SerialNum=1996112898> , "Res judicata is not available when the cause
of action in the original action is different from the current cause of
action." Id.

In Schuelke v. Wilson, 255 Neb. 726, 733, 587 N.W.2d 369,
375 (1998), the Nebraska Supreme Court ruled that res judicata does not
apply if the trial court does not render findings of fact or conclusions
of law on the issue alleged to be barred:

In the first trial, which culminated in our ruling in Schuelke, supra,
neither the trial court nor this court rendered findings of fact or
conclusions of law pertaining to the merits of Wilson's counterclaim
raising Schuelke's alleged breach of the promissory notes or of the
merits of Schuelke's affirmative defense thereto. Neither Wilson's
counterclaim nor Schuelke's affirmative defenses are res judicata. The
elements of proof in Schuelke's initial claim against Wilson for
rescission based upon fraudulent misrepresentation and Wilson's
counterclaim against Schuelke for breach of contract are not the same,
and claim preclusion was properly not invoked by the trial court upon
remand to bar Schuelke's presentation of evidence in support of his
affirmative defense to Wilson's counterclaim alleging default on the
notes. See, e.g., Lincoln Lumber Co. v. Fowler, 248 Neb. 221, 533 N.W.2d
898 (1995) (holding that where elements of proof differ between causes,
judgment in one action may, but does not necessarily, preclude judgment
in another, factually related action).

Mischke v. Mischke, 253 Neb. 439, 449, 571 N.W.2d 248, 257 (1997) is on
point here:

The issue of the value of personal property is not res judicata because
the parties did not stipulate to the value of the property in the first
proceeding. Furthermore, the purpose of the first proceeding was not to
determine the value of the property. Rather, it was an action to
determine ownership of the property and to compel the appellees to give
an accounting. Thus, the value of personal property was not an issue
either actually litigated or that could have been litigated in the first
proceeding.

Thus the doctrine of res judicata does not bar parties from bringing
related, but different causes of action.

Collateral Estoppel

The doctrine of collateral estoppel "recognizes that limits
on litigation are desirable, but a person should not be denied a day in
court unfairly." Gottsch v. Bank of Stapleton, 235 Neb. 816, 837, 458
N.W.2d 443, 457 (1990) (quoting Vincent v. Peter Pan Bakers, Inc., 182
Neb. 206, 207, 153 N.W.2d 849 (1967)). Four conditions must exist in
order for the doctrine of collateral estoppel to apply: (1) The
identical issue was decided in the prior action, (2) there was a
judgment on the merits which was final, (3) the party against whom the
rule is applied was a party or in privity with a party to the prior
action, and (4) there was an opportunity to fully and fairly litigate
the issue in the action. Bisgard v. Johnson, 3 Neb. App. 198, 525 N.W.2d
225 (1994). Collateral estoppel cannot, however, be applied to bar the
claims asserted by persons who have not had their day in court.

Due process requires that the rule of collateral estoppel operate only
against persons who have had their day in court either as a party to a
prior suit or as a privy; and, where not so, that at least the presently
asserted interest was adequately represented in the prior trial.

Gottsch, 235 Neb. at 837, 458 N.W.2d at 457 (quoting Hickman v.
Southwest Dairy Suppliers, Inc., 194 Neb. 17, 28-29, 230 N.W.2d 99, 106
(1975); Borland v. Gillespie, 206 Neb. 191, 292 N.W.2d 26 (1980)).

In JED Construction Co. v. Lilly, 208 Neb. 607, 305 N.W.2d 1
(1981) the Court stated that "the party against whom the rule is to be
applied was a party or in privity with a party to the prior action" is a
requirement of collateral estoppel. Id. The Lilly Court explained that
there is no need for both the plaintiff and the defendant to be the same
parties, as long as the party to be bound was a party to the previous
action. Id. at 611, 305 N.W.2d at 3-4.

The rule in Nebraska is that the same party against whom
preclusion is sought must have been involved in the prior action.
Cunningham v. Prime Mover, Inc., 252 Neb. 899, 903, 567 N.W.2d 178, 181
(1997) (quoting Kopecky v. National Farms, Inc., 244 Neb. 846, 854, 510
N.W.2d 41, 48 (1994)). For example, Gottsch v. Bank of Stapleton, 235
Neb. 816, 458 N.W.2d 443 (1990), involved an action to impose a
constructive trust on the proceeds from the sale of cattle purchased
from Gottsch by the Churchills. In a prior action, Gottsch obtained
judgment against the Churchills for the purchase price of the cattle.
In the Bank of Stapleton case Gottsch sought to impose a constructive
trust on proceeds from the sale of those cattle that were received by
the a defendant/bank as payments on notes owed by the Churchills. The
Supreme Court held that the doctrine of collateral estoppel did not
apply, even though the Churchills had litigated and lost the earlier
collection case brought by Gottsch. Discussing the requirement of
privity, the Supreme Court noted that:

"Privity depends upon the relation of the parties to the subject-matter,
rather than their activity in a suit relating to it after the event....

"Privity implies a relationship by succession or representation between
the party to the second action and the party to the prior action in
respect to the right adjudicated in the first action."

. . . . Privity has also been defined as [m]utual or successive
relationship to the same rights of property. In its broadest sense,
"privity" is defined as mutual or successive relationships to the same
right of property, or such an identification of interest of one person
with another as to represent the same legal right.... Derivative
interest founded on, or growing out of, contract, connection, or bond of
union between parties; mutuality of interest.

Id. at 838, 458 N.W.2d at 457 (citations omitted).

The Supreme Court noted that "the mere fact that litigants
in different cases are interested in the same question or desire to
prove or disprove the same fact or set of facts is not a basis for
privity between the litigants." Id. at 839, 458 N.W.2d at 458 (citations
omitted). The Supreme Court concluded that the issue tried in the
collection case against the Churchills was for a personal judgment and
did not involve the issue of title to the cattle. The bank was not,
therefore, in privity with Churchills and could litigate the issue of
the ownership of the cattle.

Jeanelle R. Lust

So that Stimulus Package..

2009-02-26T11:57:00.000-08:00

The American Recovery and Reinvestment Act of 2009 changed the way COBRA
benefits are administered. Most importantly for employers 65% of COBRA
benefits must be paid for by the employer and then deducted by the
employer from the payroll taxes paid to the government. Most employers
offering health insurance to their employees in the U.S. will be
required to comply with the new COBRA provisions by March 1, 2009.

The new COBRA system provides employees laid-off since September 1, 2008
through the end of 2009 with as much as a nine-month subsidy to help
them continue receiving their employer's health benefits. These former
employees need only pay 35% of the cost of the monthly premium for
health care coverage if their gross income is less than $125,000 for
individuals or $250,000 for couples. The new government subsidy now
covers the remaining 65 % of the cost of the premium. (Different rules
apply for those making more income).

This benefit must be made available to all qualifying individuals.
Employers must send notices to eligible employees notifying them of
their rights to elect COBRA under the new subsidy rules. The
notification must include employees who have already declined COBRA
continuity. Employers must also allow workers to switch to lower-cost
health plans if they are available.

While employers are readying administrative systems to comply if an
employee pays the full amount of the premium, the employee can later use
that overpayment as a credit toward future premiums or the employer can
reimburse the employees the amount of the overpayment.

Jeanelle Lust

http://www.knudsenlaw.com <http://www.knudsenlaw.com/>

Jeanelle R. Lust

Preparing a Way Forward

Managing Partner

Office: 402-475-7011

Fax: 402-475-8912

Mobile: 402-440-3731

jlust@knudsenlaw.com <mailto:jlust@knudsenlaw.com>

Knudsen, Berkheimer, Richardson & Endacott, LLP
3800 VerMaas Place, Suite 200

Lincoln, NE 68502

Knudsen Law Firm Successfully challenges LB 701

2009-02-10T07:50:00.000-08:00

The Nebraska Supreme Court ruled on Friday February 6, 2009 that property tax authority given to the Upper, Middle and Lower Republican Natural Resources Districts is unconstitutional because the money is for a state purpose: the Republican River Compact compliance. The Court stated,"We conclude that LB701(1)(d) violates the prohibition against levying a property tax for state purposes ... and that such provision is therefore unconstitutional.” “The state has acknowledged that compliance with the compact is the state’s responsibility by entering into the final settlement stipulation resolving the litigation which was initiated by the state of Kansas in 1998,” the ruling continued. Therefore, the judges concluded, the state is obligated to comply with the compact, and the LB701 tax was designed to meet a state obligation.

LeRoy Sievers of the Knudsen Law Firm said the Supreme Court decision shows that “the taxing provisions were . . . imposing a tax for a state purpose.” Sievers added that the lawsuit was not filed to cause problems in the Republican Basin but to do just the opposite-- have the state do its job in compact compliance. Jeanelle Lust with the firm added the court's message to state senators and water managers is "you can't stick your head in the sand and do nothing about the Republican River issues. Maybe this is what some state senators who don't live in the basin needed to hear."

Lust said Nebraska's water issues won't disappear. The same water shortage issues are cropping up all over the state, and Nebraska needs to find a sensible way of regulating these issues as a state. "What we were really hoping to accomplish, in addition to eliminating the property tax, was to get the Legislature to realize that they can't solve the state's compliance problems on the backs of the people in the Republican River basin," she said. Rod Confer, who tried the case at district court level, and wrote the winning argument on appeal, agreed, "Maybe now the state will come up with some sensible regulations."

In the District Court, Judge Merritt had decided that LB701 created a closed class of NRDs entitled to the law’s taxing authority, making the tax special legislation, and unconstitutional under Nebraska's Constitution. The Supreme Court did not address that argument because “once you’ve found something invalid on one basis, you don’t need to go on to the other (bases).” Sievers said.

Angus Garey of McCook, one of nine Republican River basin landowners and residents who filed the lawsuit, said he was pleased with the decision and expected county commissioners to begin asking NRDs to refund the special property tax revenue to the counties. "The taxpayers of southwest Nebraska are relieved," Garey said.

Rodney M. Confer

Jeanelle R. Lust

LeRoy Sievers

The Knudsen Law Firm

Knudsen, Berkheimer, Richardson & Endacott.

3800 VerMaas Place, Suite 200

Lincoln NE 68512

800 714 3439

rconfer@knudsenlaw.com

lsievers@knudsenlaw.com

The importance of right to sue letters and timing of employment discrimination lawsuits.

2009-01-30T12:32:00.000-08:00

As was succinctly stated in Karstens v. International Gamco, Inc., 939 F.Supp. 1430 (D.Neb. 1996), “[t]o exhaust her remedies, not only must a Title VII plaintiff timely file her charges with the EEOC, but she must also receive a “right to sue” letter from the EEOC.” Id. at 1435 (citing Shannon v. Ford Motor Co., 72 F.3d 678, 684 (8^th Cir. 1996); see also Stuart v. General Motors Corp., 217 F.3d 621 (8^th Cir. 2000). This circuit has recognized that receipt of a right-to-sue letter is a condition precedent to a filing of a lawsuit under Title VII or the ADA. See Jones v. American State Bank, 857 F.2d 494, 499 (8^th Cir. 1988). Although a plaintiff who prematurely files a lawsuit before receiving a right-to-sue letter may cure the defect by subsequently receiving a right-to-sue letter, Id. at 499-500, the lawsuit should be dismissed in the absence of a right-to-sue letter. See Kane v. State of Iowa Dept. of Human Services, 955 F.Supp. 1117, 1140 (N.D.Iowa 1997).

In Kane, the plaintiff filed suit prior to receiving her right-to-sue letter. Subsequently, before the defendant moved for summary judgment on the ground that plaintiff failed to exhaust, plaintiff received her right-to-sue letter. The court clearly recognized that failure to obtain a right-to-sue letter prior to filing a complaint renders a plaintiff’s claim subject to dismissal. Id. at 1140. The court went further, however, indicating that a plaintiff’s right to cure the defect is cut off once the defendant challenges the timeliness of her complaint. However, the court ultimately denied the defendants motion to dismiss “on the ground that [plaintiff] cured the defect in her premature filing by subsequently obtaining a right-to-sue letter … before any objection to the timeliness of her complaint was made.” Id. at 1135. In so holding, the court went on to say: “The [defendant] sat on its opportunity to obtain the relief it now demands via a motion for summary judgment until long after the defect of which it complains had been cured.” Id.

Generally, a litigant has 90 days from the receipt of her right-to-sue letter in which to start an action. See Brooks v. Ferguson-Florissant School Dist., 113 F.3d 903, 904 (8^th Cir. 1997) (citing 42 U.S.C. §2000e-5(f)(1)). In the Eighth Circuit, where a claimant is mailed a right-to-sue letter by regular mail, the date of actual receipt is presumed to be three days from the date it was mailed and the 90-day statute of limitations begins to run at that time. See Glass v. Bemis Co., Inc., 22 F.Supp.2d 1063, 1066 (D.Neb. 1998) (citing Brooks v. Ferguson-Florissant School Dist., 113 F.3d 903, 904 (8^th Cir. 1997)). However, the Eighth Circuit has held that a Title VII claimant must acknowledge receipt of a certified right-to-sue letter before the 90-day statute of limitations begins to run. See Craig v. Dept. of Health, Ed. and Welfare, 581 F.2d 189 (1978); Thomas v. KATV Channel 7, 692 F.2d 548, 550 (1982), cert. denied 460 U.S. 1039, 103 S.Ct. 1431, 75 L.Ed.2d 790 (1983); see also Webb v. American Red Cross, 652 F.Supp. 917 (D.Neb. 1986).

Other circuits have recognized that the general policy behind the 90-day statute of limitations mandates that Title VII plaintiffs not be given the opportunity to manipulate the running of the limitations period by failing to claim certified right-to-sue notices. These courts have dealt with this problem by holding that a claimant may be deemed to have constructively received notice of the right to sue on the first day the Post Office gives the claimant official notice that the certified letter is awaiting her at the Post Office. See, e.g., Graham-Humphreys v. Memphis Brooks Museum of Art, 209 F.3d 552 (6^th Cir. 2000) (holding that a Title VII Plaintiff constructively received a right-to-sue notice when the letter carrier deposited the first of two official notifications at the plaintiff’s official address which advised that a certified letter awaited her at nearby postal station, and that this was the day the 90-day statute of limitations began to run although Plaintiff did not physically receive the notice until the EEOC mailed it a second time); Lee v. Henderson, 75 F.Supp.2d 591 (E.D.Tex. 1999) (holding that “in circumstances where a Plaintiff does not claim her certified mail, the ninety-day period is triggered upon delivery of the first notice of certified mail, not when the letter is actually picked up.”); Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380 (9^th Cir. 1997) (holding that 90-day limitations period began running when Postal Service attempted delivery of right-to-sue letter at the address of record that employee provided to EEOC); Watts-Means v. Prince George’s Family Crisis Center, 7 F.3d 40 (4^th Cir. 1993).

In Graham-Humphreys, the plaintiff had filed a Title VII claim with the EEOC and the EEOC issued the plaintiff a right-to-sue letter and mailed it to her by certified mail. Graham-Humphreys, 209 F.3d at 554. Despite having received two notices of attempted delivery in conformity with standard Postal Service practices, the plaintiff neglected to retrieve her certified letter by the deadline stated on the notices. Id. Accordingly, the postal service returned her right-to-sue letter to the EEOC as “unclaimed”. Several days later, the plaintiff requested that a second right-to-sue letter be sent, which she signed for and received. Arguing that the district court erred in dismissing her complaint as barred by the 90-day statute of limitations, the plaintiff asserted that the statute of limitations did not begin to run until she received the right-to-sue letter following the EEOC’s second mailing. The court held otherwise, stating:

Nevertheless, even if the plaintiff did not physically attain actual “receipt” of her RTS notice until March 28, 1996, she had constructively “received” her RTS notification on March 8, 1996, the day that the letter carrier deposited the first of two official notifications at the plaintiff’s last known official address which advised that a certified letter awaited her at the nearby postal station. [The plaintiff] has conceded that she knew, or suspected, that the certified delivery contained her RTS notice.

Id. at 558 (emphasis in original). The court went on to state that even if the plaintiff had not conceded that she suspected the certified notice at issue to be her EEOC right-to-sue letter,

she would nonetheless properly be charged with such knowledge, because she indisputably knew that her RTS notice would be proximately arriving by United States mail. Beyond contravention, most adult Americans are cognizant that critical, time-sensitive official communications are frequently dispatched via certified mail. In the implicated scenario, the requisites of reasonable diligence demanded that the plaintiff promptly discharge her less-than-demanding obligation to retrieve her certified delivery.

Id. at 559 (citations omitted).

To support its holding that the plaintiff in Graham-Humphreys is deemed to have constructively received her right-to-sue letter upon receipt of the Post Office’s official notice that a certified letter awaited her, the court cited cases from other circuits recognizing that constructive notice is appropriate where the post office has delivered a right-to-sue notice to the plaintiff’s record address and the plaintiff fails to “receive” it until a later date because “the law must preclude ‘a manipulable open-ended time extension which could render the statutory limitation meaningless.’” Id. at 559, fn. 11. The court stated that “the same rationale supports the deposit of an attempt-to-deliver notice at the complainant’s record address” as an event which triggers the accrual of the 90-day statute of limitations. Id. (citing Watts-Means v. Prince George’s Family Crisis Center, 7 F.3d 40, 42 (4^th Cir. 1993). Furthermore, “[a]ny more lenient rule would illicitly license a Title VII claimant to indefinitely extend limitations by avoiding acceptance of an RTS notice, thereby circumventing the Congressional mandate that private Title VII lawsuits should be initiated within ninety days of the EEOC’s “giving” of official authorization to sue.” Id. at 560 (citing 42 U.S.C. §2000e-5(f)(1)). The court further noted that the above rationale undergirds the established rule that a Title VII complainant is presumed to have received her right-to-sue notice within five days (three days in the Eighth Circuit) of the date the EEOC mailed it. Id.; see Glass v. Bemis Co., Inc., 22 F.Supp.2d 1063, 1066 (D.Neb. 1998) (citing Brooks v. Ferguson—Florissant School Dist., 113 F.3d 903, 904 (8^th Cir. 1997)) (Where a claimant is mailed a right-to-sue letter by regular mail, the date of actual receipt is presumed to be three days from the date it was mailed).

Sweeping Changes to the Americans with Disabilities Act Affect Long Term Health Care Facilities

2009-01-07T11:22:00.000-08:00

Most long-term healthcare facility managers probably have a general familiarity with how the Americans with Disabilities Act (ADA) affects them as employers. Originally passed in 1990, the ADA prohibits private and governmental employers from discriminating against qualified individuals with disabilities, in job applications, hiring and firing, promotions, compensation, training and other aspects of employment.

Health care facilities may not realize, that recent changes greatly expand ADA coverage. These changes can be expected to have a significant impact on long term healthcare facilities, as well as employers in other sectors.

On January 1, 2009, the Americans with Disabilities Act Amendments Act took effect. In that act, Congress reacted against restrictive past interpretations of the ADA in several Supreme Court opinions and in ADA regulations promulgated by the EEOC. Although the amendments do not change the basic definition of “disability” in the ADA as an impairment that “substantially limits” one or more “major life activities,” they change how these terms will be interpreted by courts and the EEOC.

The ADA Amendments Act states that Congress intends the term “disability” to be construed expansively “in favor of broad coverage . . . to the maximum extent permitted.” It also requires the EEOC to revise its regulations defining when an impairment “substantially limits” a major life activity in a manner consistent with the rest of the Act, i.e., more broadly. Those revised regulations have not been issued.

The amendments expand the definition of “major life activities,” limitation of which may result in disability, by giving examples of some activities that formerly were not recognized by the EEOC, such as reading, bending and communicating. The amendments also provide that impairments of “major bodily functions” may substantially limit major life activities and qualify as disabilities. “Major bodily functions” include “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”

An impairment that is episodic or in remission is now considered to be a disability if it would substantially affect a major life activity when it was active. An individual discriminated against because of an actual or perceived disability will be regarded as disabled, unless the impairment is transitory and minor. Formerly such individuals were only regarded as disabled if their impairments were perceived by employers as substantial limitations of major life activities. Under the amendments an employer is not required to make reasonable accommodations to individuals regarded as disabled, however.

The ADA Amendments Act overturns a decision of the Supreme Court that allowed an employer to consider mitigating measures such as prosthetic devices or medications in determining whether an individual had a disability. Now the employer must determine disability without considering those measures, the sole exceptions being that the employer may consider the effect of ordinary glasses or contact lenses.

Health care is the largest industry in the U.S. Economy according to the Bureau of Labor Statistics, and it is also expected to be have the largest rate of employment growth over the next five years. In addition, in a recent year nursing care facilities’ workers suffered occupational illnesses or injuries at more than twice the average rate: 10.1 cases per 100 full-time workers, compared to an average of 5.0 for private industry overall. Musculoskeletal injuries are the most common injury among nursing aides, the largest category of health support occupations. As one of the economy’s largest employers, with significant exposures to occupational illness and injury, the long term health care industry will undoubtedly see major effects from these amendments to the ADA.

The EEOC website, http://www.eeoc.gov, contains information which is helpful for employers in complying with the ADA, including “Questions and Answers about Health Care Workers and the Americans with Disabilities Act.” Unfortunately these website materials have not yet been revised to reflect changes that were made in the ADA Amendments Act.

In the meantime, long term healthcare facilities, like other employers, must insure that their policies and procedures are revised to comply with changes made by the ADA Amendments Act. It is important that operational personnel and human resources staff are aware of these changes in the law and prepared for the questions and situations that are likely to arise under the ADA as expanded following these amendments.

Under these new revisions it is more important than ever for employers to seek early legal advice from competent employment counsel concerning questions they may have concerning the ADA, particularly whenever a claim of discrimination based on disability is alleged.

Rodney M. Confer

rmc@knudsenlaw.com

What Does your Advertising say About You?

2009-01-06T07:48:00.000-08:00

One of the biggest trends in nursing home litigation has been changing poor care negligence cases into commercial large-scale consumer fraud cases. The bases of these claims all hinge on marketing material produced by the nursing home. This series of articles will discuss various claims that may be possible based on false, misleading or inaccurate statements made about a particular facility. First, some marketing professionals are under the misimpression that statements made as an opinion or as “puffery” cannot be actionable; statements like “in my opinion this facility offers the best wound care in the county” could result in liability under the right circumstances.

An example of vague statements being actionable was decided by the Nebraska Supreme Court in Henderson v. Forman, 231 Neb. 440, 436 N.W.2d 526 (1989). The case arose out of the purchase of the Candlelight Inn in Scottsbluff. The buyer contended the seller had told him the roof was “in good shape,” “there were no problems” and a drainage system would keep moisture out of the basement, but after the purchase, design defects in the roof and the drainage system resulted in serious water problems. The Nebraska Supreme Court held that the seller’s statements that the roof was “in good shape” and the drains would keep the basement dry could be actionable. The court stated:

[I]n this case the statement was more than a guess. Forman said the roof "was in good shape [and] there were no problems," and this in the face of his knowledge that one of the roofing experts had said that the roof needed replacing. (Emphasis supplied.)

Id. at 448, 436 N.W.2d at 432. The court found the seller’s statements about the drainage system keeping water out of the basement were in a “similar category”; he had said the drainage system would protect the basement from excessive moisture, which was false. Under these circumstances, the statements could be actionable.

Jeanelle R. Lust

Substitution of paid leave

FMLA

2008-12-18T15:07:00.000-08:00

Family and Medical Leave Act Update

Employer Postings and Notices

Employers must notify employees of their FMLA rights both by postings, and by including a notice of rights in any written guidance to employees, such as an employee handbook or personnel manual. Attached are the required FMLA poster, and the new "poster insert" for the new military leave rights. Both can be downloaded from the DOL website at: www.dol.gov/esa/whd/fmla/.

Any notice of rights in guidance to employees should include information concerning employee rights and responsibilities under the FMLA, as well as an explanation of the employer's policies related to the FMLA. The sample policy, below, is designed to satisfy that requirement. The sample policy summarizes some key aspects of the FMLA, such as the requirements for employee eligibility, the reasons for which an FMLA‑protected leave may be taken (including the new military leave rights), the statutory definition of "serious health condition," an employer's obligation to continue group health plan coverage and to reinstate employees on FMLA leave, and the employee notice, health‑care provider, and military leave certification requirements. The sample policy also contains examples of several policy choices that employers must make in administering the FMLA.

FMLA Military Leave

As noted, an addendum or poster-insert giving notice of the new FMLA military leave rights is attached and should be placed adjacent to the usual FMLA poster notice. New certification forms from the DOL are also attached for use in facilitating the certification requirements for military family leave.

Qualifying Exigency Leave is a new military leave right which helps employees with a family member in the National Guard or Reserves manage their affairs while the member is on active duty or called to active duty in support of a contingency operation. This makes the normal 12-week FMLA leave available to be used for a "qualifying exigency." More specifically, it allows an employee with a spouse, son, daughter, parent of next of kin on active duty (or one who has been notified of an impending call or order to active duty) to take up to twelve weeks of FMLA leave when there has been a "qualifying exigency." The Department of Labor's final rule defines a qualifying exigency by referring to some broad categories for which such leave can be taken:

Short-notice deployment;

Military events and related activities;

Childcare and school activities;

Financial and legal arrangements;

Counseling;

Rest and recuperation;

Post-deployment activities; and

Additional activities not encompassed in the other categories, but agreed to by the employer and employee.

It is important to remember that these activities must be related to being on, or being called to active duty, and that ordinary regular routine matters do not qualify. Also, any leave taken by an eligible employee for one or more of these reasons is counted against that employee's annual 12-week FMLA leave entitlement.

The new Military Caregiver Leave (also known as the Covered Servicemember Leave), now allows employees to take up to 26 weeks of leave to care for a family member who is a Covered Servicemember with serious illness or injury incurred in the line of duty or on active duty. The definition of Covered Servicemember is quite broad, and includes a spouse, son, daughter, parent, or 'next of kin' who is a member of the armed forces and who is undergoing medical treatment, recuperation, or therapy, is otherwise on outpatient status or is otherwise on the temporary disability retired list, due to a serious injury or illness sustained in the line of duty on active duty. Note that for the new military leave for providing care to a covered Servicemember, the leave must be taken within a single 12-month period beginning with the first day of leave, a concept different than the traditional "leave year" for other types of FMLA leave. Eligible employees utilizing the Military Caregiver Leave are entitled to a combined total of up to twenty-six (26) weeks for all types of FMLA leave.

Leave year

The sample policy defines the FMLA leave year as the year beginning on the date in which the employee first takes any FMLA‑protected leave. Employers have broad discretion in defining the leave year, provided that they employ the same method for all employees. Employers may define their FMLA leave year as the calendar year, the company's fiscal year, the year beginning on the employee's anniversary date of employment, or the date on which the employee first takes any FMLA‑protected leave. The employer also may elect to use what the FMLA regulations define as a rolling leave year, in which the employer measures backwards 12 months from the date the employee takes any FMLA leave. Whichever method is selected, the leave year should be defined in the employer's policy. It is likely the leave year will be calculated on a different calendar than the single 12-month period for the Military Caregiver Leave, and the regulations provide helpful examples on how these are reconciled.

Notice and certification requirements

Another decision that employers must make is the extent to which they wish to impose the notice and health‑care‑provider certification requirements upon employees. The sample policy represents the maximum obligation employers may impose for foreseeable leave. Some employers, however, may elect to require less of their employees, as for example by requiring only 15‑days' advance notice of the need for foreseeable FMLA leave rather than 30.

Employees may be required to follow the employer's usual and customary call-in procedures for requesting foreseeable leave, absent unusual circumstances. For example, employers may require employees to set forth reasons for the requested leave, the expected duration of the leave, the anticipated start date of the leave, and may require employees to contact a specific individual. In any event, if an employee needs to give notice of leave that is foreseeable but less than 30 days in advance, notice must be given as soon as practicable. An employee needing qualifying exigency FMLA leave must be given as is practicable too. It generally should be considered practicable to give notice under the usual and customary method and timing for reporting an absence, such as a sick-call number.

With respect to the health‑care‑provider certification requirement, the U.S. Department of Labor has prepared a form that may be given to employees to be used by their doctors in certifying a serious health condition under the FMLA (see attached). Employers may choose to use their own form instead, or may simply identify in the policy the specific information to be provided by the doctors. If a medical certification is incomplete the employer must put in writing what information is needed, and give the employee seven days to cure the deficiency before denying leave or asking for other certification. Under no circumstances should a direct supervisor of the employee contact the health-care provider; rather, it should be done by HR, a management level employee, leave coordinator or health care provider.

Employers may require "return to work" or "fitness for duty" certification stating whether the employee can perform the essential functions of the job (see attached). Employers can also require an employee provide a fitness for duty certification before returning from intermittent leave if the employer has reasonable concerns about the ability to perform the job safely. Employers must notify employees at the time their FMLA leave commences if they want to require such certifications before returning to work.

Serious health condition and continuing treatment redefined

The regulations issued by the U.S. Department of Labor include a complex and comprehensive definition of "serious health condition" not fully contained in the sample policy. As explained in the policy, a "serious health condition" is defined as any injury, illness, impairment, or physical or mental condition requiring either inpatient care in a medical facility, or for "continuing treatment" by a health‑care provider. "Continuing treatment" is further defined as including: a) incapacity and treatment, b) pregnancy or prenatal care, c) chronic conditions, d) permanent or long-term conditions, and e) conditions requiring multiple treatments. The Final Regulations make some changes, revising the definition of a "serious health condition" in certain respects.

In order to qualify as "continuing treatment" for a serious health condition, any "incapacity and treatment" must now involve incapacity for more than three consecutive calendar days, and any subsequent treatment or incapacity relating to the same condition must involve: 1.) treatment by a health care provider (or nurse or person under a provider's supervision or on orders of a provider, such as PT) two or more times within 30 days of the first day of incapacity (unless there are extenuating circumstances as defined in the regulations); or 2.) treatment by a health care provider at least once which results in a regimen of continuing treatment under supervision of a health care provider. The first day of such subsequent treatment under either 1.), or 2.), above, now has to take place within 7 days of the first day of incapacity.

Any period of incapacity due to pregnancy or for prenatal care is considered continuing treatment for a serious health condition.

To qualify as continuing treatment of a serious health condition, incapacity due to chronic conditions must now involve the employee visiting a health care provider for the condition at least twice per year, the condition must continue for an extended period of time, and may involve episodic incapacity (e.g., asthma, diabetes, epilepsy, etc.). This is a new requirement under the regulations.

Continuing treatment also includes conditions causing long‑term or permanent incapacity and any period of absence to receive multiple medical treatments from a health‑care provider. Periods of incapacity due to Alzheimers, a severe stroke, the terminal stages of a disease and the like, qualify as permanent or long-term conditions requiring continuing treatment for a serious health conditions. Absences due to conditions of multiple treatment for restorative surgery after an accident or other injury, or treatment for conditions that would likely result in incapacity of more than three consecutive calendar days in the absence of treatment such as cancer (chemotherapy, ratiation, etc.) severe arthritis (PT), or kidney disease (dialysis) qualify.

Common colds, flu, earaches, and non‑migraine headaches are not serious health conditions, and routine physical, eye, or dental examinations are not within the scope of the continuing treatment concept.

Employers have discretion regarding whether to require employees to take any accrued and unused paid vacation leave, personal leave, or, if applicable, family or sick leave, concurrently with taking the FMLA leave. If the employer requires the employee to take such paid leave, that leave may be counted towards the employee's FMLA leave. If an employer elects not to require employees to take this leave, as in the sample policy, employees must at least be allowed to use such paid leave at their option, which again may be counted towards the FMLA leave available to the employee. An employee electing to use any type of paid leave concurrently with FMLA leave must follow the same terms and conditions of the employer's policy that apply to other employees for the use of such leave. Whatever rule the employer chooses, it should be included in the FMLA policy

Additional FMLA rules

Additional rules also exist under the FMLA concerning highly compensated key employees, the leave rights of spouses employed by the same employer, waivers and releases, and the process for challenging certifications provided by an employee. Additional information concerning these issues, as well as other questions concerning the FMLA, may be answered in Department of Labor publications or by your attorney.

THIS POLICY IS LEGALLY ESSENTIAL

SAMPLE POLICY

ABC Company, Inc. complies with all applicable federal and state labor and employment laws, including the Family and Medical Leave Act of 1993 (FMLA). Under the FMLA, eligible employees are entitled to certain rights, and have certain obligations, with respect to unpaid leave for certain family and medical reasons.

FMLA Leave Eligibility

An eligible employee under the FMLA is an employee who has been employed by ABC Company for at least twelve (12) months, who has worked at least 1,250 hours in the past 12 months, and who works at a facility in which at least fifty (50) employees are employed by the Company either at that facility or within seventy-five (75) miles of that facility. Returning Servicemembers are given credit for any months or hours of service they would have been employed but for their military service.

Reasons for FMLA Leave

1. An eligible employee may take FMLA leave of up to twelve (12) weeks per leave year, for any of these different reasons:

• to care for a newborn child, or a child newly placed in the employee's custody through adoption or foster care for a period of up to one (1) year after such birth or placement;

• to care for the employee's spouse, child, or parent who has a serious health condition; or

• because of the employee's own serious health condition if that condition renders the employee unable to perform his or her job functions;

• because of any Qualifying Exigency arising out of the fact that the spouse, son, daughter, or parent of the employee is on active duty or has been notified of an impending call or order to active duty in support of a contingency operation.

2. Covered Servicemember Leave. An eligible employee may take up to twenty-six (26) weeks of leave during a single 12-month period if the employee is needed to care for a spouse, son, daughter, parent, or 'next of kin' who is a covered Servicemember, meaning a current member of the Armed Forces, including a member of the National Guard or Reserves, who is on the temporary disability retired list, who has a serious injury or illness incurred in the line of duty on active duty for which he or she is undergoing medical treatment, recuperation, or therapy; or is otherwise on outpatient status; or is otherwise on the temporary disability retired list.

Serious Health Condition

For the purpose of determining whether an eligible employee or his or her spouse, child, or parent has a serious health condition, such a condition includes any injury, illness, impairment, or physical or mental condition that requires either in‑patient care in a medical facility (i.e., overnight hospitalization), or continuing treatment by a health‑care provider. These terms are construed by the Company in accordance with applicable federal laws and regulations.

Qualifying Exigency

A Qualifying Exigency can arise in situations involving short-notice deployments, military events and related activities, childcare and school activities, financial and legal arrangements, counseling, rest and recuperation, and for post-deployment activities.

Serious Illness or Injury

For the purposes of this policy, a "serious injury or illness" means an injury or illness incurred by a covered Servicemember in the line of duty on active duty that may render the Servicemember medically unfit to perform the duties of his or her office, grade, rank or rating.

Leave Year

For the purpose of this policy, the leave year within which an eligible employee may take his or her twelve (12) weeks of FMLA‑protected leave means the twelve (12) month period beginning on the date the employee first takes leave for any of the reasons set forth previously. However, the "single 12-month period" for leave to care for a covered Servicemember begins on the first day the eligible employee takes FMLA leave to care for the injured Servicemember. Any leave taken by an eligible employee for one or more of qualifying FMLA reasons will be counted against that employee's annual FMLA leave entitlement. Eligible employees are entitled to a combined total of up to twenty-six (26) weeks for all types of FMLA leave during the single 12-month period. For example, an eligible employee who has taken 16 weeks to care for a covered Servicemember may only take 10 additional weeks to care for a newborn child during the single 12-month period.

Compensation for FMLA Leave

Generally, FMLA leave is not paid. However, an eligible employee may elect to take any accrued paid vacation leave or, for personal medical leave, paid sick days in lieu of taking unpaid leave under the FMLA. Such paid leave will be counted towards the employee's twelve (12) weeks of FMLA leave granted per leave year.

Intermittent or Reduced Hours Leave

In the case of leave taken to care for a seriously ill spouse, child, or parent, due to the employee's own serious health condition, an employee may take leave intermittently (i.e., periodically) or on a reduced hours schedule (i.e., reduced number of working hours per day or per week) only when such leave is medically necessary, as certified by the employee's or family member's health‑care provider. Covered Servicemember Leave and Qualifying Exigency Leave, may also be taken on or intermittent or reduced leave schedule basis. Otherwise, such leave is not permitted except at the sole discretion of the Company. An employee who takes leave intermittently or on a reduced leave schedule may be temporarily transferred to another position for which the employee is qualified to better accommodate that leave.

Job and Benefits Security

An eligible employee who takes leave under the FMLA and who returns to work before his or her annual FMLA entitlement has expired will be restored to the position he or she held when the leave commenced, or to an otherwise equivalent position with respect to pay, benefits, and other terms and conditions of employment, unless the employee would no longer have been employed in such a position had the employee not taken such leave. Additionally, any unused employment benefits that had accrued to an eligible employee prior to the commencement of leave will be restored upon return from FMLA leave.

Continuation of Group Health Plan Coverage

Group health plan coverage will be maintained by ABC Company during an eligible employee's period of FMLA leave to the extent and under the same circumstances as it ordinarily is furnished to that employee. Premium payments should be made to the Human Resources Office on the 1st and 15th of each month. The Human Resources Manager will notify eligible employees concerning the amount of each premium payment. Failure to pay such premiums during leave may result in the loss of health coverage. An eligible employee who fails to return to work after the expiration of the FMLA leave period for reasons that are not beyond his or her control will be expected to reimburse ABC Company for health‑care premiums paid by the Company during the leave period.

Employee Notice Requirements

An eligible employee generally must give the Company at least thirty (30) days' notice of his or her intent to take leave under the FMLA. If the employee is unable to give such notice because the need for leave is not foreseeable or is due to a qualifying exigency, then the employee must give as much notice as practicable. Typically, this will mean giving notice to the Company within one or two working days of learning that FMLA leave must be taken. Any employee who fails to give the requisite notice may be delayed in receiving authorization for leave.

Health‑Care‑Provider Certification

In cases of leave to be taken to care for a seriously ill family member or due to the employee's own serious health condition, an eligible employee must provide the Company with a completed and signed health‑care‑provider certification indicating that the employee requires FMLA leave. This certification must be returned to the Company within fifteen (15) days after the employee gives notice of his or her intent to take FMLA leave, and must contain the following information:

• the date on which the serious health condition commenced;

• the probable duration of the condition;

• the treatment regimen prescribed;

• any appropriate medical facts within the health‑care‑provider's knowledge regarding the condition;

• if applicable, a statement that the employee is needed to provide care for his or her spouse, child, or parent and an estimated duration of such need; and

• if applicable, a statement regarding the medical necessity of intermittent or reduced hours schedule leave.

Failure to return this certification in a timely manner may result in delays in securing authorization for leave, and failure to return the certification at all will preclude the employee from taking leave.

The Company also may require, at its own expense, a second and third health‑care provider opinion if there is a question as to the validity of the certification provided by the employee.

An eligible employee also may be asked to furnish the Company with subsequent health‑care‑provider certifications on a reasonable basis during the employee's leave period. An eligible employee's failure to furnish subsequent certifications may result in termination of the employee's right to leave.

An eligible employee on FMLA medical leave must submit to the Company a medical release (i.e., fitness‑for‑duty certification) indicating that the employee is able to return to work. Failure to submit such a release will preclude the employee from being restored to his or her employment with the Company.

Qualifying Exigency Leave Certification

ABC Company requires an employee seeking FMLA leave due to a qualifying exigency to submit a completed and signed certification, describing the reason for the leave, the amount of leave needed, and information about any meeting you may be attending, if any, so that ABC Company can verify accuracy. You will also be required to supply written documentation confirming a covered military member's status as active duty or a call to active duty status in support of a contingency operation.

Military Caregiver Leave Certification

ABC Company requires an employee seeking FMLA leave due to a serious injury or illness of a covered Servicemember to submit a completed and signed certification providing sufficient facts to support the request for leave. The certification will require written documentation confirming that the covered Servicemember's injury or illness was incurred in the line of duty on active duty and that the Servicemember is undergoing treatment for that. The health-care provider will need to certify the care to be provided the Servicemember, an estimate of the time needed to provide it, the medical condition of the Servicemember, and other facts about the care.

Nondiscrimination/Nonretaliation Policy Statement

ABC Company will not: (1) interfere with, restrain, or deny the exercise of any right provided under the FMLA; (2) discharge or discriminate against any person for opposing any practice made unlawful by the FMLA; or (3) discharge or discriminate against any person for his or her involvement in any proceeding under or relating to the FMLA.

Kevin R. McManaman

Knudsen, Berkheimer, Richardson & Endacott, LLP

3800 VerMaas Place, Suite 200

Lincoln, NE 68502

402/475-7011 (office)

402/475-8912 (fax)

402/440-2982 (cell)

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When is a healthcare facility liable for resident on resident assaults?

2008-12-12T13:47:00.000-08:00

On September 26, 2008, the Nebraska Supreme Court made that determination in Marilynn Ehlers v. State of Nebraska, 276 Neb. 605 (2008). In that case, a woman, Ehlers, was assaulted by another patient at the Hastings Regional Center. Ehlers argued that the Regional Center had a duty to prevent the assault. The Supreme Court disagreed setting forth the test as follows:

There is no duty to control the conduct of a third person as to prevent him from causing physical harm to another unless

(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or

(b) a special relation exists between the actor and the other which gives to the other a right to protection.

The Court clarified the test in a residential patient situation as:

One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal power of self-protection or to subject him to association with persons likely to harm him, is under a duty to exercise reasonable care so to control the conduct of third persons as to prevent them from intentionally harming the other or so conducting themselves as to create an unreasonable risk of harm to him, if the actor

(a) knows or has reason to know that he has the ability to control the conduct of the third persons, and

(b) knows or should know the necessity and opportunity for exercising such control.

The Court ruled against Ehlers because there was no evidence that the “HRC staff knew or should have known that L.S. was about to harm Ehlers and therefore should have immediately taken action to protect Ehlers from L.S.”

Jeanelle R. Lust

The plaintiff duly filed her paper complaint in the district court. The Clerk issued a notice on March 13 stating that the case was subject to the electronic case management system. That is relevant because the court had in place a standing order-Standing Order No. 1-providing in pertinent part that, in such cases, “parties shall promptly provide the Clerk with electronic copies of all documents previously provided in paper form.” The plaintiff did not furnish an electronic copy of her complaint. On March 24-three weeks after the commencement of the suit-the district court, acting sua sponte, dismissed the action without prejudice. The court at the same time fined plaintiff's counsel $150 as a sanction.

Velazquez Linares v. U.S. 2008 WL 4838130 (1st Cir. 2008)

2008-11-14T06:29:00.000-08:00

Sometimes a case is notable, not because of any legal principle espoused, but simply because it is very well- written. This case qualifies:

On February 10, 2006, plaintiff-appellant Maria Velázquez Linares slipped and fell while a patron at the post office in Cataño, Puerto Rico. Neither the details surrounding her fall nor the extent of her injuries and damages are germane to this appeal. Instead, we fast-forward to March 3, 2008, when the plaintiff sued the United States and others under the Federal Tort Claims Act, 28 U .S.C. §§ 1346(b), 2671-2680.

The plaintiff filed the complaint electronically five days later and moved for reconsideration. In that motion, her counsel explained that electronic filing had not been accomplished earlier because of a malfunctioning computer in his law office. Counsel attached a statement from a computer technician who verified the malfunction and related that he had been hired to repair the defect on March 22.

The district court denied the motion for reconsideration without comment on April 2. The next day, the plaintiff docketed a notice of appeal. The district court responded by issuing a nunc pro tunc electronic order noting that “even if counsel's computer malfunctioned, he waited too long to cure his noncompliance with Standing Order No. 1.”

[1] [2]We need not tarry. When a trial court is faced with a violation of a court order, it may choose from a “broad universe of possible sanctions.” Tower Ventures, Inc. v. City of Westfield, 296 F.3d 43, 46 (1st Cir.2002). Each case is sui generis. Thus, in making the choice of a condign sanction, the court must give individualized consideration to the particular circumstances of the case. Id. We review the court's order for abuse of discretion. Id.

[3] Dismissal is among the most severe of sanctions, and it should not be imposed without good reason. See Young v. Gordon, 330 F.3d 76, 81 (1st Cir.2003) (explaining that “dismissal should not be viewed either as a sanction of first resort or as an automatic penalty for every failure to abide by a court order”). The district court in this case believed that dismissal was appropriate because the plaintiff had transgressed Standing Order No. 1. Under the totality of the circumstances, we find that conclusion problematic.

[4] Standing Order No. 1 does not provide a set time within which a party must furnish an electronic copy of a pleading previously filed in paper form. The order merely recites that the electronic copy shall be supplied “promptly.” That term has a protean quality; what is “prompt” in one person's mind may not be “prompt” in another's, and what is “prompt” in one set of circumstances may be laggardly in a different set of circumstances. Given this uncertainty, we think it ordinarily would require the passage of more time than elapsed here to warrant sua sponte dismissal, without prior notice, on such a ground. See Velázquez- Rivera v. Sea-Land Serv., Inc., 920 F.2d 1072, 1076 (1st Cir.1990); cf. Rosario-Díaz v. González, 140 F.3d 312, 315 (1st Cir.1998) (noting that “litigants have an unflagging duty to comply with clearly communicated case-management orders”) (emphasis supplied).

*2 The district court, of course, had two easily available alternatives. First, the court as an institution could have used a fixed time parameter in place of “promptly.” Second, the court in this case could have called the plaintiff's attention to Standing Order No. 1, demanded compliance within a specified time frame, and then taken action if that demand had gone unrequited. See, e.g., Chamorro v. Puerto Rican Cars, Inc., 304 F.3d 1, 4-5 (1st Cir.2002) (approving use of show-cause order in analogous circumstance). Here, however, the record on appeal contains no indication that the court afforded any forewarning of this sort to the plaintiff.^FN1

Were there aggravating circumstances, the situation might be more fluid. See, e.g., Cósme Nieves v. Deshler, 826 F.2d 1, 2 (1st Cir.1987). But in this case, the record reflects none. For aught that appears, plaintiff's counsel is a first-time offender; there is not the slightest whiff of bad faith, contumacious conduct, or habitual procrastination on his part. Moreover, he presented a plausible justification for the failure to furnish an electronic copy of the complaint more celeritously-and the district court did not question the truth of this explanation.

Jeanelle Lust

http://www.knudsenlaw.com/

Patient Safety & Abuse Act one Step Closer to Passing

2008-11-11T12:33:00.000-08:00

The U.S. Senate Finance Committee gave unanimous approval to the Patient Safety & Abuse Prevention Act on September 10, 2008. Chairman of the Senate Special Committee on Aging, Herb Kohl, D-Wis., introduced the legislation on June 7, 2007. Senator Kohl urged swift action by the full Senate before it adjourns again.

The sponsors of the bill state it will address issues related to background checks, as employers are not always able to find out if an applicant has a history of patient abuse or violent crime. It would also expand a pilot program that was initially started in 2003 in seven states and create a background check system that screens job applicants at long-term care facilities.

Nebraska already requires screening, but in going nationwide, the system would coordinate abuse and neglect registries and law enforcement records from each state with the FBI’s national database of criminal history records. If the bill passes, a nursing home would be required to screen all persons applying for positions that have direct contact with patients and presumably negative findings from other states would be easily identified. Anyone with a conviction for a violent crime or substantiated findings of abuse would be disqualified from holding such a job.

If a nursing home fails to perform the screening or if it knowingly employed a disqualified person in a direct care position, it could face penalties, including exclusion from the federal Medicare and Medicaid programs.

A budget amendment setting aside $160 million over 3 years will fund the background screening. Senator Pete Domenici, R-N.M. and co-sponsor of the bill, stated that this piece of legislation is important in providing safe-guards to protect our elderly and disabled.

Tammy J. Schroeder

tjs@knudsenlaw.com

WHAT TO DO WHEN AN EMPLOYEE REPORTS AN INJURY

2008-10-23T06:50:00.000-07:00

Sooner or later just about every employer will need to deal with a workers’ compensation injury; in other words, an injury that is alleged to be within the course and scope of employment. The employee is under a statutory obligation to give notice of any claimed injury “as soon as practicable.” However, that is loosely interpreted and if an employer is, for example, aware that an employee needs time off to go to a doctor for a particular condition, and it is a condition that could even potentially be work related such will likely be sufficient notice even though the employee has not made any specific statement that such condition is work related. If there is any potential that such condition could be work related, it behooves the employer to inquire further.

The following are some suggestions for employers when handling workers’ compensation claims:

1. Train all employees that they have the obligation to notify their immediate supervisor if they have any type of injury while working. The supervisor should make it a practice to document all such information in one central location so that if the question of whether notice was given, and what the notice consisted of, becomes an issue later, they can verify whether or not such a report was made without having to rely solely on memory.

2. If the injury looks like it is at all significant, it would be wise to have one person designated as the individual the supervisors or employees should then notify. Certainly this should be done if the injury may potentially require any doctor’s visit or medical treatment. Having one person designated to receive all such reports is helpful as there are various documents to fill out and notifications to be made so it is difficult for numerous supervisors, who most likely rarely handle such matters, to be fully trained on what needs to be done.

3. The person who is designated to receive this type of notification, should ascertain whether immediate medical care is needed and obtain such if necessary. They should interview the employee and find out the following information: what happened, when did it happen, the names of all witnesses, the precise symptoms, and the precise area of the body involved. The last fact is important since injuries to the head and torso are compensated differently than injuries to an extremity.

4. An accident report should be filled out by the designated person receiving the report after talking to the injured employee. Such should be signed by the injured employee.

5. There is also a Rule 50 choice of physician form that needs to be presented to the employee before any medical treatment is sought if possible. If such is not done, the employee is free to choose any physician they may want whether they have ever seen that doctor before or not.

6. Notice of the injury should be given to the employer’s workers’ compensation insurer in accordance with the particular insurance policy.

7. The insurer will then be in a position to give guidance as to whether the employer or the insurer will fill out the required First Report of Alleged Occupational Injury or Illness. This Report must be filed with the Workers’ Compensation Court within ten days of the date of the notice of injury. The injured employee is not responsible for filing this report, rather it is the employer’s or insurer’s responsibility.

8. It is best to keep an injured employee working within the physical restrictions given by the doctor, even if only at part-time light duty, if at all possible. The temporary disability benefits that must be paid under workers’ compensation are less if this is done but even more importantly, it keeps the employee engaged with their co-workers and their work and generally helps make an eventual return to work at their regular job more likely.

Finally, if it appears that the employee will not be able to return to work after a workers’ compensation claim, the employer must proceed with caution before terminating the employment. Nebraska is an “at will” state, which means that the employment relationship only lasts as long as both the employer and employee want it to continue and either is free to end it for any reason as long as it is not due to an improper reason such as age, gender, etc. However, the Nebraska Supreme Court has determined the employee has a separate tort action outside of any workers’ compensation action that can be brought in district court if their employment was terminated, or they were demoted, because they filed a workers’ compensation claim. Jackson v. Morris Communication Corp., 265 Neb. 423, 657 NW 2d 634 (2003); Trosper v. Bag ‘N Save, 273 Neb. 855, 734 NW 2d 704 (2007). Therefore, an employer that terminates employment or demotes an employee after a workers’ compensation claim is filed will need to be absolutely sure it is well documented that such was not due to the filing of the claim itself. If the employer cannot accommodate permanent restrictions, there is no requirement under this retaliation case law that the employee continue on the payroll but it should be clearly documented that this is the reason for the termination for employment. Litigation may well arise whenever an injured employee’s job is terminated in this situation, and even though the employer knows such was not done in retaliation for filing a workers’ compensation claim, there will need to be sufficient evidence to convince the trier of fact of that as well.

Shirley K. Williams

skw@knudsenlaw.com

Senate advances two bills of importance to Nursing Homes.

2008-10-20T08:35:00.000-07:00

Two bills , the Elder Justice Act, S. 1070 and the Patient Safety and Abuse Act, S. 1577, passed the Senate committee charged with passing on the bills to the full Senate. The House committees had previously advanced the bills.

The Elder Justice Act would make $777 million in federal money available to government agencies and community programs that handle elder-abuse issues, establish a program to improve forensic investigation of crimes involving elder abuse, and impose stricter requirements for reporting criminal violations by long-term-care facilities and their staffs. The bill also would create a council to coordinate the response of federal, state and local agencies to incidents of elder abuse and an advisory board composed of experts to develop a multidisciplinary plan to prevent crime against the elderly.

The Patient Safety and Abuse Act sets up a nationwide data base for background checks on staff employed in the Nursing Home industry. The new nationwide system would coordinate abuse-and-neglect registries and law enforcement records from each state with the FBI's national database of criminal history records. If the bill is adopted, a nursing facility must conduct background checks of all applicants for positions with direct access to patients before hiring them. Nursing facilities that fail to conduct the screening or knowingly employ a disqualified person in a direct-care position would face penalties, including exclusion from participation in the federal Medicare and Medicaid programs.

with thanks to Andrews Nursing Home Reporter

The Guest Statute

2008-10-15T06:38:00.000-07:00

If you are injured in an accident in which one of your relatives was driving, you should consult with an attorney about your ability to recover damages from the driver of the vehicle. The guest passenger statute provides:

[t]he owner or operator of a motor vehicle shall not be liable for any damages to any passenger or person related to such owner or operator as spouse or within the second degree of consanguinity or affinity who is riding in such motor vehicle as a guest or by invitation and not for hire, unless such damages is caused by (1) the driver of such motor vehicle being under the influence of intoxicating liquor or (2) the gross negligence of the owner or operator in the operation of such motor vehicle.

For the purpose of this section, the term guest is hereby defined as being a person who accepts a ride in any motor vehicle without giving compensation therefore but shall not be construed to apply to or include any such passenger in a motor vehicle being demonstrated to such passenger as a prospective purchaser. Relationship by consanguinity or affinity within the second degree shall include parents, grandparents, children, grandchildren, and brothers and sisters. Should the marriage of the driver or owner be terminated by death or dissolution, the affinal relationship with the blood kindred of his or her spouse shall be deemed to continue.

Neb. Rev. Stat. § 25-21,237 (Reissue 1995).

The guest passenger statute has been found by the Supreme Court of Nebraska to be constitutional. See Le v. Lautrup, 271 Neb. 931 (2006). Such constitutional challenge involved a challenge on the basis of due process, equal protection, and the special privileges and immunities clause of the Nebraska Constitution. Id. at 935. The court addressed the due process and special privileges and immunities challenges in short accord, but spent more time in addressing the equal protection challenge. Id. at 935. In finding that the state had a rational basis for enacting the statute, that of the prevention of family collusion and fraud, the Court referred to an Indiana Court of Appeals opinion.

[T]he legislature may have perceived a greater risk of collusive lawsuits among family members, than among mere acquaintances. Also, a jury may be particularly inclined to indulge in the “Robin Hood” tactic of robbing from the “rich” insurance companies to give to the “poor” victims where the parties are from the same family.

Id. at 938.

Other than constitutional challenges, the litigation with regard to the application of this statute happens most often in the context of exactly what the term “gross negligence” means. Gross negligence is a moving target.

It must be borne in mind, always, that no decision on gross negligence can constitute an absolute precedent in any other case. Each case necessarily differs somewhat in its particular facts and circumstances, and in the composite which results from them. A dissection of the individual facts may, therefore, be misleading, because, in the attempted segregation, part of their real significance may become lost. While it may be regrettable that no perfect yardstick for measuring gross negligence has ever been devised, the numerous decisions, which the guest statutes have produced, seem rather clearly to demonstrate that this is as close to possible to come to a judicial solution.

Klundt v. Karr, 261 Neb. 577, 582, 624 N.W.2d 30, 34 (2001) (quoting Liston v. Bradshaw, 202 Neb. 272, 275 N.W.2d 59 (1979)). The Court acknowledged that most of the cases brought under § 25-21,237 and its predecessor dealt with intoxication, speed, failure to maintain lookout, and failure to control. See Klundt, 261 Neb. at 583-5, 624 N.W.2d at 34-5 (citing Larson v. Storm, 137 Neb. 420, 289 N.W.2d 782 (1940) (plaintiff’s complaint that defendant was driving too fast, coupled with accident occurring when defendant hit a cement pipe after failing to make a slight turn, left question as to gross negligence); Jennings v. Lowrey, 168 Neb. 831, 97 N.W.2d 345 (1959) (reasonable minds could differ as to whether defendant’s actions in driving in excess of 60 to 70 m.p.h. around a curve in the middle of the night, causing the car to leave the road and roll, was gross negligence); Demont v. Mattson, 177 Neb. 277, 196 N.W.2d 190 (1972) (it was a jury question as to whether defendant’s driving down a hill on a winding, narrow, and unlighted road at 50 m.p.h., missing a turn, a hitting an embankment was gross negligence); Jones v. Foutch, 203 Neb. 246, 278 N.W.2d 572 (1979) (gross negligence found when unlicensed motorcyclist accelerated to 20 m.p.h. over the speed limit, in heavy traffic, driving between lanes and between cars, finally resulting in an accident when he failed to slow down for a turn despite plaintiff’s warnings)).

Jeanelle Lust

The "hell or highwater rule"

2008-09-29T15:02:00.000-07:00

Permission

In Barry v. Tanner, 547 N.W.2d 730 (Neb. 1996), the Nebraska Supreme Court held:

[W]here initial permission to use an insured vehicle has been given by one having proper authority to give permission to the person operating it at the time of the accident, for purposes of liability coverage, such operation is with the express or implied permission of the named insured, even though specific or express terms of the permission given were violated.

Id. 547 N.W.2d at 733-34.

In Tanner, the vehicle driven by Tanner struck another vehicle driven by Mosher and, as a result of the force of the collision, Mosher's vehicle struck Barry. Tanner was a self-employed auto body specialist who had been given the vehicle for some minor repair and paint work. Tanner used the vehicle to go out and get some dinner and was returning to his auto shop when the accident occurred. After obtaining a default judgment against Tanner, who was uninsured, Barry commenced a garnishment proceeding against the vehicle owner's insurer on the theory that the defendant was a permissive user of the vehicle. The district court did not agree and dismissed the proceeding. On appeal, the Nebraska Supreme Court noted that it had previously adopted the "initial permission rule." Such a rule "reflects the view that automobile liability insurance is for the benefit of the public as well as insureds." 547 N.W.2d at 733. The court further noted that its interpretation of the rule is most analogous to the "hell or highwater rule," which provides:

[I]f the vehicle was originally entrusted by the named insured, or one having proper authority to give permission, to the person operating it at the time of the accident, then despite hell or highwater, such operation is considered to be within the scope of the permission granted, regardless of how grossly the terms of the original bailment may have been violated .

547 N.W.2d at 733-34. Accordingly, the court held that where a named insured gives permission to another to operate the insured vehicle, insurance coverage ought not depend on whether or not the operator is violating the conditions placed upon his use.

Jeanelle R. Lust

State Surveys miss many violations

2008-08-18T10:21:00.000-07:00

According to a Government Accountability Office (GAO) report, state nursing home survey inspectors frequently miss care problems in nursing homes. The findings stated that 15 percent of state surveys failed to cite at least one G through L deficiency. In nine states, the federal surveyors found missed serious deficiencies in 25 percent or more of the surveys.

At the D through F tag level, missed deficiencies were over 50% in all but five states. State surveys failed to identify 2.5 D through F level deficiencies per survey. The most frequently missed deficiencies were quality of care standards.

In response the GAO intends to :

1. Require regional [CMS] offices to determine why state surveyors cite a deficiency at a lower scope and level than federal surveyors do.

2. Establish quality controls to improve the accuracy and reliability of information and survey data.

3. Analyze federal comparative and observational survey results.

New Five Star Rating System for Nursing Homes

2008-08-14T10:18:00.000-07:00

In December 2008, the Centers for Medicare and Medicaid will launch a new five star rating system. This new system is designed to allow residents and their families an easy way to understand the assessment of nursing home quality. This new system is not meant to replace a consumer actually going to the nursing home and visiting with staff, residents and other families, rather, it is just another tool to aid in choosing a nursing home.

The new system will provide a compiled view of the quality and safety information already on the Nursing Home Compare website and will attempt to make it easier for people to compare nursing homes. The five star rating system will also serve as an incentive for nursing homes to earn the five star rating by providing an environment of better quality of care.

More information, including a screen shot of what the proposed rating system will look like can be found at www.cms.hhs.gov/PressContacts/10_PR_fivestar.asp

Preparing for your next Nursing Home Survey

2008-08-12T07:00:00.000-07:00

Screening of Employees

Lewis Morris, Chief Counsel to the U.S. Inspector General, recently testified before a subcommittee of the House of Representatives on the topic: “In the Hands of Strangers: Are Nursing Home Safeguards Working?” Reading between the lines of his testimony, nursing homes should expect employee screening to be a major focus area on their next survey.

¨ Screen all staff and prospective staff against the Office of Inspector General’s (OIG) List of Excluded Individuals and Entities. Screening staff against the LEIE helps ensure that a nursing home does not employ an excluded person and that it does not bill federal health care programs for an excluded person’s work.

¨ Screen prospective nurse aides and other non-licensed care staff through the use of the state nurse aide registries. Federal regulations prohibit facilities from employing individuals in certain positions who have been found guilty of certain offenses or who have had findings entered into the registry for abuse, neglect or mistreatment of residents or misappropriation of their property.

¨ Check the registries in other states. Most facilities check their home state’s nurse aide registries prior to employing an individual. They do not routinely check the registries in other states, but you should do so if an individual may have worked elsewhere.

Voluntary Compliance Programs

The OIG is currently soliciting public comments on draft Compliance Program Guidances. This new draft focuses on key areas that surveyors will be looking at:

· Inadequate staffing.

· Poor care plan development.

· Inappropriate use of psychotropic medications.

· Lack of Proper medication management.

· Resident neglect and abuse.

The proposed draft should be studied for potential improvement in these areas.

LB 765: Change Provisions Relating to Certificates of Need

2008-08-01T12:34:00.000-07:00

LB 765 which went into effect on July 18, 2008 requires a certificate of need (CON) for certain actions by healthcare facilities. First, if a healthcare facility has an increase over a 2 year period of more than 10 long-term care or rehabilitation beds or an increase of more than 10% of the total long-term care or rehabilitation bed capacity, whichever is less it will require a CON.

Next, a CON will be required if a hospital decides to convert hospital beds to either long-term care or rehabilitation beds and if the total of those are more than 10 beds or more than 10% of the total bed capacity, whichever is less, over a 2 year period. And finally, if a healthcare facility relocates rehabilitation beds to another facility it will require a CON.

Under the act, DHSS can grant an exemption and certificate of need for up to 3 beds if rehabilitation beds, subject to a moratorium if the average occupancy of all such beds within a health planning region exceeds 80% occupancy during the most recent 3 consecutive calendar quarters and there are no other available, comparable services.