October 1, 2014
3800 VerMaas Place, Suite 200
Lincoln, NE 68502 (map)
Phone: 402.475.7011
Toll Free: 800.714.3439

New Drug Take-Back Program

Long-term care facilities will be one of several designated drop-off points for unused prescription drugs in a new effort aimed at reducing addiction and abuse.  The Drug Enforcement Administration regulation was announced Monday by U.S. Attorney Eric Holder by a video message and news release. The regulation will allow long-term care facilities to “assist in the disposal of prescription controlled substances” of current and former residents.  Pharmacies, hospitals and clinics will also act as “authorized collectors.”

Holder mentioned authorities collected 390 tons of prescription drugs during a take-back event in April.  The drugs are destroyed to prevent them from falling into the hands of abusers or contaminating the environment.

Drug overdoses involving opioids have been particularly prominent and deadly in recent years, causing officials to seek stricter regulations for their use.  However, long-term care providers have voiced a different concern, saying that restricting access could make pain management difficult.

Overzealous Nursing Home Settles Immigration-Related Employment Discrimination Claim

In a case alleging that Isabella Geriatric Center (“IGC”) was too aggressive in asking immigrant workers to provide documentation, the nursing home has agreed to pay $14,500 in civil penalties to the United States; undergo training on the anti-discrimination provision of the INA; establish a back pay fund to compensate potential economic victims; revise its employment eligibility reverification policies; and be subject to monitoring of its employment eligibility verification practices for two years

IGC faced allegations that it was engaged in a pattern or practice of citizenship discrimination during the employment eligibility reverification process in violation of the Immigration and Nationality Act (INA). IGC allegedly asked lawful permanent resident employees to present new cards when their Permanent Resident Cards expired. This is unnecessary because lawful permanent residents are authorized to work in the United States regardless of the expiration status of their cards. IGC also required lawful permanent residents to provide proof of U.S. citizenship if they became naturalized citizens.

Such practices would violate the INA, which became federal law in 1952. The INA’s anti-discrimination provision prohibits employers from placing additional documentary burdens on work-authorized employees during the employment eligibility verification process based on their citizenship status. Among other things, the statute prohibits citizenship status and national origin discrimination in hiring, firing or recruitment or referral for a fee, unfair documentary practices, retaliation and intimidation.

Many Uninsured Live in States Without Expanded Medicaid

A recent survey showed Americans without health insurance coverage are most concentrated in states that have not expanded Medicaid.  As of June, 60.4% of those without coverage lived in the 25 states that have not expanded Medicaid, up from 49.7% in September of 2013.

The Urban Institute’s Health Policy Center’s survey also reported details on those in the uninsured category, stating many are residents of southern states, Spanish speaking and high school dropouts.  The share of the uninsured residing in southern states grew from 41.5% to 48.9%, the Spanish speaking portion grew from 17.0% to 19.9% and the percentage of high school dropouts increased from 23.8% to 28.1% between September and June.

Affordability was the most often cited reason for failing to obtain coverage, as 59.5% of those surveyed stated the plans were cost prohibitive.  However, survey data also showed lack of knowledge about the availability of subsidies, with just 38.2% indicating familiarity with subsidies to help offset premiums and out-of-pocket costs.

Some experts feel signing up the uninsured will be more difficult in the future because those who really wanted coverage are now insured.  The remaining uninsured will have to be sold on the benefits of coverage.




New Executive order prohibits LGBT discrimination by federal contractors

Last week,  President Obama issued an Executive Order prohibiting federal contractors from discriminating on the basis of sexual orientation and gender identity. Federal contractors or federally-assisted contractors and subcontractors who do over $10,000 in government business in one year are subject to this executive order.

With the new language federal contractors must comply with the following:
• The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin.

• The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin.

• The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.

Religiously affiliated contractors continue to be allowed to favor individuals of a particular religion when making employment decisions, but only related to the association’s mission.  Such organizations are otherwise required to comply with the order.

Updates to F-Tags in State Operations Manual

The Centers for Medicare and Medicaid Services (CMS) has made revisions to twenty F-Tags in the State Operations Manual (SOM).  The changes reflect the Survey and Certification (S&C) policy memos issued from October 2003 through May 2014.

CMS states it is committed to revising and updating the SOM which includes clarifications to guidelines and changes to acceptable standards of practice as it relates to the regulatory guidance.  An advanced copy of the manual can be found here:  http://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-14-37.pdf.

Among the F-Tags updated are F208-Admission Policy, F221-Physical Restraints, and F441-Infection Control.  The changes to F208 are related to the January 8, 2004, S&C memo that sets out to clarify whether or not nursing homes may use promissory notes or deposit fees as conditions of admission.

CMS changed F221 to reflect the clarifications set out in the S&C memo of June 22, 2007, that clarifies the phrases “removes easily” and “freedom of movement”.  The updated guidance set out in F441 comes from four S&C memos dating from 2010 through 2013, and reflect clarifications to the use of insulin pens in the facilities, safe use of single dose/single use medications, point-of-care devices such as finger-prick devices and glucose meters, and laundry and infection control, specifically laundry detergents with/without antimicrobial claims, use of chlorine bleach, water temperatures and maintenance of laundry equipment.

Currently only the advance copy of the revisions available and CMS does indicate that the final version may differ slightly.

Auto-enrollment for ACA Consumers Proposed

The Department of Health and Human Services recently proposed a rule whereby those who signed up for insurance coverage through the Affordable Care Act’s State and Federal exchanges would be automatically re-enrolled for coverage in 2015.

Consumer research shows that most individuals won’t take action on their own and would therefore be likely to let policies lapse.  Automatic re-enrollment would avoid having people inadvertently fall out of coverage.

Insurers with a strong market-share in the first year of enrollment will likely support the rule, as it will reduce administrative tasks and make it easier to hold on to customers.  However, for those insurers who either struggled to gain customers or are entering the exchanges for the first time in 2015, the ruling could prove problematic.

HHS will be taking comments for 30 days before issuing a final rule.

Settlement Conference Facilitation Pilot Announced

The Centers for Medicare & Medicaid Services (CMS) has announced a new pilot program that will hopefully alleviate the backlog of Medicare Part B claims that have been appealed to the Administrative Law Judge level.  Settlement Conference Facilitation will be a pilot alternative dispute resolution process by which the appellant and CMS will be brought together to see if they can agree upon a settlement using a settlement conference facilitator.

The facilitator would use mediation principles in helping the two parties come to a settlement.  The facilitator, an employee of the Office of Medicare Hearings and Appeals, will not be a finder of fact and won’t make any determinations regarding the claimed issues, rather the facilitator’s purpose will be to help each side to see the strengths and weaknesses of their cases.

Settlement Conference Facilitation is only for appeals of Medicare Part B Qualified Independent Contractor decisions at this time.  Beneficiary appeals of QIC decisions are not eligible in this pillow as those appeals are being prioritized for a hearing before an administrative law judge.

For more information on what appeals are eligible and how to go about requesting Settlement Conference Facilitation, go to: http://www.hhs.gov/omha/settlement_conference_facilitation_pilot.html

DAMAGES: What am I entitled to when injured due to someone’s negligence?

This is a valid question that’s often on the minds of victims dealing with personal injury.  An accident and injury can often be a life-changing event that places a person’s life in turmoil overnight. In Nebraska, the goal of damages is to put the injured person in the same position as he or she would have been had there been no injury.  While nothing can put the injured party back to exactly where they were prior to the injury, special and general damages can certainly help.

There are two types of damages available—economic and non-economic.  The amount of damages is solely up to the fact finder (Judge or Jury) and the Judge or Jury may consider the types of damages elaborated on below:

Economic Damages (or Special Damages)

  1. The reasonable value of medical (hospital, nursing, and similar) care and supplies reasonably needed by and actually provided to the victim(and reasonably certain to be needed and provided in the future);
  2. The (wages, salary, profits, reasonable value of the working time, business) the plaintiff has lost because of his/her (inability, diminished ability) to work;
  3. The reasonable value of the (earning capacity, business or employment opportunities) the plaintiff is reasonably certain to lose in the future;
  4. Reasonable Funeral costs;
  5. The reasonable value of the plaintiff’s loss of the use of his/her property;
  6. The reasonable value of the cost of repair or replacement of personal property;
  7. The reasonable cost of obtaining substitute domestic services.

Non-Economic Damages (or General Damages)

  1. The reasonable monetary value of the physical pain and mental suffering (and emotional distress) the plaintiff has experienced (and is reasonably certain to experience in the future);
  2. The reasonable monetary value of the inconvenience the plaintiff has experienced (and is reasonably certain to experience in the future);
  3. The reasonable monetary value of loss of society and companionship suffered by the plaintiff and reasonably certain to be suffered in the future;
  4. The reasonable monetary value of any injury to plaintiff’s reputation;
  5. The reasonable monetary value of any humiliation the plaintiff has experienced (and is reasonably certain to experience in the future);
  6. The plaintiff’s (husband’s, wife’s) loss of consortium. Consortium means those things to which a person is entitled by reason of the marriage relationship. Includes affection, love, companionship, comfort, assistance, moral support, and the enjoyment of (sexual, conjugal) relations.

In the determination of economic and non-economic damages, the fact finder must consider the nature and extent of the injury, including whether the injury is temporary or permanent, and whether any resulting disability is partial or total.

See Nebraska Jury instructions on damages; NJI2d Civ. 4.00; General instruction on Damages in a Tort Action – Economic and Noneconomic Damages.

Are You Making Sure Your Electronic Devices Are Secure?

  Do you know where your work laptop is?  Do you get work e-mail on your smartphone?  Are both sufficiently password protected?  What about your business associates?  Do you believe they sufficiently protect all protected health information they have in their possession?  It would probably be a good idea to take another look at your electronic device security because the theft of laptops and other devices continues to be the leading cause of information breaches.

   The Health Insurance Portability and Accountability Act requires healthcare providers to disclose to the government whenever the protected health information of at least 500 peoples has been compromised.  According to a June 11, 2014, report by the Department of Health and Human Services Office of Civil Rights for the years 2011 and 2012, the theft of devices such as laptops accounts for nearly half of those reports.  Some of the largest breaches involved business associates, including a 2011 incident in which nearly 5 million people were affected.

   To read the full report, click on the following link:  http://www.hhs.gov/ocr/privacy/hipaa/administrative/breachnotificationrule/breachreport2011-2012.pdf

Claims for Unpaid Wages

Under the Nebraska Wage Payment and Collection Act an employee or former employee cannot bring a claim for unpaid earned wages until 30 days have passed from the missed regularly scheduled payday. If the employee is terminated or quits, her/his earned wages are not due until the next regularly scheduled payday. The counting period is not from when the person was fired or quit but rather from the next scheduled payday.

It is important to note that the claim is only for your hours worked. Wages include compensation for labor or services and fringe benefits such as vacation pay. Not included as a fringe benefit is sick leave. If an employer does not keep vacation pay and sick leave separate from one another and lumps everything together as paid time off (PTO), then all the earned PTO must be paid at the time of separation.

If the employee is paid by commission, the earned commission is not due until the employer receives payment from customer for the good or service which generated the commission. The employer must provide a separated employee with a periodic accounting of outstanding commissions until all commissions have be been paid or canceled by the customer. If the employer has been paid and the next regularly schedule pay period passes, the employee or former employee must wait 30 days to bring a claim for the unpaid commission.


Client Testimonial:

I engaged Kevin McManaman’s services for a sensitive personnel matter our organization was dealing with. The issue was resolved in a professional way and produced a positive outcome for Capital Humane Society. In providing his services Kevin was professional, fun to work with and educational. I will always look to Kevin for help when the need arises.

Bob Downey, Executive Director
Capital Humane Society