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

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)

www.knudsenlaw.com

jlust@knudsenlaw.com

Managing Partner

HIPAA Breach Notification Rule: Safe Harbor & Current Obligations

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)

www.knudsenlaw.com

krm@knudsenlaw.com

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

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)

www.knudsenlaw.com

Making Sure Arbitration Agreements are Enforceable

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)

www.knudsenlaw.com

New Standards for Determining RETALIATION

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:

 

1. Does that provision (Title VII) confine actionable retaliation to activity that affects the terms and conditions of employment? and;
2. 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

 

 

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!

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.

REGISTER ONLINE AT www.beamoneyhero.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)

www.knudsenlaw.com

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

 

 

 

 

 

 

 

 

 

 

 

 

 

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.

 

(visit our website: www.knudsenlaw.com)

This electronic message transmission contains information from the law firm of Knudsen, Berkheimer, Richardson & Endacott, LLP which may be confidential or privileged.  DO NOT FORWARD THIS E-MAIL WITHOUT ASSURING PROTECTION OF PRIVILEGED MATERIAL.  If you have questions about forwarding this message, contact us first.  All clients are advised that communication by e-mail may not be secure and may be subject to interception.  The information in this e-mail is intended solely for the use of the individual or entity named above.  If you are not the intended recipient, be aware that any disclosure, copying, distribution or use of the contents of this information is prohibited.  If you have received this electronic transmission in error, please notify us by telephone (402-475-7011) or by electronic mail (postmaster@knudsenlaw.com) immediately.

 

Nursing Home Transparency Bill Reintroduced

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

www.knudsenlaw.com

Nursing Assistant Regulations Updates

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

krm@knudsenlaw.com

www.knudsenlaw.com

Jeanelle Lust to speak at upcoming seminar

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

Register on-line at www.beamoneyhero.com.

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)

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

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

krm@knudsenlaw.com

www.knudsenlaw.com

Red Flags Rule

<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)

www.knudsenlaw.com

Res Judicata and Collateral Estoppel

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

jlust@knudsenlaw.com

www.knudsenlaw.com

So that Stimulus Package..

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

jlust@knudsenlaw.com

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

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

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
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