West Virginia Health Care Association Launches WV Senior Care Website

This past week health care colleague and CEO of the West Virginia Health Care Association, Patrick D. Kelly, advised me that the association has launched a new website to provide a resource for families and seniors who are researching residential and health care options in West Virginia. The website is called West Virginia Senior Care: Helping Seniors Make Informed Decisions About Senior Care and can be found at: http://www.wvseniorcare.com/.

The website is designed to help all of us find information and make better decisions regarding care for our parents and the elderly. The website includes everything from in home care services, such as home health, hospice, and other in home services, to care offered in assisted living facilities, residential care, nursing homes, hospitals, etc. The press release issued by the West Virginia Health Care Association provides additional details.

After looking around the website it looks like a great resource of health care information for West Virginia seniors.

How To Publish While in Law School Voted Top Post!

           If you have not already, check out my latest publication in the Lawyerist!  The article summarizes the benefits of publishing while in law school and gives you some practical tips on how to make an effective submission.  See why last week it was the Top Post!  
          View the entire article: www.How To Publish While In Law School.com
          Please feel free to like, tweet and/or share the page.

Do Not Borrow Time From Subsequent Exam Questions As You May Not Be Able To Repay The Loan

Another key to law school success is time management on exams.  This is yet another area where person after person will offer the same advice but in the heat of an exam, many reject it.  Here is the key piece of advice yet again.  At the beginning of an exam, take note of how much each question is worth and divide your time accordingly.  Once you have done this, DO NOT BORROW TIME FROM OTHER QUESTIONS.   While it is hard to do, you should get into the habit of noting the time and once you have reached the time on a question, you should stop (even in mid sentence – ok, you can finish your sentence) and move on to the next question. 

There are a few good reasons for this strategy.  First, you have likely picked up the majority of the points you will gain on the question you are laboring over and the time you will spend will likely not yield many more points.  Second, if you do not move on from a question you are stuck on, you may not finish the exam and a blank exam question means a low grade.  Third, the subsequent questions on the exam may be easy. When I sat for the NY bar, the last question on the exam was a very simple corporations question.  If I had borrowed time from the first few more difficult questions though, I would have missed easy points on that last question.   At the end of the day, a point is a point and I will gladly take an easy one that takes me one minute rather than 10 minutes.  Finally, you can always go back to a question if you have time.  This is a far better strategy and the break from the question may even give you alternate ways to approach the question. 

This bit of advice was one of the first that my first law school professor, Linda Feldman, gave the class for our first law school exam.  Regrettably many did not listen to her.  The exam was made up of two questions and each of them was equally weighted.  Go figure the first question was tough and I could have spent the full exam period trying to nail down the question.  Instead though, I stopped writing after half of the time and moved on to the second question.  The second question was almost identical to a question that the class had gone over during a review of an old exam and it was easy to pick up easy points. I ended up with an A on the exam but many of my fellow classmates left the exam barely touching the second question. 

For February bar exam takers, keep this key piece of advice in mind. It will serve you well.

CMS Issues proposed rule for Stage 2 Meaningful Use EHR Incentive Programs under HITECH

Yesterday the Centers for Medicare & Medicaid Services (CMS) announced the proposed rule for Stage 2 Meaningful Use under the the Medicare and Medicaid Electronic Health Record (EHR) Incentive Programs which is a part of the Health Information Technology for Economic and Clinical Health Act (HITECH).

The incentive program is part of the national health information technology reform effort under the American Recovery and Reinvestment Act of 2009 which provides incentive payments to eligible health care professionals, eligible hospitals and Critical Access Hospitals who adopt certified EHR technology and use it to demonstrate “meaningful use” of that technology to CMS.

The proposed rule also revised certain Stage 1 criteria, as well as criteria that apply regardless of the Stage, as finalized in the final rule titled Medicare and Medicaid Programs; Electronic Health Record Incentive Program published on July 28, 2010 in the Federal Register. The provisions included in the Medicaid section of the proposed rule (which relate to calculation of patient volume and hospital eligibility) would take effect shortly after finalization of this rule, not subject to the proposed 1 year delay for Stage 2 of meaningful use of certified EHR technology. Changes to Stage 1 of meaningful use would take effect for 2013, but most would be optional until 2014.

CMS provides the following Fact Sheet summary of the Stage 2 requirements. The complete proposed rule can be found here and should be published in the Federal Register in the next week. If you are interested in submitting comments to the proposed rule the deadline for submission will be 60 days from the date of publication of the proposed rule in the Federal Register.

SCOTUS Overturns Supreme Court of Appeals of West Virginia Decision on Nursing Home Arbitration Agreements

On February 21, 2012, the U.S. Supreme Court vacated a ruling by the Supreme Court of Appeals of West Virginia in the matter of Marmet Health Care Center, Inc. v. Brown et al., 565 U.S.(2012). The Supreme Court of Appeals of West Virginia previously held that all pre-dispute arbitration agreements that applied to personal injury and wrongful death claims against nursing homes were unenforceable.  In a strongly worded opinion, the U.S. Supreme Court held that the West Virginia court misread and disregarded national precedent and controlling federal law regarding the Federal Arbitration Act. The litigation involved three negligence suits against nursing homes in West Virginia for the care they provided to three separate residents: Clayton Brown, Jeffrey Taylor, and Sharon Marchio. In each of the cases, a family member entered into a binding arbitration agreement on behalf of the resident with the respective nursing home. In all three cases, after the resident died, lawsuits were filed in state circuit courts alleging personal injury and wrongful death against the nursing homes. The Brown and Taylor cases were dismissed by the circuit courts based on the arbitration agreements. The Marchio case was consolidated with the other two cases when it was brought before the West Virginia Supreme Court on a certified question. In a decision concerning all three cases, the West Virginia Supreme Court held that "as a matter of public policy under West Virginia law, an arbitration clause in a nursing home admission agreement adopted prior to an occurrence of negligence that results in a personal injury or wrongful death, shall not be enforced to compel arbitration of a dispute concerning the negligence." Brown v. Genesis Healthcare Corp., No. 35494 (W.Va., June 29, 2011). The West Virginia Supreme Court found unpersuasive the U.S. Supreme Court's prior interpretation of the Federal Arbitration Act, calling it "tendentious" and "created from whole cloth." Brown v. Genesis Healthcare Corp., No. 35494 (W.Va., June 29, 2011). In vacating the West Virginia court's ruling, the U.S. Supreme Court held that the West Virginia court's interpretation of the Federal Arbitration Act was incorrect and inconsistent with its clear instruction and prior precedents. On remand, the West Virginia court was instructed to consider whether, absent the general public policy issue, the arbitration clauses in the Brown and Taylor cases are unenforceable under state common law principles that are not specific to arbitration and preempted by the Federal Arbitration Act. This leaves the possibility that certain arbitration clauses may be invalidated on such general contract grounds, such as fraud, duress, and lack of capacity, to name a few. For additional information you can review the documents filed in the matter the U.S. Supreme Court docket for the Marchio portion of the case. Also, the briefs filed in the Brown, Taylor, and Marchio matters filed before the Supreme Court of Appeals of West Virginia can be found here.   Thanks to Ryan A. Brown, a member of the Flaherty Sensabaugh Bonasso PLLC Health Care Practice Group who represents the defendant nursing home, Clarksburg Nursing & Rehabilitation Center, Inc., in the Marchio matter for the above summary of the decision. Also involved in the case was my partner, Mark Robinson.

Why You Should Publish In Law School & Tips For Successful Law Journal Submissions

Check out my new publication in the Lawyerist See article that describes what editors are looking for & what makes and effective submission!  For the full article, click here.  Please feel free to "like", "tweet", and/or "share"!

Sitting for the Bar in July? How Many Bar Exams Should You Sit For?

As you may know, as a general rule, you are required to sit for a bar exam in every State you wish to practice in.  While in law school, the question often comes up of how many exams you should sit for on your first attempt.  In my opinion, you should try to take Bar Examinations from 2 States right after you graduate from Law School. There are a few good reasons for this. 

First, the best time to take a Bar Examination is immediately after you finish law school as you will have retained a significant amount of core knowledge and this knowledge will dissipate over time.  This knowledge makes it easier to pass the bar exam and you are best positioned to do this right after law school.

Second, when you study for one State’s Bar Examination, you may not have to do much additional work to pass another State’s exam.  A few things to keep in mind here. First, most bar exams consist of two days – one day will be made up of a local State day and one will be the Multi-State Bar Exam (MBE), and the MBE is the same exam for every State.   Your score on each day is added together and each State will determine whether you have passed or failed.  If you sit for two bar exams (one in your primary State and one in another State) most if not all States will allow the MBE score to be transferred to the State if it is taken concurrently with your primary State.  Most States however will not permit you to take the MBE one year for one State and then have it count towards the Bar Examination in a different year or session.  For example, New York used to permit candidates to count their MBE score from a prior year towards a current session and as such, in the past the candidate would only have had to sit for the local New York portion of the exam. (1 day as the person would not have to sit for the MBE).  Starting in 2011 though, New York only allows candidates to transfer MBE scores from another State if the exam in the other State was taken in the concurrent session.  Many other States have similar rules.  To clarify, if you sit for two bar exams, you would sit for the exam for three days instead of two.  This extra day can help you avoid sitting for the grueling 200 multiple choice MBE in another year.

Another good reason to sit for two bar exams is that many State exams do not contain much State specific information.  For example, the New Jersey bar exam tests only 7 subject areas and six of those areas are covered on the MBE.  (and the other will likely be covered by your primary State)  As such, the only additional work you will have to do for that exam is sit for the exam.  I sat for the NJ bar when I sat for the NY bar and I did not do ANY additional studying.  (ohhh..and I passed).  Other States are similar and even States where you do have to learn State specific material, it will almost certainly be in areas such as Corporations, Wills and Criminal Law.  As such, you will already have a foundation related to these courses from the work you will do to prepare for the primary State.

Another reason to sit for two bar examinations is that you are more marketable.  Even if you have a job, your situation may change and you may be looking for one in the future.  Being certified in many States not only shows initiative but could give you a practical advantage if a job requires certification in that State.

Lots of good reasons to consider sitting for two bar exams in July.

Should You Accept a "Cold Offer" from a Law Firm?

The legal job market is tough and for many turning down a full-time job offer from a large law is something that is not considered.  The question arises though of whether or not you should accept an offer even if you get a clear signal that the firm does not really want you.  My answer is no but the decision will be guided by how badly you want the job.  So how does this happen?

In the legal field, there are many organizations that track and publish statistics regarding how many summer associates are brought into the firm after their 2L year and how many are offered full-time jobs after they graduate.  As many large firms want to maintain their statistic of offering 100% of their summer students jobs in order to attract the best students, they will at times give students a “cold offer.”  A cold offer is something like this.

“John, your performance during the summer has not really been that great and we do not see that you have much of a future with the firm. That being said, we are going to make you an offer. You should really consider whether this place is the place for you and we strongly encourage you to do some soul searching before you accept the offer. Perhaps a large firm is not for you.”

This is of course a "strong" cold offer and there are variations of them.  My personal opinion is that a cold offer is not a good thing and I would recommend turning it down unless you are desperate.  If you do accept the offer, the firm is under no obligation to keep you after you start and you will be a “marked” person who will be the first to be let go if there is ever downsizing.  Moreover, as your performance is already in question, you could be terminated with cause shortly after you start.  Also, in the United States employment is “at will” which means an employer can terminate you even without cause.  The ultimate decision is of course yours but these factors are something to consider.  Also remember that if the firm does not want you, someone else will.  Let your pride guide you and go somewhere where you are wanted.

Study Groups - Should You Search for a "Smart" Person?

After my last post about what to avoid when looking for people to join your study group, a few people wrote to me and asked which positive qualities they should look for.  In particular, people asked about whether or not they should be looking for “smart” people so that they can perhaps take in some of that raw intelligence.  A few comments. 

               Regarding the selection of someone “smart”, remember that the people who are the most vocal in class are not necessarily the people who do the best on exams.  More often than not, you will find that the person that receives the highest grade in your class is a person that has not said a word all semester.  As such, do not discount someone because they do not speak in class as they may be exactly who you are looking for.  My study group and I were silent throughout all of first year (except when called on) and we all did very well on our exams.

               Another thing to consider regarding finding “smart people” is that some people that did very well in their undergraduate studies may not grasp law school very well.  As such, it is tough to really know who is “smart” from who is not and you will really have to go with your gut.  I am not sure that the search for smart is that worthwhile but perhaps something to consider.

Regarding personality traits, finding the right mix of traits is tough and this is especially the case in your first year when you do not really know people well (or at all).  You obviously want to avoid the obnoxious people who will monopolize the entire session with their inane ideas.  To get a good handle on this, perhaps just have an informal study session to kind of “test drive” the person.  Also, you should look for people that are conscientious and will come to the sessions prepared and ready to contribute.  Finally, you also want people that you get along with to make the pain of intense studying a bit more pleasant.  This last characteristic is extremely important as you will have to be able to coexist with this group for a long period of time.  I remember many long nights in my first year and it was nice to spend them with people that I genuinely liked.  As I mentioned in my last post, my first year study group and I still all regularly stay in touch and I am sure we will be life long friends who shared a very positive bonding experience.   Good luck with your search.

Making the Transition From Law Student To Lawyer - Join Ian E. Scott on a Panel

Please join Law School Success Tips and the ABA where Ian E. Scott will sit on the Panel "Making the Transition From Law Student To Lawyer."  We hope to see you there! See Details below:


http://www.americanbar.org/groups/law_students/events_competitions/sprmtg/2sm.html