Background Checks May Become Mandatory

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       The U.S. Senate has budgeted $160 million over three years for a proposed nationwide system of criminal background checks for long-term-care workers.  The funding would become available if Congress passes the Patient Safety and Abuse Prevention Act.

 

       Currently, 41 states require criminal background checks of some kind before employment in a long-term-care facility.  The bill is designed to bring uniformity to that process.   The bill would expand a pilot program that created a background check system to screen job applicants at long-term-care facilities in seven states.  The new nationwide system would combine the FBI's national database of criminal history records with abuse-and-neglect registries and law enforcement records from each state.  If the bill passes, all long term care facilities would be required to conduct background checks of all prospective employees before hiring them for jobs having direct contact with patients.

 

Jeanelle R. Lust

www.knudsenlaw.com

Offers of Judgment

Offers of Judgment are often used by Defendants to pass the cost of a lawsuit off on the Plaintiff when the Defendant believes the Plaintiff is asking for an unreasonable amount of money.  While offering $100,000 to settle a case may seem like a simple matter, those offers are rife with pitfalls for attorneys that do not understand Rule 68 of the federal rules of civil procedure.  Today the Eighth Circuit Court of Appeals demonstrated one of those snags in Rhonda Thompson  v. Southern Farm Bureau Casualty U.S. Court of Appeals Case No: 07-1969 by holding that while defendant's offer of judgment was unambiguous, the district court erred in determining it was legally valid and should be enforced.  According to the court, even though the Defendant attempt to eliminate paying costs in its offer, an offer of judgment under Rule 68 may not exclude costs and the offer, which excluded all costs, was void.

 

Jeanelle R. Lust

 www.knudsenlaw.com)

 

 

 

 

Nursing Home facilities often serve residents who cannot make reasonable decisions about their own care or make payment arrangements. When this situation occurs, a court petition for appointment of a guardian or conservator for such an incapacitated individual may solve these problems. A guardian makes responsible decisions for the care of an incapacitated person, such as where the person should reside, arranges for medical care, protects the individual’s personal effects, and obtains governmental benefits that the individual may be entitled . A conservator serves to make decisions regarding the individual’s property or income. To obtain an appointment as guardian or conservator, an interested party must file a petition with the county court where the incapacitated person resides. The petition should state the reasons why the incapacitated person can’t make responsible decisions for his or her care. If an emergency exists, the interested party may ask that a temporary guardian or conservator be appointed for a 90 day period before a hearing can be held. A hearing is then set by the county court judge for presentation of evidence of the incapacity of the individual and for the credentials of the potential guardian and conservator to be appointed. Priority for appointment is given to family members or someone previously nominated to serve. Nebraska law states it is unlawful for any agency or any manager, owner, administrator, or employee of any nursing home, assisted living facility, or institution of persons that are physically or mentally handicapped, infirm, or aged to be appointed guardian of an incapacitated person that may be living in or receiving care in such a facility in the State of Nebraska. However nursing homes and assisted

living facilities can move for the appointment of an independent guardian or conservator to assist with the needs of the resident. Notice of the hearing must be given to the incapacitated person’s

parents, spouse, and adult children. The court may appoint a separate attorney to represent the incapacitated person, may appoint a “visitor” for observation, and may request a medical examination

to verify the incapacity. The incapacitated person is also entitled to receive notice of the hearing, be present at the hearing, and present evidence. Once the hearing is held, the court decides

whether the appointment is the least restrictive alternative available for providing continuing care or supervision. If the court orders the appointment, the appointed guardian and conservator must

file an acceptance of the duties and powers of the appointment with the court that pledges he or she will comply with the law. The court may also require a bond or training for the appointed guardian and conservator. The guardian and conservator must make decisions that are in the best interests of the incapacitated person. Guardianships and conservators may be especially

helpful if no family members exist or volunteer to arrange for the continued care of the resident at a facility. When an incapacitated person is no longer able to care for themselves, the appointment

of a guardian and conservator ensures that the person will be cared for and not fall through the cracks. If an incapacitated person is living at an assisted care facility, a guardian and conservator can

ensure that the person stays in an environment that is consistent and safe.

 

Jocelyn W. Golden

 www.knudsenlaw.com

 

 

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