Rainey, Kizer, Reviere & Bell P.L.C. Articles RSS Feed

NLRA Posting

Latosha Dexter - noemail@raineykizer.com — Wed, 18 Jan 2012 17:00:00 GMT

Initially scheduled for implementation in November of 2011, the NLRA posting requirement was postponed until January 31, 2012, due to a number of legal challenges. Now at the request of the federal court in Washington, DC, the NLRB has agreed to further postpone the effective date. The new effective date for the NLRA posting requirement is now April 30, 2012.

As of April 30, 2012, all employers subject to the National Labor Relations Act (“NLRA”), which essentially includes all employers other than public-sector employers, must post a mandatory notice that informs employees of their rights under the NLRA. This notice informs employees of the following: (1) the rights employees have under the NLRA, such as the right to organize or join a union, the right to participate in collective bargaining, the right to take collective action with other employees, and the right not to join a union; (2) employer actions that are illegal under the NLRA; (3) union actions that are illegal under the NLRA; and (4) how to contact the National Labor Relations Board (“NLRB”) to report a union or employer’s violation. Employers may obtain a free copy of the notice on the NLRB’s website or by contacting an NLRB regional office.[1]

Because of the looming legal challenges, RKRB will keep close watch on further developments and take steps to keep you informed.

18-Jan-12 11:00 AM

TENNESSEE LAWFUL EMPLOYMENT ACT

Latosha Dexter - noemail@raineykizer.com — Mon, 09 Jan 2012 20:00:00 GMT

On June 7, 2011, Governor Haslam signed into law the Tennessee Lawful Employment Act (“Act”). This Act requires all employers in the state, both public and private, to provide evidence that they are only hiring and employing persons who are legally in the country. Employers can satisfy the requirements of the Act by performing one of the following:

Enrolling in the E-Verify program and verifying the employment eligibility of all newly hired employees through E-Verify; or
Request from all newly hired employees a copy of one of the following documents:

A valid Tennessee’s driver’s license or photo identification;
A valid driver’s license or photo identification from another state whose license requirements are at least as strict as those in Tennessee;
A birth certificate issued by a U.S. state, jurisdiction, or territory;
A U.S. government-issued birth certificate;
A valid, unexpired U.S. passport;
A U.S. certificate of birth abroad;
A report of birth abroad of a citizen of the U.S.;
A certificate of citizenship;
A certificate of naturalization;
A U.S. citizen identification card; or
Any valid immigrant registration documentation, recognized by the U.S. Department of Homeland Security, that verifies the employee’s legal immigration status.

The Act also applies to independent contractors or other non-employee individuals that an employer pays directly for labor or services. But for these individuals, an employer cannot use E-Verify and instead must request valid documentation from the list above.

Even though the Act allows an employer to choose between using E-Verify or simply requesting documentation, it would be wise for employers to choose E-Verify. Under the Act, if an employer happens to hire an illegal immigrant that E-Verify cleared, then the employer will not be liable under the Act.[1] But an employer is not entitled to this defense if it relies on documentation submitted by the employee. Instead, the employer will have to prove its innocence with other evidence.

These employment verification procedures apply to the following groups of employers on the following dates:

January 1, 2012—governmental entities and private employers with 500 or more employees;
July 1, 2012—private employers with 200 to 499 employees;
January 1, 2013—private employers with 6 to 199 employees.

The Act is unclear as to whether an employer should count only the employees it has that are located in Tennessee or the total number of its employees, regardless of location. But because the law will apply to all employers with 6 or more employees by January 1, 2013, employers with a large number of employees outside of Tennessee should err on the side of caution and implement the Act in accordance with the appropriate phase-in date.

The Act mandates that employers maintain a record of the E-Verify report for 3 years after the date of the employee’s hire or for 1 year after the employee’s employment is terminated, whichever is later. Employers must maintain a copy of any documentation received for 3 years after the documentation is received or for 1 year after the employee’s employment is terminated, whichever is later.

An employer found to be in violation of the Act is subject to the following penalties: (1) a fine of $500 for a first violation, $1,000 for a second violation, and $2,500 for a third or subsequent violation;[2](2) an additional $500, $1,000, or $2,500, depending on whether it is the first, second, or third violation, for each employee not verified under the Act. After a fine is assessed, an employer then has 60 days to submit evidence to the Tennessee Department of Labor and Workforce Development showing that it has remedied the violation and is in compliance with the Act. If the employer does not comply within 60 days, then the employer’s business license will be suspended until the employer remedies the violation. Finally, the Department of Labor and Workforce Development will publicly post the name of any employer found to be in violation of the Act, along with a description of the employer’s violation, on the Department’s website.

[1]. This absolute defense only applies to the Tennessee Lawful Employment Act. It is not an absolute defense to federal immigration laws.

[2]. A warning, instead of a fine, will be issued for a first violation if the Department of Labor and Workforce Development finds that the violation was not a knowing violation and the employer complies with the remedial action the Department requests within 60 days of receiving notice of the violation.

9-Jan-12 2:00 PM

CLEAR AND CONVINCING DRUG TESTS PRESUMPTION

Greg Jordan - noemail@raineykizer.com — Wed, 24 Aug 2011 16:00:00 GMT

On July 1, 2011, Tennessee's workers' compensation drug-free workplace presumption was amended, strengthening the authority of drug testing when denying the compensability of a workers' compensation claim.

The Tennessee Workers' Compensation Act creates a presumption that drugs or alcohol use is the proximate cause of the injury if the injured employee has, at the time of the injury, blood alcohol concentration levels or a positive confirmed drug test as prescribed in the statute. The law originally provided that this presumption could be rebutted by a preponderance of the evidence that the drug or alcohol was not the proximate cause of the injury. On July 1, 2011, an amendment took effect, changing the language requiring "clear and convincing evidence" to rebut the presumption that the intoxication or drug was not the proximate cause of the injury.

What does this mean for Tennessee employers? In other areas of the law where the clear and convincing evidence standard of proof is required, the standard "eliminates any serious or substantial doubt concerning the correctness of the conclusions to be drawn from the evidence." See O'Danielv. Messier, 905 S.W.2 182, 188 (Tenn. Ct. App. 1995). Clear and convincing evidence "produce[s] in the fact finder's mind a firm belief or conviction with regard to the truth of the allegations sought to be established." Id. See also Rettenbach Eng'g Co. v. Gen. Realty, Ltd., 707 S.W.2d 524, 527 (Tenn. Ct. App. 1985).

For example, in Teter v. Republic Parking System, Inc., 181 S.W.3d 330, 341 (Tenn. 2005), the Supreme Court of Tennessee compared and contrasted the clear and convincing evidence standard with the preponderance of the evidence standard. Id. at 333. The case involved a breach of contract suit against a former employer for severance pay allegedly owed under an employment contract. The employer had found after the employee's termination that he had been guilty of gross misconduct while on the job. The trial court granted summary judgment in favor of the plaintiff employee, stating that there was no "clear and convincing evidence" that the employer would have fired him had it known of the alleged misconduct before his termination. The Court of Appeals affirmed. The Tennessee Supreme Court remanded the case for trial, holding that after-acquired evidence of employee misconduct need only be shown by a preponderance of the evidence. In applying the lower standard, the Supreme Court determined there was an issue of material fact as to whether the company would have fired Teter. The Court stated, "Clear and convincing evidence means evidence in which there is no serious or substantial doubt about the correctness of the conclusions to be shown." Id. at 341. The Court found no reason to implement a higher standard of evidence which was only implemented to "promote important public policy and preserve prior judicial orders." Id. at 341.

Moreover, the application of the standard in Walton v. Young, 950 S.W.2d at 960 (Tenn. 1997), involved a blood test confirming that plaintiff, an alleged heir of a decedent in an estate matter, was not the biological child of the decedent. Even though testimony was brought forth to the extent that the plaintiff was told by her mother and her mother's husband, who had been her assumed father, that the decedent was her biological father, the Court found that the clear and convincing evidence required for proof of the biological relationship had not been reached in light of the blood test.

It is clear from this analysis, and the analysis in additional cases where the standard is discussed, that the use of the clear and convincing standard to rebut the authority of a drug test in the context of the presumption in workers' compensation law will require more than the employee bringing forth a few witnesses to say that he was not impaired, or other testimonial evidence to that effect.

The strength of the standard will, as contemplated in Teter, be important in the event of an appeal by an employee whose workers' compensation claims were denied on the authority of this statute, since the clear and convincing standard gives greater weight and strength to the trial court's ultimate decision.

24-Aug-11 11:00 AM

Revisions to Solid Waste Disposal Act

Latosha Dexter - noemail@raineykizer.com — Wed, 24 Aug 2011 15:15:00 GMT

Effective May 25, 2011, the legislature amended the Solid Waste Disposal Act to impose additional requirements on landfill operators. The amendments require any proposed landfill owner to provide notice to persons owning property within a three-mile radius of such landfill at least 15 days in advance of any public hearing scheduled regarding applications for the construction of the proposed landfill by having signs erected on all roads leading directly to the proposed landfill site.

24-Aug-11 10:15 AM

LET’S MAKE IT EASIER: ADA Amendments Act and Regulations

Latosha Dexter - noemail@raineykizer.com — Wed, 24 Aug 2011 15:00:00 GMT

Recently, while preparing materials for a presentation on the ADA Amendments Act and the newly released regulations, I told a colleague that I could merely walk in the room, say “everyone is disabled” and then walk out. That would be the extent of my presentation because as the regulations clearly state: The purpose of the amendments to the Americans with Disabilities Act was to make it easier for employees to come within the Act’s protection. Although the regulations retain the basic definition of disability, it substantially expands the terms necessary to making a determination of whether a disability exists. The final regulations provided nine rules of construction to apply in determining whether a substantial limitation exists:

Substantially limits" is to be construed broadly, to the maximum extent allowable under the law.
"Substantially limits" does not need to prevent or severely or significantly restrict a major life activity; rather, an impairment is a disability if it substantially limits the ability of an individual to perform major life activities as compared to "most people" in the general population.
The determination of whether an impairment substantially limits a major life activity requires individualized assessment; however, such analysis need not and, in fact, should not be extensive.
The individualized assessment to determine if someone is substantially limited should require a degree of functional limitation that is "lower" than the standard prior to the enactment of the ADAAA.
The analysis of whether an individual's performance of a major life activity as compared to most people in the general population usually will not require scientific, medical, or statistical analysis.
With the exception of ordinary eyeglasses or contact lenses, the determination of whether an impairment "substantially limits" a major life activity should be made without regard to the ameliorative effects of mitigating measures, such as medication and assistive devices.
An impairment that is episodic or in remission meets the definition of disability if it would substantially limit a major life activity when active.
An impairment that substantially limits one major life activity need not substantially limit other major life activities in order to be considered substantially limiting.
The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting. Therefore, even conditions of short duration (e.g., a few months) can meet this definition.

In addition to the expansion of “substantially limits” the regulations also expanded the term “major life activity” to include activities such as interacting with others. The ADA statutory amendments previously added “major bodily functions” to the list and the regulations address it further. “Regarded as” has also been broadened and requires no showing of substantial limitation by the employee. The final regulations and Interpretive Guidance make clear that there is no duty to accommodate based on an individual being “regarded as” an individual with a disability. However, the “regarded as” prong is likely to become the main theory for employees as the regulations emphasize that it is the primary method for bringing a claim when an accommodation request is not at issue.

So what does this mean for employers? Basically what I said at the beginning of this article: everyone is disabled. An employer should no longer focus on whether a disability exists because it likely does. The focus should now be on whether the disability needs to be reasonably accommodated and/or whether an employment action is being administered fairly. Employers should review their processes and ensure that they understand how to engage in the interactive process. An employer should have a policy or procedure in place to notify employees of how to make accommodation requests. Human resource professionals and line managers should be trained to recognize accommodation requests and how to respond.

24-Aug-11 10:00 AM

Equal Access to Intrastate Commerce Act

Latosha Dexter - noemail@raineykizer.com — Wed, 24 Aug 2011 15:00:00 GMT

The state legislature has recently imposed limitations on the authority of cities and counties to adopt their own ordinances or resolutions extending nondiscrimination requirements to groups not currently protected by state law. Currently, the Tennessee Human Rights Act (“THRA”) prohibits discrimination against individuals based on their “race, creed, color, religion, sex, age or national origin.” With the passage of the Equal Access to Intrastate Commerce Act, cities and counties are now prohibited from extending nondiscrimination protections or requirements beyond the groups currently protected by the THRA. The prohibition does not apply with respect to employees of a local government. The law, effective May 31, 2011, applies retroactively and repeals an ordinance passed by the Nashville and Davidson Metropolitan Council that prohibited companies doing business with the local government from discrimination in employment based on sexual orientation or gender identity. The state legislature also took the opportunity to clarify the definition of “sex” under state law by affirmatively stating that it refers “only to the designation of an individual person as male or female as indicated on the individual’s birth certificate.”

24-Aug-11 10:00 AM

Tenured Teacher Hearings

Latosha Dexter - noemail@raineykizer.com — Wed, 24 Aug 2011 15:00:00 GMT

As part of Tennessee First to the Top Act of 2010, significant changes were made to the way hearings on tenured teacher disciplinary issues are held. Although a teacher still retains the right to request a hearing after discipline has been issued, the way the hearing is conducted has changed. Previously, a tenured teacher could request a hearing to the board. Now the teacher has 30 days to request a full and complete hearing before an impartial hearing officer selected by the board. This means that boards of education must now select an individual to conduct the hearing who 1) has no history of employment with the board or director of schools, 2) has no relationship with any board member; and 3) no relationship with the teacher or the teacher’s representatives. The legislation also contains specific guidance as to how the pre-hearing and hearing process should occur. For non-tenured teachers, an impartial hearing officer is also required although with less strictures on the hearing process. In light of this new legislation, boards need to review their policies to ensure that they are in compliance. Boards should also consider pre-approving a panel of impartial hearing officers to be used so that board approval is not required for every teacher disciplinary matter. The attorneys at Rainey, Kizer are also available to assist as impartial hearing officers when the need arises.

24-Aug-11 10:00 AM

Tennessee's Subrogation Interest in Personal Injury Cases - Summer 2011

Casey Smith - noemail@raineykizer.com — Tue, 26 Jul 2011 14:00:00 GMT

One of the most recent pieces of legislation changing insurance companies’ obligations has been the implementation of the Medicare, Medicaid and SCHIP Extension Act of 2007. In a nutshell, this Act requires an insurer to protect Medicare’s interest in liability settlements. The Act also requires that an insurer notify Medicare of claims involving a Medicare beneficiary or potentially risk significant penalties. Tennessee has amended Tennessee Code Annotated § 71-5-117, which may have a similar effect on insurance companies at the state level. The amended statute includes language giving the State (or any entity acting on its behalf) a subrogation interest to “all rights of recovery” against any person when the State provides medical assistance for the cost of care or treatment for a recipient in a personal injury case. Once a recipient receives benefits, whether or not the medical assistance was contractual, the State receives an immediate subrogation interest in third party insurance benefits.

A significant aspect of the amendment is the requirement that the plaintiff’s attorney notify the State in writing to determine whether the State holds a subrogation interest in the claimant. The State has 60 days from receipt of the notice to respond by fax or certified mail with either the subrogation interest amount or a notice for additional time to determine the subrogation interest amount. However, in no event is the response time to exceed 120 days. If the State fails to claim a specific number within the period specified, the subrogation is extinguished and disbursements may be made without recourse upon the plaintiff or the plaintiff’s attorney. While the amendment’s plain language does not expressly place any burden on the insurer, it is uncertain if the State will require insurers to comply with the amendment.

Insurers should keep in mind that this statute applies even if no lawsuit has been filed. Insurers can minimize potential exposure by gathering information about the claimant during claim investigation or discovery to determine whether statutory compliance is necessary. Insurers may also require the claimant to notify the State and wait until a response is received as a prerequisite to final settlement. During these difficult economic times, governments are passing legislation to ensure that they recoup expenses used to provide medical benefits to citizens. Insurers can minimize potential exposure by collecting accurate information about claimants and explaining to claimants the necessity of complying with all statutory requirements.

26-Jul-11 9:00 AM

Agents and Insurers Beware! Tennessee Law is Not Always on Your Side - Summer 2011

Casey Smith - noemail@raineykizer.com — Tue, 26 Jul 2011 14:00:00 GMT

In Morrison v. Allen, the Tennessee Supreme Court recently addressed several important issues related to an insurance agent’s duties and potential liabilities. Morrison obtained a term life insurance policy with a two-year incontestability clause, preventing the insurer from denying coverage because of any misrepresentations. Later, Morrison became concerned with his coverage level and met with his insurance agents, who recommended that he maintain his existing policy of $300,000 until acquiring a second policy with higher coverage. One agent prepared the applications and mailed them without further instructions to the insureds, who signed the applications without further review. The insurer issued a policy providing $1 million of coverage on Morrison, who later allowed his first policy to lapse. Two months later, he died from injuries sustained in a single-car accident. The insurer denied the claim because the application improperly failed to disclose Morrison’s conviction of an alcohol-related driving offense.

The plaintiff, Ms. Morrison, sued the insurer and the agents and eventually settled her case against the insurer for $900,000. However, plaintiff proceeded to trial against the agents asserting (1) breach of contract for failure to procure an enforceable policy, (2) negligence, negligent misrepresentation, and breach of fiduciary duty, and (3) violation of the Tennessee Consumer Protection Act (TCPA).The trial court found that the agents breached their contract with the Morrisons by failing to procure an enforceable life insurance policy and awarded damages of $1 million plus pre-judgment interest. The trial court also awarded $300,000 for tort damages, and then doubled the tort award to $600,000 under the TCPA. The Tennessee Supreme Court held:

● If an agent agrees to obtain a policy that becomes contestable due to the agent’s negligent acts or omissions, then the applicant has the same right to recover against the agent for failure to procure as if no policy had ever been issued. Because the agents’ failure to use reasonable diligence resulted in a policy subject to challenge, the court affirmed the breach of contract award of $1 million.

● Agents were not entitled to a $900,000 credit because they could not prove that plaintiff’s settlement with the insurer partially satisfied the breach of contract claim. Plaintiff’s settlement agreement with the insurer released all claims and did not specify that the settlement money was in satisfaction of the breach of contract claim. Additionally, plaintiff did not sue the insurer on breach of contract alone.

● The tort and TCPA awards were improper because plaintiff failed to demonstrate that the agents’ conduct caused the loss of the original $300,000 policy.

TheMorrison case contains several practical lessons for insurers and insurance agents. First, agents can be liable for the full amount of a requested insurance policy if they fail to properly procure it. Thus, agents should try to protect themselves through proper documentation showing compliance with the insured’s instructions and by taking every precaution to correctly and properly complete each application. Second, an insured’s failure to read an application will not automatically insulate agents from liability. Agents should not only instruct applicants to carefully review applications before signing, but also should not knowingly complete applications with incorrect information. Third, agents should always consider existing policies and should discuss the potential consequences of allowing an existing policy to lapse while a more recent policy remains in its contestability period. Finally, insurers and agents should work together when settling cases and drafting settlement agreements todecrease the likelihood of a plaintiff’s double recovery.

26-Jul-11 9:00 AM

A Court Win for Asset Protection Planning - Summer 2011

Will Bell - noemail@raineykizer.com — Tue, 26 Jul 2011 14:00:00 GMT

In recent years, asset protection planning has become as prevalent and as important as basic estate planning. Retirement funds are a category of assets exempt from execution by creditors, both under Tennessee law (TCA §26-2-105), and under the United States Bankruptcy Code (USC §522(d)(12)). In a recent U. S. District Court case in Texas, the U. S. District Court upheld that exemption. The facts in the case were that Shirley established an IRA account and named her daughter, Janice, as beneficiary. In 2007, Shirley died. Janice was allowed to make a trustee-to-trustee transfer of the inherited amount to another IRA, because the ownership of the new IRA was set up in the same way as the ownership of the old IRA, that being in the name of the decedent (Shirley) for the benefit of the IRA beneficiary (Janice). In 2008, Janice established an IRA account titled “Janice, Beneficiary – Shirley, Decedent,” to receive the funds of her mother’s IRA.

Later in the year, Janice filed Chapter 7 bankruptcy and listed the inherited IRA on her bankruptcy schedule and claimed it exempt from creditors under the Bankruptcy Code (USC §522(d)(12)). The Bankruptcy Court denied the exemption, but on appeal the U. S. District Court allowed the exemption from creditors.

The U. S. District Court ruled that the exemption met the two requirements under USC §522(d)(12) being: (1) the amount the Debtor seeks to exempt must be “retirement funds,” and (2) those retirement funds must be exempt from income taxation under one of several specified IRC provisions.

MY ADVICE: Asset protection can take simple forms or be quite sophisticated (such as asset protection trusts). When considering asset protection, look for all available alternatives, including statutory exemptions from execution for “retirement funds.”

26-Jul-11 9:00 AM

The IRS Wins Another FLP Case

Will Bell - noemail@raineykizer.com — Tue, 26 Jul 2011 14:00:00 GMT

In the Estate of Erma V. Jorgensen, the taxpayer did almost everything wrong in creating, funding, and managing a family limited partnership (“FLP”). In the Jorgensen case, the 9^th Circuit affirmed the Tax Court and held that assets transferred to an FLP were includible in the decedent’s estate under IRC Section 2036.

The facts in the Jorgensen case are that Ms. Jorgensen created an FLP and contributed approximately $2 million of marketable securities in exchange for her initial partnership interest. She made gifts to children and grandchildren of interests in the FLP. Even though the value of these FLP interests exceeded the annual exclusion amount, gift tax returns were not filed. The FLP did not operate a business. It held only passive investments, and it did not maintain books or records. The Partnership Agreement stated that withdrawals could only be made by general partners. Nevertheless, Ms. Jorgensen, as a limited partner, wrote checks on the FLP’s checking account. Some withdrawals were used by Ms. Jorgensen to make gifts (some of which should have been reported on gift tax returns, but none of the gifts were so reported). The Tax Court determined that Ms. Jorgensen’s estate included the value of the securities that she contributed to the FLP.

The Tax Court concluded that an implied agreement existed at the time of the transfers that Ms. Jorgensen would retain economic benefits of the property in the FLP. The 9^th Circuit affirmed the Tax Court’s ruling and found that $90,000.00 in checks personally written by Ms. Jorgensen and the use of $200,000.00 of FLP funds to pay Ms. Jorgensen’s estate’s Federal Estate Tax were further evidence of her retaining an improper benefit under IRC Section 2036.

MY RECOMMENDATION: As I have pointed out on previous occasions in writing about FLP cases, the proper limited partnership formalities need to be followed, and the FLP should have a legitimate business purpose.

26-Jul-11 9:00 AM

Tennessee Supreme Court Provides "Lien Relief" to Insurers Paying Medical Coverage Benefits - Winter 2011

Casey Smith - noemail@raineykizer.com — Tue, 01 Feb 2011 19:00:00 GMT

The recent case of Shelby County Health Care Corp. v. Nationwide Mutual Insurance Co., 325 S.W.3d 88 (Tenn. 2010) appears to provide insurers responding to injury claims in Tennessee at least some relief in the area of potential liability for hospital liens. Before this case, the question frequently arose as to how or whether medical coverage payments should be made following an accident if a hospital lien was potentially involved.

In this case, Holt was injured in an automobile accident in Arkansas. An ambulance service delivered Holt to an Arkansas hospital, but he was later taken to The Regional Medical Center (“Med”) in Memphis. Holt’s medical bills at the Med totaled $33,823.02. Holt’s auto insurance with Nationwide provided for a maximum of $5,000.00 in medical payment benefits.

The Med filed a hospital lien and notified Nationwide of its lien. Nationwide, after receiving notice of the Med’s lien, paid $1,290.00 to the ambulance service and $3,710.00 to the Arkansas hospital, thereby exhausting Holt’s medical payment coverage. The Med then sued Nationwide, alleging that Nationwide had impaired its hospital lien and that it was entitled to recover the full $33,823.02 from Nationwide as a result. Both the trial court and appeals court ruled in favor of the Med. The Supreme Court of Tennessee later agreed to hear the case in order to decide “whether the General Assembly of [Tennessee] intended to extend hospital liens to medical benefits provided in an automobile insurance policy.”

The Supreme Court ruled in favor of Nationwide and held that the hospital lien statute “does not extend to payments made pursuant to the medical payment benefits provision of an insurance policy.” Tennessee’s Hospital Lien Act, codified at Tennessee Code Annotated sections 29-22-101 to -107, states that a hospital lien may be applied to “any and all causes of action, suits, claims, counterclaims or demands.” Tenn. Code Ann. § 29-22-101(a) (emphasis added). The Supreme Court determined that the Act’s use of the term “causes of action” implied that legislators intended for hospital liens to attach to claims “against a responsible tortfeasor who caused” an injury. The Supreme Court further found that a contractual duty alone, without grounds for suit, does not rise to the level of a “cause of action.”

In this case, Nationwide had paid Holt’s medical providers as a “voluntary performance of its contractual duty” to Holt, its own insured. Therefore, according to the Court, the Act did not apply because the payments were not the result of a cause of action. The Supreme Court also rejected the notion that the bills of Holt’s medical providers constituted “demands” under thestatute when read in conjunction with the second part of the lien provision which limits recovery to one-third (1/3) of the “damages obtained or recovered . . . by judgment, settlement, or compromise.” The Court held that “[b]ecause the attachment of liens under the [the Act] is limited to the recovery of “damages,” the Med did not have a valid lien on the medical payment insurance coverage under which Nationwide paid Holt’s medical providers.

The effect of this case is that insurers may pay policy benefits to the medical providers of their own insureds without regard to whether any hospital liens exist. As a practical matter, this holding lessens the stress that is often involved early in the claim handling process when the existence of hospital liens is sometimes unknown, but an insurer desires to provide policy benefits to its insured. This ruling also clarifies that a hospital lien applies only to damages recovered from a tortfeasor. In other words, the hospital lien statute only applies inthe context of cases involving liability or possibly uninsured motorist coverage.

1-Feb-11 1:00 PM

Tennessee Supreme Court Clarifies Law on When a Principal May Be Sued for Vicarious Liability for the Acts of Its Agent - Winter 2011

Casey Smith - noemail@raineykizer.com — Tue, 01 Feb 2011 19:00:00 GMT

In Abshure v. Methodist Healthcare-Methodist Hospitals, 325 S.W.3d 98 (Tenn. Oct. 20, 2010), the Tennessee Supreme Court clarified and expanded the situations in which an employer can be held vicariously liable for the acts of its employees. The Abshure plaintiffs filed suit against a hospital based upon the conduct of emergency room physicians.

Before Abshure, a principal could not be held vicariously liable: (1) when a court finds the agent not liable for the tort; (2) when the agent is immune under the common law or by statute; or (3) when the injured party extinguishes the agent’s liability by settling with the agent. In each of these situations, the vicarious liability cause of action against the principal had to be dismissed. For example, in a car accident case, if the plaintiff sued and settled with the driver, the plaintiff would then be prohibited from proceeding with the lawsuit against the owner of the car absent some independent theory of recovery separate and apart from the vicarious liability claim. Or, if a hospital was sued for the acts of one of its employees but the employee was immune from suit due to the application of a statute, then the plaintiff would be prohibited from proceeding against the hospital. Lastly, if both an agent and a principal were sued and a judgment was rendered against the principal but the judgment found the agent not liable, the Court would not allow the judgment against the principal to stand if its liability was based solely upon the acts of the agent.

In Abshure, the plaintiffs initially filed suit against a hospital and two physicians, including a vicarious liability claim against the hospital in their Complaint. They later twice dismissed the action against the physicians, thereby barring any further action against the physicians. After the plaintiffs dismissed the physicians, the hospital moved for summary judgment arguing that since the plaintiffs had sued the hospital only on a theory of vicarious liability and the plaintiffs were barred from proceeding against the physicians, then the hospital could not be held liable for the physicians’ conduct. The trial court and the appeals court both agreed with the hospital because the right of action against the physicians had been extinguished by operation of law.

The Tennessee Supreme Court reversed the decision, however, holding that because the plaintiffs had filed a vicarious liability claim against the hospital before the claims against the physicians were extinguished by operation of law, the plaintiffs were entitled to proceed in their lawsuit against the hospital solely on the vicarious liability claim. To summarize, the Abshure decision represents an announcement or clarification of the law as follows: If a plaintiff initially and timely files a vicarious liability claim against a principal, the principal may be held liable for the acts of its agent even if the plaintiff’s claims against the agent are later extinguished by operation of law. It is important to note that this decision only affects vicarious liability claims. The Abshure decision would not apply to any separate and independent claims against the principal, such as negligent entrustment or negligent hiring.

1-Feb-11 1:00 PM

Increased Liability for Physicians over NP's and PA's - Fall 2010

Casey Smith - noemail@raineykizer.com — Fri, 01 Oct 2010 18:00:00 GMT

In today’s busy medical practice, more and more medical providers are choosing to utilize the services of physician assistants and nurse practitioners to meet the needs of their patients. Those who elect to do so, however, should be aware of the applicable legal requirements with regard to supervising such mid-level providers and the potential exposure that results from a physician’s failure to adequately do so. This Newsletter is devoted to two noteworthy decisions that Tennessee appellate courts have rendered in the past year that affect the potential liability of “supervising” physicians.

In Cox v. M.A. Primary and Urgent Care Clinic, (June 21, 2010), the Tennessee Supreme Court declared for the first time that a supervising physician can be held vicariously liable for the negligence of his or her physician assistant even if the physician never saw or treated the patient. This means that the physician may automatically be held liable if the physician assistant is found to have been negligent. The Court focused its attention on the provisions of the Tennessee Code providing that physician assistants are statutorily authorized to perform only selected medical services under the supervision of a licensed physician and that "supervision requires active and continuous overview of the physician assistant's activities to ensure that the physician's directions and advice are in fact implemented, but does not require the continuous and constant physical presence of the supervising physician." The Court also emphasized sections of the Tennessee Rules and Regulations specifying that written protocols "are required," that they "shall outline and cover the applicable standard of care," and that "the supervising physician shall be responsible for ensuring compliance with the applicable standard of care."

After citing the applicable statutory law, the Court held that where a medical doctor delegates certain responsibilities to his or her physician assistant, the physician assistant occupies the role of agent and the supervising doctor occupies the role of principal. Therefore, the Court found that the physician in that case could be held vicariously liable for the physician assistant's negligence, if proven, regardless of the physician’s involvement (or lack thereof) in the patient’s treatment. This same reasoning could potentially be used by Tennessee courts regarding physician supervision of nurse practitioners or other physician-extenders. The result is that a physician will no longer be able to argue that while the P.A. or N.P. may have been negligent, he or she was not.

In another recent case, Watkins v. Affiliated Internists, (Dec. 29, 2009), the Tennessee Court of Appeals found that a physician's violation of the Tennessee Rules and Regulations regarding supervision of a physician assistant can give rise to a claim of negligence per se, meaning that a plaintiff need not introduce expert testimony to show that the physician breached the applicable standard of care in order to prove this element of his or her case. Specifically, the Court found that a violation of the regulation requiring the supervising physician to make a personal review of the chart on any patient for whom the physician assistant prescribes a controlled substance within ten days amounts to “a legislative judgment as to the standard of care.” Consequently, a physician’s failure to explicitly abide by the regulation’s requirements automatically means that he or she fell beneath the standard of care with respect to that patient’s treatment. In order to prevail on a malpractice claim, however, the plaintiff must still prove that the physician's violation of the regulation was the proximate cause of the alleged injuries (i.e. if the physician had reviewed the chart as required, he or she would have noticed the assistant’s alleged mistake and been able to correct it in time to prevent the alleged injury and damages).

In light of Cox and Watkins, medical providers utilizing physician assistants and nurse practitioners should familiarize themselves with the applicable regulations defining clinical supervision requirements, which may be found at the following web addresses:

http://state.tn.us/sos/rules/0880/0880-03.20100620.pdf (physician assistants);

http://state.tn.us/sos/rules/0880/0880-06.pdf (nurse practitioners).

Furthermore, medical providers supervising any type of physician extenders should ensure that they are fulfilling all obligations set forth in Tennessee statutes and regulations. Failure to do so could increase the chances of a malpractice lawsuit and adverse verdict.

1-Oct-10 1:00 PM

Family Responsibilities Discrimination - Summer 2010

Latosha Dexter - noemail@raineykizer.com — Thu, 15 Jul 2010 20:45:00 GMT

Family Responsibilities Discrimination: The Unwritten Rule of Law

Many workers have double and sometimes triple duty - their job working for you and their job taking care of either a child or an ill spouse. As our population ages, more and more workers must spend additional time caring for their aging parents. Although there is no federal statute that expressly prohibits discrimination based on family responsibilities, creative plaintiffs’ attorneys are bringing more and more caregiver cases using a myriad of legal theories. A recent study published by The Center for WorkLife Law states that lawsuits filed by caregivers have increased by almost 400% over the past decade.¹ The EEOC has even seen the need to issue policy guidance entitled: “Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.”^² Considering these statistics and the EEOC’s attention to this type of litigation, all employers should be aware of their potential liability for such claims.

Family responsibilities cases are brought under such statutes as Title VII, the Family and Medical Leave Act and under state common law theories such as wrongful discharge and violation of public policy. For example,

A male employee is denied a promotion because he has young children in whose lives he is very active, which necessitates him taking more personal and vacation time than other men in his company. He is denied a promotion. The employee files a claim of sex discrimination under Title VII alleging that he has been treated differently than similarly situated female employees.
An employee is the caregiver for her mother who suffers from a serious health condition. Upon her return from a leave to care for her mother, she is transferred to a less desirable position. She files a claim of retaliation under the Family and Medical Leave Act.
An employee has a child with bipolar disorder. On occasion, the employee must take time off work to care for this child. The supervisor makes comments to the employee on a regular basis about the amount of time he takes off work and gives him a heavier workload upon his return to work. The employee files claims of retaliation and hostile work environment under the Americans with Disabilities Act.

In light of the increase in these types of claims, employers should keep the following points in mind:

Pay attention to changes in care giving responsibilities when periodically evaluating employees.
Ensure that supervisors are aware that men, as well as women, are protected against sex discrimination. Many employers tend to forget this fact and allow stereotypes regarding men’s and women’s roles to guide decision-making.
Do not take the role of the caring employer too far. In some instances, an employer may “altruistically” lighten the workload of a female employee with small children in an effort to “help” her, while not providing similarly situated men the same benefit. Absent an express request, such actions should not be taken.
Train employees responsible for interviewing and hiring on proper interviewing techniques and the “dos and don’ts” of interviewing.
Have an effective and accessible harassment complaint process and do not disregard complaints because they do not seem to fit into the “traditional” mode of claims. Train all employees to recognize and prevent harassment.

^{^[1]} Family Responsibilities Discrimination Litigation Update 2010 by Cynthia Thomas Calvert, The Center for WorkLife Law, http://www.worklifelaw.org/pubs/FRDupdate.pdf

^{^[2]}Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities, http://www.eeoc.gov/policy/docs/caregiving.html

15-Jul-10 3:45 PM

Health Care Reform Law: Whistleblower Protections - Summer 2010

Latosha Dexter - noemail@raineykizer.com — Thu, 15 Jul 2010 20:00:00 GMT

Health Care Reform Law: Whistleblower Protections

There has been so much coverage of the new health care reform that many employers are struggling to understand its practical implications for their business. One area that has not been discussed in depth but which will affect all employers is the development of another protected class of employees.

Section 1558 of the Patient Protection and Affordable Care Act amends the Fair Labor Standards Act to prohibit employers from retaliating against employees who apply for health benefit subsidies or who receive tax credits under the health reform law. There are also provisions in the law protecting employees who provide information or testimony about possible employer violations of Title I of the law. Title I contains the requirements governing health insurance including prohibitions against denying coverage based upon preexisting conditions and policy and financial reporting requirements. OSHA has been given responsibility for the investigation of complaints and can even order preliminary reinstatement. Complainants are entitled to a federal court jury trial and may be entitled to remedies such as reinstatement, back pay, special damages and attorney’s fees.

The burden of proof for Section 1558 claims is very favorable for the employee. A complainant must prove by a preponderance of the evidence that the complainant’s protected activity was a contributing factor in the employer’s adverse employment action. If the complainant meets his burden, then the employer must prove by clear and convincing evidence that it would have taken the same action in the absence of the protected conduct.

Section 6703(b)(3) of the law protects employees of federally funded long-term care facilities. Any long-term care facility that receives more than $10,000 in federal funds must notify all officers, employees, managers, and contractors of the facility that they are required by law to report any reasonable suspicion of a crime to at least one law enforcement agency. Failure to report a crime exposes an individual to civil fines up to $200,000. In furtherance of this duty to report, the law prohibits a facility from retaliating against an employee because of lawful actions taken by the employee, which would include making a report. Violations of the anti-retaliation provision can result in fines up to $200,000 and exclusion from federal programs for up to two years.

States will now be required to make available federally prescribed standardized complaint forms for residents of skilled nursing facilities and persons acting on behalf of residents. States must establish a complaint resolution process to track and investigate complaints and ensure that skilled nursing facilities do not retaliate against complainants. In such a case, a complainant could possibly be an employee. Provisions have also been added that expand the definition of an “original source” under the False Claims Act to include an “individual who either (i) prior to a public disclosure under subsection (e)(4)(a), has voluntarily disclosed to the Government the information on which allegations or transactions in a claim are based, or (2) who has knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions, and who has voluntarily provided the information to the Government before filing an action under this section.”

This article is a summary of the newly enacted provisions. As regulations are issued more guidance will be provided for employers. However, as attorneys’ fees are expressly included in the available remedies be assured that plaintiff attorneys will be looking for ways to test the law.

15-Jul-10 3:00 PM

Health Care Reform: Nursing Mothers Act - Summer 2010

Latosha Dexter - noemail@raineykizer.com — Thu, 15 Jul 2010 20:00:00 GMT

HEALTH CARE REFORM

NEW REQUIREMENTS FOR NURSING MOTHERS

Since 1999, employers in Tennessee have been required to provide female employees with nursing infants a reasonable unpaid break to allow them to express breast milk while at work. In this regard, employers are required to “make reasonable efforts” to provide a location, other than a toilet stall, for that purpose. In light of existing Tennessee law, one would think that the newly enacted provisions in the Patient Protection and Affordable Care Act relating to nursing mothers would be easy to implement. Think again.

Section 4207 of the Patient Protection and Affordable Care Act amended the Fair Labor Standards Act to include significant new requirements for employers regarding nursing mothers at work. The requirements are as follows:

An employer must provide reasonable break time for nursing mothers.

The new federal provisions require “a reasonable break time for an employee to express breast milk… for 1 year after the child’s birth each time such employee has a need to express the milk.” Although Tennessee law already requires that a reasonable break be given to express milk, it only required it for the employee’s infant child. Further, Tennessee law stated that, if possible, the break time should run concurrently with any break time already provided and should not unduly disrupt the employer’s operations.

Employers must now allow reasonable breaks for up to 1 year after the child’s birth every time the mother’s states that she needs to express milk. There is no guidance provided regarding what is “reasonable” and in many cases reasonableness may depend on the varying needs of the nursing mother. It appears that the number and duration of such breaks will be dictated by the frequency and amount of time the mother subjectively claims to need to express milk. Further, when you add travel time to the selected location and sanitization and storage of equipment, the length of the necessary break is extended.

A private place other than a bathroom must be provided for the breaks.

The new law requires that the employer provide a private place where the employee is shielded from view and free from intrusion from coworkers and the public. Under no circumstances can the selected location be a bathroom. Depending on the nature of an employer’s business, finding an appropriate location may be difficult and may actually require the employer to construct a new area. For a larger employer, multiple locations may be necessary. Although

there is an undue hardship exemption for employers with fewer than 50 employees, which will be discussed below, employers should not assume that the exemption applies just because they may have to expend money to comply.

Compensation during breaks is not required.

Tennessee and federal law treat this issue similarly. An employer is not required to compensate an employee who takes reasonable break times to express milk. Nevertheless, employers should be cautious when docking the pay of employees who take such breaks. Under current Fair Labor Standards Act provisions, short breaks taken by employees (usually lasting about 5 to 20 minutes) are considered as compensable work time for which an employee must be paid. Therefore, administration of these break times with an eye toward making them unpaid will impose more administrative timekeeping responsibilities on employers.

An “undue hardship” exemption exists for small employers.

Employers with fewer than 50 employees are not required to comply with this new provision if providing reasonable break time or a private, shielded place for nursing mothers would impose an “undue hardship” by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business. Note that this exemption is not automatic and the burden of proof will fall on the employer.

This new federal law is effective immediately. Therefore, employers should begin considering their options with regard to locations for their nursing employees to express breast milk and with regard to administration of the new requirements of the amendments as soon as possible.

15-Jul-10 3:00 PM

8 New Laws Physicians Should Know About - July 2010

Casey Smith - noemail@raineykizer.com — Thu, 01 Jul 2010 18:00:00 GMT

8 NEW LAWS PHYSICIANS SHOULD KNOW ABOUT

In the last 4 months, there have occurred a number of important changes and developments in both state and federal healthcare laws. This article will highlight 8 of these laws that have the potential immediately to impact physicians and their practices.

1. Physicians May Now Charge More for Copying Medical Records. Effective July 1, 2010, for patient records not involving workers' compensation cases, physicians may now charge up to $20 for the first five pages, fifty (50) cents for each additional page, and actual mailing costs. Previously, physicians were limited to $20 for the first 40 pages and twenty-five (25) cents per page thereafter.

2. Physician Non-Compete Change. Due to recent changes in the TN non-compete statute, a non-compete restriction on a physician who has been employed by or under contract with a group practice for at least 6 years will not be binding unless the parties enter into a new written agreement to extend the non-compete restriction for a period not to exceed an additional 6 years. Physicians who are owners of group practices often have non-compete restrictions in their shareholders', operating, or employment agreements that may need to be revisited in light of this law.

3. Doctor Shopping Statute. Tennessee's "doctor shopping" statute has been amended to remove felony liability for physicians who fail to report to law enforcement their knowledge that a patient is "doctor shopping" for controlled substances. Now, physicians generally are subject only to civil penalties imposed by the TN Board of Medical Examiners for patterns of willful failure to report.

4. Another Delay of the Red Flag Rules. The FTC is delaying enforcement of the "Red Flag" rules through December 31, 2010 while Congress considers whether to exempt physicians from the rules.

5. Disclosures for CT, MRI, and PET. Physician group practices that own CT, MRI, or PET imaging equipment must inform patients in writing at the time of referral for the tests that the services may be obtained from someone other than the group practice and must provide patients with a written list of the names, addresses, phone numbers, and distances of suppliers in a 25-mile radius of the clinics that offer the same imaging services.

6. Ordering and Referring DME and Home Health Services. Suppliers and providers of DME and HHS may only receive reimbursement for such items and services where they were ordered by a physician or eligible professional that has an approved Medicare enrollment record, or a valid Medicare opt out record, in PECOS. The claims must include the name and NPI of the ordering physician.

7. Anatomic Pathology Billing Restrictions. Effective July 1, 2010, a new Tennessee statute expands the existing restrictions on billing and reimbursement for cytopathology to apply to billing for all anatomic pathology services, and it introduces an anti-markup provision applicable to anatomic pathology services.

8. Colby Stansberry Act. Pursuant to this new TN law, physicians must maintain a written policy to protect the dignity of patients (including deceased and incapacitated patients) by limiting the use and disclosure of health information that is intended to be used for medical educational purposes. The written policy must include policies regarding written authorizations.

1-Jul-10 1:00 PM

When to Include the Mortgage on a Real Property Loss Payment - Summer 2010

Casey Smith - noemail@raineykizer.com — Thu, 01 Jul 2010 18:00:00 GMT

When to Include the Mortgagee on a

Real Property Loss Payment

The mortgage crisis has become a fixture in the media and affects more than just the mortgage and banking sectors. How does the mortgage meltdown affect the business of insurance with regard to settling and paying real property damage claims? Certainly, lenders and mortgagees may become especially vigilant in pursuing claims against insurers during economic times when cash flow is tight.

Many states, including Tennessee, have enacted statutory mortgage clauses which are designed to protect the interests of mortgagees in insured property. See e.g. Tennessee Code Annotated §56-7-804. In addition to the protection independently mandated by such statutes, most insurance policies contain what is commonly referred to as a “mortgage clause.” This type of clause creates a separate contract of insurance between the mortgagee and the insurer that may not be invalidated by any acts of the insured, including even fraudulent acts.

Although all policies are different, most modern mortgage clauses require an insurer to include the mortgagee’s name on real property loss payments issued to the named insured. This ensures that the claim payment will be used toward repairing or replacing the dwelling or building and ensures that the mortgagee’s collateral remains viable. In addition, in any real property loss in excess of $1,000.00, Tennessee Code Annotated § 56-7-111 requires insurers to name the general contractor of any uncompleted construction or building contract as a payee on the draft to the owner covering payment for the loss.

Despite increasing statutory and judicial protection of mortgagees, and in some cases despite specific policy language requiring it, many insurers do not include the mortgagee on partial loss payments, instead issuing payment only to the named insured or perhaps jointly to the named insured and the general contractor. This practice is risky business, especially in a climate of unprecedented decreasing values of the underlying collateral supporting home loans.

If an insurer fails to include the mortgagee on a real property loss payment, the insurer risks having to make the loss payment twice, even if the insured cashes the check. A financially desperate insured could decide he or she wants to spend the loss payment money rather than make repairs to his or her home, thus further diminishing the value of the mortgagee’s collateral. The insurer may further risk extra-contractual exposure to the lender for bad faith or pursuant to consumer protection laws. This is equally true for partial loss and total loss payments. Tennessee case law strongly suggests that if the loss payment is not spent toward repair of the insured property, a mortgagee will be able to recover against the insurer to the extent of the insured’s debt. See e.g.,Benton Banking Co. v. Tennessee Farmer’s Mutual Ins. Co., 1994 WL 111436 (Tenn. App. 1994), rev’d on other grounds, 906 S.W.2d 436 (Tenn. 1995).

When in doubt about whether to include the mortgagee on a real property loss payment, check the policy language—especially the mortgage clause-- and applicable statutes. Always include the mortgagee on any and all real property loss payments, whether total or partial, if the insurance policy requires it. Insureds and general contractors may complain about the hassle in dealing with the mortgage company, but this procedure provides the best protection for your company, may help prevent breach of contract claims brought by mortgagees, and protects against payment of the same claim twice. Lastly, while this article focuses on real property losses, it is equally important to not include the mortgagee on drafts that do not require it, such as those that are specifically for the payment of personal property losses.

1-Jul-10 1:00 PM

Examinations Under Oath: Request Them! - July 2010

Casey Smith - noemail@raineykizer.com — Thu, 01 Jul 2010 18:00:00 GMT

In our Fall 2009 issue, we discussed a critical new evidence rule in Tennessee which now allows attorneys to use certain types of prior inconsistent statements as substantive proof in court. Previously, attorneys could only use prior inconsistent statements for impeachment (i.e., to show that a witness had changed his or her story and was possibly being untruthful). This rule change elevates the advantages and importance of obtaining an effective Examination Under Oath during claim investigation.

Don’t be bullied when an insured, either directly or through an attorney, refuses to cooperate with your insurance claim investigation. Tennessee is an insurer-friendly state when it comes to enforcing “duty to cooperate” clauses in insurance policies. For example, in, Tom Spears v. Tennessee Farmers Mutual Insurance Company, the Court of Appeals found that language in a policy requiring the insured to “answer questions under oath” when requested was not ambiguous and ruled that submission to such an examination was a condition precedent to recovery. 300 S.W.3d 671, 679, 681 (Tenn. Ct. App. 2009). In Spears, one insured gave two recorded statements and another insured submitted to part of an Examination Under Oath, but left before the examination was completed. Id. at 674. Although they did submit some documentation, the insureds eventually refused to submit to Examinations Under Oath and filed suit against the insurer. Id. at 675.

The Spears Court found that a recorded statement is not the same as answering questions under oath, regardless of verification after the fact. Id. at 682. Also, the insurer did not have to justify an initial request to question an insured under oath; under the policy language at issue, reasonableness only became an issue if there were multiple requests to question an insured under oath. Id. at 683. The Court squarely rejected the insureds’ argument that giving deposition testimony after filing suit against an insurer for failure to pay a claim constituted cooperation under the policy. Id. at 682. Finally, the Court held that the insureds’ efforts to cooperate (i.e., giving recorded statements and providing documents), did not alter the fact that they materially breached the contract by refusing to answer question under oath when the insurer requested. Id. at 683.

In light of Tennessee’s willingness to enforce cooperation clauses, make sure you are covering your bases and properly documenting your file in order to preserve a possible defense to payment of the claim based on an insured’s failure to cooperate. Remember that you must give reasonable notice in writing. Any letter requesting an insured to submit to questions under oath should at least include the following: (1) a definite time, (2) the address of a place in the county of the insured’s residence where the examination is to be held, (3) a designation of the person who will be taking the examination. Shelter Insurance Companies v. Spence, 656 S.W.2d 36, 38-39(Tenn. Ct. App. 1983). You should also notify the insured that while he or she may have an attorney present, the attorney may not participate in the questioning. Id. After the examination is completed, you must submit the original and a copy to the insured for signature, and you must provide the insured with a copy to keep. Id. Consider sending scheduling requests through both regular and certified mail and always retain copies of return receipts.

1-Jul-10 1:00 PM