April 23, 2014
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Lincoln, NE 68502 (map)
Phone: 402.475.7011
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Telecommuting can be a reasonable accommodation

Yesterday the Sixth Circuit in this case http://www.ca6.uscourts.gov/opinions.pdf/14a0082p-06.pdf
held that working from home can be a reasonable accommodation under the ADA under the right circumstances. The court stated:
“When we first developed the principle that  attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of  employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties. Thus, the vital question in this case is not whether “attendance” was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential.”

Credit Background Checks

Employers are usually counseled to use credit background checks only for those positions in which the employee will be in a position involving financial transactions of the company because of the concern of the disparate impact of that information on minorities.  The EEOC scared the employment community a couple years ago by suing Kaplan University for running credit background checks for positions with financial responsibility — after Kaplan found out that some of its financial aid officers were self dealing and stealing student financial aid. Last week the 6th Circuit Court Appeals here http://www.ca6.uscourts.gov/opinions.pdf/14a0071p-06.pdf affirmed the dismissal of the complaint by the district court.  The concluding paragraph sums up the 6th Circuits thoughts on the lawsuit:

We need not belabor the issue further. The EEOC brought this case on the basis of a

homemade methodology, crafted by a witness with no particular expertise to craft it,

administered by persons with no particular expertise to administer it, tested by no one, and

accepted only by the witness himself. The district court did not abuse its discretion in excluding

Murphy’s testimony.

The district court’s judgment is affirmed.

Wage discussion

Last week President Obama entered this executive order. http://www.whitehouse.gov/the-press-office/2014/04/08/executive-order-non-retaliation-disclosure-compensation-information. Under the order employees of federal contractors are allowed to discuss their wages without being disciplined. The purpose of the order is to promote fair and equal wages and to make sure women and minorities are getting paid equal wages for equal work.

Big Verdict reversed because of improper closing argument

A lawyer for a plaintiff in an employment discrimination case won a verdict for her client of  $900,000 which included $600,000 in punitive damages.  However the 8th Circuit reversed the award because the plaintiff’s lawyer improperly vouched for her client in closing  argument by relaying the lawyer’s own personal experience with sexual harassment in law school. The 8th Circuit Court of Appeals (the appeals court covering Nebraska) in this opinion (PDF) held that  “the size of the damage award, while not beyond the bounds of rationality, suggests that counsel’s comment had a prejudicial effect” and reversed for a new trial. The court noted: “Counsel’s vouching and sympathy-arousing personal experience were directly aimed at enhancing these damages.”  “Given the jury’s decision to award Gilster $40,000 for past emotional distress, $200,000 for future emotional distress, and $600,000 punitive damages, we cannot say that this improper argument did not accomplish the purpose which it was clearly intended to accomplish, namely, the enhancement of damages.”


QAPI, Not Penalties to Reduce Adverse Events in Skilled Nursing Facilities

   In a report released by the Health and Human Services Office of the Inspector General (OIG), more than one in five Medicare beneficiaries receiving skilled care after a hospitalization experiences an adverse event.  The study defined an adverse event as harm that resulted in a longer stay in the skilled nursing facility or transfer to a hospital, permanent harm life-sustaining intervention, or death.  These adverse events are preventable and the resulting care and hospitalizations cost Medicare an estimated $2.8 billion in 2011, the year the study was conducted.

   The OIG stated that this study confirmed the need and opportunity for skilled nursing facilities to reduce the number of adverse events to residents and recommends that CMS direct the state surveyors to review facility practices for identifying and reducing adverse events.  When asked how they intended to deal with these adverse events, the CMS stated they did not want to approach the matter using harsher penalties and that survey citations won’t be the primary way for dealing with these incidents.  Rather, they want to focus on helping nursing care providers in setting up quality improvements specifically through the use of QAPI.

   The OIG recommended that CMS work on developing lists of preventable events to help skilled nursing facility’s staff understanding, include preventable events on the QAPI systems and to encourage facilities to report adverse events to safety organizations.  The OIG also recommended that CMS tell state surveyors to include an assessment of adverse event identification and reduction in their QAPI compliance and to link related deficiencies to their resident safety practices.  CMS did say that they are working to include guidance for surveyors on how to evaluate nursing facilities efforts to identify and reduce adverse events in their QAPI requirements.

   CMS still has not stated when QAPI will formally roll out. 

Extended Medicare Coverage for Therapy Services

It has been Medicare’s standard operating procedure that patients will be discontinued from therapy services if they are not improving or have plateaued.  However, due to a settlement in a class action lawsuit filed in 2011 against the secretary of health and human services, Medicare will now pay for physical therapy, nursing care and other services for beneficiaries with chronic diseases like multiple sclerosis, Parkinson’s or Alzheimer’s disease in order to maintain their condition and prevent deterioration.

Medicare officials have updated the agency’s policy manual to remove the concept that improvement is necessary to receive coverage for skilled care.  Though, don’t expect an announcement from Medicare about the new policy.  Medicare officials were only required to inform health care providers, bill processors, auditors, Medicare Advantage plans, the 800-MEDICARE information line and appeals judges — but not the actual beneficiaries.

The settlement also affects home health care and nursing home care, for patients in both traditional Medicare and private Medicare Advantage plans. It allows people to remain somewhat independent and healthier for a longer time.

Coverage can still be lost for reasons other than a lack of improvement.  For nursing home coverage, you must have a doctor’s order prescribing skilled nursing home care (not custodial care), and you must have spent three consecutive midnights in the hospital as an admitted patient. Limits on the duration of Medicare nursing home coverage remain the same.

Employers and Employees Can Contract When Commissions Are Earned

The Nebraska Wage Payment and Collection Act, Neb Rev. Stat. §§ 48-1228 to 48-1232, requires that if the employer-employee relationship is terminated, the employer shall pay the employee all of the earned wages on the next regularly scheduled payday following the termination, or within two weeks of termination whichever is sooner.  Earned commission is considered earned wages and must be paid as well. However, commission is not payable until the employer has received payment, but as long as the commission has been earned, the employee is entitled to it.

Determining when the commission is earned could potentially be the tricky part. The Nebraska Wage Payment and Collection Act sets forth that unless the employer and employee specifically agree otherwise then commissions are earned on all orders delivered and all orders on file with the employer at the time of the termination. This is the default standard for when commissions are earned, but the standard can be changed if the employer and employee specifically agree to use a different standard. The Nebraska Supreme Court allowed a different standard in Coffey v. Planet GroupTherefore, it is always a good idea for both employers and employees to know when the commission is earned.

Office of Public Guardian

Legislative Bill 920, which creates the Office of the Public Guardian under the jurisdiction of the Nebraska State Court Administrator, passed in the Nebraska Legislature. A need for guardians and conservators exists when there is no one suitable or available to serve the needs of an individual, and the Office of Public Guardian will provide service for individuals in such circumstances. The Office of Public Guardian establishes a director of the Office of Public Guardian, a deputy public guardian, and up to twelve associate guardians.

Severance Payments are Wages for FICA purposes

Today the US Supreme Court in United States v. Quality Stores http://www.supremecourt.gov/opinions/13pdf/12-1408_6468.pdf determined that Quality Stores was required to withhold and submit FICA payments from severance payments made to its employees as part of its restructuring of its business.

LB 854 Passes

On March 24, 2014, the Nebraska Legislature passed LB854.  The bill recognizes that there is a need for sufficient planning and input from stakeholders, including service providers and consumers, in order to establish an effective managed care system for Medicaid recipients.  In order to protect the state’s most vulnerable citizens, LB854 states that the Nebraska Department of Health and Human Services “shall not release a request for proposals relating to procurement of managed care for long-term care services and support prior to September 1, 2015.”

Client Testimonial:

I don’t know how to thank you for your quick, clear and valued reply. I was worried that it was unreasonable of me to put all of this on your lap during the eleventh hour of the Agreement’s discussions – THANK YOU! Your reply was well-structured and succinct but also simple enough that even us lay-folks can see the legal linings. I’m struggling to find the right words to completely convey my satisfaction. You have my profound “appreciation” Laura!”

Jon, a Knudsen client