Legal Advice Blog: Legal Advice, Case Insights, & Local Law Information

I wrote a blog two years ago about the two new additions to my family, TWINS GIRLS: Leah and Lily Murphy. Well, here’s my small update of how everything is going for these two wonderful little human beings. Check out the photo below which was taken on Dec. 7 at Fusion where we were celebrating their daddy’s birthday.  They were a little scared of the chef at the hibachi grill, but so was I at times.  That fire felt like it singed my eyebrows.  Leah turned her head and Lily held on to her mom’s arm very tightly and did not let go until some of the food was served.  Neither of them knew what to think, but they loved the food at Fusion. As you can see, from the above photos, they are growing up way too fast.  They understand and are completing sentences. Of course, most of the time only their mom and dad can decipher what they are saying.  The clearer words for both will come in due time.  With them both being so interactive, this Christmas is going to be so exciting for them and for all of the family, too. I so look forward to Christmas Eve to watch them do their thing.  It is so much fun having little ones around for Christmas. Don’t forget that Christmas is not all about giving and receiving gifts. It is our Lord and Savior’s “birth” day that we remember and celebrate.  GOD BLESS US ALL! I HOPE EVERYONE HAS A VERY, VERY MERRY CHRISTMAS AND AN EVEN HAPPIER & HEALTHIER NEW YEAR!

Our first child was born in 1990 and we bought one toy for under the tree (from Santa). It was a push truck that babies hold on to while tottering along. I believe I still have it somewhere in our basement. When your children are little babies, Christmas is so easy. But as they grow older things get trickier. Shopping is the easy part. Hiding the bags is okay—under my husband’s work bench in a separate room off the basement with other stuff piled on. Tom would take the presents to work to put together and do all the wrapping and then place them in boxes under the workbench to be covered again. So far, so good. But, through the years it was up to me to put the presents under the tree and this is when all the fun begins. Tom would be sleeping with sugarplums dancing in his head and I would be sneaking around our house in the early hours of Christmas morning. We have an older home with floors, steps and doors that creak and groan. So, I would pretend to go to bed with everyone else, but would stay awake waiting for the witching hour when I would try and move quietly around the house getting all ready for the excitement of the morning. The gifts were wrapped but I would have to go down the creaky stairs to the basement, uncover, open boxes and bring all the gifts up those creaky steps, across the foyer and into the living room over carpeted creaky floors to place the gifts under the tree. All the while tiptoeing and stopping every few steps to listen. I would step, creak, stop, listen, step again, creak, stop, listen and move ever so slowly over to the right, then over to the left, then a wider step to try and miss those creaky spots in the floor. This would take several trips as I could only carry so much up our very narrow basement stairwell. I broke a sweat more times than I can remember thinking I was hearing noises from the upstairs bedrooms, which would stop me in my tracks. I would then sneak up those stairs—creaking all the way—trying to stay on one side where it creaks less and then listen outside the closed bedroom doors. One time I do remember one of the boys waking up when I went into the bedroom and I think I said something like, I thought I heard bells, but go back to sleep because Santa will not come if anyone is awake. Yep, they believed anything told to them. And then I would continue my quiet shuffling around the house. When all presents were brought up from the basement and placed under the tree, another tradition that I had lots of fun with was creating a scene that Santa had indeed been there. I once bought a kit of reindeer footprints with corn and a torn piece of Santa’s red suit, and, if it snowed, there would be reindeer and Santa footprints in the snow; if no snow, then there would be corn left behind. I had bells that I would stand outside and jingle in hopes the kids would hear. Not sure they ever did even though my youngest admitted that he heard them. Every year, I wrote a note (from Santa) thanking us for the carrots for his reindeer and milk and cookies for him, that we had left out before we went to bed. I would drink the milk, eat a couple of the cookies (but leave some) and then there would be carrot pieces (as if the reindeer had munched too) for the kids to find in the morning.  As they got older, the boys became skeptical that the cookies were eaten by Santa and that the reindeer were munching carrots and they firmly believed that it was my handwriting on Santa’s letter of thanks and on all the gifts but I would just give them the look and say, “Okay, don’t believe….” This was my yearly tradition. One time I admit I fell asleep and didn’t wake up until six in the morning and went crazy trying to get all this done before anyone woke up. But I think I put a lot of pressure on myself all those years probably needlessly. Looking back, I don’t remember either of the boys waking up wanting to know why I was sneaking about the house. In fact, Tom and I would be up and waiting for our oldest to wake up, then in later years after our second son was born in 1996, we would be waiting for both boys to wake up. Sometimes it seemed that Tom and I were more excited about Christmas morning than the boys and we would go upstairs and wake ‘em up. They were excited once they were ripping open their gifts as are all kids—the clothes would be thrown over the shoulder and the requested toys hugged tight. The boys are now young men and gifts are not opened until much later on Christmas morning, as we have brunch and mimosas, and then our gifts. They pretty much know what Santa is bringing, but something they do not know is that I have all their letters to Santa saved for them. I think it would be lots of fun to open and read those letters. That just may be something we do this Christmas because we will begin a new tradition as the boys’ Grandma Jean (who came to our house every Christmas morning to open gifts and have breakfast) passed away earlier this year. So it will be a quiet Christmas for us, but Tom and I are both looking forward to our sons beginning their own Christmas traditions where we can sit back and watch all the excitement. I can imagine them trying to explain why Santa and JCPenney has the same wrapping paper (as pointed out by Ryan) or why the nibbled-on-carrots were inside, not outside (as noticed by Casey). But most of all I imagine them trying to be as quiet as a mouse while enjoying Santa’s cookies and milk in the very early hours of Christmas morning. Merry Christmas from the Wilsons!

I’ve decided that during the course of the 2016-2017 OVAC basketball season, I’m going to try and write an article each week dealing with a particular rule of the game. I’ll give some examples, and maybe even some links to videos, so that the readers can become more familiar with the rules as they are actually written and applied.  For those who may wonder about my qualifications, I have been a basketball official since 1985.  I have worked both the WVSSAC high-school and NCAA Division II levels, and have been fortunate to be selected to work championship tournaments in both.  I am the current rules interpreter for the Ohio Valley Board of Approved Basketball Officials, a post I have held for a number of years.  And finally, for whatever reason, I just enjoy studying the rules. Today, I want to talk about the traveling rule.  Aside from perhaps the block/charge rule, traveling is probably the single most misunderstood rule in the game.  Fans believe that it’s traveling if a player takes more than one step without dribbling.  They believe a player who dives on a loose ball and slides across the floor has traveled.  And they believe a player who fumbles the ball while driving to the hoop has traveled.  Wrong, wrong and wrong again. Traveling is defined as “moving the pivot foot in excess of prescribed limits.”  Therefore, the first step in applying the rule involves properly identifying the pivot foot.  There are lots of different possibilities here, but I will try and simplify this step by telling you that once a player catches the ball and takes a step with one foot, the other foot is going to be the pivot foot  (There are multiple other scenarios for establishing a pivot, but I want to keep this as simple as possible).  Once the pivot foot is established, the only restriction is that the player cannot lift that foot and return it to the floor without releasing the ball on a shot or pass.  Note here that the player is NOT prohibited from lifting the pivot foot; he is only prohibited from putting it back down on the floor while still holding the ball. The rules also specifically deal with the situation where a player dives on the floor to secure a loose ball, and then slides across the floor for some distance.  That happened in a game I officiated last night, and of course the fans went nuts when I didn’t blow my whistle.  I didn’t blow it because it wasn’t traveling.  A player is permitted to secure a loose ball and then slide.  The only thing he is prohibited from doing is rolling over, sitting up or attempting to stand without first dribbling.  The rule-makers aren’t going to penalize a player for making a great hustle play. Finally, we come to the fumble.  A player cuts to the hoop, and as he attempts to gather the ball to go up for a layup, he loses the handle and bobbles the ball a bit while continuing to move to the hoop.  Again, the fans go nuts.  And again, there is no violation.  In order to have a pivot foot, a player must be HOLDING the basketball.  By definition, HOLDING the ball is different than FUMBLING the ball.  A player who is holding the ball can establish a pivot foot, and can therefore be guilty of traveling.  A player who is fumbling has no pivot foot, and therefore cannot travel.  And to answer the question of nearly every coach I have ever explained this to, yes, that means a player can fumble the ball from one end of the floor to the other without violating.  If you take anything at all from reading this article, I hope it is this:  IT IS IMPOSSIBLE FOR A PLAYER TO TRAVEL UNLESS HE IS HOLDING THE BASKETBALL. There is much more I could write about this rule, but that should be enough to keep your head spinning for awhile.  If you have specific questions, or if you would like me to write about a particular rule, feel free to comment.  Next week, I’ll deal with the block/charge rule.

What are uninsured/underinsured motorists (UM/UIM) benefits? UM/UIM benefits are optional first-party insurance benefits that are available to Pennsylvania motorists, who desire an extra layer of financial protection in the event that they and/or their passengers are injured in a motor vehicle accident.  While motor vehicle liability coverage in Pennsylvania is mandatory, there are times when motorists do not carry any liability insurance – they are referred to as “uninsured” motorists.  More frequently, there are motorists who do not carry sufficient liability insurance to cover the damages caused by their careless conduct.   For example, if you're involved in a wreck caused by another and you determine that the other driver only has the state's minimum required limit of liability coverage, which in Pennsylvania is $15,000.00, and it's insufficient to cover your medical expenses, the other driver would be considered “underinsured” —meaning that they have liability insurance, but it's just not enough to cover the damage.  Under these circumstances, if you had UIM coverage, your motor vehicle liability insurance company may be obligated to pay the remainder of your medical bills and, in some cases, reasonable compensation for your injuries and damages up to the limits of your UM/UIM coverage limits. So what is bad faith insurance practice? In the context of UM/UIM insurance, bad faith insurance practice is essentially your motor vehicle liability insurance company’s unreasonable refusal to pay the UM/UIM benefits you are entitled to under the policy and the laws of Pennsylvania.  For example, let’s say that the at-fault driver referenced above only has $15,000.00 in liability insurance coverage and you sustained $25,000.00 in medical expenses.  The at-fault driver paid the extent of his/her liability limits, but you still had $10,000.00 remaining in medical bills.  If you purchased UIM coverage, you would have standing to file a claim for UIM benefits with your motor vehicle liability insurance company.  If your motor vehicle liability insurance company refused to provide you with UIM coverage and did not have a reasonable basis to support its coverage decision, then you may be able to sue your motor vehicle liability insurance carrier for breach of contract (failure to abide by terms of insurance policy) and bad faith. The breach of contract claim would typically involve your request to be paid the benefits you are arguably owed, whereas, the bad faith claim would include your claim for attorney’s fees and “punitive” damages, which are damages essentially designed to punish the insurance carrier for its bad faith refusal to pay benefits, and to deter them from doing this again to other policyholders.  There is a wrinkle in these claims however, as the policyholder has a right to a jury trial in breach of contract case, but this is not so for bad faith claims filed in state court – the bad faith claim is decided by the court.  See, Nebel v. Encompass Home and Auto Insurance Company, No. GD-15-015891 (C.P. Allegh. Co. Oct. 6, 2016 Folino, J.), where the court granted the insurance company’s motion to sever and stay the bad faith portion of a UIM/bad faith claim.

‘Tis the season for Christmas movies, tree lighting ceremonies and live events! If you’re looking for a new holiday tradition, you should check out NBC’s live musicals! In 2013, the live musicals were brought back after 50 years. NBC’s first revived live musical was The Sound of Music Live! This musical was broadcast in December 2013 and featured country music star Carrie Underwood as Maria. Due to the wild success of the first live musical, a decision to broadcast another musical was made. In 2014, NBC took viewers to Neverland with Peter Pan Live! This show featured Allison Williams (ex-Nightly News anchor Brian Williams’ daughter) and Christopher Walken. It was truly magical. Though it was not as successful as the 2013 musical, it was still a hit. Last year, NBC took viewers back to Oz with The Wiz Live! This hit originally featured the iconic Michael Jackson. This time around, Queen Latifah and Mary J. Blige were responsible for leading this musical down the “yellow brick road” to success. With yet another year of great viewings, NBC is at it again for the 2016 holiday season. At 8 p.m. on Wednesday, Dec. 7, Hairspray Live! will air on NBC!  This year’s production features well-known stars like Jennifer Hudson, Derek Hough, Ariana Grande, Kristen Chenoweth, Rosie O’Donnell and more. The following is the description provided by NBC.com: “Based on the Tony Award-winning Broadway musical, "Hairspray Live!" takes place in 1962 Baltimore. Plump teenager Tracy Turnblad's dream is to dance on "The Corny Collins Show," a local TV program. When against all odds Tracy wins a role on the show, she becomes a celebrity overnight and meets a colorful array of characters, including the resident dreamboat, Link; the ambitious mean girl, Amber; an African American boy she meets in detention, Seaweed; and his mother, Motormouth Maybelle, the owner of a local record store. Tracy's mother is the indomitable Edna, and she eventually encourages Tracy on her campaign to integrate the all-white "Corny Collins Show” (“NBC: Hairspray Live!,” 2016). Hairspray Live! marks the fourth year of NBC’s live musicals. Make a new tradition for you and your family. Pop some popcorn and tune in. Fingers crossed for another successful show that keeps this fun, annual event coming back in 2017.

Most people have seen a television show or movie where the plot revolves around a lawsuit. Attorneys and their clients show up in the courtroom ready to ambush their opponent. Neither side knows what the witnesses will say or what evidence will be introduced. While this plot makes for great entertainment, it could not be further from reality. In a lawsuit, both parties go through a process called discovery. Discovery allows each party to ask the other questions called interrogatories, request documents, and ask the other party to admit or deny statements. Another tool used in discovery is a deposition. Unlike interrogatories, requests for production, and requests for admission, a deposition is a question and answer session that usually occurs face-to-face. A deposition allows the attorneys for both parties to ask a witness questions under oath. In addition to the attorneys for both parties, the witness and a court reporter are present. The court reporter creates a record of the deposition by typing every word spoken. Unlike a trial, the judge and jury are not present. The deposition serves the purpose of allowing both parties to learn what the witness knows and preserve the testimony for trial. Since depositions are under oath, an effective attorney can lock witnesses into their testimony. If the witness attempts to change his or her testimony at a later date, the attorney is allowed to attack the witness’ credibility using their deposition. The appearance of a witness during their deposition is also important. Attorneys will try to assess the witness’ credibility and imagine how a jury may view the witness’ appearance and demeanor. While a written answer may appear credible, the witness’ actions could cause the attorney to believe additional evidence exists. Moreover, the attorneys will likely find information and facts not previously known, which gives them an opportunity to test their theories of the case. Discovery is not only about finding favorable facts, as it is equally important to understand the weak aspects of a case. An attorney certainly does not want to find negative information for the first time at trial. Furthermore, after reviewing the evidence, an attorney and client may decide settling the case is in their best interest. Since discovery allows both parties to understand the facts well before trial, the vast majority of cases settle.

Over 53 years ago, the United States Supreme Court unanimously decided the landmark case of Gideon v. Wainwright.  In that case, the Court held that the right of an indigent defendant in a criminal trial to have the assistance of counsel is a fundamental right essential to a fair trial. Clarence Earl Gideon’s trial and conviction, which took place with Gideon representing himself and completely without the assistance of counsel, was found to be in violation of the 14th Amendment.  The Supreme Court ruled that the United States Constitution requires the states to provide defense attorneys to criminal defendants charged with serious offenses who cannot themselves afford lawyers.  In its opinion, the Supreme Court stated: Any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.  This seems to us to be an obvious truth. . . .  From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law.  This noble ideal cannot be realized if the poor man charged with crime has to face his accusers without a lawyer to assist him. Gideon v. Wainwright, 372 U.S. 335, 344 (1967). The right to counsel does not apply in non-criminal cases (with the exception of one special class:  juveniles in civil commitment proceedings).  But the “obvious truth” articulated in Gideon, equating the fair administration of justice with the right to counsel, is yet to be realized in civil cases, even though fundamental human needs may be affected by such proceedings. Ten years ago, the American Bar Association adopted a resolution for “Civil Gideon” in instances where “basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody, as determined by each jurisdiction.”  This resolution brought into focus the need for legal assistance in cases where an indigent person might lose his or her children, home, or healthcare, for example.  Our justice system is designed by lawyers for lawyers.  Imagine a hospital where if you are a poor patient, you are told to put in your own IV.  This is obviously outrageous, and so is the lack of legal representation for the poor when faced with the potential for loss of fundamental human needs.  The fair administration of justice when such fundamental rights are at stake requires the presence of counsel. Providing legal counsel as a matter of right and at public expense to low income persons in civil proceedings where basic human needs are at stake is entirely consistent with the reasoning of Gideon. A civil right to counsel is a fundamental right.  Indeed, providing counsel is the great equalizer.  True justice should not be about means.

The holidays are upon us, and while many folks are rushing around catching the sales for the hottest items of the year, many others are wondering if they will be able to make ends meet this month. With this in mind, if you are one of the more fortunate people who have some extra cash during the holidays, consider helping someone in need. After all, it is the season for giving, sharing, love and kindness.  Be generous to those who are struggling. Not everyone in need chooses those circumstances. Not everyone in need is asking for a handout.  Families are impacted by so many factors, whether it is a parent who has lost his or her job, a sick loved one or a family helping others in a rough spot and making sacrifices to do so. Whatever the series of events that landed people into rough circumstances, I don't think any would choose to just sit back and hope for a handout. Sometimes there’s the misconception that people who can’t afford to give this time of year don’t work, are lazy and entitled.  I strongly disagree and would not hesitate to voice my opinion loudly.  Yes, there are some, but on the flipside, just like with a group of wealthy folks, you may ask -- are they wealthy because they earned it?  Are they wealthy because it was handed to them?  Perhaps they may have participated in unethical acts to get to the top?  The list could go on. There is always more than one way to look at something.  Brush it all aside. This holiday season, I ask you to really look into the eyes of the needy, listen to the voice of despair and feel with the warmth of your heart. Please do what you can to help a family in need.  Let every family have a warm meal, a gift for their child or even help to pay utilities. Give them a job, give them something, anything, to bring them hope for a brighter future. Take that chance and be generous in the 2016 Holiday Season.

In my ongoing effort to keep local hoops fans informed and educated about the rules of the game of basketball, I thought it would be a good idea to give everyone some advance warning about recent changes in the rules that are going to result in more whistles this year, especially early in the season. Every year, the powers-that-be at the NFHS (National Federation of State High School Associations and yeah, I know, the acronym doesn’t fit) get together and decide whether new rules are needed to make the game better. At the same time, these folks take a look at how existing rules are being applied, and they issue “Points of Emphasis” for officials to consider.  These Points of Emphasis simply highlight areas where the rules makers think officials need to do a better job.  Most of the time, rules changes and the POEs have little obvious influence on how the games are called.  This year, however, will present a different situation. Last season, a new rule went into effect regarding defending a ballhandler.  Simply put, the rule identified four situations in which officials are instructed to call a foul on the defense:  1. When the defender places two hands on the ballhandler; 2. When the defender places an extended arm bar on the ballhandler; 3. When the defender places a single hand on the ballhandler and keeps it there; and 4. When the defender contacts the ballhandler more than once with the same or alternating hands.  So why, you may ask, is this new rule such a big deal?  The answer is that the rule eliminates the official’s judgment from the process.  In the past, officials were told to call fouls when, in the official’s judgment, a defender had done something to put the offense at a disadvantage.  Pretty much every foul amounted to a judgment call by the official.  Contact, even significant contact, could be ignored if, in the judgment of the official, there was no real advantage gained by the defense.  A good example would be someone like Steph Curry in the NBA trying to defend Shaquille O’Neal in the post.  Curry could lean, push, shove, and do everything but hang on Shaq, and the big man would still be able to easily get to the hoop and dunk it.  Lots of contact, but no real advantage gained, so no whistle.  The new rule presents an entirely different circumstance.  The question of advantage/disadvantage has been removed from the equation.  If the defender puts two hands on the dribbler, it’s a foul.  If the defender puts an arm bar on the dribbler, it’s a foul.  No judgment is involved.  That means that there will be many situations where officials may have held their whistles in years past, that will result in fouls being assessed this year. Adding to what I believe will be a significant increase in fouls called is the fact that this year, the rules makers have emphasized that the term “ballhandler" includes a post player who has received the ball.  Take a minute to visualize what we have grown accustomed to seeing when a player receives the ball "on the block."  The defense bodies up.  There is always at least one hand on the player's hip.  In most cases, there is an arm bar placed firmly in the back of the offensive player.  In some circumstances, we have seen a defender step back and place two hands on the offensive player as if he were preparing to push a refrigerator across the floor.  In the past, those situations were not automatic whistles.  Again, the concept of advantage/disadvantage controlled.  This year, the whistle will be blown.  It may not seem like much as you read this, but believe me, it’s going to make a BIG difference in how games are called. All of these rules changes are designed to permit more freedom of movement in the game.  Rules makers have decided that the game has become too physical, and they are moving toward restoring the movement and flow that fans enjoy watching.  Unfortunately, to meet that goal, I'm going to have to blow my whistle a lot more this year.  So, before you scream at me to "let ‘em play," please remember that I'm just following orders.  Hopefully, the players and coaches will adjust within a few weeks.  If not, it’s going to be a long season filled with lots of free throws.

Recently, during an email exchange with a co-worker, we were discussing the upcoming holidays and how we were excited, but at the same time not so excited about them. We started talking about Thanksgiving recipes and what we were planning to make, how much we were going to eat and how bad we would feel after eating so much.  After that, the topic of Christmas came up.  I told my friend that out of all of the holidays, “X-mas” is the one that I look forward to the least. I shared that I am actually dreading that the holiday is right around the corner.  I am not looking forward to all the rushing, the stress and, of course, spending money.  First, she corrected me that it is not “X-Mas,” it is Christmas.  She then wrote me the following email: “To me, Christmas is about hope, a light shining in the dark, the birth of a Savior.  If you focus on the true meaning of Christmas, it’s always good.  J We’ve just gotten so far away from the true meaning of Christmas, it’s become something else not even close to what it is supposed to be.  It’s really about God making a way for sinful people to come back into fellowship with Him.  After the sin of Adam and Eve, all generations that followed (including us) were separated from God because of sin.  When Christ came, He became the sacrifice God required to forgive our sin.  So, Christ made it possible for us to be forgiven and to have fellowship with God again.” I almost cried after I read this email.  It made me think and think hard.  I immediately felt like a weight had been lifted from my shoulders.  I began to think of Christmas for the right reasons.  Most of us, I think, get all wrapped up in the spending and the gifts so much that we lose sight of the true meaning of Christmas.  I thanked my friend for this true gift.  It is most certainly the best gift that I will receive this holiday season.

Nearly every family has to face the agonizing decision at some point to have a loved one placed in a nursing home. The stress of that experience is terrible and can unleash a torrent of guilt, anguish, sorrow and concern. When faced with this onslaught of emotions, oftentimes the one through line we cling to in these situations is the hope that that our loved ones will remain comfortable and safe so they can enjoy what quality of life remains. Tragically, that comfort sometimes proves elusive once the paperwork is signed and our loved one is admitted to the home. Unfortunately serial neglect in a nursing home, which leads to death, remains a serious problem. But rather than strive to improve the quality of care, by paying caregivers a living wage, thoroughly training and educating staff and closely monitoring the care being provided to its residents, the nursing home industry has instead sought to shield itself from civil lawsuits by burying something called an “arbitration provision” in the mound of admission paperwork families must sign to admit their loved ones to a facility. These forced arbitration agreements have long been an issue in nursing homes. Many admissions agreements contain a mandatory arbitration clause that prevents residents and their families from suing the nursing home in cases of injury, abuse, sexual assault, or even murder. With a forced arbitration agreement in place, these types of claims are heard in a biased system that often has no semblance of neutrality; in some instances, injured individuals’ claims are heard before lawyers that also represent—and are paid by—the nursing homes. According to Julia Duncan of the American Association for Justice, “or years, the nursing home industry has used forced arbitration to cover up allegations of abuse and neglect in secret proceedings before their hand-picked arbitration provider.” When faced with the decision to admit a family member to a nursing facility, the family—and perhaps the resident as well — often face the very real likelihood that the elderly family member might not ever be able to return home. For all practical purposes, all anyone is trying to do in that situation is get through the paperwork and get their elderly loved one comfortable and secure. The family arrives at the facility and is presented with admission paperwork. An admission coordinator, even if well intentioned, rarely or ever explains the paperwork in detail. The paperwork is also rarely read in full because if it were, each admission would likely take the better part of a day. The typical admission packet requires 25 to 35 signatures, and one of these signatures is to an arbitration agreement. As a result, even the most fairly written arbitration agreement is unfair in that situation, because the family does not know they are giving up their constitutional right to go to court if something goes wrong. In a rare federal acknowledgment of this phenomenon, on Sept. 28, the Centers for Medicare and Medicaid Services (CMS) issued a final rule that actually prohibits nursing homes from using pre-dispute arbitration agreements in admissions contracts dated on or after Nov. 28, 2016. The rule applies to all skilled nursing facilities that receive money from Medicare and Medicaid—the vast majority of all facilities in the United States. Unsurprisingly, on the heels of CMS's issuance of this final rule, the nursing home industry quickly filed suit in federal court in the U.S. District Court for the Northern District of Mississippi, seeking to block implementation of CMS's arbitration ban. And, for now, the industry has succeeded. Although seemingly sympathetic to the rationale underpinning the arbitration ban, District Court Judge Michael P. Mills granted the industry's motion to block the ban on the grounds that CMS is a regulatory agency and that it takes an act of Congress to properly implement such a ban. So, for now, forced arbitration will continue to be the standard in nursing home admissions every day. But all hope is not lost. Judge Mills' decision is unlikely to be the last word in this fight and forced arbitration is likely to receive additional judicial or congressional scrutiny in the future. In the meantime, if you are faced with the difficult decision of having to admit a loved one to a nursing home, please keep in mind that a nursing home cannot refuse to admit your loved one if you refuse to sign an arbitration agreement. So be diligent when presented with the admission paperwork, in looking for a forced arbitration agreement.  Refuse to sign it and protect your loved one in the event that they fall victim to substandard nursing home practices.

This Sunday, Nov. 27, begins the season of Advent in many Christian churches. Advent will last for four weeks and end on Christmas Eve. Many of us are familiar with Advent candles, Advent wreaths and Advent calendars. But what is Advent all about and what part should we play? The translation of Advent from Latin is "coming." And so we are waiting and preparing for a coming during the four weeks of Advent. This coming focuses on the past, as we celebrate when Jesus was born in a stable in Bethlehem. This coming likewise focuses on the future. It focuses on an unknown day in an unknown year when Christ will come again at the end of time and judge whether we are worthy to enter into the kingdom of heaven. Focusing on the past is fairly straightforward. We set up nativity scenes, we decorate a tree with lights and put a star or an angel on top to remember the birth of Jesus on Christmas Day. We observe the tradition of giving to those we love and to those less fortunate. We sing Christmas hymns reminiscent of that first blessed Christmas in Bethlehem. So far, so good. All A's and a few A+’s for the super duper do-gooders. Now on to part two. How do we use the Advent season to prepare for the second coming? We as a people have been commissioned to "love your God with all your heart" and to "love your neighbor as yourself.” If we know not the time of the second coming...Judgment Day...hadn't we better always be prepared? Most of us feel like we get a good grade on the "love your God with all your heart" mandate. What's not to love? He died on the cross for our sins, so that we would have the chance to live the heavenly life someday. He gave us life, complete with a family to love us, He gave some of us adorable children and grandchildren to cherish, He gave us our country, our faith and more material goods than any of us can ever use. He is well and truly loved. All A's and a few A+'s thrown in for the over-achievers. Now the sticky part about loving your neighbor as yourself. Who is your neighbor? He is the rest of the folks. That's black, white, Hispanic, Arab. He's Protestant, Jewish, Catholic, Seventh Day Adventist and Islamic. It's the blue bloods and the immigrants. It's the LBGT community as well as the straight. It's the guy at work who seldom takes a shower and doesn't use deodorant. It's that coach who wouldn't start your son at first base even though you knew he was better than the starter. It's the brother you had an argument with in 1987 and haven't spoken to since, much to the dismay of your mother. It's the spouse who left you for someone else. It's the friend who wasn't loyal when loyalty was what you needed most. It's the father who wasn't the Ozzie in Ozzie and Harriet. It's the brother-in-law who constantly hits you up for "a loan" and never pays you back. Now here we go, preparing for the second coming. We need to love all these folks as we love ourselves. How does that happen? Those feelings are packed in there, like dirt tramped down on a grave. And we're going to be judged on whether we love these folks as we love ourselves? No A's in this group so far. How do we start digging? One shovelful at a time. A Christmas card might be a good start. Praying for them would help. There has to be a big dose of forgiveness in there somewhere. Or maybe we dig to the bottom...have a talk, offer an olive branch, offer to start over. I think we just got an A, maybe an A+. We'll see how it goes. Let's all get ready. List them, kill them with kindness and check them off. I'm aiming for the big prize. You coming?