| March 13, 2012 3:00 pm | to | March 15, 2012 3:00 pm |
In March, Rick Reier, Kevin McManaman, and Laura Essay of the Knudsen Law Firm presented a series of estate planning seminars for federal employees. The seminars, which were presented in conjunction with LifeSpan Services, Inc., focused on key factors to planning an estate, including pertinent estate documents, asset ownership, probate and non-probate transfers, and related tax issues.
In Coleman v. Court of Appeals of Maryland, (No. 10-1016, Mar. 20, 2012), the Supreme Court, in a 5-4 vote, held that state employees cannot sue states under the “self-care” provision of the Family and Medical Leave Act (FMLA).
The case involved Daniel Coleman, an individual employed by the Maryland Court of Appeals. Coleman requested FMLA leave for a serious medical condition, and the Court of Appeals terminated him. Coleman claimed the termination was in violation of the FMLA, which entitles an employee to take up to 12 weeks of unpaid leave per year for the employee’s own serious health condition when the condition interferes with the employee’s ability to perform at work, and brought suit. Maryland argued that Coleman’s claim was barred by sovereign immunity and should be dismissed. According to Maryland, the self-care provision of the FMLA was passed pursuant to the Commerce Clause of the U.S. Constitution, which cannot be used to bypass the state’s sovereign immunity. In order to avoid the state’s sovereign immunity and allow the lawsuit, it had to be shown that the self-care provision of the FMLA remedies a pattern of gender-based discrimination in states’ sick leave policies.
The Federal District Court, the Court of Appeals for the Fourth Circuit, and ultimately the Supreme Court ruled in favor of Maryland. The Court held that Congress lacked authority to abrogate states’ sovereign immunity because the FMLA self-care provision was not tailored to remedy or prevent discriminatory conduct violating the Fourteenth Amendment. The Court determined that the FMLA provision entitling employees to take leave for their own serious medical conditions is completely different than the provisions relating to family-care leave, which are protected. No basis existed to conclude that state employers had previously discriminated against employees on the basis of sex in regard to sick leave, and thus there was no reason to hold state employers liable for damages under this provision of the FMLA.
The Court’s decision potentially leaves state employees without legal recourse in the event they are denied FMLA leave for self-care or terminated because of the need for leave. Ultimately, it was suggested that an employee can still seek injunctive relief to stop an employer from violating the FMLA, even though the employee can not recover monetary damages.
In Lovelace v. City of Lincoln, 283 Neb. 12 (2012), the Supreme Court held that an employee cannot be considered permanently and totally disabled for a period of time when he or she was working part time or full time at the same job he or she had prior to his or her work-related injury.
In the instant case, Lovelace suffered an injury in the course and scope of her employment on March 21, 2006. Lovelace continued to work for the same employer after her injury until June 22, 2006, when she had surgery on her left knee. She returned to work on October 2, 2006 and continued working until November 6, 2007, when she fell and sustained an additional injury to her right leg. Lovelace had another surgery on her left knee on December 19, 2007 and did not return to work. Her position was terminated in June 2008.
The Supreme Court affirmed the review panel’s decision, which held that no benefits were to be paid prior to June 22, 2006 because Lovelace worked full time between the first accident, which occurred on March 21, 2006, through June 22, 2006. Further, the Supreme Court held that Lovelace was not entitled to permanent total disability benefits for the period of October 2, 2006 through December 18, 2007, when she was working either part time or full time and receiving temporary partial disability payments. A worker cannot be considered permanently and totally disabled for a period of time when he or she was working part time or full time at the same job he or she had prior to his or her injury. Lovelace was not an odd-lot worker and entitled to permanent total disability payments until December 19, 2007.
The Supreme Court’s opinion can be found at http://www.supremecourt.ne.gov/opinions/2012/january/jan13/s10-1241.pdf.
Pressure ulcer development is generally considered an indicator for quality of care, but questions regarding avoidability remain. In 2007, the United States Centers for Medicaid and Medicare Services classified full-thickness pressure ulcers as “never events,” meaning ulcers should never occur or are reasonably preventable. This classification raised the issue of whether are not the development of pressure ulcers can always be avoided.
On February 25, 2010, the National Pressure Ulcer Advisory Panel hosted a multidisciplinary conference to establish consensus on whether there are individuals in whom pressure ulcer development is unavoidable. Twenty-four organizations from various disciplines attended the conference, and unanimous consensus was reached over the following matters:
• Most, but not all, pressure ulcers are avoidable;
• Certain situations render pressure ulcer development unavoidable, including inability to maintain nutrition and hydration status and the presence of an advanced directive prohibiting artificial nutrition or hydration. These conditions do not make pressure ulcers inevitable, however, and the duty to provide preventive care remains; and
• Pressure redistribution surfaces cannot replace turning and repositioning.
The conference attendees did not reach consensus regarding the use of medical devices in relation to their potential to cause skin damage or the standard of turning patients every two hours. It was determined that further research is needed to examine these issues.
The Centers for Medicare and Medicaid Services (CMS) released the final rule “Civil Money Penalties for Nursing Homes,” which allows proactive nursing homes to reduce civil money penalties (CMP) by 50% by self-reporting and promptly addressing compliance violations. The rule, created through a section of the Patient Protection and Affordable Care Act, will become effective on January 1, 2012.
To take advantage of the 50% reduction, a nursing home must meet the following conditions:
According to a recent study, walking five miles per week may stall the decline of cognitive function among those who are experiencing mild forms of dementia.
To assess the impact that physical exercise might have on Alzheimer’s progression, Cyrus Raji, M.D., Ph.D., and colleagues analyzed the relationship between walking and brain structure in 426 adults. Among the participants, 299 were cognitively healthy and 127 were diagnosed as cognitively impaired.
For the study, participants were asked how many city blocks they walked in an average week. Follow-up questionnaires confirmed that the number of blocks remained steady over time. Participants also underwent MRI exams so researchers could measure changes in brain volume, and took the Mini-Mental State Exam, a test of cognitive skills, at various times throughout the study.
The study indicated that walking protects the brain structure in people with Alzheimer’s and mild cognitive impairment (MCI), specifically in areas of the brain’s key memory and learning centers. Raji stated that those who walked five miles per week also had a slower decline in memory loss over five years. In those diagnosed with MCI, the exercise reduced brain atrophy and cognitive decline by more than 50%.
The study also revealed that walking six miles per week is associated with a 50% reduction in Alzheimer’s risk in cognitively normal adults.