News

Diabetic Student Sues Collierville Schools for Revoking Transfer

The family of a former student is suing Collierville Schools for revoking her transfer, shortly after she acquired a service dog and requested an Individualized Education Program to support her Type I diabetes, the Commercial Appeal reports. The lawsuit accuses the district of violating the Americans with Disabilities Act and the Rehabilitation Act of 1973, and alleges that she was discriminated against.
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Disability Rights Tennessee Hiring Legal Director

Disability Rights Tennessee, a nonprofit organization dedicated to protecting the rights of Tennesseans with disabilities, is seeking a legal director. The legal director leads, manages and supports legal personnel who provide direct client representation and serves as lead counsel or co-counsel in major litigation including class action lawsuits. The position also develops, maintains and disseminates legal information to provide support to a legal team and assures staff knowledge remains up-to-date. Interested candidates should submit a letter of interest, a  resume and a recent pleading or motion related to applicant’s involvement in systemic and individual litigation to sheliam@disabilityrightstn.org
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Item of Interest

Below is an article that was published in the the Disability Section Connect. We thought it had information that would be of interest to those of you in this section as well.  

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Disability Rights TN Conducting Survey on Needs and Resources

Disability Rights Tennessee is conducting a survey to gather information from people with disabilities, family members, service providers and professionals to help shape the work of the organization. Attorneys working in the disability rights field are asked to contribute their thoughts. Others are asked to share the survey with friends and colleagues in the disability rights field, so an accurate picture of the needs of those with disabilities can be compiled. The deadline to respond is July 15. For more information contact DRT at (800) 342-1660 or gethelp@disabilityrightstn.org.

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Turn Your Expertise into a Magazine Article

It’s no surprise that some of the best articles in the Tennessee Bar Journal have come from TBA section members. Your membership in this section shows that you have a keen interest in trends, developments and case law in this practice area. Sharing this knowledge with your colleagues is one of the best traits of the profession.

How can you become a Journal author? Think of and refine your topic. It should be of interest to Tennessee lawyers, which is a broad criteria. This could mean you might explain a new state law, explain a complicated area of law, or take a larger issue and connect it to what it means for Tennessee attorneys and the justice system. Find a global issue within your particular experience or knowledge and tell about it and how it affects Tennessee law. Then take a look at the writer’s guidelines at http://www.tba.org/submit-an-article, which will tell you about length, notes and other details. Once it’s in the proper format, send it in! It goes to the editor, Suzanne Craig Robertson, who will then get it to the seven members of the Editorial Board for review.

If you are published, you may apply for CLE credit for your work under Supreme Court Rule 21 Section 4.07(b). For details on claiming the credit, check with the Commission on CLE & Specialization at http://www.cletn.com/.

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The Infamous Five Business Day Rule

In another example of the Social Security Administration (SSA) acting with amazing haste, it published its final “program uniformity” regulations on December 16, 2017. https://www.gpo.gov/fdsys/pkg/FR-2016-12-16/pdf/2016-30103.pdf.

The July 2016 Notice of Proposed Rule Making proposed, among other things, closing the record five business days before a scheduled Administrative Law Judge (ALJ) hearing. The Empire Justice Center, a number of other advocacy organizations, and members of Congress voiced opposition to SSA’s proposal. SSA, however, did not withdraw the five-day requirement.

SSA’s ostensible goal in promulgating these changes is to “ensure national consistency in our policy and procedures and improve accuracy and efficiency in our administrative review process.” 81 Fed. Reg. 09087. The changes will bring the rest of the nation in accord with practices in place in the Boston region (Region 1) for the past ten years. In implementing these new regulations, Part 405 of 20 C.F.R., which governed Region 1, has been removed.

Sections 404.935 & 416.1435 of 20 C.F.R. (Submitting evidence prior to the hearing before an administrative law judge) have been significantly revised. Claimants and their representatives must submit evidence, or inform SSA about it, at least five business days from the hearing, unless an exception applies. Unless an exception applies, the ALJ may decline to consider or obtain the evidence.

In response to comments, SSA revised the proposed regulation to clarify the circumstances described that would constitute good cause for a claimant or representative to submit evidence after the five-day deadline are not exclusive examples. The examples at 20 C.F.R. §§ 404.935(b)(3) & 416.1335(b)(3) include:

  • serious illness,
  • death or serious illness in the immediate family,
  • important records were destroyed or damaged by fire or other accidental cause, or
  • the claimant actively and diligently sought evidence from a source and the evidence was not received or was received less than five business days prior to the hearing.

In response to comments, SSA removed the phrase “through no fault of your own” from the last example “to reduce the evidentiary burden on claimants who are unable to produce evidence.” 81 Fed. Reg. 90988. A claimant’s physical, mental, educational, or linguistic limitation(s) preventing him or her from informing SSA about or submitting the evidence earlier could also constitute good cause. 20 C.F.R. §§ 404.935(b)(2) & 416.1435(b)(2).

In its commentary, SSA sought to reassure the public that these changes will not relieve adjudicators of their responsibility to make decisions based on the evidence presented at hearings. SSA argued the changes will promote both efficiency and fairness, citing experience in the Boston region. In response to many concerns raised by commenters, SSA reiterated the ability of ALJs to find exceptions to the requirement. It also claimed that responding to requests to submit evidence pursuant to one of the exceptions did not cause extra work in the Boston region. 81 Fed. Reg. 90989. In response to comments about “variances” in how ALJs in the Boston region applied similar rules, SSA promises to provide additional training to adjudicators and staff about applying the exceptions. 81 Fed. Reg. 90992.

SSA made several other changes to the proposed rule in response to comments. It amended 20 C.F.R. §§ 404.939 & 416.1439, 404.949 & 416.1449, and 404.950(d)(2) & 416.950(d)(2) to include exceptions to the deadlines for objecting to issues at a hearing, presenting written statements, and requesting subpoenas. Note that subpoenas must be requested at least ten business days before the hearing date, as opposed to the five-day time-frame in the current regulation. The five-day requirement does apply to objections to the issues and written statements. But SSA clarified that the five-day requirement only applies to pre-hearing written statements, not to post-hearing statements. 81 Fed. Reg. 90991. And SSA states that the exceptions could be relied upon to submit rebuttal evidence if an ALJ introduces new evidence at or after the hearing. Id.

SSA agreed with comments that hearing notices should provide at least 75 days before a hearing rather than the 60 days in the proposed rule. 20 C.F.R. §§ 404.938 & 416.1438.

The new regulations also affect the Appeals Council. It will consider new and material evidence that relates to the period on or before the date of the hearing decision only if there is a reasonable probability the evidence would change the outcome of the hearing decision. 20 C.F.R. §§ 404.970(a)(5) & 416.1470(a)(5). The Appeals Council regulations have also been amended to provide the Appeals Council will only consider new evidence if the claimant shows good cause for not informing SSA or submitting it in accordance with 20 C.F.R. §§ 404.935 & 416.1435. See 20 C.F.R. §§ 404.970(b) & 416.1470(b). The good cause exceptions are repeated in the Appeals Council regulation. 

SSA withdrew its proposed rules allowing the Appeals Council to conduct a hearing to develop evidence. SSA disagreed with commenters who argued there was no legal basis for this proposed change, but nonetheless decided to remove the proposed rule. According to SSA, the Appeals Council will continue to exercise its authority to develop evidence in accordance with 20 C.F.R. §§ 404.976(b) & 416.1446(b). 81 Fed. Reg. 90989.

Several other sections have been reorganized or revised to cross reference the new regulations.

These new regulations will undoubtedly create new burdens and hassles for advocates already struggling to get evidence in a timely fashion. Advocates should keep in mind, however, that informing the ALJ of new evidence within the time frame should be sufficient to comply with the new requirements. SSA states in its commentary: “In addition, we note that if a claimant informs an ALJ about evidence 5 or more days before the hearing, there would be no need for the ALJ to find that an exception applies, because the claimant notified us prior to the deadline.” 81 Fed. Reg. 90990. Advocates will thus need to make sure they notify the ALJ in writing at least five days before the hearing that they anticipate receiving and submitting new evidence.

What is not clear, however, from the regulations and commentary is what procedures will be followed if an ALJ refuses to accept evidence proffered or finds it is not material. Section 404.951(b) (Contents of the official record) refers to, inter alia, “any additional evidence or written statements that the administrative law judge admits into the record under §§ 404.929 and 404.935.” (See also 20 C.F.R. § 416.1451(b)). Does evidence an ALJ excludes under the five-day requirement or rules as not material become part of the official record? Query whether uploading the evidence into ERE will secure it as part of the record? Advocates will need to make any disputes about the admission of evidence clear on the record to preserve the issue for appeal.

The new rules became effective on January 17, 2017. According to the notice, however, “compliance is not required until May 1, 2017.” 

- Reprinted with the permission of the Empire Justice Center, with authors Catherine (Kate) Callery & Louise Tarantino.

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More Bad News – Treating Physician Rule is No More

In seemingly record time, the Social Security Administration’s (SSA) Notice of Proposed Rule Making (NPRM) - Revisions to Rules Regarding the Evaluation of Medical Evidence - published in the Federal Register on September 9, 2016, became final on January 18, 2017. https://www.gpo.gov/fdsys/pkg/FR-2017-01-18/html/2017-00455.htm. These new regulations redefine several key terms related to evidence and revise the list of acceptable medical sources to include advanced practice registered nurses and physician assistants. But most significantly, under the new regulations SSA will no longer give a specific weight (i.e., controlling weight) to any medical opinions, including from the claimant’s own healthcare providers.

SSA’s professed goal in revising the rules is “to ensure that they reflect modern health delivery and are easier to understand and use.” 82 Fed. Reg. 5844. They will become effective on March 27, 2017, but will only apply to cases filed on or after March 27th. A revised version of the current treating physician regulations, which incorporates some aspects of the now rescinded Social Security Ruling (SSR) 06-3p, will govern pending cases filed prior to that date. See 20 C.F.R. §§ 404.1527(f) & 416.927(f).

The proposed regulations were outlined in the October 2016 edition of the Disability Law News. http://www.empirejustice.org/issue-areas/disability-benefits/rules--regulations/ssa-proposes-new-treating.html#.WIJlWssiy70. In response to the 383 comments received from individual citizens, claimants’ representatives, members of Congress, professional organizations, and advocacy groups, SSA made some revisions to the proposed rules, including adding physician assistants in addition to nurse practitioners in the list of acceptable medical sources (AMS). A summary of the differences between the proposed and final rules is at 82 Fed. Reg. 5844-5845. But ultimately, the most significant proposed changes to the way evidence from treating sources is considered were retained.

Primacy of “treating source” opinions eliminated

In fact, the term “treating source” has been removed from the regulations, replaced by “your medical source.” Relying heavily on the 2013 findings of the Administrative Conference of the United States (ACUS), SSA cited the burdensome number of findings required by adjudicators under the current rules, conflicting federal court perspectives, and the changing nature of the primary healthcare system as justification for the proposed changes. According to SSA, changes in how people receive primary care have undermined the presumption that a claimant’s sole treating physician has the longitudinal knowledge and unique perspective objective medical evidence alone cannot provide.

SSA’s response to public comments “recogni[zed] that an individual’s own medical source may have a unique perspective of an individual’s impairments.” 82 Fed. Reg. 5857. And SSA admitted that under 20 C.F.R. §§ 404.1520c & 416.920c, the “final rules also continue to allow an adjudicator to consider an individual’s own medical source’s medical opinion to be the most persuasive medical opinion if it is both supported by relevant objective medical evidence and the source’s explanation, and is consistent with other evidence” 82 Fed. Reg. 5853. But the value of opinions from treating sources is no longer acknowledged in the regulations themselves.

Weighing of evidence replaced by consideration of “persuasiveness”

Rather than weighing medical evidence from various sources, with special recognition of the intrinsic value of evidence from treating sources, SSA will now “consider” the “persuasiveness” of opinions from all medical sources. According to the preamble to the NPRM, SSA believed its current rules used “weigh” and “weight” in several confusing ways. The new regulations use the term “persuasiveness” instead of “weight,” and “consider” instead of “weigh. ” See Preamble to the September 2016 NPRM at 81 Fed. Reg. 62574. According to SSA in response to comments, the current regulations did not specify specific weights, other than “controlling.” As a result, adjudicators used a variety of terms, such as significant, great, little, more, and less. SSA hopes to avoid this confusion by having adjudicators focus on how persuasive they find opinions. 82. Fed. Reg. 5858. But is unclear how adjudicators, in rendering a “minimum level of articulation” required by the new regulations, will define or describe “persuasive.”

Opinions of all medical sources will be considered

On a positive note, in response to comments, SSA revised the proposed rules to reflect that “all medical sources” will include medical sources that are not acceptable medical sources. Per 20 C.F.R. §§ 404.1502 & 416.902, the definition of “medical source” is “an individual who is licensed as a healthcare worker by a State and working within the scope of practice permitted under State or Federal law…” According to SSA’s response to comments, the definition includes licensed mental health care providers. 82 Fed. Reg. 5847. So, for example, although SSA refused to include Licensed Clinical Social Workers in its final definition of “acceptable medical sources,” adjudicators will be required to consider the persuasiveness of their opinions under new 20 C.F.R. §§ 404.1520c & 416.920c. Objective evidence from non AMSs still can not be used to establish a “medically determinable impairment” (MDI) under 20 C.F.R. §§ 404.921 & 416.1521; their opinions as to functional limitations, however, will be “considered,” but not accorded any extra weight. This definition would presumably apply to physical therapists and chiropractors as well. (SSA claims this change will also allow it to select an individual’s own medical source, regardless of AMS status, as a preferred source to conduct consultative examinations. 82 Fed. Reg. 5847.)

Factors for considering “persuasiveness”

How will SSA consider the “persuasiveness” of all these medical opinions, including those from a claimant’s own medical sources, as well as prior administrative opinions from SSA’s medical and psychological consultants (MCs & PCs)? It will use several factors, with “relationship with the claimant” subsidiary to what SSA deems as the two most important factors: supportability and consistency. See 20 C.F.R. §§ 404.1520c(a) & 416.920c(a). The factors, in order of importance, are: 1) supportability; 2) consistency; 3) relationship with the claimant, combining the current examining and treatment factors; 4) specialization; and 5) other factors, which include familiarity with other evidence in the claim or an understanding of disability policies and evidentiary requirements. 20 C.F.R. §§ 404.1520c(c) & 416.920c(c). SSA admitted determining “consistency” might be challenging in certain claims, but refused to clarify what consistency means beyond acknowledging its use in the regulations is “the same as the plain language and common definition.” 82 Fed. Reg. 5854. According to SSA, it “includes consideration of factors such as whether the evidence conflicts with other evidence from other medical sources and whether it contains an internal conflict with evidence from the same medical source.” Id.

But SSA also acknowledged “that the symptom severity of some impairments may fluctuate over time, and we will consider the evidence in the claim that may reflect on this as part of the consistency factor as well.” 82 Fed. Reg. 5854. SSA also acknowledged “that evidence from a medical source who has a longstanding relationship with a claimant may contain some inconsistencies over time due to fluctuations in the severity of an individual's impairments.” SSA plans to include the extent to which such inconsistencies should be taken into consideration in its training to adjudicators. Id.

The proposed regulations had listed familiarity with the entire record and understanding of SSA policy as separate factors. The final version of the regulations combines them as “other factors,” so as not to appear that SSA favors SSA’s medical and psychological consultants (MCs & PCs) opinions. 82 Fed. Reg. 5857. SSA also revised the proposed rules to recognize that new evidence submitted after the MC or PC has rendered an opinion might make the opinion “more or less persuasive.” 20 C.F.R. §§ 404.1520c(c)(5) & 416.920c(c)(5).

Of note, all of the factors except relationship specifically refer to persuasiveness. For example, the more supportable and consistent an opinion is, the more

persuasive it will be. Or the opinion of a specialist may be more persuasive. In contrast, the factors under the relationship category are simply listed, and include length of relations, frequency of examinations, purpose and extent of treatment relationship, and examining relationship. 20 C.F.R. §§ 404.1520c(c)(3) & 416.920c(c)(3).

How will factors be “articulated”?

How the factors are “considered” will be “articulated” by the adjudicator. What do “consider” and “articulate” mean? In response to a comment, SSA declined to replace “consider” with “evaluate.” According to SSA, “consider” is easily distinguishable from “articulate.” “Adoption of the term ‘evaluate’ could imply a need to provide written analysis, which is not what we intend.” 82 Fed. Reg. 5855. “Articulate,” on the other hand, does seem to imply a written analysis. 20 C.F.R. §§ 404.1520c(b) & 416.920c(b) requires adjudicators “to articulate in our determination or decision how persuasive we find all the opinions.” SSA revised 20 C.F.R. §§ 404.1520c(b)(1) & 416.920c(b)(1) to provide that adjudicators will articulate how they considered medical opinions, rather than merely consider them. It “expect[s] that the articulation requirements in these final rules will allow a subsequent reviewer or a reviewing court to trace the path of an adjudicator's reasoning.” 82 Fed. Reg. 5858.

But SSA left intact the provisos that adjudicators are not required to articulate individually how they considered each medical opinion when a medical source provides multiple opinions. 20 C.F.R. §§ 404.920c(b)(1) & 416.1520c(b)(2). Nor are adjudicators required to explain how they considered the other factors besides consistency and supportability when they articulate their consideration of medical opinions. 20 C.F.R. §§ 1520c(b)(2) & 416.920c(b)(2). Those other factors, including relationship with claimant, must be articulated only if there are two or more conflicting but equally persuasive medical findings on the same issue that are equally well-supported and consistent. 20 C.F.R. §§ 404.1520c(b)(3) & 416.920c(b)(3). According to SSA, “it is not administratively feasible for us to articulate how we considered all of the factors for all of the medical opinions and prior administrative findings in all claims.” 82 Fed. Reg. 5856.

Adjudicators will also be relieved of articulating how evidence from nonmedical sources was considered. Adjudicators will have discretion as whether they even have to discuss such opinions. 20 C.F.R. §§ 404.1520c(d) & 416.920c(d). Nonmedical sources include the claimant, educational personnel, social welfare agency personnel, and family members, caregivers, friend, neighbors, employers, and clergy. 20 C.F.R. §§ 404.1502 & 416.902. SSA did acknowledge in response to comments, however, that these nonmedical source “can provide helpful longitudinal evidence about how an impairment affects a person's functional abilities and limitations on a daily basis,” especially in claims for child disability. 82 Fed. Reg. 5851. It refused, however, to give controlling or other weight to opinions from teachers. 82 Fed. Reg. 5858. But as noted above, claims filed before March 27, 2017, will be reviewed under the revised 20 C.F.R. §§ 404.1527(f) & 416.927(f). The new subsection incorporated the factors from the now rescinded SSR 06-3p for evaluating evidence from nonmedical sources.

Additions to List of Acceptable Medical Sources
 
In addition to these major changes on how opinion evidence is evaluated, the regulations revise and reorganize other existing regulations and Social Security Rulings (SSRs). As noted above, SSA has revised the rules for determining acceptable medical sources, now including nurse practitioners (Licensed Advance Practice Registered Nurses) and physician assistants, as well as audiologists. 20 C.F.R. §§ 404.1502 & 416.902.

Objective Medical Evidence

Objective medical evidence now includes signs or laboratory findings, or both, rather than the current signs and laboratory findings. 20 C.F.R. §§ 404.1502 & 416.902; 20 C.F.R. §§ 404.1513(a)(1) & 416,913(a)(2). Of note, symptoms, diagnoses, and prognoses are not considered opinion evidence, but moved to the category of “other medical evidence.” 20 C.F.R. §§ 404.1513(a)(3) & 416.913(a)(3). Administrative findings of fact and medical opinions from state agency medical and psychological consultants, other than ultimate determinations as to disability, are considered “prior administrative medical findings.” 20 C.F.R. §§ 404.1513(a)(4) & 416.913(a)(4). SSA revised its proposed regulations to clarify that this term refers only to prior findings in a current claim. “These final rules do not affect our current policies about res judicata” effects of findings from earlier, separate claims. 82 Fed. Reg. 5852. Prior findings from current claims are considered under the same factors used to consider other medical opinions discussed above. New 20 C.F.R. §§ 404.1513a(b) & 416.913a(b) provide that evidence from state agency medical or psychological consultants must be considered by Administrative Law Judges (ALJ) under the opinion regulations discussed above, but ALJs are not required to adopt any prior administrative findings. See also 20 C.F.R. §§ 404.1520b(c)(2) & 416.920b(c)(2).

Decisions of Other Governmental Agencies

The new regulations rescind the provisions of SSR 06-3p related to decisions by other agencies. Decisions by other governmental agencies and nongovernmental entities are specifically categorized as “evidence that is inherently neither valuable nor persuasive.” 20 C.F.R. §§ 404.1520b(c) & 416.920b(c). See also 20 C.F.R. §§404.1504 & 416.904. SSA addressed this issue extensively in the Preamble to the September Notice of Proposed Rule Making (NPRM) and in discussing the comments. Of note, two commenter questioned whether such decisions would have to be submitted under the “all evidence rules” at 20 C.F.R. §§ 404.1512(a) & 416.912(a). SSA “clarified” this issue, responding that the decision “may not relate to whether or not an individual is blind or disabled under our rules.” Adjudicators nevertheless will consider the relevant underlying supporting evidence. 82 Fed. Reg. 5849.

Other Inherently Non-persuasive Evidence

Other evidence inherently neither valuable nor persuasive includes statement reserved to the Commissioner. 20 C.F.R. §§ 404.1520b(c)(3) & 416.920b(c)(3). This includes statements that (i) a claimant is disabled or unable to work, (ii) has a severe impairment, (iii) satisfies the durational requirement, or (iv) meets or equals a listing; (v) define residual functional capacity (RFC) in SSA programmatic terms, (vi) RFC prevents the claimant from returning to past relevant work, or (vii) claimant does nor does not meet the requirements of the Medical-Vocational Guidelines.

Medical Determinable Impairments (MDI)

An MDI can only be established by objective medical evidence from an acceptable medical source (AMS). 20 C.F.R. §§ 404.1521 & 416.921. SSA has “clarified” that a medically determinable impairment (MDI) cannot be established by symptoms, diagnoses, or medical opinions. According to SSA in its Preamble to the NPRM, a diagnosis is not always reliable “because sometimes medical sources diagnose individuals without using objective medical evidence.” 81 Fed. Reg. 62567.

Medical and Psychological Consultants

SSA amended several rules to conform to the Balanced Budget Amendment (BBA), which requires that medical consultants who review claims must be licensed physicians or psychologists.

SSRs Rescinded

SSRs 96 -2p, 96-5p, 96-6p, and 06-3p have been rescinded. But SSA plans to publish a new SSR outlining how ALJs and the Appeals Council would obtain evidence to make medical equivalency findings.

Effective Date

As noted above, the regulations become effective on March 27, 2017. [As of the date of publication of this newsletter, it does not appear these regulations will be affected by the new administration’s freeze on new regulations.] But the regulations will only apply to claims filed on or after March 27th, so it may be some time before advocates begin to see their effect at the hearing level.

The current regulations will continue to apply to cases in the administrative pipeline and in U.S. District Court. SSA has, however, amended the current treating source regulations with a change that presumably will also take effect on March 27th but will apply to cases in the pipeline. It has added 20 C.F.R. §§ 404.1527(f) & 416.927(f). According to SSA, these sections incorporate the provisions of SSR 06-3p, which will be rescinded on March 27th. 82 Fed. Reg 5844. The new sections will govern the evaluation of evidence from non-acceptable medical sources and non-medical sources in pending claims. This category will include nurse practitioners and physician assistants, who will be considered “acceptable medical sources” only in claims filed on or after March 27, 2017.

- Reprinted with the permission of the Empire Justice Center, with authors Catherine (Kate) Callery & Louise Tarantino.

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TBA Convention in Kingsport is Just Around the Corner

Registration is open for the 2017 TBA Annual Convention. This years programming offers plenty of opportunities to make new friends and renew acquaintances with colleagues from across the state. The highlight comes Thursday night with the Kingsport Karnival at the downtown Farmers Market. Along with fabulous food and drink, there will be live music from two bands, an aerialist, juggler, magician, body and face painters, caricaturist and more. Plus, you'll have access to the fabulous Kingsport Carousel, the delightful project of community artisans. Special thanks to Eastman for support of this event! 

This years convention also offers 12 hours of CLE programming, highlighted by sessions on the Hatfields and McCoys, The Neuroscience of Decision-Making, and the popular Better Right Now wellness program. It is all set at the beautiful MeadowView Marriott Conference Resort & Convention Center. To receive the TBA $129 room rate, you must book your reservation by May 23. Book your room online now or call 423-578-6600.

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ABA Launches Study of LGBT, Disability Bias

The American Bar Association has launched a nationwide study of biases encountered by LGBT and disabled lawyers in the profession, the ABA Journal reports. The study, a part of the ABA Pathway to the Profession Project, will help develop strategies to fight biases. Statistics from the National Association for Law Placement show differences in employment for LGBT and disabled lawyers, including that LGBT attorneys are more likely to work for public interest groups rather than firms, and that disabled lawyers were less likely to be employed that other law graduates.
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Case Law Update in Disability Law Forum

This year's Disability Law Forum will provide a full day of essential and useful material applicable to disability law. Laura Chastain, ethics counsel with the Tennessee Board of Professional Responsibility, will present an update on ethics. Further sessions will include updates on 6th Circuit Social Security Case Law and will address the new mental health regulations effective in January 2017. Join other practitioners on April 21 for these updates and more.

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CLE Outlines How to Change Your Practice to Meet Market Demands

The fourth and final CLE in the “Modern Law Practice Series” will explore emerging trends in the delivery of legal services and how focusing on consumer behavior could benefit your law firm. This session will examine the ways in which consumer-facing companies like Avvo and LegalZoom have capitalized on tailoring services to the needs of the modern legal client and how you can adjust your practice to meet those same demands. The program will be held April 13, and will be available in person and on-demand.

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Lawyer Says She Was Asked to Resign Over Disability Suit; Is Courthouse Accessibility an Issue?

For some lawyers with disabilities, it can be difficult to get to court and to present arguments before judges, according to two lawyers who are raising concerns in a New York Times op-ed and a lawsuit.

One lawyer, Diana Lewis, outlined the difficulties in a lawsuit that claims she was asked to resign from the Bronx District Attorney’s office because she joined a class action lawsuit over handicapped access to courthouses, report DNAInfo and the New York Post. Read more from the ABA Journal

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Lawsuit Raises Questions About Accommodating Disabled Lawyers

A lawsuit and a recent New York Times op-ed shine a light on the difficulties lawyers with disabilities face, the ABA Journal reports. Attorney Diana Lewis filed a suit after she claims she was forced to resign from the Bronx DA’s office for joining a class action lawsuit about handicapped access to courthouses. When she started using a wheelchair after an accident, she struggled to move between court buildings, one of which had a lone, unsafe access ramp. Op-ed author Carol Steinberg explains more of the difficulties, such as arguing before a judge who sits six feet up while she is in a wheelchair.
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Lawsuit Raises Questions About Accommodating Disabled Lawyers

A lawsuit and a recent New York Times op-ed shine a light on the difficulties lawyers with disabilities face, the ABA Journal reports. Attorney Diana Lewis filed a suit after she claims she was forced to resign from the Bronx DA’s office for joining a class action lawsuit about handicapped access to courthouses. When she started using a wheelchair after an accident, she struggled to move between court buildings, one of which had a lone, unsafe access ramp. Op-ed author Carol Steinberg explains more of the difficulties, such as arguing before a judge who sits six feet up while she is in a wheelchair.
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SCOTUS Rules in Favor of Disabled Girl and Service Dog

The U.S. Supreme Court ruled unanimously yesterday that the family of a Michigan girl with cerebral palsy can sue the girl’s school for banning her service dog, the ABA Journal reports. The court ruled that the family was not required to exhaust administrative remedies under the Individuals with Disabilities Education Act before filing a disabilities suit. The school banned the dog in 2009.
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SCOTUS Rules in Favor of Disabled Girl and Service Dog

The U.S. Supreme Court ruled unanimously yesterday that the family of a Michigan girl with cerebral palsy can sue the girl’s school for banning her service dog, the ABA Journal reports. The court ruled that the family was not required to exhaust administrative remedies under the Individuals with Disabilities Education Act before filing a disabilities suit. The school banned the dog in 2009.
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TBA Mashup and Mini Legal Hackathon this Friday

In conjunction with the Law Tech UnConference CLE this Friday, the TBA is also offering a variety of free events and programs for lawyers we’re calling a Mashup. One program will teach you about Legal Hackathons and see one in action. A Legal Hackathon is a collaborative effort of experts in the legal profession collaborating with a computer programmer to find a technology assisted solution to a problem in the legal industry. Join the TBA Special Committee on the Evolving Legal Market for a mini legal hackathon that will demonstrate the power of collaborative minds at work. We will have tasty beverages and snacks to help you get your collaborative juices flowing.  
 
Other programs that will be a part of the Mashup include Pro Bono In Action which will show you various pro bono programs you can participate in to help your fellow Tennesseans and Member Benefit Programs that will provide you information on  Fastcase 7, health insurance options for small firms, ABA retirement funds and professional liability insurance.
 
Please sign up now to let us know you are coming.

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Court Weighs Education Benefits for Disabled Students

The U.S. Supreme Court on Wednesday seemed willing to put more teeth into a law that requires public schools to help learning-disabled students, the Associated Press reports. Most of the justices indicated that school districts must offer more than the bare minimum of services to children with special needs. But they struggled over how to clarify the law without inviting more litigation between frustrated parents and cash-strapped schools. The court is considering an appeal from the parents of an autistic teen who say his public school did not provide sufficient services and are seeking reimbursement for the costs of sending him to a private school.

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Student Loans and Social Security

On December 19, 2016, the Government Accountability Office (GAO) issued a surprising report that many older Americans on Social Security retirement, survivors or disability benefits are receiving income below the poverty level because their benefits are being garnished to pay off old student loan debt. These loans were often taken out decades ago by people seeking mid-career training to better themselves or help pay for children’s education. While the amount seized in 2016 is relatively small – less than 10 percent of the total income seized annually on defaulted loans — the number of older Americans whose Social Security income has been seized to pay student debt is skyrocketing and expected to increase.  According to Consumer Reports, approximately 7 million Americans over 50 have student loan debt. About 114,000 Americans had their Social Security income seized in 2015 to pay delinquent student loan debt, up 440% from 2002 and up 540% for people over 65.

The highlights of that report show that “Older borrowers (age 50 and older) who default on federal student loans and must repay that debt with a portion of their Social Security benefits often have held their loans for decades and had about 15 percent of their benefit payment withheld. This withholding is called an offset. GAO's analysis of characteristics of student loan debt using data from the Departments of Education (Education), Treasury, and the Social Security Administration (SSA) from fiscal years 2001-2015 showed that for older borrowers subject to offset for the first time, about 43 percent had held their student loans for 20 years or more. In addition, three-quarters of these older borrowers had taken loans only for their own education, and most owed less than $10,000 at the time of their initial offset ... Almost half of the older borrowers were subject to the maximum possible reduction, equivalent to 15 percent of their Social Security benefit. In fiscal year 2015, more than half of the almost 114,000 older borrowers who had such offsets were receiving Social Security disability benefits rather than Social Security retirement income.” Even more discouraging, nearly ¾ of the offset collected went to fees and interest instead of to reducing the principal owed (some loan balances actually increased while in offset).

Offset pushes many older borrowers into poverty. “ Specifically, many older borrowers subject to offset have their Social Security benefits reduced below the federal poverty guideline because the threshold to protect benefits — implemented by regulation in 1998 ($750 per month) — is not adjusted for costs of living. In addition, borrowers who have a total and permanent disability may be eligible for a [Total and Permanent Disability Discharge known as a] TPD discharge, but they must comply with annual documentation requirements that are not clearly and prominently stated. If annual documentation to verify income is not submitted, a loan initially approved for a discharge can be reinstated and offsets resume.”  http://www.gao.gov/products/GAO-17-45

Social Security recipients have some options to seek relief from offset of benefits to pay student loan debt but the process is often difficult.  Those options, which don’t apply to private student loan debt, are

  • Applying for a TPD discharge (caveat:  the amount discharged is taxable income)
  • Applying for a suspension or reduction of garnishment due to financial hardship
  • Converting the defaulted federal loan into a federal consolidation loan with an option of an income-based, more manageable repayment plan
  • “Rehabilitating” the loan by working out a lower monthly payment plan with the Department of Education.

The GAO report also recommended some longer term solutions.  More information about these options and recommended longer term solutions where seizure of Social Security income for student loan repayment pushes senior and/or disabled citizens into poverty will be in my next article. 

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Services Friday, Saturday for Memphis Lawyer

Memphis lawyer Thomas Robinson James died Jan. 1 at the age of 87. A 1952 graduate of Vanderbilt University Law School, James joined with his brother-in-law and a classmate to form the law firm of Adams, James & Weldon and practiced there for 20 years. He later created the firm of James, Ray & McEvoy and then served for many years with the law firm of Walt, Dyer & James. Father to a daughter with special needs, James worked locally and at the state level to enhance opportunities for the disabled, including pushing a law mandating an education for every child. Visitation will be Friday from 5 to 7 p.m. at Memorial Park Funeral Home. A burial mass will be Saturday at 1 p.m. at St. Louis Catholic Church. Donations may be made to the disability support group SRVS or Christian Brothers High School. The Commercial Appeal has more on his life.

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Have You Heard About the TBA Mashup?

Interested in observing a legal hackathon or getting a hands-on demonstration of the new Fastcase 7 platform? Both will be part of the first TBA Mashup, a full-day of activities and free programming set for Feb. 17 at the Tennessee Bar Center in conjunction with the annual TBA Law Tech UnConference CLE program.

In addition to the hackathon and Fastcase 7 demo, the TBA Mashup will feature sessions on: 

  • Current State of Health Insurance for the Small Firms
  • Professional Liability Insurance - What to look for in YOUR Policy
  • A Demo of Fastcase TopForm, a powerful bankruptcy filing software
  • Retirement Planning Guidance from the ABA Retirement Funds
  • Pro Bono in Action: How to help with pro bono events and how to take part in online options

At the annual TBA Law Tech UnConference CLE program, you can take as many or as few hours as you need. Registration will be open all day. Payment will be determined at checkout based on the hours you need. Topics will include: 

  • Bill & Phil Tech Show
  • Ethical Considerations for Cyber Security in Law
  • Evolution of the Legal Marketplace
  • Making e-Discovery Affordable 
  • Drone Law
  • Encryption for Lawyers

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Turn Your Expertise into a Magazine Article

It’s no surprise that some of the best articles in the Tennessee Bar Journal have come from TBA section members. Your membership in this section shows that you have a keen interest in trends, developments and case law in this practice area. Sharing this knowledge with your colleagues is one of the best traits of the profession.
 
How can you become a Journal author? Think of and refine your topic. It should be of interest to Tennessee lawyers, which is a broad criteria. This could mean you might explain a new state law, explain a complicated area of law, or take a larger issue and connect it to what it means for Tennessee attorneys and the justice system. Find a global issue within your particular experience or knowledge and tell about it and how it affects Tennessee law. Then take a look at the writer’s guidelines, which will tell you about length, notes and other details. Once it’s in the proper format, send it in! It goes to the editor, Suzanne Craig Robertson, who will then get it to the seven members of the Editorial Board for review.
 
If you are published, you may apply for CLE credit for your work under Supreme Court Rule 21 Section 4.07(b). For details on claiming the credit, check with the Tennessee Commission on Continuing Legal Education or access an Affidavit of Sole Authorship or an Affidavit of Joint Authorship from the Commission's website.

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TBA Activates Disaster Legal Assistance for Wildfires

In response to the wildfire disasters in Gatlinburg and Sevier County, the TBA is partnering with the Tennessee Alliance for Legal Services (TALS), Legal Aid of East Tennessee (LAET) and the Supreme Court's Access to Justice Commission to help those affected with their legal needs. Attorneys who want to help can access training resources and other materials on the TBA's Disaster Legal Assistance page. Legal clinics and outreach related to losses from the fires are anticipated and volunteers will be needed. For more information or to volunteer in the area, contact Kathryn Ellis at Legal Aid of East Tennessee. Those who are not in the area but still want to help can volunteer to answer online questions at TN Free Legal Answers or respond to calls on the HELP4TN helpline. The TBA's Young Lawyers Division Disaster Relief Committee has also been activated and will be assisting with volunteer recruitment and coordination efforts. To volunteer, complete the Disaster Legal Assistance Volunteer Form. If you know someone in need of legal assistance, please have them call the legal helpline at 844-HELP4TN, or visit help4tn.org.

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Disability Rights Group Seeking Attorney

Disability Rights Tennessee is seeking an attorney to provide legal advice to agency management, staff and clients. The position also will be responsbile for developing content for publications, assist with fundraising activities, provide information to governmental entities, and develop and conduct training programs for staff, clients and other organizations. Candidates must have a law degree and at least five years of litigation experience. Experience in systemic impact or civil rights cases is preferred. DRT will consider either part-time or full-time employment for this position. Download a job description or apply for the position on TBA’s JobLink.

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Disability Rights Group Presents Freedom Awards

Disability Rights Tennessee awarded its 2016 Freedom Awards at the Third Annual Disability Employment Awareness Luncheon last week in Nashville. Joey Hassell, an assistant commissioner for special populations in the Tennessee Department of Education, was recognized for implementing a holistic approach to aligning services for all students. Martie Lafferty was honored for 13 years of service with DRT, including her work as the organization's legal director. During her time with the organization, Lafferty won cases that granted access to Tennessee courts and Medicaid waiver services for thousands and ensured equal access to health care for Tennesseans who are deaf and hard of hearing. Lafferty is now a litigator at the Washington, D.C., civil rights firm Stein & Vargas.

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