Favorable Changes to 065 Agreements in Missouri Apply Prospectively Only

Laura Gerdes Long

By Laura Gerdes Long



The Court of Appeals of Missouri’s Western District has issued an opinion holding that the recent amendment to Section 537.065 RSMo. may not be applied retrospectively, under the Missouri Constitution.  The Court of Appeals held in Desai v. Seneca Specialty Ins. Co., 2018 WL 3232697 (not released for publication as subject to motion for rehearing or transfer, etc.) that the trial court’s judgment should be affirmed in which the insurance company’s motion to intervene and motion for relief from judgment were denied.  The insurance company had argued that Section 537.065, as amended effective August 28, 2017, required that it should have received notice of a “065” agreement and the opportunity to intervene as a matter of right.

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Troubling Practices by Hospitals for Patients’ Access to Medical Records Uncovered

Laura Gerdes Long

By Laura Gerdes Long



A new study published in JAMA Network Open and conducted by Yale University School of Medicine found troubling practices at U.S. hospitals relating to patients’ access to and provision of patients’ own medical records.  HIPAA’s Privacy Rule absolutely requires access to a medical record when properly requested under two circumstances:  (1) to the patient; and (2) to the Secretary of the Department of Health and Human Services.  Further, the patient must be provided records in his or her preferred format and for a reasonable processing fee.  Shockingly, only 53 percent of the hospitals surveyed provide patients an option to obtain their own medical records.  (Eighty-three top-ranked U.S. hospitals in 29 states were surveyed.)

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#MeToo Movement Spurs a 50 Percent Increase in EEOC Sexual Harassment Lawsuits

Katherine M. Flett

By Katherine M. Flett



It comes as no surprise that one year after the rise of the #MeToo movement, more women are not just speaking up about sexual harassment in the workplace, but they are taking action in the courthouse.

According to a recent Equal Employment Opportunity Commission (EEOC) press release, the EEOC has already filed 66 harassment lawsuits in 2018, including 41 specifically citing sexual harassment – a 50 percent increase over 2017.

The EEOC also reported that it recovered almost $70 million for the victims of sexual harassment through administrative enforcement and litigation in 2018, up from $47.5 million in 2017. Interestingly, the overall number of discrimination charges are down, but charges for sexual harassment are up.

Victoria Lipnic, acting chair of the agency, commented during an interview with The Washington Post that she believe the increase is a result of the #MeToo movement, saying “This stuff happens everywhere. If you don’t address it in your workplace, you could find yourself on the receiving end of a federal enforcement [action].” Continue reading »

Missouri Health Care Legislation Update

Laura Gerdes Long

By Laura Gerdes Long



MO HealthNet Program Expands Its Coverage:

  • Section 208.151 (20) RSMo was expanded to include language allowing pregnant women who receive substance abuse treatment within sixty (60) days of giving birth, subject to appropriations and any necessary federal approval, to be eligible for MO HealthNet benefits for substance abuse treatment and mental health services for the treatment of substance abuse for twelve (12) additional months, as long as the woman remains adherent with treatment.
  • With the passage of HB 1516, § 208.152(7), chiropractors are included in the MO HealthNet Program and now allows, . . . subject to appropriation, up to twenty (20) visits per year for services limited to examinations, diagnoses, adjustments, and manipulations and treatments of malpositioned articulations and structures of the body provided by licensed chiropractic physicians practicing within their scope of practice.

CEU Requirements Expanded:

  • As amended, § 324.046 RSMo provides that any Missouri licensed healthcare professional may annually complete training in the areas of “suicide assessment, referral, treatment and management,” which may qualify as part of the continuing education requirements of the professional’s licensing authority with the Division of Professional Registration for renewal of licenses.

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Modernizing Healthcare Legislation in the Face of the Opioid Crisis

Laura Gerdes Long

By Laura Gerdes Long



In 2016, opioid overdoses accounted for more than 42,000 deaths in America. It was estimated that 11.5 million people misused opioid prescriptions and 2.1 million people suffered from an opioid use disorder that same year.[1] From July 2016 to September 2017, the Center for Disease and Prevention found that opioid overdoses increased 30% in 45 states; however, the Midwest region alone saw a 70% increase.[2] On October 26, 2017, President Trump declared the opioid crisis a national Public Health Emergency under federal law.

While the federal government has responded by allotting six billion dollars to assist in the treatment and prevention of opioid overdoses, hospitals and medical providers still face baopioid crisisrriers when it comes to the disclosure of medical information related to these overdoses due to conflicts between HIPAA and other federal law. Congress is working to resolve this conflict.

In 2017, the Department of Health and Human Services Office for Civil Rights (OCR) released a new HIPAA Guidance on when and how healthcare providers may share a patient’s health information with his or her family members, friends, and legal representative if the patient is in crisis. Current HIPAA regulations permit (but do not require) healthcare professionals to disclose health information without a patient’s consent if the provider determines that doing so is in the best interest of an incapacitated or unconscious patient and the information shared is directly related to the family or friend’s involvement in the patient’s healthcare or payment of care. This allows a provider to talk to the parents of someone incapacitated by an opioid overdose about the overdose, but generally does not allow disclosure of medical information unrelated to the overdose without the patient’s permission. Continue reading »

Employers With Arbitration Clauses Win – Part Two: Factors Employers Should Consider When Determining Whether to Incorporate an Employee Arbitration Program

Ruth Binger

By Ruth Binger



One of the many employment-related decisions a company must make is whether it wishes to require employees to give up their rights to file an employment action in court, and instead to require employees to use arbitration.

In Part One, we discussed how employers can require employees to arbitrate claims on an individual basis. This much-anticipated U.S. Supreme Court decision in Epic Systems Corporation v. Lewis allows employers to use arbitration agreements as a tool to avoid costly class action claims with more certainty that they will be enforced by the courts.

The decision in Epic also added an additional favorable factor to the arbitration choice column. The Court ruled that employers can require employees to arbitrate claims on an individual basis and thus avoid class actions. Epic Systems (which was decided along with two sister cases) involved employees seeking class action litigation, despite having employment contracts with provisions that required individualized arbitration proceedings.

Although Missouri is an employment at will state, employees can sue employers under various state and federal statutes in state or federal court. Some of those statues, for example, the Fair Labor Standards Act, allow class actions. Litigation is very costly and there could always be a runaway jury. Arbitration, on the other hand, is designed to avoid complex and time-consuming litigation and to provide an alternate source of justice. An arbitration could take six months to resolve but the decision will be final and binding and unappealable, while a court proceeding through a jury trial could take 21-41 months and the decision is always appealable. Continue reading »

Employers With Arbitration Clauses Win – Part One: The U.S. Supreme Court Embraces Arbitration Agreements with Class Action Waivers

Katherine M. Flett

By Katherine M. Flett



The U.S. Supreme Court upheld the legality of class action waivers in employee arbitration agreements by issuing a 5-4 decision in Epic Systems Corporation v. Lewis on March 21, 2018.

In short, employers can require employees to arbitrate claims on an individual basis. This much-anticipated decision allows employers to use arbitration agreements as a tool to avoid costly class action claims with more certainty that they will be enforced by the courts.

Brief History of Arbitration Clauses and Class Action Waivers in the Employment Context

The Federal Arbitration Act (“FAA”) was enacted in 1925 in response to hostility toward arbitration agreements. The FAA provides that a written agreement to submit a controversy arising out of the agreement to arbitration is to be enforced unless “grounds exist at law or in equity for the revocation of any contract.” Since the enactment of the FAA, the Supreme Court has consistently recognized the establishment of a federal policy supporting arbitration agreements.

However, in 2012, the National Labor Relations (“NLRB”) found in D.R. Horton, Inc., that mandatory arbitration agreements with class action waivers were violative of employees’ rights under Section 7 of the National Labor Relations Act (“NLRA”), which guarantees employees the right to self-organize, bargain collectively, and “engage in activities for the purpose of collective bargaining or other mutual aid or protection.” Following the NLRB’s decision, a split among the circuits developed. While the Second, Fifth and Eighth Circuits rejected the NLRB’s reasoning in D.R. Horton, the Seventh and Ninth Circuits sided with the NLRB and refused to enforce employee arbitration agreements with class action waivers.

Epic Systems Corporation v. Lewis

On May 21, 2018, the Supreme Court resolved the circuit split and upheld the use of class action waivers in arbitration agreements in Epic Systems Corp. v. Lewis.  Epic Systems, which was decided along with two sister cases, involved employees seeking class action litigation despite having employment contracts with provisions that required individualized arbitration proceedings. The following are the three key arguments by employees and the Court’s decisions: Continue reading »

Masterpiece Cakeshop: Maintaining the Status Quo

Laura Gerdes Long

By Laura Gerdes Long



authored by Laura Gerdes Long with the assistance of Jessica Gottsacker, law clerk

In agreeing to review Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, the U.S. Supreme Court faced questions involving both constitutional protections for LGBTQ rights and the free exercise of religious beliefs. In the end, the Court followed the facts of this particular case, making a decision that was narrower than anticipated while still upholding both rights.

In 2012, a same-sex couple visited Masterpiece Cakeshop, a custom bakery in Colorado, to order a wedding cake. The shop’s owner, Jack Phillips, refused because of his religious opposition to same-sex marriages, saying that he would make any other kind of cake, such as a birthday cake. At the time, Colorado did not recognize same-sex marriages since the Court had not yet handed down Obergefell v. Hodges. The couple filed suit with the Colorado Civil Rights Commission alleging discrimination on the basis of sexual orientation in violation of the Colorado Anti–Discrimination Act (CADA). CADA makes it unlawful to discriminate in public accommodations or “place[s] of business engaged in any sales to the public and any place offering services … to the public.” (Colo. Rev. Stat. § 24–34–601(1) (2017)).The Commission determined there was probable cause that discrimination had occurred. Unwilling to ignore his religious beliefs, Phillips stopped selling wedding cakes altogether and his profits fell forty percent. Eventually, Phillips brought his lawsuit to the Supreme Court.

The Court faced two issues: Continue reading »

Missouri On Track to Reform Interpleader Law: House Bill 1531 Unanimously Approved by the Senate

Laura Gerdes Long

By Laura Gerdes Long



co-authored by Laura Gerdes Long and Katherine M. Flett

As he was leaving office, Missouri Governor Eric Greitens signed at least 77 bills into law, including House Bill 1531, which may protect insurance carriers subjected to purported bad faith claims.

“Interpleader” is a civil procedure vehicle used to force claimants to litigate a dispute involving two or more claims to a limited amount of money held by a third party, such as an insurance carrier.  A common example is when multiple people are injured in a car accident and the injuries exceed the amount covered by the tortfeasor’s policy limits.  What should the insurance carrier do?

Under the prior law, codified at Section 507.060 RSMo, the tortfeasor’s insurer could interplead the policy limits, but the insurer would remain subject to a purported bad faith claim.  This would put insurers in an impossible situation, choosing between paying claims on a first-come, first-serve basis to avoid time-based bad faith claims, paying the limits on the most seriously injured claim, or gathering all of the claimants’ documentation supporting their injuries or damages in an attempt to globally resolve all claims within the policy limits, and reducing the insured’s exposure to excess claims.

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An Oral Agreement Is Not Worth the Paper It’s Printed On

A. Thomas DeWoskin

By A. Thomas DeWoskin



On June 4, 2018, the U.S. Supreme Court held that an individual’s false oral statement about his assets would not support a finding of fraud under the relevant provision of the U.S. Bankruptcy Code. That provision required the false statement to be in writing if it were to serve as the basis of a fraud claim. (Lamar Archer & Cofrin LLP v. R. Scott Appling, Case Number 16-1215, 584 U.S. ___ (2018), issued on June 4, 2018.)

In this case, Mr. Appling hired a law firm to represent him in some litigation. When he had fallen behind on his legal bill to the extent of some $60,000, the firm threatened to withdraw from the case. He told the firm that he was expecting a tax refund of about $100,000 which would cover that bill and all future fees. Relying on Mr. Appling’s assertion, the law firm continued with the representation.

As you probably have concluded by now, there was no $100,000 refund. It was only $60,000, and Mr. Appling invested it in his business rather than paying his attorneys. Worse, when his attorneys subsequently asked about the refund, Mr. Appling lied and told him that he hadn’t received the refund yet. Continue reading »