Inhale and lose your financial aid

On 04/29/2008, the United States Court of Appeals for the 8^th Circuit held that restrictions on student loan eligibility for convictions of a drug crime were not unconstitutional in a challenge brought by Students for Sensible Drug Policy.  The court determined that a Federal Statute that limited eligibility for student loans if a student was convicted of a drug crime did not violate either the 8^th Amendment or the 5^th Amendment to the United State Constitution.  Although the act was passed as part of a drug enforcement policy scheme the 8^th Circuit held that the statute did not amount to the imposition of double jeopardy, but was merely a civil penalty.

 

 

Jeanelle R. Lust

Your full-service law firm   Managing Partner   Office: 402-475-7011   Fax: 402-475-8912   Mobile: 402-440-3731   jlust@knudsenlaw.com Knudsen, Berkheimer, Richardson & Endacott, LLP 3800 VerMaas Place, Suite 200 Lincoln, NE 68502 http://www.knudsenlaw.com

 

 

 

 

 

 

 

Challenge to LB 126 in Federal Court fails

Today the 8th Circuit Court of Appeals issued its decision in Trudy Nolles  v.  The State Committee,  U.S. Court of Appeals Case No:  06-4093 (Appeal from  District of Nebraska – Omaha) In Nolles,  Nebraska voters had brought a civil rights action challenging the “the State Committee’s” and others implementation of Legislative Bill 126 concerning the merger of certain school districts in Nebraska (i.e. the elimination of the smallest classification of schools in Nebraska).  The 8th Circuit affirmed the dismissal by the District Court in Omaha finding that the plaintiffs failed to allege a personalized injury and thus they lacked standing to assert a substantive due process claim; that the plaintiffs also failed to alleged a particularized injury and lacked standing to bring a procedural due process claim; and that plaintiffs were in privity with other plaintiffs who brought a state court challenge to the school consolidation bill and that therefore the district court properly applied the doctrine of res judicata to preclude the Nolles’ plaintiffs right-to-vote claims.  

 

 

 

Jeanelle R. Lust

Your full-service law firm   Managing Partner   Office: 402-475-7011   Fax: 402-475-8912   Mobile: 402-440-3731   jlust@knudsenlaw.com Knudsen, Berkheimer, Richardson & Endacott, LLP 3800 VerMaas Place, Suite 200 Lincoln, NE 68502 http://www.knudsenlaw.com

 

 

 

 

 

 

Trends in Resident Arbitration Contracts

 

Trends in Nursing Home Arbitration:  New Federal Legislation

 

Residents increasingly sign arbitration agreements upon admission to long-term care facilities, requiring them to submit future disputes to private binding arbitration, rather than to a court of law.  Arbitration has become an appealing option because it is thought to be faster and less expensive than traditional litigation.  New federal legislation may soon end this trend. 

 

The Centers for Medicare & Medicaid Services (CMS) weighed in on the question several years ago saying that so long as quality of the care was not compromised, the issue was a matter between resident and nursing homes.  As a result, enforcement is left to the courts who are instructed by the Supreme Court to enforce arbitration agreements as they would any other contract.  Courts typically enforce arbitration agreements in the long-term care setting, when well drafted and properly executed. 

 

On April 9, 2008, U.S. Senators Mel Martinez (R-FL) and Herb Kohl (D-WI) introduced the Fairness in Nursing Home Arbitration Act, seeking to prohibit enforcement of these agreements under federal law.  Attorneys at the Knudsen Law Firm are carefully monitoring the developments in this area of law.  Please call if you want an update.

 

 

 

Kevin R. McManaman

www.knudsenlaw.com

800 714 3439

Legislative Update on Laws affecting Long-Term Care.

 

 

LEGISLATIVE UPDATE FOR 2008

By: Jocelyn W. Golden

Associate Attorney with Knudsen, Berkheimer, Richardson & Endacott, LLP

 

Several bills affecting health care and long term health care issues have been passed in 2008 during the Second Session of the 100^th Legislative Session of Nebraska, which is tentatively scheduled to end on April 17, 2008.  Some of the bills that may affect long term health caregivers are summarized below, but the bills themselves should be consulted for any further details.

 

LB 157: Prohibition of Prosecution for Leaving a Child at a Hospital

This law passed on February 7, 2008, making Nebraska the last state in the United States to enact a safe haven law.  The bill was originally proposed to prevent prosecution of anyone leaving a child that was 72 hours old or younger with a hospital employee or firefighter, with immunity to such individuals that act in good faith to comply with the law.  However, the law as enacted prohibits prosecution of anyone leaving any child, no matter what the age, in custody of an employee on duty at a hospital licensed by the State of Nebraska, with no immunity provisions for those individuals attempting to comply with the law.  This does not apply to other health care facilities other than hospitals.

 

LB 185: Prohibition of Practice Due to Revoked License

This bill was passed on March 8, 2007 and pertains to numerous statutes pertaining to the Department of Health and Human Services.  One applicable section of the bill provides that a licensed registered nurse (RN) or licensed practical nurse (LPN) who has had his/her license revoked, suspended, or voluntarily surrendered may not act as a nursing assistant in a nursing home. Such a person also may not act as a medication aide at any health care facility.  A person’s registration as a nursing assistant or medication aide becomes null and void on the date that he/she becomes licensed as an RN or LPN. 

 

LB 395: New Nebraska Clean Indoor Air Act

On February 22, 2008, a new Nebraska Clean Indoor Air Act was passed and was signed into law on February 26, 2008.  The Act prohibits smoking in any place of employment, bars, and restaurants.  Exemptions are available for (1) private residences, (2) guestrooms and suites, (3) retail tobacco outlets, and (4) areas used as part of a research study on the health effects of smoking.  There are no exemptions for long term care facilities.  The Act will be operative on June 1, 2009.  Iowa recently passed a similarly expansive smoking ban on April 8, 2008, with an exemption for gambling floors of casinos.

 

LB 575: Sales Tax Exemption for Nonprofit Assisted Living Facilities

On April 7, 2008, the Nebraska revenue code was amended to include tax exemptions for nonprofit assisted living facilities, which is already provided to other nonprofit health care facilities such as hospitals, hospices, home health agencies, and intermediate care facilities since 1992.  Assisted living facilities were originally recognized in Nebraska’s statutes in 2000.

 

LB 765: Clarification Regarding Certificates of Need for Long Term Care Facilities

On April 7, 2008, the Legislature passed this bill to clarify certificates of need as applied to long-term care beds and rehabilitation beds.  The amendments state that no health care facility can increase long-term care beds by ten percent of the total long-term care bed capacity (not the total bed capacity of the facility) or ten beds, whichever is less, over a two year period without applying for a certificate of need.  The same applies to rehabilitation beds in a health care facility.  A Certificate of Need is required for initial establishment of long-term care or rehabilitation beds through conversion of existing beds if the total is more than ten or more than ten percent of the total bed capacity, whichever is less, over a two year period.  The law reflects the Department of Health and Human Services’ interpretation of the statutes since their passage in 1997.

 

Please feel free to contact our firm for legal opinions on how these bills may affect your ongoing operations.

 

Jocelyn Golden

www.knudselaw.com

jgolden@knudsenlaw.com

 

Lawsuit against local judge dismissed by the 8th Circuit.

Today the 8th Circuit decided that a case that had garnered national attention,  Bethany Bowen  v.  Honorable Jeffre Cheuvront, was moot.  Bethany Bowen had sued Lancaster County District Court Judge Jeffre Cheuvront for rulings he had made in a criminal case in which she was the complaining witness.  Judge Cheuvront had appropriately limited Ms. Bowen’s use of terms like “rape” in the criminal trial of the man she accused of sexual assault.  After two mis-trials the state of Nebraska dismissed the charges against the accused man.  The 8th Circuit held that that dismissal mooted Ms. Bowen’s lawsuit against Judge Cheuvront and directed the district court to dismiss the lawsuit.

Jeanelle Lust

jlust@knudsenlaw.com

www.knudsenlaw.com

 

The importance of experienced appellate counsel

The hazards of not having experienced appellate counsel was once again highlighted yesterday by the Nebraska Court of Appeals in REEVES V. WESTERN HERITAGE CREDIT UNION, an unpublished decision.   In Reeves, appellate counsel failed to request that the bill of exceptions contain the hearing for the motion for summary judgment.  Because of that the court concluded, “After examining only the pleadings due to the absence of a bill of exceptions, we conclude that the trial court did not err in granting Western Heritage’s motion for summary judgment, and its judgment dismissing the action is affirmed.”  Reeves may have very well had a legitimate appeal.  However, the Court of Appeals did not consider any of the evidence before it, because the appropriate record was missing.