Nashville Bar Journal | July 2014

Nashville Bar Journal

July 2014 - VOL 14, NO. 6

Resolving the Great Divide in Pregnancy Discrimination Lynn Ridgeway Zehrt

Juvenile Courts in Transition: A Review of The University of Memphis .

Law Review’s Annual Symposium

Everette Parrish

“Narrow Networks”: Problem or Solution in Healthcare Reform?

Matthew Pierce

2014 IS $296/MO F SPORT CHANGE YOUR PERSPECTIVE.

24 mo lease, 7.5k/yr $3,229 due at signing.

MSRP $42,272. Excludes official fees, taxes, and dealer charges. No security deposit required.*

*Available on approved credit to very well qualified customers through Lexus Financial Services and Lexus | Nashville on the 2014 IS250. Offer available on Stk#B140023. Based on MSRP of $42,272 including delivery, processing, and handling. Not all customers will qualify. Monthly payment may vary depending on final price of vehicle & your qualifications. You pay $0.25 per mile over 7,500 per year. See dealer for vehicle and lease program details. Must take delivery by 06.30.2014

A Monthly Publication of the Nashville Bar Association

Articles 6 8

Departments 2

Resolving the Great Divide in Pregnancy Discrimination

4

Lynn Ridgeway Zehrt

Juvenile Courts in Transition: A Review of The University of Memphis Law Review’s Annual Symposium Everette Parrish

Communique • NBA Joins LAW's Coalilition for Fair Courts • Lawyers for Littles - Bowl for Kids Sake • Golden Oldie Reveal • Upcoming Events

CONTINUING LEGAL EDUCATION

10 “Narrow Networks”: Problem or Solution in Healthcare Reform?

CENTER SECTION

22

Matthew Pierce

Columns 12

From the President

24

Gadget of the Month

Disclosure - Announcements • Kudos • People on the Move • Firm News • In Memory Classified Listings

Bill Ramsey, Neal & Harwell, PLC Phillip Hampton, LogicForce Consulting

Golden Oldie Identify the individuals in the photo. Be the first to email the correct answer to nikki. gray@nashvillebar.org and your name (along with your correct entry) will appear in next month’s issue.

NBA Calendar of Events July 16 - 12 PM Business Law Committee Meeting July 17 - 11 AM CLE Committee Meeting July 17 - 12 PM Government Lawyers Committee Meeting July 22 - 2:30 PM CLE: Using a Trial Technology Consultant in the Litigation Life-Cycle

July 23 - 12 PM Community Relations Committee Meeting July 24 - 9:30 AM CLE by the Hour - x4 courses -All Day July 25 - 12 PM High School Intern Closing Reception

AUGUST 1 - 12 PM ADR Committee Committee Meeting AUGUST 1 - 12 PM ADR Committee Committee Meeting September 25, 2014 NBA Free Member Picnic @Hall of Fame Park

July 28 - 5 PM Judges Happy Hour

Sponsored by Waddey Patterson

Committee Meetings are held at the NBA Offices unless otherwise noted l o= Special Event l Full Calendar online at www.nashvillebar.org

' A Monthly Publication of the Nashville Bar Association

Charles K. Grant, Publisher William T. Ramsey, Editor-in-Chief ramseywt@nealharwell.com

Eleanor Wetzel, Managing Editor eleanorwetzel@jis.nashville.org

Journal Staff:

Nikki Gray, Director of Communications nikki.gray@nashvillebar.org

Tina Ashford, Communications Coordinator tina.ashford@nashvillebar.org

Editorial Committee: Kelly L. Frey Kathleen Pohlid Tim Ishii Tracy Kane Everette Parrish Bill Ramsey Rita Roberts-Turner Eleanor Wetzel David Winters Victoria Webb

Nashville Bar Association Staff Gigi Woodruff Executive Director ----------Tina R. Ashford Communications Coordinator Susan W. Blair Director, Continuing Legal Education Shirley Clay Finance Coordinator Wendy K. Cozby Lawyer Referral Service Coordinator Nikki R. Gray Director of Communications Traci L. Hollandsworth Programs & Events Coordinator Malinda Moseley CLE Coordinator Judy Phillips CLE Coordinator Vicki Shoulders Membership Coordinator/Office Manager The Nashville Bar Journal, ISSN 1548-7113, is published monthly by the Nashville Bar Association at 150 Fourth Avenue North, Suite 1050, Nashville, TN 37219, (615) 242-9272. Periodicals Postage Paid, Nashville, TN (USPS 021-962). Subscription price: $25 per year. Individual issues: $5 per copy.

POSTMASTER: Send address corrections to Nashville Bar Journal, 150 Fourth Avenue North, Suite 1050, Nashville, TN 37219

No part of this publication may be reprinted without written permission of the Nashville Bar Journal Editorial Committee. The Nashville Bar Journal is not responsible for the return or loss of unsolicited manuscripts or for any damage or other injury to unsolicited manuscripts or artwork.

All Articles and Letters contained in this publication represent the views of the authors and do not necessarily reflect the opinions of the Nashville Bar Association.

Nashville Bar Association 150 Fourth Avenue North Suite 1050 Nashville, TN 37219 615-242-9272 Fax 615-255-3026 www.nashvillebar.org

2

Nashville Bar Journal - July 2014

From the President The Judicial Retention Election Draws to A Close by:

Charles K. Grant Early voting for the August 7 retention election of Tennessee Supreme Court Chief Justice Gary Wade, Justice Connie Clark, and Justice Sharon Lee begins on July 18, approximately 10 days away at the time of this writing.

Make no mistake about it; this will be a difficult election. Those opposing retention enjoy an early advantage as approximately 30% of the electorate usually vote to "replace" rather than to "retain." Add to this advantage a few misleading or untrue statements in 30-second commercials close to the election date, and one readily can see how easy it might be to tip the scales of the election in favor of "replace." Lt. Governor Ron Ramsey fired the first salvo in the election by having private meetings with business leaders and showing them a totally misleading 30-page PowerPoint presentation prepared by Ramsey and his staff, which outlined his strategy attacking the three justices. The idea was to present the justices' records as "soft on crime" and "anti-business." Phil Williams of Nashville’s CBS affiliate, WTVF News Channel 5, aired interviews with Ramsey. The stories focused on the content of the PowerPoint. Until the Williams story broke, Ramsey had been presenting the PowerPoint discreetly to Tennessee business leaders in an effort to raise funds to defeat the Justices in the retention election. A bipartisan group of prominent Bar leaders and judges, led by former Tennessee Supreme Court Chief Justice Frank Drowota (along with Gail Vaughn Ashworth, Lew Conner, Jackie Dixon, Robert Echols, Hal Hardin and Aubrey Harwell) penned a response to Ramsey's presentation. They noted that "[c]ritically, we have found that Power Point document to be factually incorrect in multiple areas and grossly misleading and incomplete in many others." Their response further provided links to Williams' stories and strongly suggested that lawyers and the public watch Williams’s interviews of Ramsey.

There are others who are making an appearance in this election. A group called Tennesseans for Judicial Accountability has joined the fray. It is founded by two lawyers, Grant Everett Starrett and J. Ammon Smartt. The group disseminated a press release that listed the justices "seven deadly Democrat sins…." Among the questionable claims made by the group is that all three judges were "screened by a Democrat-dominated committee stacked with trial lawyers."1 It appears that Starrett and Smartt care little about presenting all of the facts.

Among other things, Phil Williams interviewed Starrett and Smartt about the "screened by a Democrat-dominated committee [Judicial Performance Evaluation Committee] stacked with trials lawyers" charge.2 Williams remarked, "The truth is that a Republican committee recently screened them and recommended that all of them should be retained." "Ok," Starrett replied.

Williams further added, "But you don't say that in your news release." To which Starrett remarked, "As we stated, this is their Democrat sins. We are not covering their entire biography." What also is absent from the group's press release is any reference to the justices' qualifications or even their rulings.

Starrett also derided a Tennessee Bar Association poll showing its members overwhelmingly favoring to retain the judges. Starrett charged in a news release that the TBA results were "about as predictable as Pravda asking party members

2014 NBA BOARD OF DIRECTORS

their approval rating of the Politburo." The other member of this organization, J. Ammon Smartt, said that "having led judicial reform efforts in Tennessee for many years, this unscientific push poll comes as no surprise to me." This glib comment about the TBA poll is offensive to all of the lawyers who participated in the anonymous survey. There was nothing about the poll that could be considered a "push poll." TBA members were asked to select one of four options: (1) highly recommend retention, (2) recommend retention, (3) do not recommend retention, or (4) do not have an informed opinion at this time. The TBA used the SurveyMonkey platform to conduct the survey, which ensured the secrecy of votes.

Unfortunately, the facts were sacrificed for the sake of a misleading sound bite.

As this election is coming to a close, there still is time to help. Those who want to assist the retention effort will find informative materials online. The Lawyers Association for Women, Marion Griffin Chapter, has led the formation of Coalition for Fair Courts, of which the Nashville Bar Association is a member.3 Among the resources available on the Coalition's website are various handouts, sample letters to the editor, and links to other helpful websites. I also would encourage your attendance at the NBA's CLE program Election Day-- August 7, 2014: Why the Election Is Important to the Legal Community. It will be held on July 28, 2014, from 4-5 p.m. Elizabeth Sitgreaves will share the history and statistics on modern judicial elections and demonstrate why this election is so important to a fair and impartial judiciary in Tennessee n

Charles K. Grant, President Edward D. Lanquist, Jr., President-Elect Dewey Branstetter, First Vice President John C. McLemore, Second Vice President Thomas J. Sherrard, Immediate Past President Stacey Billingsley Cason, Secretary Nicole James, Treasurer Hon. Joe B. Brown, Assistant Treasurer Gareth Aden, General Counsel Hon. Joe P. Binkley, Jr. Kathryn S. Caudle Irwin J. Kuhn Claudia Levy Hon. Randal S. Mashburn Jeffrey Mobley Andrea P. Perry Matt Potempa Sara F. Reynolds Nathan H. Ridley Maria M. Salas Saul Solomon Jocelyn A. Stevenson Overton Thompson, III M. Bernadette Welch

Got an Idea for an NBJ Article?

We want to hear about the topics and issues readers think should be covered in the magazine.

Send it to nikki.gray@nashvillebar.org

(Endnotes) 1

This document can be found at the following link: http://tnreport.com/2014/06/16/group-opposes-3- tn-justices-running-retention-calls-partisan-democrat-politicians/.

2

The link to the Phil Williams interview of Starrett and Smartt can be found here: http://www.new channel5.com/story/25849583/supreme-court-opponents-refuse-to-identify-source-of-funds.

3

Information about the Coalition for Fairs Courts along with resources are available at http://www. law-nashville.org/Coalition_for_Fair_Courts/.

NASHVILLE BAR ASSOCIATION Each day, we work hard to help people and businesses in our community. The NBA has a wide variety of services and programs that can help lawyers work smarter, stay informed and keep connected with fellow attorneys. From sole practitioners to the largest firms, from legal aid attorneys to those in private practice, the NBA supports all of us so we can better serve our clients and the justice system.

Our Bar Association is much more than just a collection of services.

The power of our membership lies in the power of the people.

https://www.facebook.com /NashvilleBarAssociation

@theNashvilleBar

WE are the Bar. And together, we shape the future of the legal profession.

Nashville Bar Journal - July 2014

3

communiqué Fifth Annual “Lawyers for Littles” Event Raises $15,000 for Big Brothers Big Sisters of Middle Tennessee Nashville-area attorneys recently organized and held the annual “Lawyers for Littles” Bowl for Kids’ Sake event, helping to raise $15,000 for Big Brothers Big Sisters of Middle Tennessee. Over the past five years, this event has raised more than $100,000 for the agency. Organized by Thomas W. Shumate, IV of Kay, Griffin, Enkema & Colbert, P.L.L.C., Laura B. Baker of the Law Offices of John Day, P.C., and Elizabeth N. Sitgreaves of Dodson, Parker, Behm & Capparella, P.C., the bowling fundraiser took place July 26, 2014, at Hillwood Strike and Spare in West Nashville. Twenty-one teams participated in the event, representing all spheres of the legal profession, including law firms, corporate counsel, government agencies and bar associations.

Among those teams and individuals recognized for outstanding efforts in fundraising and bowling were: Top Fundraising Team – “Motions to Strike” – Law Offices of John Day Top Fundraising Individual – Thomas W. Shumate, IV – Kay, Griffin, Enkema & Colbert 2nd Place Fundraising Individual – Elizabeth N. Sitgreaves – Dodson, Parker, Behm & Capparella Best Dressed Team – "Queen Pins" – Pillsbury Winthrop Shaw Pittman Most Team Spirit – Bone McAllester Norton PLLC Best Team Name – “Spare No Mercy" – Nashville District Attorney’s Office Highest Team Score – “Gutter Bowlers” – U.S. Department of Labor/Office of the Solicitor Highest Individual Score – Jerry Sawyer – “Gutter Bowlers” Big Brothers Big Sisters of Middle Tennessee is a volunteer and donor-driven organization that matches children in need with a positive adult role model. They provide children facing adversity with strong and enduring, professionally supported one-to-one relationships that change their lives for the better, forever. These improvements create better schools, safer neighborhoods, and help children make healthier choices.

Funds raised in events like the “Lawyers for Littles” event are used to conduct background checks on volunteers to ensure child safety and to provide ongoing support for children, families and volunteers to build and sustain long-lasting relationships. The average annual cost per child to receive one-to-one mentoring services through Big Brothers Big Sisters is $1,000. Thanks to the 2014 “Lawyers for Littles” event, 15 more children will be served this year.

For more information on how to get involved with “Lawyers for Littles,” please contact Tom Shumate (tom.shumate@kaygriffin. com) or Laura Baker (lbaker@johndaylegal.com).

NBA Calendar of Events July 18, 2014 Casa Azafran Legal Clinic YLD co-sponsored free legal assistance Additional Dates: August 15, September 19, October 17, November 21, December 19, 2014 Sign up with Peter at pmalanchuk@constangy.com -----------------------------------------------------July 19, 2014 Carbolic Smoke Ball @Hard Rock Cafe - Reverb Room (Upstairs) -----------------------------------------------------July 24, 2014 Brews for Backpacks @Craft Brewed -----------------------------------------------------July 28, 2014 HAPPY HOUR WITH THE JUDGES an informal meet and greet at the NBA. Sponsored by Waddey & Patterson, P.C. 5 - 6 P.M. -----------------------------------------------------4

Nashville Bar Journal - July 2014

September 25, 2014 NBA Free Member Picnic @Hall of Fame Park -----------------------------------------------------October 17, 2014 Tennessee Supreme Court Historical Society Cocktail Reception @ The Cordelle (45 Lindsley Avenue, Nashville, TN) -----------------------------------------------------November 18, 2014 NBA Swearing-In @ AA Birch Building -----------------------------------------------------November 20, 2014 NBA Fall Memorial Service @ Downtown Presbyterian Church -----------------------------------------------------December 4, 2014 NBA Annual Meeting & Banquet ------------------------------------------------------

The Board of Directors of the Nashville Bar Association recently approved the following motion: that the Nashville Bar Association join the Coalition for Fair Courts established by the Lawyers' Association for Women, Marion Griffin Chapter. The goal of the Coalition for Fair Courts is to raise public awareness regarding the upcoming August 7, 2014 retention elections of our three Supreme Court Justices, Justice Connie Clark, Justice Sharon Lee, and Chief Justice Gary Wade, and our intermediate appellate court judges, and educate voters on the role of the appellate courts and the importance of a fair and impartial judiciary. The Coalition also seeks to recognize the quality of our current appellate judiciary, who were all recommended for retention by the Tennessee Judicial Performance Evaluation Commission, and to highlight the importance of having women judges on our courts LAW's Coalition for Fair Courts site has a wealth of information regarding the upcoming retention elections for those of you who wish to help educate and encourage voters to participate in the August 7 retention elections. http://law-nashville.org/Coalition_for_Fair_Courts/

-Golden Oldies-

Ben H. Cantrell and his law clerk Scott Neely correctly identified the individuals in the July Golden Oldies photo.

Pictured are: Tom Binkley, Ed Herod and Mickey Miller

CLE

HEAR YE, HEAR YE

NASHVILLE BAR ASSOCIATION MEMBERS Get ready to receive even GREATER VALUE on your NBA membership with the NEW CLE EASY PASS. With your NEW NBA CLE Easy Pass YOU WILL -• Get FREE CLE hours • Save a bundle • Take the guesswork out of your CLE spending • Receive the Highest Quality CLE for a fraction of what you’d normally pay When You Receive Your Membership Dues Renewal Notice, Add the CLE Easy Pass and SAVE on your CLE DOLLARS.

PASS

NBA Joins LAW’s Coalition for Fair Courts

Look for details in the August issue of the Nashville Bar Journal Nashville Bar Journal - July 2014

5

Feature Resolving the Great Divide in Pregnancy Discrimination by:

Lynn Ridgeway Zehrt

The Supreme Court granted certiorari on July 1, 2014, in the Fourth Circuit case of Young v. United Parcel Service,1 to resolve a fundamental disagreement between the federal courts of appeals over the extent to which employers are required to provide reasonable accommodations to pregnant workers under the Pregnancy Discrimination Act of 1978.2 Prior to granting certiorari, the Supreme Court invited the Solicitor General to submit an amicus curiae brief providing the position of the United States.3 It was the opinion of the Solicitor General that the Fourth Circuit “erred in holding that petitioner failed to establish a prima facie case of pregnancy-related sex discrimination,”4 and moreover that “[a] majority of the courts of appeals … to have considered claims similar to petitioner’s have erred” in interpreting the second clause of the PDA.5 If the Court agrees with the opinion of the Solicitor General, its decision will reverse the current approach in the majority of federal circuits, thereby substantially altering the litigation of pregnancy discrimination claims.

The Court’s decision to resolve the legal issues in Young comes on the heels of a tremendous mobilization effort to diminish what some scholars refer to as the “maternal wall” for women in the workplace.6 According to statistics published by the Equal Employment Opportunity Commission, pregnancy discrimination claims have steadily increased over the last 15 years.7 Indeed, the Equal Employment Opportunity Commission recently designated fighting pregnancy discrimination as a high priority for enforcement.8 At a meeting convened by the EEOC in February of 2012, experts explained the significance of the current challenge in combating pregnancy discrimination stating, “lifting restrictions today are playing the same role in pushing women out of the workplace that high school education requirements played in pushing African-Americans out of the workplace some decades ago.”9 Both the National Women’s Law Center10 and the American Civil Liberties Union11 are actively lobbying for stronger workplace protections for pregnant workers. These efforts include endorsements of the 6

Nashville Bar Journal - July 2014

Pregnant Workers Fairness Act,12 a bill proposed in both the House and Senate for the past two consecutive Congresses that would resolve the circuit split legislatively by “ensuring reasonable workplace accommodations” for pregnant workers.13 The impetus for this collective action is largely the longstanding disagreement between the federal courts of appeals over identifying which employees qualify as proper comparators to pregnant employees.14 The PDA amended Title VII by adding the following brief provision to its definitions section: The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employmentrelated purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e2(h) of this title shall be interpreted to permit otherwise….15 In interpreting the meaning of the PDA, the Supreme Court has noted that it has two distinct clauses.16 The first clause unambiguously overrules the Court’s interpretation of Title VII in General Electric Co. v.

Gilbert,17 and expressly defines sex discrimination to include “pregnancy, childbirth, and related medical conditions.”18

It is the meaning of the second clause, referred to as the comparator clause (and underlined above), that has created the current conflict among the federal courts of appeals. The approach followed by a majority of the federal courts of appeals takes a more business-friendly approach and narrowly interprets the scope of the comparator clause.19 Specifically, the analysis adopted by the Fourth, Fifth, Seventh, and Eleventh Circuits emphasizes the source of a nonpregnant employee’s injury in determining whether that potential comparator is similar in their ability or inability to work.20 Under this approach, if the source of a nonpregnant employee’s restriction is an on-the-job injury, these nonpregnant employees are excluded as proper comparators for pregnant employees seeking benefits under the PDA.21 Without discussing the requirements of the comparator clause, these courts have labeled these requests for accommodation by pregnant employees as requests for preferential treatment which they hold the PDA does not require.22 Thus, even if both the pregnant and nonpregnant employee has the same working restriction ̶ such as a 20-pound lifting restriction ̶ these circuits allow the employer to accommodate the restriction from the employee with a worker’s compensation injury, but at the same time, refuse to accommodate the pregnant worker.23 This was true even in the Urbano case where the Fifth Circuit affirmed the grant of summary judgment to the employer despite plaintiff’s identification of more than fortyeight other employees that her employer approved for similar light-duty assignments within just one year’s time.24 In the Young case that is now before the Supreme Court, the Fourth Circuit followed the majority’s approach, thereby excluding workers with occupational injuries as being appropriate comparators, but also excluded from the potential universe of proper comparators those employees with qualifying disabilities under the Americans with Disabilities Act.25 Specifically, UPS adopted a written policy that offered light-duty ac-

commodations to three separate categories of qualifying employees: employees injured on the job; employees with qualifying disabilities under the ADA; and drivers who have lost their certification issued by the Department of Transportation and, thus, were ineligible to drive.26 Despite regularly accommodating numerous employees with lifting restrictions under this policy, UPS denied the plaintiff’s request for a light duty assignment to accommodate a temporary lifting restriction arising out of pregnancy-related medical conditions.27 The Fourth Circuit held that the PDA did not require UPS to accommodate her lifting restriction even though UPS expressly provided this benefit to other workers.28 Not only does the holding in the Young case further reduce a pregnant employee’s pool of potential comparators, it also essentially eliminates the second clause of the PDA from Title VII.29 Although the Fourth Circuit acknowledged the existence of two separate clauses in the PDA, it declared that “[c]onfusion arises when trying to reconcile” the language in the two clauses.30 Additionally, based on placement of both clauses in the definitional section of Title VII, the Fourth Circuit concluded that the second clause “does not create a distinct and independent cause of action” that “requires different – perhaps even preferential – treatment for pregnant workers.”31 On the other hand, decisions from the Sixth and Tenth Circuits take a contrary approach and have permitted comparisons between pregnant employees and employees with occupational injuries.32 First, the minority approach relies on the plain meaning of the comparator clause, namely, that nothing in the language of the PDA requires courts to compare the benefits afforded to pregnant employees only with those offered to employees with non-work injuries.33 Rather, the emphasis in the statute is on the employees’ relative abilities to work.34

Additionally, this minority approach relies on the Supreme Court’s prior interpretations of the PDA35 in which the Court emphasized the plain text of the comparator provision.36 For instance, the Supreme Court previously described the relationship between the two clauses, declaring that “[t]he meaning of the first clause is not limited by the specific language in the second clause, which explains the application of the general principle to women employees.”37 Moreover, the Supreme Court has clarified that the second clause already contains its own comparison group for pregnant women – nonpregnant employees that are “similar in their ability or inability to work” – and requires employers to treat the two groups the same “for all employment-related purposes.”38 According to the Court, the second clause clarifies “that it is discriminatory to treat pregnancyrelated conditions less favorably than other medical conditions.”39 Finally, the Court has not indicated any ambiguity in the second clause’s meaning. To the contrary, the Court has described the mandate of the second clause by observing that “every Member of this Court … acknowledged that [t]he second clause [of the PDA] could not be clearer”40 and that “the PDA means what it says.”41 As described by the Court, “[t]he PDA thus makes clear that it is discriminatory to treat pregnancyrelated conditions less favorably than other medical conditions.”42 Further, the minority approach is consistent with the guidelines issued by the Equal Employment Opportunity Commission. Shortly after the enactment of the PDA, the Commission took the position that “[d]isabilities caused or contributed to by pregnancy, miscarriage, abortion, childbirth, and recovery therefrom are, for all job-related purposes, temporary disabilities and should be treated as such….

(Benefits) shall be applied to disability due Continued on Page 14 

Nashville Bar Journal - July 2014

7

Feature

Juvenile Juvenile Courts Courts in in Transition: Transition:

A A Review Review of of The The University University of of Memphis Memphis Law Law Review’s Review’s Annual Annual Symposium Symposium by:

Everette Parrish

On February 28, 2014, the University of Memphis Law Review held its annual symposium entitled “Juvenile Courts in Transition: Where We Have Been and Where We Are Going.”

This topic was timely for East Tennessee because on April 26, 2012, the U.S. Department of Justice (DOJ) Civil Rights Division issued a report critical of the juvenile court at the time, stating, We find that JCMSC [Juvenile Court of Memphis and Shelby County] fails to provide constitutionally required due process to children of all races. In addition, we find that JCMSC’s administration of justice discriminates against Black children.

Further, we find that JCMSC violates the substantive due process rights of detained youth by not providing them with reasonably safe conditions of confinement.”1 What followed was a Memorandum of Agreement on December 17, 2012.2 Approximately one year later, a landmark agreement was reached between the Shelby County Juvenile Court System and the Department of Justice in December 2013, after a nearly three-year investigation by the DOJ.3 This symposium explored the transition of the Juvenile Court of Memphis and Shelby County and offered up new directions in juvenile justice. Presenters included professionals from the Department of Justice and the Juvenile Court of Memphis and Shelby County, along with juvenile justice scholars and practitioners from a variety of organizations and law schools around the country.4 The scholarly intent of this gathering, besides education and enlightenment of the attending public and juvenile court professionals, was the publication of the current University of Memphis Law Review Symposium Edition released July 2014, and now available 8

Nashville Bar Journal - July 2014

for purchase through the Cecil C. Humphreys School of Law website.5 This article presents notes and highlights from the symposium, in order of each speaker’s appearance.

Winsome Gayle, Special Litigation Counsel with the Special Litigation Section of the U.S. Department of Justice, Civil Rights Division, spoke on “Protecting the Rights of Juveniles Through Enforcement of 42 U.S.C. § 14141.” Her comments compared the present state of Shelby County’s Juvenile System to the recent issues in Meridian, Mississippi, as reported in the Consent Order in John Barnhardt, et al and United States v. Meridian Municipal Separate School District, et al 6 She credited Shelby County with marked improvements in diverting juveniles from detention pointing out, for example, that many Friday arrests – especially those with Monday holidays – now often have a weekend hearing to resolve probable cause issues and greatly reduce the number of youth formerly placed in detention. Shelby County’s top two problems were the persistent disparity in treatment of Blacks as a race and too many transfer hearings in proportion to other juvenile districts and counties.

Sandra Simkins, Clinical Director at Rutgers University and DOJ Juvenile Court Monitor for JCMSC spoke on “Success in Shelby County: A Roadmap to Systematic Juvenile Reform.” She

reported that although Shelby County had defective issues identified in the April 26, 2012 report, 22 other states were just as lacking according to an American Bar Association report. She cited 10 areas of concern: 1. Timing and appointment of counsel, especially at the detention hearing; 2. Wavier of counsel – happening too often; 3. Plea Bargains – too many with little or no investigations; 4. Inadequate resources; 5. Caseloads too high – 500-1000 cases a year; 6. Inadequate training and supervision; 7. Inadequate oversight/monitoring; 8. Stigma/culture of Juvenile Court as a “Kiddie Court”; 9. Parity – where some states pay better than others for appointed counsel; and 10. Lack of leadership.

Simkins stated in the DOJ matter that she monitored, every step, form petition to disposition, required policy and every policy required compliance. Three things were apparent from the findings up to the Memorandum of Agreement: 1. There were immediate changes to courtroom practices to protect children’s due process rights; 2. There was ongoing monitoring, and critical data was being received from stakeholders; and 3. There was the obvious improvement/recognition of a strong juvenile defense bar.

Her closing advice was practical: “Always ask, ‘Is it good enough for my own kid?’”

We should take personal ownership in the system – parens patriae – judge as par-

ent.…Post-dispositional representation is a must – services, counsel, and laws need to be in place to help juveniles in the system achieve rehabilitation, not incarceration.”

Stephen C. Bush, Shelby County Public Defender spoke on “Independent, Ethical, and Zealous Advocacy for All Children of Memphis and Shelby County.”

He proudly reminded the audience that Shelby County has the oldest juvenile system in the state – going back to 1917. He encouraged others to learn more about the present public defender’s office by visiting www.justcity.org. One major point was that the right to counsel was the essence of justice for youth. His office represents one of the largest poor metropolitan areas in the country with over 9,000 requiring counsel, and many second and third generation families were in poverty. His ideal objective long-term is for a unified juvenile defender bar that is, above all, client-centered. Noting that 2017 will signify 100 years of juvenile advocacy for East Tennessee, he wanted to look back at that time and see significant improvements along with real, measurable change for Memphis and Shelby County juveniles in the quality of representation in and out of court for juveniles.

Tom Coupe, Supervising Attorney and Coordinator for Judge’s Action Center at the Juvenile Court of Memphis and Shelby County spoke on “A New Juvenile Court: Successes and Challenges in the Wake of DOJ Intervention.” As administrator tasked with improving the court system, he stated that the day after the April 26, 2012 DOJ report, intense meetings were held to receive information and to task teams to work on problem areas. They worked with DOJ to reach a negotiated agreement which was critical to improving the present working environment in Shelby County. The 72-hour rule in Tenn. Code Ann. § 37-1-114 was better complied with, and a serious overhaul of

the transfer hearing procedures was made.

Other procedures were formalized resulting in immediate and measurable improvements to equal treatment among youth in the system. To further demonstrate measurable results, he reported that Shelby County is looking not only to its past local data, but to national data as it measures its progress via the Relative Rate Index, among other DOJ data markers.7

Mae Quinn, Director, Juvenile Law and Justice Clinic, Washington School of Law spoke on “The ‘Other’ Missouri Model: Systemic Juvenile Injustice in the Show Me State.” She referred to Missouri as a “Justice Rationed” state – one in which 60% of juveniles had no representation of counsel and that training for attorneys in the juvenile system was hard to come by. She also commented that their public defender’s office was listed as 49th in funding, and acknowledged ongoing similar problems like the ones Shelby County had experienced.8 The afternoon sessions were of great benefit to the practitioner in juvenile court.

The topics were representative of the problems and issues identified throughout the morning sessions. Speakers in the afternoon included: Williams Wesley Patton, UCLA David Geffen School of Medicine, Department of Psychiatry, Lecturer; Professor and J. Alan Cook and Mary Schaling Cook Children’s Law Scholar, Wittier Law School speaking on “Bringing Facts into Fiction: The First “Data-Based” Accountability Analysis of the Differences Between Presumptively Open, Discretionarily Open, and Closed Child Dependency Court Systems” Lisa M. Geis, Clinical Instructor, Juvenile & Special Education Law Clinic, University of the District of Columbia – David Continued on Page 20 

Nashville Bar Journal - July 2014

9

Feature

“Narrow Networks”: Problem or Solution in Healthcare Reform? by:

Matthew Pierce

When Congress passed the Patient Protection and Affordable Care Act (ACA) in 2010,1 it became one of the most polarizing pieces of legislation ever produced. The ACA seeks to provide access to health insurance for all individuals by creating healthcare exchanges, expanding Medicaid, and banning insurers from denying coverage to those with preexisting conditions. These measures have proved relatively successful, over 7.5 million people are enrolled in healthcare exchanges and people with pre-existing conditions are now receiving the medical treatment they deserve at a fraction of the price. But as with every action of great magnitude, unintended consequences occur.

Meet Larry Keller, a cancer patient, who enrolled in an insurance plan through an Ohio healthcare exchange created under the ACA.2 Before Larry enrolled in the exchange, his insurance cost him thousands of dollars a month and did not cover preventive services. Recently, Larry sought treatment for a tumor on his liver; however, the exchange informed Larry that treatment from his chosen oncologist was not covered. The oncologist was “out-of-network” and Larry would need to pay for the procedure himself or go to an approved provider. The problem Larry encountered was created by the exchange’s “narrow network,” an unintended consequence of the ACA. Luckily, Larry appealed the coverage denial and the exchange paid for his procedure, however, the problem Larry faced with “narrow networks” is not an anomaly. “Narrow networks” resulting from the ACA are a growing concern as insurers look to cut costs by increasing efficiency. Critics claim the “narrow networks” are limiting the choice and lowering the quality of treatment patients receive. Supporters argue the “narrow networks” are necessary to control the price of healthcare and allow market forces to control quality. This article seeks to educate on both points of view by defining what a “narrow network” is, the role it plays in the current healthcare marketplace, and what options lie ahead for change.

10

Nashville Bar Journal - July 2014

I. What is a Narrow Network?

In the context of healthcare, a “narrow network” refers to a health insurance plan that places a limit on the doctors and hospitals available to its subscribers.3 A “narrow network” is created in two ways.4 First, the insurer simply restricts an individual to only “in-network” healthcare providers. If a customer chooses an “out-ofnetwork” provider, all expenses for the service come directly out of his or her pocket. Second, the insurer charges a higher co-payment for “top tier” providers. Meaning, if an individual wants to see a doctor who is listed in the “top-tier,” the customer is responsible for covering a larger portion of the cost of service.

The ACA did not create this approach to insurance. Prior to the 1990s, state health insurance laws did not allow for “narrow networks.”5 As a result, the cost of health insurance rose precipitously year after year. Finally, in the 1990’s, states removed the ban and insurers began using “narrow networks” to reduce the rising cost of health insurance. Specifically, health maintenance organizations (HMOs) restricted members to a limited network of providers, forcing providers who wanted to be included in the HMO to offer lower prices. During their prominence, HMOs helped table health Continued on Page 16 

Nashville Bar Journal - July 2014

11

BIL L G A & PH DG ET O IL'S F THE

MONTH

OneNote 2013

By: Bill Ramsey, Neal & Harwell, PLC and Phillip Hampton, LogicForce Consulting We have recently re-discovered a great software tool that has been around for quite a while; but with its latest update has become much more attractive as a really useful productivity tool. The software is Microsoft's OneNote, which functions as a digital notebook. The latest version, OneNote 2013, comes bundled with the Microsoft Office 365 subscription option (which we think is a great deal).

What OneNote allows you to do is to ditch your legal pad/steno book/clipboard…whatever you use to write down notes during meetings, conferences, depositions, etc. You simply open OneNote on your laptop, tablet, or even smartphone and begin to type in notes or use a stylus to write just like you would on a legal pad. No more losing your notes or ruining them with spilled coffee: your notes are stored digitally and saved instantaneously.

Furthermore, the ability to create multiple notebooks, sections, and page titles within sections, allows even the organizationally-challenged to easily impose order on your digitized thoughts. With OneNote you are not restricted to storing just user-typed data, but you can store all types of data in various formats. OneNote will allow you to store web page content, Excel spreadsheets, Visio drawings, photos, even audio note recordings.

The really nice feature about OneNote 2013 is that you have the option of storing all of your notebook data in the cloud (which is accomplished very easily with the OneDrive space you get from Microsoft on an Office 365 subscription). With this configuration, once a note or item is placed into OneNote, the data is automatically synched to all of your other digital devices where OneNote is installed.

For example, we took notes at a meeting using OneNote 2013 on a Surface Tablet PC, left the meeting and immediately accessed those notes on an Android smartphone using the free OneNote app from the Google Play Store. The same is true for the iPad. All of this sounds very much like another one of our favorite apps, Evernote. What we really like about OneNote (over Evernote), however, is the ability to retain control over where those notes are stored (whether in our cloud storage, on a PC hard drive, or on a network server). OneNote gives us the flexibility of choosing where we want to store individual notebooks. We can direct non-sensitive notebooks to be stored in the cloud while notebooks with more confidential data can be stored on locally protected storage on our own network.

OneNote even touts the ability to decipher your handwritten notes (entered via a stylus) and convert it in to searchable text. We were skeptical. Have you seen either of our handwriting styles? So we put OneNote through the acid test…first in print, then in cursive.

Amazingly, OneNote successfully converted our handwriting in both tests into searchable text. What this means is that OneNote is so much better than traditional legal pad and pen because you can now search your notes digitally.

Finally, the ability to share ideas/notes/agenda from OneNote with other people (even if they don’t have OneNote installed) is incredibly easy. For example, you can use OneNote to create a meeting agenda (either handwritten or typed), then just click the “E-mail Page” button on the Home ribbon and send the contents of the OneNote page via Outlook. For colleagues who also use OneNote, you can share a notebook section with them to collaboratively work together on an outline/idea pane/workbook/etc.

So what’s not to like about OneNote 2013? We’re hard pressed to find anything we don’t like. Of course, it’s not free (like Evernote); however, if you are like most legal professionals, you need a Microsoft Office license, which in most bundles includes the OneNote application. So you’ve probably already paid for it. You should use it.  See you next month, —Bill & Phil

12

Nashville Bar Journal - July 2014

The Middle District Federal Court Celebrates The 50th Anniversary of Title VII of the Civil Rights Act of 1964 Ken Bryant (Stites) and Valerie Moore (Butler Snow) Co-Chairs of the NBA Federal Courts Committee

On Monday, July 30, 2014, United States District Judge William Haynes, Jr. and United States District Judge Todd J. Campbell commemorated the 50th anniversary of the passage of the Civil Rights Act of 1964 by holding of a seminar in the courtroom of Judge Campbell. Judge Haynes and Judge Campbell recognized the contribution of the judges and attorneys of the Middle District in many significant Title VII decisions that originated in the Middle District of Tennessee, including: Hall v. Werthan Bag Corp., 251 F.Supp. 184 (M.D. Tenn. 1966) (Judge Gray); International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977); Nashville Gas Co. v. Satty, 434 U.S. 136 (1977) (Judge Morton/Charles Wray for Nashville Gas); Harris v. Forklift Systems, 510 U.S. 17 (1993)(Judge Nixon/ Irwin Venick for the plaintiff); McKennon v. Nashville Banner Pub. Co., 513 U.S. 352 (1995) (Judge Higgins/ Clint Watkins and Michael Terry for the plaintiff McKennon and Kim Vance and Eddie Wayland for the Defendant Nashville Banner); and Crawford v. Metropolitan Government of Nashville, Davidson County, Tennessee, 555 U.S. 271 (2009) (Judge Campbell/Ann and Frank Steiner for the plaintiff and Allison Bussell, Kevin Klein, Paul Campbell, Francis Howard Young and Lora Fox for Metro).

The Federal Courts Committee was happy to assist in presenting the seminar and was joined by representatives of L.A.W. and the Napier Looby Bar Association. Our thanks to Chief Judge Haynes and Judge Campbell for their initiation of this noteworthy event. Title VII of the Civil Rights Act of 1964 constituted landmark legislation prohibiting employment discrimination based upon race, color, religion, sex and national origin. By its enactment, notions of equality were more deeply embedded in the public laws of the United States. ď Ž

Nashville Bar Journal - July 2014

13

Resolving the Great Divide in Pregnancy DiscriminationUAS) Law Continued from page 7

to pregnancy or childbirth on the same terms and conditions as they are applied to other temporary disabilities.”43 The EEOC later issued “interpretive guidelines” in the form of questions and answers, and question five specifically confirms that pregnant employees must be given light-duty accommodation if such accommodations are given to other workers.44 As the agency charged with responsibility of enforcing the PDA, the EEOC’s interpretation is at the very least “entitled to a measure of respect.”45 Not only are the federal courts of appeals divided over the meaning of the comparator clause, but the Sixth Circuit has even developed an intra-circuit split with panels having taken conflicting positions and, thus, appears to be divided over the proper interpretation of this provision.46 The Sixth Circuit initially adopted the minority approach, deciding in Ensley-Gaines that occupational workers are permissible comparators for pregnant women under the PDA.47 Although the employer in Ensley-Gaines argued that occupational workers should be excluded because they were statutorily required “to pay [workers with occupational injuries] regardless of whether they work,”48 the Sixth Circuit rejected this argument explaining that “such a distinction pertains to the terms of employment, not to an employee’s ability or inability to work, as provided by the PDA.”49 In a subsequent unpublished decision, the Sixth Circuit followed EnsleyGaines and held that pregnant employees could be substantially similar to employees with workers compensation injuries if they were similar in their ability to work.50 Despite the Sixth Circuit’s previous holding in Ensley-Gaines, a subsequent decision from the Sixth Circuit adopted a contrary approach and permitted an employer to provide light-duty accommodations to workers with on the job injuries and at the same time, deny them to pregnant employees.51 Specifically, in Reeves v. Swift 14

Nashville Bar Journal - July 2014

Transportation Co., the court upheld such a policy, calling it “indisputably pregnancyblind” and specifically endorsing the majority approach followed by the Fifth and Eleventh Circuits.52

35, 21 Duke J. Gender L. & Pol’y 67, 67-68 (2013) (analyzing the “maternal wall” and the barriers mothers face to employment and attributing some of the challenges to “an increasingly hostile judiciary [that has] narrowed the definition of pregnancy discrimination and the categories of workers deemed useable as comparators, creating significant gaps in the statute’s protections”).

Unfortunately, the ramifications of the majority approach, followed by the Sixth Circuit in Reeves, threaten the future effectiveness of the PDA. Indeed, one of the consequences of such a narrow interpretation of the comparator clause is that it “strips pregnant women of most potential comparators, rendering the comparative right of accommodation an empty vessel.”53 Indeed, rather than guarantee pregnant women the right to equal treatment in the workplace, the majority approach allows employers to treat pregnant employees worse than other employees who also require temporary accommodations to perform the essential functions of their job. If unchanged, many experts predict that the approach will both “exponentially widen the gulf in employment opportunities [for] pregnant women” and also “create profound economic stability” for “women in low-wage job and traditionally male-dominated occupations.”54 Therefore, at a minimum, clarity is long overdue, but reform would be even better. 

In fiscal year 1997, 3,977 pregnancy discrimination charges were filed with the EEOC. By fiscal year 2002, the number of charges increased to 4,714. By fiscal year 2007, the number of pregnancy discrimination charges had increased again to 5,587. In 2011, the EEOC received 6,119 charges of pregnancy discrimination. See EEOC, Pregnancy Discrimination Charges, http://www.eeoc.gov/eeoc/statistics/enforcement/pregnancy.cfm.

Lynn Ridgeway Zehrt is the Assistant Professor of Law, Belmont University College of Law. (Endnotes) 1 Young v. United Parcel Serv., Inc., 707 F.3d 437 (4th Cir. 2013), cert. granted, 81 U.S.L.W 3602 (U.S. July 1, 2014) (No. 12-1226).

Pub. L. No. 95-555, 92 Stat. 2076 (codified as amended at 42 U.S.C. § 2000e (2006)).

2

Young v. United Parcel Serv., Inc., No. 12-1226, slip op. (U.S. Oct. 7, 2013).

3

Brief of the United States as Amicus Curiae at 11, Young v. United Parcel Serv., 707 F.3d 437 (4th Cir. 2013), cert. granted, 81 U.S.L.W 3602 (U.S. July 1, 2014) (No. 12-1226), 2014 WL 2089966 (2014).

4

5

Id. at 8, 20.

See, e.g., Deborah L. Brake & Joanna L. Grossman, Unprotected Sex: the Pregnancy Discrimination Act at

6

7

8 The EEOC’s strategic enforcement plan adopted in December 2012 identifies “accommodating pregnancy-related limitations under the Americans with Disabilities Act Amendments Act (ADAAA) and the Pregnancy Discrimination Act (PDA)” as a priority area for enforcement because it is an “emerging and developing issue.” EEOC Strategic Enforcement Plan, FY 2013-2016, 1, 10 (2012), available at http://www. eeoc.gov/eeoc/plan/upload/sep.pdf. The General Counsel of the EEOC, P. David Lopez, recently stated that the EEOC has filed more than 260 pregnancy discrimination suits in the ten fiscal years preceding 2012. Unlawful Discrimination Against Pregnant Workers and Workers and Workers with Caregiving Responsibilities: Meeting of the U.S. Equal Employment Opportunity Commission (Feb. 15, 2012) [hereinafter “EEOC Meeting”] (statement of P. David Lopez, General Counsel, opening remarks on panel 2), available at http://www.eeoc.gov/eeoc/meetings/2-15-12/ transcript.cfm.

EEOC Meeting, supra note 8 (statement of Joan C. Williams); accord EEOC Meeting, supra note 8 (statement of Emily Martin) (noting that an employer’s failure to provide “slight job modifications” forces women to “go onto unpaid leave for the duration of their pregnancies—which may cause them to lose not only income, but also health coverage, seniority, or promotion rights—or be forced from their job altogether”).

9

10 For instance, the National Women’s Law Center issued a report in 2013 documenting the plight of many pregnant women who were denied reasonable requests for temporary accommodations for limitations arising out of their pregnancies. National Women’s Law Center, It Shouldn’t Be A Heavy Lift: Fair Treatment For Pregnant Workers (July 18, 2013), available at http://www.nwlc.org/resource/it-shouldnt-beheavy-lift-fair-treatment-pregnant-workers.

11 For example, the ACLU submitted written comments to the EEOC urging the adoption of a strategic enforcement plan that would strengthen the protection to pregnant workers. Letter from Michael W. Macleod-Ball, Acting Director, ACLU Washington Legislative Office, to EEOC Executive Officer, available at https://www.aclu.org/files/assets/ aclu_comments_on_eeoc_draft_strategic_enforcement_plan_9_18_12.pdf.

See Pregnant Workers Fairness Act, S. 3565, 112th Cong. (2012); Pregnant Workers Fairness Act, H.R. 5647, 112th Cong. (2012); Pregnant Workers Fairness Act, S. 942, 113th Cong. (2013); Pregnant Workers Fairness Act, H.R. 1975, 113th Cong. (2013).

12

13

See id.

14 Compare Young v. United Parcel Serv., Inc., 707 F.3d 437 (4th Cir. 2013), Freppon v. City of Chandler, 528 Fed.Appx. 892, 902 (10th Cir. 2013); Serendnyj v.

Beverly Healthcare, 656 F.3d 540 (7th Cir. 2011); Spivey v. Beverly Enters., Inc., 196 F.3d 1309 (11th Cir. 1999); Urbano v. Cont’l Airlines, Inc., 138 F.3d 204 (5th Cir. 1998); Troupe v. May Dep't Stores Co., 20 F.3d 734 (7th Cir. 1994); with Equal Employment Opportunity Comm’n v. Horizon/CMS Healthcare Corp., 220 F.3d 1184 (10th Cir. 2000); Ensley-Gaines v. Runyon, 100 F.3d 1220 (6th Cir. 1996).

42 U.S.C. § 2000e(k) (emphasis added).

16 See California Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 284-85 (1987) (discussing both the first and second clause of the PDA).

See Urbano, 138 F.3d at 207; Spivey, 196 F.3d at 1312-13.

22

23

See id.

24

See Urbano, 138 F.3d at 206.

25

See Young, 707 F.3d at 439-40, 450.

26

See id.

27

See id. at 440-41.

28

See id. at 447-48.

15

17 General Elec. Co. v. Gilbert, 429 U.S. 125, 140-41 (quoting 29 C.F.R. § 1604.10(b) (1975)) (holding that that the prohibition against sex discrimination contained in Title VII of the Civil Rights of 1964 did not prohibit discrimination on the basis of pregnancy).

18 42 U.S.C. § 2000e(k); see also Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 678 (1983) (analyzing the second clause of the PDA and concluding that “[w]hen Congress amended Title VII in 1978, it unambiguously expressed its disapproval of both the holding and the reasoning of the Court in the Gilbert decision”).

See, e.g., Deborah Widiss, Gilbert Redux: The Interaction of the Pregnancy Discrimination Act and the Amended Americans with Disabilities Act, 46 U.C. Davis L. Rev. 961, 964-966 (2013) (declaring that the “problem” with the PDA “stems from determining who ‘counts’ as a comparator,” noting that “[t]his has long been a simmering problem,” and “argu[ing] that this body of PDA case law misinterprets the statute’s same treatment language”); Deborah Dinner, The Costs of Reproduction: History and the Legal Construction of Sex Equality, 46 Harv. C.R.-C.L. L. Rev. 415, 423 (2011) (concluding that “[c]ourts’ current interpretations of the PDA . . . limit [the] statute[‘s] transformative potential. Courts’ discomfort with the redistributive potential of the PDA, in both disparatetreatment and disparate-impact cases, leads them to interpret the statute narrowly. Cabined interpretations of the PDA dampen the statute’s ability to realize equal employment opportunity for women”).

19

See, e.g., Urbano, 138 F.3d at 206; Spivey, 196 F.3d at 1313; Serendnyj, 656 F.3d at 548-49; Young, 707 F.3d at 446.

20

See, e.g., Urbano, 138 F.3d at 208 (declaring that “the PDA does not entitle pregnant employees with non-work related infirmities to be treated the same under Continental’s light-duty policy as employees with occupational injuries”); Spivey, 196 F.3d at 1313 (holding that “[t]he correct comparison is between Appellant and other employees who suffer nonoccupational disabilities, not between Appellant and employees who are injured on the job”); Freppon, 528 Fed.Appx. at 902 (concluding that the plaintiff’s “condition did not result from an on-the-job injury” and thus “she was not similarly situated to the two male police officers who were accommodated with light duty assignments); Serendnyj, 656 F.3d at 548-49 (deciding that the employer’s modified work policy does not violate the PDA because it “den[ies] an accommodation of light duty work for non-workrelated injuries and, thus, is pregnancy-blind); Young, 707 F.3d at 446 (stating that “[b]y limiting accommodations to those employees injured on the job, disabled as defined under the ADA, and stripped of their DOT certification, UPS has crafted a pregnancyblind policy” that does not violate the PDA).

21

42 Id. at 219 (internal citations and quotations omitted).

43 Gilbert, 429 U.S. at 140-141 (quoting 29 C.F.R. § 1604.10(b) (1975)).

44

Q. If, for pregnancy-related reasons, an employee is unable to perform the functions of her job, does the employer have to provide her an alternative job?

A. An employer is required to treat an employee temporarily unable to perform the functions of her job because of her pregnancyrelated condition in the same manner as it treats other temporarily disabled employees, whether by providing modified tasks, alternative assignments, disability leaves, leaves without pay, etc. For example, a woman's primary job function may be the operation of a machine, and, incidental to that function, she may carry materials to and from the machine.

If other employees temporarily unable to lift are relieved of these functions, pregnant employees also unable to lift must be temporarily relieved of the function.

See Brief of the United States as Amicus Curiae, supra note 4, at 8, 20 (concluding that the position of the Solicitor General is that “[a] majority of the courts of appeals … to have considered claims similar to petitioner’s have erred in interpreting the PDA by ignoring the textual requirement [in the comparator clause]”).

29

30

Young, 707 F.3d at 447.

31

Id.

32 See Ensley-Gaines, 100 F.3d at 1226; Horizon/CMS Healthcare Corp., 220 F.3d at 1196.

See Ensley-Gaines, 100 F.3d at 1226; Horizon/CMS Healthcare Corp., 220 F.3d at 1195-96.

33

34 See Ensley-Gaines, 100 F.3d at 1226 (holding that the comparator clause of “the PDA explicitly alters the analysis to be applied in pregnancy discrimination cases” because while “Title VII generally requires that a plaintiff demonstrate that the employee who received more favorable treatment be similarly situated ‘in all respects,’ the PDA requires only that the employee be similar in his or her ‘ability or inability to work”); Horizon/CMS Healthcare Corp., 220 F.3d at 1196 n.7 (stating that the proper comparison is between the plaintiff and “other temporarily-disabled employees”).

See Ensley-Gaines, 100 F.3d at 1226; Horizon/CMS Healthcare Corp., 220 F.3d at 1191.

29 C.F.R. § 1604, App. (followed by the Supreme Court in Newport News Shipbuilding & Dry Dock Co., 462 U.S. 669, 673 (1983)).

45 Federal Express Corp. v. Holowecki, 552 U.S. 389, 399 (2008) (quoting Skidmore v. Swift & Co., 323 U.S. 134 (1944)).

46 Compare Ensley-Gaines v. Runyon, 100 F.3d 1220 (6th Cir. 1996), with Reeves v. Swift Transp. Co., 446 F.3d 637 (6th Cir. 2006).

47

See Ensley-Gaines, 100 F.3d at 1226.

48

Id.

49

Id. (emphasis added).

35

See, e.g., Guerra, 479 U.S. at 289; Int’l Union v.

Johnson Controls, 499 U.S. 187, 204 (1991).

36

37

Guerra, 479 U.S. at 285.

See Johnson Controls, 499 U.S. at 204 (observing that the PDA “contains a BFOQ standard of its own: unless pregnant employees differ from others ‘in their ability or inability to work,’ they must be ‘treated the same’ as other employees ‘for all employment-related purposes’”).

See Latowski v. Northwoods Nursing Ctr., No. 122408, 2013 WL 6727331, at *4 (6th Cir. Dec. 23, 2013).

50

51

See Reeves, 446 F.3d at 641-42.

52

Id.

38

39

Id. at 219.

Question five reads as follows:

See Brief of Law Professors and Women’s Rights Organizations as Amici Curiae in Support of Petitioner at 2, Young v. United Parcel Serv., 707 F.3d 437 (4th Cir. 2013), cert. granted, 81 U.S.L.W 3602 (U.S. July 1, 2014) (No. 12-1226), 2013 WL 2103656 (2013).

53

54

Id. at 2-3.

40 Id. at 204 (internal citations and quotations omitted).

41

Id. at 211.

Nashville Bar Journal - July 2014

15

“Narrow Networks”: Problem or Solution in Healthcare Reform? Continued from page 10

insurance premiums for the only time in modern American health insurance history.6 Backlash from the public over having to change their doctor stifled the use of “narrow networks.” However, even more recently, managed care organizations (MCOs) have utilized “narrow networks” to negotiate lower prices by guaranteeing a higher volume of individuals for a smaller group of providers.

Statutorily, exchanges can use “narrow networks” as long as the plan meets the requirement of a qualified health plan (QHP). QHPs must meet the network adequacy standards provided in 45 C.F.R. § 156.230. Paraphrased the regulation provides, the QHP must include essential community providers and must maintain “a network that is sufficient in number and types of providers.”7 Essential community providers (ECPs) are providers “who serve predominantly low-income, medically underserved individuals.”8 A QHP must have a sufficient number of ECPs within a geographic area to ensure “reasonable and timely access” for low-income individuals.9 The Center for Medicare and Medicaid (CMS) ruled “sufficient” to be 20% of ECPs within a given area. Therefore, as long as each plan, “narrow network” or not, meets these standards, then it is statutorily permitted.

To truly understand exactly what a “narrow network” looks like in practice, McKinsey & Company conducted a study to show how many issuers are using “narrow networks.”10 The study defined a “broad network” as including at least 70% of the geographic area’s 20 largest hospitals, a “narrow network” as including 31-70% percent of the area’s 20 largest hospitals, and an “ultra-narrow network” as including 30% or less of the area’s 20 largest hospitals. Out of the exchanges studied, it found 30 “broad networks”, 32 “narrow networks”, and 38 “ultra narrow networks”. This shows that in practice the exchanges are opting to use “narrow networks” more often than “broad networks”.

16

Nashville Bar Journal - July 2014

Therefore, in the context of healthcare, “narrow networks” have existed for years; the ACA has only accelerated their use.

To see the purpose the “narrow networks” play in the exchange, one must next examine how the modern healthcare marketplace operates.

II. Why are “Narrow Networks” Needed in the Healthcare Marketplace?

The economics of healthcare and the policies under the ACA are two of the main driving factors behind “narrow networks.”

When Congress enacted the ACA, one major policy problem drove reform: skyrocketing premiums on healthcare insurance without normal market constraints. To understand why the premiums skyrocketed in recent years it is important to outline the insurance process.

Consumers covered under insurance do not directly pay for their healthcare services. Instead the consumer generally pays a yearly amount and a co-payment or deductible anytime they receive a healthcare service. This leads to the consumer disregarding the price of the procedure because they pay only a set amount of the costs. If the consumer does not choose based on price of a service, a provider has no incentive to charge less. Thus, the provider will charge any amount they deem appropriate, however high or low. When the provider charges higher amounts, the insurer passes on the costs to the consumer. Since most consumers receive their insurance through their employer and have no true option to switch, consumers continue to pay the insurers’ rates, leaving the rates unchecked.

This leads to the problem of premiums skyrocketing due to little or no normal market constraints.11 The ACA seeks to combat these problems through exchanges, which provide lowcost healthcare to anyone. In theory, the exchanges would attract a larger pool of customers and thus, the exchange would have more leverage when negotiating

contracts with providers. The exchanges could also charge lower rates because of the larger group of individuals who pay into the exchange. The prices of the plans display all of the applicable rates and make it easier to make a side-by-side comparison and choose what is best based on costs and the services provided. The exchanges would drive down the cost of services as providers moved to compete and would increase the quality of medicine practiced.

In theory, this works perfectly, but with the reality of the healthcare marketplace, insurers currently need “narrow networks” to see the goals to fruition. In the past, insurers could limit exposure by denying individuals with pre-existing conditions or charge higher premiums to mitigate the risk. Under the ACA, insurers no longer can deny coverage to individuals to cherrypick the healthy customers. Therefore, insurers still need a way to cut costs. The most efficient way to cut costs is by restricting customers to doctors who charge the least for services or by narrowing the number of providers to obtain lower prices in exchange for a higher volume of patients. Both of which are accomplished by having “narrow networks.”

In essence, in order to cut costs the exchanges have attempted to bring competition back to the healthcare marketplace.

The “narrow networks” may not include hospital X because its prices are too high and the quality is only marginally better than the less expensive hospital Y. By only contracting with hospital Y, who charges lower prices, the insurer guarantees the customer will have lower healthcare expenses, bringing down the total costs of insuring each customer. Further, by contracting with a small group of providers, the insurer guarantees each individual provider a larger patient base—creating leverage in negotiating fees for service.

In addition, the exchanges create competitive pressure on the insurance companies to keep premiums down. The exchange marketplace is set up so QHPs with comparable actuarial value display their costs side-by-side in an online forum. This allows customers to choose their services based on price and services offered, putting pressure on the insurers to keep costs down.

There are a few myths to dispel when examining competition in the healthcare marketplace. First, higher price does not necessarily equal higher quality. The association of higher price meaning higher quality in healthcare is tenuous at best. In California, an appendectomy—the removal of an appendix—ranged from $1,529 to $182,955.12 A RAND study showed there is a low to moderate positive correlation (higher costs equals higher quality) in 34% of hospitals, but it also found there is a negative correlation (higher costs equals lower quality) or no difference in 66% of hospitals.13 Evidencing the relationship between costs and quality is mostly false.

more patients. The hospital may eliminate extraneous services in order to compete, but this does not necessarily mean quality will drop. The extraneous services might lead to lower patient wait times and lower cost per customer for the hospital.

Now that it is apparent “narrow networks” serve a purpose and can be beneficial in the modern healthcare marketplace, it is important to remember they are not a panacea. Individuals are still struggling to get the medical care they need because of the limited networked of providers, but modification and change are possible.

III. What are the Options for Change and What will the Future Hold?

The tension created between insurers and customers—insurers wanting to keep prices low to attract customers, customers wanting broad networks to choose the provider of their choice—is a difficult problem to solve. It requires a balancing act of mandating insurers provide a certain

amount of choice, while not overburdening them. Currently, there are movements in many states to take action to change the landscape created under the ACA. The ACA affords states three options for participating in the exchanges: (1) have a federal run exchange, (2) have a state run exchange, compliant to the minimum standards set by the federal government, or (3) have a state-federal partnership.15 States who choose to establish their own exchange or have a federal partnership have flexibility in the standards that are used under 42 USC § 18041 (2013). The statute states in relevant part, each state exchange must apply the federal standards established under the ACA or state laws which implement the same or better standards.16 Of the states that are operating exchanges or exchange partnerships, thirteen have implemented higher network adequacy standards than the federal requirements.17 Some examples of these standards are Continued on Page 18 

Second, more medical care is not always better medical care. Many customers believe the more tests they receive, the better healthcare they are obtaining. In reality, many doctors order tests, which are unnecessary or superfluous.14 The doctors have no incentive not to order the test and save costs, even if the test adds no medicinal value.

It is important to remember higher cost does not necessarily mean higher quality and more is not always better when examining competition in the healthcare market. For example, if an exchange eliminates the highest price hospital from its network, the exchange is not necessarily reducing the quality of services offered. Instead, the exchange may be incentivizing the hospital to recognize and change its prices to compete for

Nashville Bar Journal - July 2014

17

“Narrow Networks”: Problem or Solution in Healthcare Reform? Continued from page 17

limiting maximum travel time, having a maximum provider to enrollee ratio, requiring certain hours of operations, and having a maximum appointment wait time.18 Four states have gone even farther by expanding the ECP guidelines. The expansion includes broadening the definition of ECP to include providers that have a demonstrated commitment to serving the poor, providing for specific provider types that must be included, and providing more strenuous and specific geographic measures.19 In addition to the states attempting to limit the ability of insurers to use “narrow networks,” the federal government has also become involved. In a letter issued by CMS, in 2015 QHPs will need to include 30% of ECPs, a jump from the 2014 standards.20 In 2014, CMS determined whether a QHP included a sufficient number of ECPs in two ways: under a safe harbor, where the QHP had to contract with at least 20% of available ECPs; or under a minimum expectation, where the QHP must show that at least 10% of ECPs are included and must submit a written justification for how this is sufficient. CMS justified the jump by saying only one QHP submitted a written justification and therefore the 30% level should be obtainable. However, CMS still allows for lower than the 30% threshold with a sufficient written justification.

The CMS will also take a more active role in the approval of QHPs, ensuring they are covering the necessary essential health benefits and that they are providing “reasonable access”.21 The “reasonable access” standard will be a more stringent standard applied by CMS and will be more involved for the agency. To compare, in 2014, the agency considered plans reasonable based on issuer accreditation status or if the state had sufficient network adequacy review processes. The “reasonable access” standard will focus on providers who historically have raised concerns over inclusion in the insurer networks.

18

Nashville Bar Journal - July 2014

In essence, it is clear there are steps being taken by the state and the federal governments to broaden the network of providers used for the exchanges, but none of these solutions seem to help Larry Keller. Larry could not go to his oncologist because it was “out-of-network.” No new proposed regulation provides all oncologists or specialty hospitals must be included in the exchange networks. In fact, in an Associate Press survey, only four of the nineteen nationally recognized comprehensive cancer centers surveyed said exchange patients have access to the centers through all insurers in their state.22 Fortunately, there are other ways the exchanges can help Larry in the future.

First, more transparency in the exchanges can help consumers make the proper choice for their medical needs. Although Healthcare.gov already allows consumers to compare plans of similar actuarial value, it may be even more helpful to show exactly what hospitals are involved in the plan. A rule similar to this was proposed in the CMS letter, stating each insurer when applying to become a QHP must submit a full list of all providers in their network.23 The added transparency will not eliminate “narrow networks”; instead it will allow consumers to make more informed decisions.

Second, insurers and consumers need a more reliable way of measuring quality of care. If consumer reports, insurers, or even the American Medical Association issued a standardized grading system for quality of care, consumers could know exactly the quality they were receiving under every network. Many insurers already use quality measures in deciding which providers to add to their network, but a more standardized grading system would make it easy to compare plans and providers. Once again, this would not eliminate “narrow networks,” it would help consumers know exactly what they were purchasing with a specific plan.

Lastly, insurance companies need a safety valve. Other stories like Larry’s have been identified, however they are not in the majority of people who join the exchanges. With a safety valve, these special cases would not be denied, sticking the customer with the bill, but would allow the customer to receive the treatment he or she needs. There should not be many adverse effects to insurers as most people could receive proper treatment under their current plan.

The Federal and state changes to improve network adequacy standards and alleviate the problems associated with “narrow networks,” combined with more transparency, standardized quality measures, and a safety valve could be a good start to solving some of the problems in the exchange.

The state and federal measures make sure the insurers do not abuse the system, while the other three measures ensure if “narrow networks” are used the consumers will have the proper information to protect themselves.

IV. Conclusion In essence, “narrow networks” are a necessary mechanism for the current healthcare marketplace. The “narrow networks” allow competition and natural market forces to control skyrocketing healthcare costs. In the future, with more transparency and more people enrolled in the exchanges, this might change. But for now, President Obama put it best, “for the average person . . . they’re going to have to make some choices, and they might end up having to switch doctors . . . [they] might find out that the network’s more expensive than another network, but then you’ve got to make a choice in terms of what’s right for your family.”24 To commit to reforming healthcare, we will need to make choices.

It is no different than when you go to a grocery store or choose to buy a car. The motor behind competition in the marketplace is the customer and the choices that

customer makes acts as the gas. The more informed choices we make about what healthcare services we buy, the better the healthcare reform will run.  Matthew Pierce is a third-year law student at the University of North Carolina and a graduate of the University of Tennessee. Matthew is currently an Editor of the North Carolina Banking Institute Journal and President of the Transactional and Corporate Law Association. His legal education has focused in areas of finance, securities, and banking law. Matthew plans to return to Tennessee to pursue these interests and contribute to the Nashville community.

(Endnotes) The Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) [hereinafter “the ACA”].

1

2 Lisa Bernard Kuhn, Health Plans May Omit Top Cancer Hospitals, Cincinnati.com (Mar. 28, 2014), http://www.cincinnati.com/story/news/2014/03/27/aca-cancer-obamacare/6957237/.

Sarah Kliff, Obamacare’s narrow networks are going to make people furious—but they might control costs, Wonkblog (Jan. 13, 2014), http://www.washingtonpost.com/blogs/wonkblog/ wp/2014/01/13/obamacares-narrow-networks-are-going-to-make-people-furious-but-theymight-control-costs/.

3

4

Id.

David Dranove & Craig Garthwaite, Misunderstanding Narrow Networks, The Healthcare Blog (Mar. 13, 2014), http://thehealthcareblog.com/blog/2014/03/13/misunderstanding-narrownetworks/.

5

6

Id.

7

45 C.F.R. § 156.230(a-c) (2013).

8

Id. at § 156.235(c).

9

Id. at § 156.235(a).

McKinsey Center for U.S. Health System Reform, Hospital networks: Configurations on the exchanges and their impact on premiums, McKinsey & Company (Dec. 14, 2013), available at http:// healthcare.mckinsey.com/search/node/Hospital%20networks%3A%20Configurations%20 on%20the%20exchanges%20and%20their%20impact%20on%20premiums%2C. 10

11 It should be noted Medicaid and Medicare use their regulatory authority to set prices and it is difficult for providers to object because of the overwhelming market share these two services possess. Most doctors and hospitals could not survive without them.

Renee Y. Hsia, et. al, Research Paper, Health Care as a “Market Good”? Appendicitis as a Case Study, JAMA Internal Med. (May 28, 2012) available at http://archinte.jamanetwork.com/article. aspx?articleid=1151669.

12

13 Peter S. Hussey, Samuel Wertheimer, & Ateev Mehrotra, The Association Between Healthcare Quality and Costs, 158 Annals of Internal Med. 27 (Jan. 2013, no. 1).

14 Rita Redberg, Less is More, Inst. of Med. (Sept. 21, 2012) available at http://iom.edu/Global/ Perspectives/2012/LessIsMore.aspx.

15 Sarah Rosenbaum et al., Realizing Health Reforms Potential, 33 Commonwealth Fund Pub. 1719 Dec. 2013).

16

42 U.S.C. § 18041 (2013).

17

Rosenbaum et al., supra note 15, at 3.

18

Id. at appendix 1.

19

Id. at 3.

2015 Letter from CMS to Issuers in the Federally-facilitated Marketplaces (FFM), Feb. 4, 2014, at 21 [hereinafter “CMS 2015 Letter”], available at http://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/draft-issuer-letter-2-4-2014.pdf.

20

21

Id. at 19.

Associated Press, Nation’s Elite Cancer Hospitals Off-limits under Obamacare, N.Y. Post (Mar. 19, 2014), http://nypost.com/2014/03/19/nations-elite-cancer-hospitals-off-limits-under-obamacare/.

22

23

CMS 2015 Letter, supra note 20, at 19.

Jason Millman, Whitehouse orders broader Obamacare health plans in 2015, Wash. Post Wonk(Mar. 14, 2014), http://www.washingtonpost.com/blogs/wonkblog/wp/2014/03/14/whitehouse-orders-broader-obamacare-health-plans-in-2015/.

24

blog

Nashville Bar Journal - July 2014

19

Juvenile Courts in Transition: A Review of The University of Memphis Law Review’s Annual Symposium Continued from page 9

A. Clarke School of Law speaking on “An IEP for the Juvenile Justice System: Incorporating Special Education Law Throughout the Delinquency Process”; and Arthur Horne, III, Esq., Home & Wells, PLLC speaking on “Blended Sentencing in Tennessee Courts.”

The final hours were moderated by Magistrate Dan Michael, Chief Magistrate with the Juvenile Court of Memphis and Shelby County in a panel discussion around “The Evolving Role of Attorneys in Juvenile Court.” His closing remarks resonated with attendees as he stated, “We cannot incarcerate our way out of the juvenile system. The biggest problem currently is a ‘School-to-Prison Pipeline’ that must be disrupted. The other serious issues are quite simply: guns, drugs, and poverty.”

Be on guard – the problems identified by the Department of Justice and the responses by Shelby County to those indictments should put Middle and West Tennessee juvenile courts on notice. That which happened in the west, could very well happen in any division of the state.

Identify and applaud now the procedures and training in place that work for middle Tennessee. Be pro-active and self-critical in identifying problems and offer solutions in areas needing change. Work together locally to foster improvements from within – long before some federal entity has to descend upon this district and identify areas needing their help.  Everette Parrish (attorney@law4tn.com) provides over 300 juveniles at Woodland Hills and Wilder Youth Development Centers with postdispositional and civil rights legal counsel. He is a regular contributing committee member of the Nashville Bar Journal and maintains a juvenile, family and criminal defense practice in middle Tennessee.

20

Nashville Bar Journal - July 2014

(Endnotes) 1 U.S. Dep’t of Justice, Civil Rights Div., Investigation of the Shelby County Juvenile Court (Apr. 26, 2011), available at http://shelbycountytn.gov/DocumentView.aspx?DID=4255.

U.S. Dep’t of Justice, Civil Rights Div., Memorandum of Agreement Regarding the Juvenile Court of Memphis and Shelby County (Dec. 17, 2012), available at http://shelbycountytn.gov/ DocumentCenter/Home/View/5850.

2

3 Shelby Co., Tenn, Juvenile Court Updates, http://www.shelbycountytn.gov/index. aspx?NID=2929.

Press Release, Univ. of Memphis Cecil H. Humphreys School of Law, University of Memphis Law Review Annual Symposium to Focus on Juvenile Courts (Feb. 18, 2014), available at http:// www.tba.org/sites/default/files/memphis_lawreview_juvenilecourt_021814.pdf.

4

The symposium edition may be purchased for $12 at https://secure.touchnet.com/ C20227_ustores/web/product_detail.jsp?PRODUCTID=151&SINGLESTORE=true.

5

Bernhardt et al & United States v. Meridian Mun. Separate Sch. Dist, et al, Civ. No. 4:65-cv01300-HTW-LRA (S.D. Miss. Mar. 22, 2013).

6

7 Settlement Agreement, United States through the Department of Justice with Shelby County, Tennessee, the County Mayor and the County Attorney, and the Juvenile Court of Memphis and Shelby County (Jan. 15, 2014), available at http://www.justice.gov/crt/about/ spl/documents/shelby_eqprorpt2_1-16-14.pdf

Press Release, Dep’t of Justice, Department of Justice Announces Investigation of the St. Louis County Family Court (Nov. 18, 2013), available at http://www.justice.gov/opa/pr/2013/ November/13-crt-1232.html.

8

SUPPORTING GREAT ORGANIZATIONS IN OUR COMMUNITY FOR At First Tennessee, we believe that giving back is a great investment. That’s why we’ve always supported community-minded organizations like the Nashville Bar Association. From 1864 to many more years to come, we’re committed to strengthening our relationships and promoting progress in the places we’re all so proud to call our home.

OFFICIAL BANK PARTNER OF THE NASHVILLE BAR ASSOCIATION

©2014 First Tennessee Bank National Association. Member FDIC. www.firsttennessee.com

Nashville Bar Journal - July 2014

21

Disclosure Gary Wade, chief justice of the Tennessee Supreme Court, has established a scholarship to support students at the College of Law at the University of Tennessee, Knoxville, who are interested in a career in public service. The Justice Gary R. Wade Endowed Scholarship is open to students currently enrolled at or admitted to the College of Law who are Tennessee residents with financial need and express a strong interest in public service. The scholarship is open to all applicants regardless of race, color, religion, sex, national origin, citizenship, disability, age or veteran status.

John D. Kitch has joined the law firm of Cornelius & Collins, LLP in an Of Counsel capacity. Prior to joining the firm, Mr. Kitch was a solo practitioner for more than 38 years. His practice focuses on the representation of public school systems, civil trial and appellate practice in state and federal courts, and probate matters.

He was a past president of the Nashville Bar Association.

Eleanor McDonald has been promoted to Executive Vice President, General Counsel & Board Secretary at Ingram Industries Inc. She succeeds Bill Morelli who will retired July 1. She joined Ingram in 2006 as Assistant General Counsel, and before that was in private law practice in Nashville concentrating in mergers and acquisitions, commercial finance transactions and general corporate matters. McDonald received her juris doctor degree from Vanderbilt University Law School and earned her bachelor of arts degree in political science from the University of Alabama in Tuscaloosa.

\Dis*clo”sure\ (n) The act of revealing, releasing or bringing to light relevant information concerning NBA Members & Staff. n Announcements n Kudos n People on the Move n Firm News Morgan & Morgan is pleased to announce the opening of its Nashville office. Kathryn Barnett has joined the firm as the office's managing partner. Barnett will continue to focus her practice on individual catastrophic injury and wrongful death cases, and on complex plaintiffs’ litigation, including whistleblower cases, class actions and mass torts. Morgan & Morgan is one of the largest exclusively plaintiffs’ law firms in the country with more than 20 offices throughout Florida, Georgia, Mississippi, Tennessee, Kentucky, and New York. The firm handles cases nationally involving personal injury, medical malpractice, consumer class action, and securities fraud, as well as complex litigation against drug and medical device manufacturers. More information about the firm can be found at www.forthepeople.com.

Matthew R. Burnstein has been elected chairman at Waller.

The move is effective August 1st.

Burnstein will succeed John Tishler, who will assume the role of Chairman Emeritus and resume his bankruptcy and restructuring practice. Burnstein has spent his entire legal career at Waller. He joined the firm in 1997 after graduating Order of the Coif from Vanderbilt University Law School and serving as law clerk to Chief U.S. District Judge Charles R. Simpson III in the United States District Court for the Western District of Kentucky. He earned a B.A., magna cum laude, in 1993 from Vanderbilt University. Burnstein’s legal practice focuses on corporate transactions, primarily in the healthcare industry. He also represents private equity and venture capital funds.

n

Mandy Strickland Floyd had joined Bone McAllester Norton PLLC. Floyd served as the Senior Judicial Clerk for the Honorable Richard H. Dinkins on the Tennessee Court of Appeals.

She focuses her practice in Litigation and Dispute Resolution, Intellectual Property and Labor and Employment Law. She is the firm’s 39th attorney. She is a member of the Lawyers’ Association for Women and currently serves as the Diversity Committee Co-Chair. She received her Juris Doctor degree from The University of Memphis, Cecil C. Humphreys School of Law and her B.A. degree from Vanderbilt University.

Dial-A-Lawyer is held the first Tuesday of each month. The public is invited to call in with basic legal questions.

July Volunteers: David Cooper Helen Cornell Gina Crawley Christopher Hugan Lawrence Kamm Tom Lawless Doug Pierce Joe Rusnak To volunteer your time, please contact Wendy Cozby, LRIS Coordinator at wendy.cozby@nashvillebar.org or 242-9272.

Pro Bono credit does apply and dinner will be provided.

22

Nashville Bar Journal - July 2014

Frost Brown Todd has been named 2014 Gold Standard Law Firm by Women in Law Empowerment Forum. The firm was recognized for the fourth consecutive year to receive the Gold Standard Certification. In order to be considered for inclusion, firms had to meet at least four of six criteria regarding the percentage make up of women in firm leadership and compensation. This year, Frost Brown Todd satisfied the following criteria:

Welcome New NBA Members!

1) Women account for at least 20% of equity partners or 33 1/3% of the non-lateral partners who became equity partner in the past 12 months.

William Biggs Metropolitan Development & Housing Agency

2)Women represent 10% or more of the firm chairs, managing partners and office partners in charge

Antoino Carroll

Ashley Cowgill

3) Women make up at least 20% of the firm’s primary governance committee.

4) Women represent at least 20% of the firm’s compensation committee.

Brent Baxley Matt Hardin Law, PLLC

Benjamin M. Katz Burr & Forman LLP* Grant Marshall Noah Rashad Muhammad PhD John M. Perry Jr. Bradley Arant Boult Cummings LLP* Terrence Rand

2014 NBA Premier Members INCLUDE: Elizabeth A. Alexander Gail Vaughn Ashworth Kathryn E. Barnett Charles H. Beaty Thomas Beck Barbara Bennett Charles W. Bone Jay S. Bowen C. Dewey Branstetter Jr. Joe B. Brown Kenneth Sherman Byrd Kathryn Caudle Mark P. Chalos John Ray Clemmons Dixie W. Cooper Patricia J. Cottrell John A. Day John Franklin Floyd Charles K. Grant John J. Griffin Jr. William L. Harbison Marian F. Harrison Trey Harwell Paul T. Housch R. Jan Jennings John D. Kitch William C. Koch Jr. Edward Dodson Lanquist Jr. Thomas W. Lawless Claudia Vettel Levy

Richard Wesley Littlehale Randal S. Mashburn Amanda J. McClendon Jeffrey Mobley Marlene Eskind Moses Patricia Head Moskal Michael I. Mossman Dean Newton Elliott Ozment Gregory J. Pease Tracy A. Powell Benjamin M. Rose Edgar M. Rothschild III Maria M. Salas Quindal Segall Thomas J. Sherrard III Emily A. Shouse Saul A. Solomon Michael G. Stewart James Gerard Stranch IV Hon. Aleta Arthur Trauger Irwin Bruce Venick Howard H. Vogel Michael J. Wall James L. Weatherly Jr. Peter Weiss Thomas V. White Larry R. Williams Nicholas S. Zeppos

NBA Premier Membership is a special category that recognizes our members who desire to demonstrate the utmost in commitment and support to the NBA Programs & Services.

Contact Vicki Shoulders (615.242.9272, vicki.shoulders@nashvillebar.org) for details.

Rebekah Raymond

Quindal Segall Quin Evans Segall, Atorney at Law David Anthony Shipman

Marcus Shute Tiffany Tant-Shafer Tant-Shafer Law Firm Amanda Tarsa Warren County Circuit Court John Wilks Weatherly, McNally & Dixon, PLC* * Belongs to a 100% Club firm

Nashville Bar Association members may send Disclosure announcements via email to nikki.gray@nashvillebar.org Submissions are subject to editing.

Nashville Bar Journal - July 2014

23

Classifieds

Vacation Rentals

Office Space For Sale or Lease Historic Office Bldg. For Sale or Lease: .8 Acres, corner lot with traffic light. 3400 sq. ft.

12 minutes from Courthouse, ample parking and ample on-site storage. Quick access to Opryland, Airport, hospital, and all interstates. 1215 Gallatin Rd. S. Contact Steve North, 615-860-7644; stevenorth@comcast.net

Golf Getaway: The Cottages at Olde Stone Bowling Green, Kentucky Arthur Hills Signature Course 3 BR – 3 ½ baths – Full kitchen – Grill Screened porch on 9th Fairway Dining – Tennis – Resort Pool/ Hot Tub – Fitness Center Contact Amy Gilmet: (502)357-1901

Expert Witness

2 Blocks from courthouse Class A office space for rent in trendy residential area 2 blocks from courthouse. Three attorney offices. Traditional style with hardwood floors throughout, wide molding, exotic granite countertops & elegant alabaster sconce lights. Includes lobby, conference room, work room, two large secretarial stations, kitchinette and telephone system. Free parking. Covered parking available.

Contact Carl Neuhoff, HND Realty LLC. 2977711 / 390-6186 / c.neuhoff @hndllc.com

Legal Nurse Consulting Handling cases with medically related aspects? Best Practice Legal Nurse Consulting can help you with superior case preparation. Best Practice can screen cases for merit, find expert witnesses, write summaries and chronologies of medical records, along with other services. Contact Lisa at 615-481-5047 or visit bplnc.com for more information.

Would You Put That In Writing? ©

Downtown Office space for rent. Support staff to share. 501 Union St., Ste. 504. Call Cynthia Bohn 615252-8866.

Would You Put That In Writing?

Certified Forensic Document Examiner Handwriting Identification & Analysis Expert Witness – 30 Years of Experience Qualified in Federal, State and Local Courts High Level of Professionalism Strict Rules on Client Confidentiality Delivery Deadline Observed

Downtown Office condos for Lease or Sale. 500 to 2500 sq. feet. 501 Union Street, 5th floor. Near Legislative Plaza. Call Lynne at (615) 259-1550.

Office Space Nashville attorney with established civil law practice looking to share office space and support staff. Please call (615) 251-5448.

Marty Pearce, CDE, CGA E-mail: martypearce@comcast.net 615-884-0363 or 888-640-1001

APPELLATE BRIEFS and ARGUMENT THOMAS F. BLOOM, J.D. (Emory 1977) (615) 260-5952; www.bloomappeals.com Retained by attorneys throughout the State for 29 years to draft briefs and/or argue cases in over 400 appeals, State and Federal. Research assistance also available.

Quality Guaranteed at reasonable cost. References available upon request.

Visit the NBA's Career Center & Get Started Today: http://jobs.nashvillebar.org/home Employers:

Job Seekers:

- Place your job in front of our highly qualified members

- Search for & quickly apply to great, relevant jobs

- Search our resume database of qualified candidates

- Set up Job Alerts so you are immediately notified any time a job is posted that matches your skills or interests

- Manage jobs and applicant activity right on - Create an anonymous job seeker profile our site or upload your anonymous resume so - Limit applicants only to those who are qualified employers can find you - Fill your jobs more quickly with great talent

24

Nashville Bar Journal - July 2014

- Access job searching tools and tips

Advertiser Index Elder Law Practice of Timothy L. Takacs ..................................................... Back Cover IPSCO .............................. Inside Back Cover First Tennessee Bank ................................. 21 Lexus of Nashville .......................Front Cover National Academy of Distinguished Neutrals, Tennessee Chapter .................................... 11 NBA Directory Purchase Form.................. 13 NBA Career Center .................................. 24 Thomas F. Bloom, JD ............................... 24 Thomson Reuters ...................................... 17

Should You Join the NBA LRIS? LRIS Markets & Advertises Your Services When you join the NBA LRIS,

your practice benefits from the LRIS’ marketing and advertising programs. Currently, LRIS reaches potential clients through advertising in the Yellow Pages in various telephone directories throughout the state. Clients are referred to us through a variety of sources including the courts, Office of the Attorney General, employee assistance programs, other Bar Associations and the Social Security Administration. Also, our on-line presence attracts clients nationwide.

JOIN NOW Contact: Wendy Cozby, LRIS Coordinator (615) 242-9272 | wendy.cozby@nashvillebar.org The NBA Lawyer Referral & Information Service is the Exclusive Referral Service for the Nashville Bar Association.

Advertising: Contact Tina Ashford at (615) 242-9272 or tina.ashford@nashvillebar.org Classified Advertising: Rates: $75 for the first 50 words and $1 for each additional word.

Available Sections: Expert Witness, For Sale, Forensic Document Examiner, Technical Support Services, Office Space, Litigation Services, Office Sharing, Vacation Rentals and Accounting.

Display Advertising: Full and Half Page color and black & white advertisements. Quarter and Eighth Page black & white advertisements. Please contact Tina Ashford for a display advertising quote.

Lawyers’ Professional Liability Insurance – We Can Fit the Pieces Together!

With 14 carriers to choose from, IPSCO can properly insure your risk, enhance your coverage and possibly reduce your premium!

• Competitive Rates • Financially Strong • Zero Deductible Available • Coverage Available Up to $20 Million • Choice of Claims Expenses - Inside or Outside the Limits Contact us today for a no-obligation premium indication!

IPSCO INSURANCE PLANNING & S E R V I C E C O M P A N Y, L L C

Exclusive Insurance Title Sponsor for the Nashville Bar Association 2301 21st Ave South | Nashville, TN 37212 | 615.460.1654 | 866.625.0630 | Lawyers@assoc-admin.com | IPSCOLawyers.com

Elder Law Practice of Timothy L. Takacs

What are we going to do about Mom? When an elderly loved one becomes incapacitated due to long-term illness or disability, many families struggle to make the right decisions.

Without expert guidance, it’s easy to make costly mistakes.

Point your clients in the right direction with a referral to Elder Law Practice of Timothy L. Takacs. For two decades, our Certified Elder Law Attorney and Elder Care Coordinators have been helping families protect assets, find quality care, and navigate the long-term care system.

We can help your clients, too.

Middle Tennessee: (615) 824-2571 Toll-Free: (866) 222-3127 Family Website: www.tn-elderlaw.com Professional Education Website: www.elderlaweducation.com

Life Care Planning Elder Law Estate Planning Care Coordination