News

Applications for TBA Public Service Academy Due July 31

The application period for the TBA’s first-ever Public Service Academy is approaching the deadline, but there’s still time to apply. Visit tbapsa.org to complete the application and submit your resume to TBA staff coordinator Katharine Heriges at kheriges@tnbar.org by July 31. The program will take place over the weekends of Oct. 12-13 and Nov. 9-10 in Nashville. Attorneys of all ages, backgrounds and political affiliations are welcome to apply.
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Trump Administration Freezes Affordable Care Act Payments

In a surprise move on Saturday, the Trump administration announced that it will be temporarily halting billions of dollars of “risk adjustment” payments, designed to help insurers meet the Affordable Care Act requirement of providing coverage regardless of whether a person is healthy or sick, reports NPR. The program assists in determining risk for insurers, transferring funds from those who enroll healthier members for relatively less, to those that take on higher costs to enroll sicker members, insulating insurance companies from the cost of enrolling people with pre-existing conditions. Some critics fear that the recent action could spur a spike in insurance premiums for 2019.

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Schedule Time to Read Email

A tip from the TBA Attorney Well-Being Committee

Rather than checking on every e-mail as it arrives, schedule time in your calendar for reading and managing e-mail (and leave e-mail notifications silent during the other times of the day). This will enable you to have focused time for given tasks without constant interruption and distraction.
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This Week: CLE Federal Practice Seminar 2018

On July 19, the annual Federal Practice Seminar will be held at the The Tennessee Bar Center. Highlights of this year’s CLE include best practices for presenting a case in federal court, analysis of key Local Rules for the three federal districts in Tennessee, best practices for e-discovery, and an update on Federal Probation Office policies and procedures. 
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Nursing Home Chain Settles in Columbia Medicare Fraud Case

Two former occupational therapists at a Columbia nursing home were whistleblowers in a Medicare fraud case that was settled this month for $30 million, The Columbia Daily Herald reports. Kristi Emerson and LeeAnn Holt tipped-off the U.S. Health and Human Services Department, providing documentation that showed the company pressured employees to perform unneeded therapy and manipulated therapist schedules to maximize profit. You can view the complaint here.

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Judge Tosses Kansas' Proof-of-Citizenship Voter Law, Rules that Attorney Must Take Extra CLE

A federal judge on Monday decided that Kansas cannot require people to prove their U.S. citizenship before they can vote, ruling the state's election law is unconstitutional, reports NPR. Chief District Judge Julie A. Robinson blasted Kansas Secretary of State Kris Kobach — who led President Trump's voter fraud commission — over disclosure violations, stating the violations “document a pattern and practice by [Kobach] of flaunting disclosure and discovery rules that are designed to prevent prejudice and surprise at trial.” Kobach was ordered by the judge to take continuing legal education classes on the rules of evidence or procedure in addition to any other CLE education required by his law license. Kobach is running for governor of Kansas, reportedly locked in a tight Republican primary race against the incumbent. You can read the full opinion here.

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SCOTUS Passes on Partisan Gerrymandering Cases

The U.S. Supreme Court has sent back two cases to lower courts that would have blocked states from drawing hyper-partisan electoral maps, USA Today reports. The justices found procedural faults in the two cases, one brought by Republicans in Maryland and the other brought by Democrats in Wisconsin. Chief Justice John Roberts said in one opinion that the case was flawed because it was about group political interests instead of individual legal rights. Justice Elena Kagan wrote that she anticipates the issue to come before the court again.
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A Wellness Tip from the Attorney Well-Being Committee

Consider waking 10 minutes earlier so you can incorporate a brief mindfulness meditation into your preparations for the day. Set a timer for 3-10 minutes (depending on how much time you feel you want to use). Begin by sitting in a relaxed and comfortable but dignified and upright position, with your spine and head aligned. Place both feet on the ground, with legs uncrossed, and rest your hands gently on your lap. Gently close your eyes and allow yourself to notice the sensation of sitting in the chair, of your feet on the ground, of your hands resting in your lap.

Gently bring your attention to your breath, slowly taking a deep breath in, pausing briefly, then slowly exhaling. Now repeat this twice and as you do so, observe your breath as it goes in your nostrils and as it exits your nostrils. Sense the flow of air as it moves in and out, and the space between breaths. You may notice the air feels cool as you inhale, but warmer as you exhale.

Return to your normal breathing. Don’t try to change your breath, just continue to observe it, with a sense of curiosity. Allow yourself to feel your body relax and yield to gravity as you sit quietly in your chair, focusing on your breath. Notice any tense areas in your body and with your next breath, imagine it as a cool breeze touching those areas holding tension and as you exhale, release the tension along with the breath. Continue observing your breath.

When thoughts or concerns arise – as they inevitably will – simply acknowledge their presence, without judgment or opinion, and let them pass by while you gently bring your attention back to your breath. There is no need to grab hold of any thought right now -- just allow your breath to guide you back to the present moment.

Our minds will wander, as intrusive thoughts are constantly vying for our attention. When you realize this has happened, simply observe without judgment and gently guide your attention back to your breath. You might find it helpful to label the thought – “worry” “laundry” “clients” – then let it go and return to your breath. Although thoughts and feelings will come and go in the background, you can prevent them from highjacking your attention by simply acknowledging them without judgment, then gently returning to the breath and this present moment.

Julie Sandine is a graduate of Wake Forest School of Law. She serves as the Chair of the TBA Attorney Well-Being Committee.

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Antitrust Regulators Focus on Real Estate Data

The real estate sector is getting fresh scrutiny from U.S. antitrust regulators regarding a proposed centralized system, known as Upstream, that is designed to offer a single point of entry for inputting, managing, and distributing listings at the brokerage level, Bloomberg Law reports. The centralized system has been backed by The National Association of Realtors (NAR). Critics — including Trulia and Zillow — argue the project has the potential to impede competition in the market by placing a large share of valuable real estate data in the hands of one entity controlled by NAR and large brokerages. NAR settled with the U.S. Department of Justice in 2008 on similar issues.

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Trump Administration Unveils Medicaid Scorecard

The Trump Administration on Monday unveiled its initial version of a “scorecard” that compiles and publicizes data from states for both Medicaid and the Children’s Health Insurance Program (CHIP), The Washington Post reports. The scorecard will make public government measures of performance such as how long both state and federal health officials take when states request “waivers” to deviate from Medicaid’s ordinary rules and detailed, state-by-state averages on specific demographics and procedures/benefits utilized. The scorecard’s initial information is based on states that voluntarily report a series of measures about the health of their Medicaid and CHIP enrollees. You can view more information on the scorecard here

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Several States to Issue Waivers on Work Requirements for Medicaid Recipients

As more states impose mandatory work requirements on their Medicaid programs, some have come under fire for policies that would protect many rural residents from the impact of the new rules, Business Insider reports. In Kentucky, Michigan and Ohio, the waiver proposals would exempt the counties with the highest unemployment rates, which critics argue skew towards white, GOP-leaning residents. Some health law experts say the waivers — already approved for Kentucky, pending for Ohio, and advancing in Michigan — may violate Title 6 of Civil Rights Act of 1964, which prohibits race-based discrimination in federal assistance programs. The waiver in Kentucky, the first state to approve the work requirements, will exempt eight counties where the percentage of white residents is over 90 percent. Tennessee's work requirement bill for TennCare recipients, HB1551/SB1728, was signed into law on May 3.

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U.S. Department of Labor Cites Contractor, Staffing Agency Following Fatal Trench Collapse

OSHA has proposed penalties totaling $152,618 against a construction company and a staffing agency after a trench collapse killed a temporary employee installing sewer lines, according to a press release on the agency's website. Regulators issued willful and serious citations to All Power Construction Corp. for allowing employees to work in a trench without cave-in protection, failing to provide a safe means to enter and exit the trench, and not having a competent person inspect the trench to identify potential hazards. The temporary employer, Labor Finders of Tennessee, was cited for not ensuring that employees were trained on trenching and excavation hazards. The companies have 15 business days from receipt of their citations and proposed penalties to comply, request an informal conference with OSHA's area director, or contest the findings before the independent Occupational Safety and Health Review Commission.

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Share Your Thoughts on Proposed Amendments to Tennessee Supreme Court Rule 6

The Supreme Court recently requested comment on proposed amendments to TSC Rule 6 that would require new attorneys to complete a Tennessee Law Course within one year of admission to the Tennessee bar. The Tennessee Bar Association has a working group on this issue and will be drafting comments in response to the court's Order for Comment. To ensure this comment best reflects members’ views and positions, the groups is looking for your feedback. Share your thoughts about the proposed amendments through this form by June 8.
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    May 23 Last Day to Book Hotel for TBA Convention

    Time’s running out to book your stay at The Peabody Hotel for the 2018 TBA Convention in Memphis, June 13-16. The last day to reserve a room at the TBA discounted rate is May 23. Don’t miss out on our Bench/Bar CLE, the gubernatorial forum, attorney well-being program or the Ducks! Make your reservation by calling the Peabody’s Reservation Department at 800-Peabody.
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    Supreme Court Seeking Comments for Changes to Rule 25

    The Tennessee Lawyers’ Fund for Client Protection has filed a petition to amend Tennessee Supreme Court Rule 25, and the court is soliciting written comments from the public and the legal community. The deadline for submitting written comments is July 9. Written comments may be e-mailed to appellatecourtclerk@tncourts.gov or mailed to: James M. Hivner, Clerk, Re: Supreme Court Rule 46 Tennessee Appellate Courts 100 Supreme Court Building 401 7th Avenue North Nashville, TN 37219-1407. Read the petition and exhibits here.
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    USPTO Proposes Changes to the Claim Construction Standard

    The United States Patent and Trademark Office (USPTO) on Tuesday released a short “Notice of proposed rulemaking” entitled “Changes to the Claim Construction Standard for Interpreting Claims in Trial Proceedings Before the Patent Trial and Appeal Board,” The National Law Review reports. The notice would replace the interpretation standard for construing unexpired patent claims that are used by the Patent Trial and Appeal Board in intellectual property rights, post-grant review and the transitional program for covered business method patents, with the Phillips Standard used by district courts. 

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    Understanding Workplace Experiences of Legal Professionals: Project Survey

    The American Bar Association is launching a nationwide study, conducted by the Burton Blatt Institute at Syracuse University, to identify the biases encountered by LGBT and/or lawyers with disabilities and to help develop and implement strategies to ameliorate such biases. Taking this brief survey will assist the ABA in its goal to generate a positive impact on the legal profession and on the lives and careers of LGBT lawyers and/or lawyers with disabilities. Thanks for your help with this endeavor. 

    TAKE THE SURVEY

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    Work-site Accidents: Use of Sub-Subcontractors Makes it Hard to Fix Liability

    A labor shortage has led to a fracturing of work sites, where subcontractors can’t complete projects with their normal crews, so they hire small "subs of subs" below them, The Tennessean reports. Some of these workers are sent onto scaffolding and roofs without safety equipment or training. Federal law places primary safety responsibility on the direct employer, however, experts say many companies pay construction workers as independent contractors, avoiding certain regulations. More construction workers died in the Nashville metro area in 2016 and 2017 compared with any two-year stretch in the previous three decades. Most of the 16 deaths were from falls without any harnesses or other protection.
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    UAPA Appeals Bill Passes Through Legislature

    The House and Senate have passed legislation providing that the venue for appeals of contested case hearings under the Uniform Administrative Procedures Act will be in the Chancery Court nearest the place of residence of the person contesting the agency action or alternatively, at the person’s discretion, in the Chancery Court nearest to the place where the cause of action arose, or in the Chancery Court of Davidson County. The venue for appeals involving TennCare will continue to be in Davidson County. Sponsored by Senator Mike Bell and Rep. Martin Daniel, the bills (SB2603/HB2386) have been sent to the Speakers for signature. 
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    SURVEY: Proposed Amendment to Supreme Court Rule 31, Relative to Alternative Dispute Resolution

    As you may know, the Supreme Court issued a notice requesting comment on amendments to TSC Rule 31. The Tennessee Bar Association will be filing a comment in response to the proposed amendments and we need your help in drafting our response to ensure that it best reflects our members’ views and positions. Completing this brief survey will assist us in determining specific sections' positions on the proposed changes. After completion, the survey will be sent to your section's executive council, who will review the received responses, determine the section's position and relay the final comments to the TBA.
      
    The TBA has generally summarized the proposed changes, but please read the order and proposed amendments, which are provided below, for more detailed information. Please provide your responses by Monday, April 30. Thanks for your help in this endeavor.

    TAKE THE SURVEY

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    Tennessee Supreme Court Denies Anti-Discrimination Rule Change Proposal

    After receiving more than 400 pages of public comment from members of the public and the legal community, the Tennessee Supreme Court has denied a proposed change to Rule 8.4, which would have prohibited discrimination and harassment by attorneys in relation to the practice of law. The request for adoption was made by the Tennessee Board of Professional Responsibility and the Tennessee Bar Association last November, with comments solicited on November 21.

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    Tennessee’s ‘Fresh Start Act’ Signed into Law

    Last Friday, Gov. Bill Haslam signed Tennessee SB2465, relative to occupational licenses, into law. The bill, known as the "Fresh Start Act," creates a uniform process that all licensing authorities must follow and requires that denials and refusals to renew occupational and professional licenses based on a criminal conviction must only occur when the offense relates to the offender's ability to perform the occupation or profession. This bill Amends TCA Title 62, Chapter 76, Part 1 and Title 63, Chapter 1.

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    Supreme Court Case to Determine Constitutionality of Administrative Law Judge Appointments

    The U.S. Supreme Court on April 23 will hear arguments in Lucia v. Securities and Exchange Commission (SEC), a case that could potentially have a big impact on administrative agencies, The National Law Review reports. In this case, the court will consider arguments – including those from the U.S. Solicitor General – that the way that the SEC’s administrative law judges (ALJs) are appointed violates the U.S. Constitution’s Appointments Clause
     
    SEC ALJs are hired through the government’s civil service process and are not treated as “inferior officers” who are appointed pursuant to the Appointments Clause. Lucia asks whether hiring ALJs this way violates the Appointments Clause, because they have all the hallmarks of an “inferior officer” under Supreme Court precedent, an argument that failed to convince the D.C. Circuit Court. There the SEC argued successfully that its ALJs were not “inferior officers” because they did not issue “final” decisions and did not exercise “significant authority” under federal law.
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    D.C. Lawmakers Move to Undo Estate-tax Break

    The recent overhaul of the federal tax code that doubled the exemption from the estate tax, erasing the tax liability for individuals with estates worth less than roughly $11 million is being challenged by Democratic on the Washington, D.C., council, The Washington Post reports. Their proposal, supported by a majority of D.C. council members, would cut in half the estate-tax exemption in the nation’s capital, to $5.6 million. 
     
    The District had loosened its estate-tax exemption as part of wide-ranging tax cuts enacted in 2014. The cuts, funded by excess revenue, were intended to make the District more economically competitive with Maryland and Virginia. Under the new proposal, about $2.5 million of the resulting revenue would go to housing for victims of domestic violence, $1.5 million would be spent on housing vouchers and $1.25 million on education. An additional $500,000 would go to a program that helps poor families buy produce at farmers markets.
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    Lawsuit Involving Construction of Oak Ridge Uranium Processing Facility Moved to Knoxville

    A federal lawsuit that asks for an environmental review of the new multi-building design for the Uranium Processing Facility (UPF) at the Y-12 National Security Complex has been transferred from Washington, D.C., to Knoxville, reports Oak Ridge Today. The transfer was requested in September by the defendants, U.S. Energy Secretary James Richard “Rick” Perry and Frank G. Klotz, former administrator of the National Nuclear Security Administration, an agency within the U.S. Department of Energy that manages nuclear weapons programs and facilities. United States District Judge Dabney L. Friedrich, who was assigned the case in December, granted the motion to transfer the lawsuit from the District of Columbia to U.S. District Court for the Eastern District of Tennessee on March 23.
     
    The complaint argues that a new environmental impact statement should be prepared for the new design for the UPF, the largest federal construction project in Tennessee since World War II. The plaintiffs allege that the use of several old buildings at Y-12 to house nuclear weapons work is risky because the old buildings could collapse during a major earthquake, possibly leading to a nuclear accident that could cause the release of radiological materials. Federal officials denied that allegation and others in a 29-page answer filed Sept. 29, 2017, calling the allegations vague, ambiguous or speculative, adding that safety and technical analyses are underway at Y-12.
     
    The plaintiffs previously listed the reasons for filing their complaint in the District of Columbia, citing the fact that multi-building UPF was made by a federal agency in the Washington, D.C., area; the named defendants are (or were) located there; and the information that the NNSA allegedly failed to consider originated in other federal agencies in the nation’s capital. The plaintiffs also said the important issues raised in the litigation — issues regarding the safety of the nation’s nuclear weapons program are “issues of overriding national significance and interest,” which favored keeping the case in Washington, D.C.
     
    The defendants, however, asked to move the lawsuit to East Tennessee stating, “This question should be decided in the Eastern District of Tennessee, where the Y-12 Complex is located,” a September 28 memorandum supporting its motion to transfer. “The matters at issue, in this case, are local at every turn,” the government attorneys said.
     
    Granting the motion to transfer, Friedrich said private and public interest factors both weigh in favor of moving the case to East Tennessee.“There is a substantial local interest in having this action decided in Tennessee,” she said. “The potential health and environmental effects in the locality of the Y-12 Complex and its surrounding areas present unique hazards that gravely impact residents in the Eastern District of Tennessee."
     
    The Y-12 complex was built to enrich uranium for atomic weapons as part of the top-secret Manhattan Project during World War II, and it remains the nation’s primary site for processing and storing highly enriched uranium used in nuclear weapons.
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