In Brief - March 2020

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MARCH 2020

IN THIS ISSUE: From the President ..... 1 From the Editor ........... 2 Save the Dates ............ 3 NALA News .................. 5 District News ............6-7 Article: Website Accessibility ............................ 9 Getting to Know Your Officers ...................... 10 New Members ........... 12 Article: Hot Health Care Matters ...................... 15 Article: NE Consumer Data Privacy Act ........ 19 Spring Seminar Brochure ......................... 22

FROM THE PRESIDENT: KIMBERLY BROWN, ACP Spring is right around the corner and that means it is time for EDUCATION! NePA has a full schedule this spring, so be sure to check out the Save the Dates page for NePA’s upcoming District I (Omaha) and District II (Lincoln) lunches, the Mid-Year Meeting and Spring Seminar, and the second annual Diversity Event. NePA provides over 20 hours of CLE each year and at least 5 FREE hours at the Spring Seminar. We would love for you to join us at any of the events! Another subject hot off the press this spring is the American Bar Association Standing Committee on Paralegals’ resolution to change the definition of “paralegal” in its Guidelines for the Approval of Paralegal Education Programs. The change includes the following: A legal assistant or paralegal is a person, qualified by education, training, or work experience who is employed or retained by a lawyer, law office, corporation, governmental agency or other entity and who performs specifically delegated substantive legal work for which a lawyer is responsible. For the purposes of the Guidelines, the terms “legal assistant” and “paralegal” are used interchangeably. Chris Jennison, Chair of the Standing Committee on Paralegals provided a report and background on the change. He indicated that the Standing Committee determined that the term “legal assistant” should be removed from the definition in order to clarify the work done specifically by paralegals. Mr. Jennison also stated that the amendment is to ensure that the ABA Guidelines continue to represent and promote high standards of quality in paralegal education. Once announced on social media, the change brought a flurry of accolades. It is my understanding, at this time, that the change is only to the Guidelines for the Approval of Paralegal Education Programs, and not to the definition as a whole. From the reading done on this subject, I believe that it is only a matter of time before the definition as a whole is changed. All in all, no matter if you call yourself a paralegal, or a legal assistant, please remember how important you are to the success of your company, firm, and attorneys. The NALA Certified Paralegal designation is one avenue for improving your skills as a paralegal. NePA afforded me the opportunity to present information about the Certified Paralegal exam and the Advanced Certified Paralegal courses to over 70 students and paralegals. One of the suggestions I made at the presentation was for paralegals to request reimbursement for the exam and study materials costs. I heard recently that one paralegal from the Omaha community requested, and received approval for, reimbursement of her exam costs! Another way to obtain reimbursement for your exam costs is through NePA’s CP/ACP Scholarships. Please see the flyers later in this issue for scholarship details. If you have any questions, please feel free to call me at 402-636-8253 or email me at

Thank you all for your support of NePA, we are truly grateful for you!



FROM THE EDITOR Welcome to the March Edition of NePA’s In Brief! Hello March! We are working hard to make this year a great one for our members and have a fantastic line-up of events coming your way! A big shout out to all of our wonderful’ll find them throughout the issue! NePA is looking for new sponsorships as well. We encourage you to spread the word and ask your employer to be one of our sponsors. The sponsorship levels are: Ruby ($200.00): 1/4 page ad in all 2020 issues of NePA’s In Brief. Logo on NePA’s website. Sapphire ($400.00): Six complimentary admissions to any 2020 District I or II luncheon events. One complimentary admission to either the 2020 Spring or Fall Seminar. 1/2 page ad in all 2020 issues of NePA’s In Brief. Logo on NePA’s website with link to your website. Emerald ($600.00): Six complimentary admissions to any 2020 District I or II luncheon events. One complimentary admission to BOTH the 2020 Spring and Fall Seminar. Full page ad in all 2020 issues of NePA’s In Brief. Logo on NePA’s website with link to your website.

Diamond ($800.00): Twelve complimentary admissions to any 2020 District I or II luncheon events. One complimentary admission to BOTH the 2020 Spring and Fall Seminar. Full page ad in all 2020 issues of NePA’s In Brief. Logo on NePA’s website with link to your website. Recognition on NePA’s homepage. We’ve got a big goal this year of $6000 in sponsorships. Right now we're at $ off to a good start. If you have any vendors you deal with frequently, please send their contact information to Past President, Amber Roberts at She’s the Chair of the Sponsorship Committee and will take it from there. If you have any comments or corrections regarding this issue, or have suggestions for future content, please forward them to me at

Publications Committee Members Casey Ochs, CP Kimberly Brown, ACP Kim Hansen Amber Roberts, ACP



SAVE THE DATES March 18, 2020: District I (CLE) - Managing Law Firm Records in the Digital Age, Scott Conference Center April 21, 2020: Active Shooter Training April 22, 2020: District I (CLE) - Flood Waters Rising: Bankruptcy & Dealing with the Devastation April 29, 2020:District II (CLE) - Advocating for the Victim/Witness

May 1, 2020: Deadline for the ACP Scholarship extended

Register for events at: http://

Board Meetings (5:30-7:30pm): June 16, 2020 Gavilon August 4, 2020 no location yet October 6, 2020 Kutak Rock LLP

May 15, 2020: Mid-Year Meeting and Spring Seminar (CLE) - Human Trafficking in the Heartland, Legal Ethics in the #MeToo World, Dark Web, Marijuana in the Workplace, and How the Election will Impact Business and the Practice of Law June 4, 2020: Diversity event (CLE) - Native American legal update, Legislative Update and Privilege June 6, 2020: Relay for Life - Papillion Landing, 1022 W. Lincoln St., Papillion, NE 68046 5-10PM August 1, 2020: Deadline for the CP Scholarship August 12, 2020: District II (CLE) - Getting to Know the Civil Division of the Attorney General’s Office September 16-17, 2020: Fall Seminar, Recognition Breakfast, and Annual Meeting (CLE) Workers Compensation + many more October 28, 2020: District I (CLE) - Notary Tips, Tricks and Things to Avoid November 4, 2020: District II (CLE) - Prosecuting Domestic Violence & Sexual Assault Cases

November 18, 2020: District I (CLE) - Working for Justice for All

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NALA NEWS Is anyone else glad that spring is almost here? I can’t wait for warmer weather! That being said, NALA has been very busy providing us with many opportunities to improve and advance our profession and careers. NALA has a new CEO, Vanessa Finley, MBA. Check out the updated NALA website,, for more information. Additionally, NALA’s Board of Directors would like to extend an invitation to any qualified members to get more involved by serving on the board. If you are thinking about joining the Board, the deadline to submit your Declaration of Candidacy is March 15 th. On a recent episode of The Paralegal Voice, President Jill Francisco, ACP talked with Chris Jennison from the ABA’s Standing Committee on Paralegals regarding the inner workings of the ABA Approval Commission and removal of “legal assistant” from the definition of paralegal. Kim Brown talks about it in more detail in the President’s Message on Page 1 so check it out for more details or listen to the episode. As a reminder, the deadline for a few of the awards are fast approaching (April 1 and May 1 for most of them). There are a few new awards to check out at 20Awards%20Program. As always, if you know someone you’d like to nominate for an award, please let me know. Don’t forget to utilize leadership courses that NALA is offering: Leadership Basics Course (free to NALA members, or $45.00 for nonmembers); Personal Leadership Bundle; and, Organizational Leadership Bundle. See the self-study courses at for more information, including some that are offered for free. If anyone plans on taking the Certified Paralegal (CP) exam and has questions, contact NALA at or Kim Brown at NALA has updated the CP Exam Fundamentals book. If you need to check on the status of your certification or any CLE credits, contact NALA at For those members who work in a large law firm or corporate office, NALA has a flat rate option available. Finally, don’t forget about the upcoming NALA Annual Conference which will be held in Atlantic City, NJ, July 9-11, 2020, at Harrah’s Resort and Casino. It’s not too early to look into making your travel arrangements now. Philadelphia is the closest major airport to Atlantic City. If you fly into Philadelphia, you will then need to make arrangements to get to Atlantic City. Train and bus options are available. NALA is also offering a limited shuttle service to the conference from the airport. Additional information will be forthcoming. Caryn Redding, CP NALA Liaison



DISTRICT I NEWS In January, District I (Omaha) kicked off the year by hosting, Certified Paralegal: Taking Your Career to the Next Level, presented by Kim Brown, ACP, of Baird Holm LLP. Kim took a deep dive into the world of the CP Exam, including statistics, what to expect, the benefits, scholarship opportunities, and even what to do if you don’t pass the first time. She also addressed what to do once you have obtained your Certified Paralegal designation, including how to go about obtaining an Advance Certified Paralegal credential. Kim’s presentation was well received, and answered many questions that can surround becoming certified. 40 members were in attendance, as well as 26 non-members, and one sponsor. February was fantastic with two luncheons. District I (Omaha) hosted a fan favorite, Michaela Seidl, CP of Koenig Dunne, who was back by popular demand. Michaela presented at the Fall Seminar awhile back and was extremely well received. Her topic this time was Going Viral: Social Media Collection and Challenges. You can see from the pictures the rapt attention she received. Social Media is so prevalent in today’s society but rarely do we think of the issues that come up when trying to preserve the information and provide it in a format that is useable in the courtroom. 35 members were in attendance with seven non-members and 1 sponsor.

Kim Brown presenting to a packed house

Michaela Seidl, CP

Please join us for our upcoming luncheons: March 18, 2020: Managing Law Firm Records in the Digital Age (Scott Conference Center, Omaha) April 22, 2020: Flood Waters Rising: Bankruptcy & Dealing with the Devastation (Anthony’s Steakhouse, Omaha) For questions, contact Courtney Pfeiffer, District I Director at



DISTRICT II NEWS At the NePA District II Luncheon in Lincoln on February 12, 2020, Ryan Sothan, Outreach Coordinator, for the Nebraska Attorney General’s Office, gave a very enlightening and informative presentation on Identity Theft: Protecting Your Identity at Work & Play. He gave detailed information on how to defend ourselves against identity theft, preventative measures on becoming a victim of identity theft, and what to be aware of regarding scams and frauds that are prevalent in our world today. It’s truly as simple as not logging into public WIFI in such places as local coffee shops, having your password 10 characters or longer, shredding everything even if you are unsure, and being aware of phishing schemes which predominantly take place during phone calls. The Attorney General’s Office is rolling out a brand new Consumer Guide on Identity Theft which will be available early in March, 2020 and contain invaluable information to help protect us. I would say the number one tidbit we all took away from the presentation is that we need to be much more careful in order to protect our identity from the scammers and hackers of the world. There were 12 members and 3 non-members in attendance.

Please join us for our upcoming luncheon: April 29, 2020: District II (CLE) - Advocating for the Victim/Witness For questions, contact Deb O’Brien, District II Director at



WEBSITE ACCESSIBILITY: THE NEXT ADA DOMINO - SUPREME COURT DECLINES TO DECIDE WEBSITE AND MOBILE APP ACCESSIBILITY CASE The United States Supreme Court has refused to decide an appeal by Domino’s Pizza, Inc. (“Domino’s”) that challenged a lower-court opinion requiring the company to ensure its website and mobile app are accessible to people with disabilities. The Supreme Court’s decision to refrain from deciding the case raises questions for businesses that must navigate the increasingly complex issue of accessibility in the digital age. In 2016, a blind plaintiff named Guillermo Robels sued Domino’s in the U.S. District Court for the Central District of California, claiming that the pizza chain violated Title III of the Americans with Disabilities Act (“ADA”), which requires public facilities be accessible to people with disabilities. Robels alleged that Domino’s website and mobile application ("app") were incompatible with the screen-reading software that Robles uses to access the Internet. Specifically, he argued that the ADA requires Domino’s website and app to comply with the Web Content Accessibility Guidelines (“WCAG”), voluntary website-accessibility standards developed by the World Wide Web Consortium. The district court originally dismissed the lawsuit, holding that requiring Domino’s website and mobile app to comply with Title III of the ADA without any “meaningful guidance” from the U.S. Department of Justice violated Domino’s due process rights. Robels appealed the ruling to the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit reversed, concluding that Domino’s had fair notice of its obligations under Title III, which applied to Domino’s website and mobile app. Domino’s argued that Title III only covers physical places, but the court held that Title III required Domino’s to ensure that its website and mobile app were accessible to people with disabilities because these virtual access points “connect customers to the goods and services of Domino’s physical restaurants,” which are places of public accommodation. The court noted that because customers could use the website and app to locate a nearby physical location, a sufficient “nexus” exists between the website and app and Domino’s restaurants. This nexus means that the ADA applies to Domino’s website and app, which the court found must be accessible for individuals with disabilities. Domino’s challenged the Ninth Circuit’s opinion by filing an appeal to the United States Supreme Court. Domino’s argued that the ADA does not require businesses to make website and mobile apps fully accessible if they offer individuals with disabilities other options for accessing products and services, such as a telephone hotline. The Supreme Court declined to hear Domino’s appeal, and as a result, left the Ninth Circuit’s decision undisturbed. Although the Ninth Circuit’s holding is not binding nationwide, digital accessibility issues will continue to raise questions until the Supreme Court weighs in. In 2018 alone, plaintiffs filed over two-thousand federal lawsuits asserting ADA violations stemming from website accessibility, nearly three times as many as 2017. The Department of Justice, the federal agency responsible for issuing regulations under Title III, has not yet provided any definitive guidance for businesses trying to navigate this burgeoning issue.

Until Congress specifically addresses digital accessibility or the DOJ issues regulations, businesses should be aware of the ADA when designing and operating websites and mobile apps. Businesses should take heed of the Ninth Circuit’s decision and assume that the ADA applies when a website or app facilitates access to delivery or pickup of goods and services at a brick-and-mortar location. In other words, if a company’s website or app offers a direct link to goods or services offered at a physical location, the company should ensure that individuals with disabilities have adequate access to those goods or services offered through the website.

Reprinted with permission, from the January 2, 2020 edition of Baird Holm’s Labor & Employment Law Update. David Kennison is a member of Baird Holm LLP’s Labor & Employment Section. Get more information at



GETTING TO KNOW YOUR OFFICERS - DEB O’BRIEN How did you end up in the paralegal field? It was actually a total fluke. I had been working in a manufacturing setting for a number of years, and had gone back to school while working there to obtain a Bachelor’s Degree in Business Administration. I had hopes of moving into the salaried/management world within this company, but that never worked out. One weekend, while looking through the Sunday paper, I read an article about the paralegal field being one of the up and coming areas for employment. It really caught my attention, because I had always been interested in the legal field after taking business law during my undergraduate studies. I also really wanted to find something more specific that would combine well with my business degree, and I wanted to get out of the job I was in. Long story short, I began attending the Paralegal Studies program at the College of Saint Mary Lincoln Campus and loved it. How did you become involved in NePA? When I took a Paralegal position at the Nebraska State Patrol in 2010, the other paralegal, Kari Schmidt, told me about the program that the agency paid for our memberships, and how much she enjoyed attending the luncheons and seminars. I really had not even heard of NePA up until then, and Kari and I began attending the events together. I really enjoyed the speakers and networking with everyone. I feel like I have made friends with many of the gals that attend the seminars, and it’s always fun to catch up. What made you decide to join the Board? I joined the Board kind of by accident. The 2019 District II Director needed to bow out due to some personal things going on in her life, and she asked me if I would be willing to go on the October ballot as the District II Director for the 2020 Board. I was happy to do it! Even though I was a little nervous about what I was getting into, it has been a wonderful experience, and I am really enjoying working with the other Board members who have much more experience than me, but everyone has been so helpful, which is wonderful for us newbies!! What has been the greatest benefit of being a member of NePA? Working with and getting to know the Board members and also how much work the Board actually does. My hat goes off to all the Board members and the wealth of experience that we have on the Board including past Board members. I don’t think anyone ever realizes what really goes into the behind the scenes efforts until you are actually directly involved, and it is a lot of work, but very rewarding. What advice do you have for those looking to enter the paralegal field? The field can be very rewarding, and there are many areas where you can utilize this degree besides a law office, such as banks, law enforcement, insurance, anywhere that has a legal department, small or large. Make sure your school is ABA approved, and also get as much education/training in the technical field due to E-discovery, social media, etc. What is your favorite part of your job? I really enjoy the attorneys I work with in the Civil Division of the Attorney General’s Office. The majority of my work load is workers’ compensation, along with general civil litigation. I think what I like most is when a new WC lawsuit comes in, I enjoy managing that process from the beginning, because I am all about organization. I have created some of my own processes to keep on top of everything, and I love coming up with new and better ways to be more efficient. Working for the State, it’s all about doing more with less. Any funny stories you could share? I can’t really think of any funny stories, but here are a couple of tidbits about me that most people don’t know. I lived in England for five years as a child when my dad was stationed there with the Air Force, and I showed Paint horses for over 20 years.




Active English Arnold - Lamson Dugan & Murray Bobbie Brooks - BCBS of Nebraska Kylie Clayton - Koenig Dunne PC, LLO Kim CreMeens - Lamson Dugan & Murray Sara DeFrancesco - Cline Williams Not a member yet? Robin Geis-White - Nebraska Attorney General’s office Vicki Jenkins Check out all the details Emily Plambeck - Koenig Dunne and download an Stephanie Watton - Legal Aid of Nebraska application at: https://

Student Megan Bruntz - Metropolitan Community College Clayton Christiansen - Metropolitan Community College Ryann Livingstone - Metropolitan Community College Mahria Jackson - College of Saint Mary

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Who? You! Applicants must be admitted and accepted in a Paralegal Program at an Accredited University, College, Community College or Business College located in Nebraska and have completed one academic term.



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HOT HEALTH CARE MATTERS SURFACE IN ANTICIPATION OF 2020 ELECTION As the presidential election quickly approaches, you may have noticed the uptick in changes to health care-related laws and regulations. Not only have Congress and the court system continued to deconstruct the Affordable Care Act (“ACA”), but agencies have also released guidance aimed at increasing price transparency for health care across the board. Regardless of whether you sponsor a group health plan, participate in the health care industry as a provider, provide services to plans and providers, or are simply an individual seeking health insurance, the recent changes to health care regulations may impact you or your business. Constitutionality of the ACA Challenged Once Again As many remember, the ACA was originally challenged in the courts due to the alleged unconstitutionality of the infamous “individual mandate.” Generally, the individual mandate requires that individuals either obtain health coverage or pay a penalty. The mandate was originally challenged based on the idea that the federal government was acting outside the scope of its designated powers. In the famous Sebelius case heard in 2012, the U.S. Supreme Court found that although Congress’s general commerce powers do not give Congress authority for the individual mandate, the mandate is constitutional based on Congress’s taxing power. The 5-4 decision held that the individual mandate penalty was a valid “tax” permitted to be imposed by Congress. As a result, the ACA survived. However, when the Tax Cuts and Jobs Act passed in 2017, another opportunity arose to challenge the legality of the ACA. The Tax Cuts and Jobs Act reduced the ACA’s individual mandate penalty to $0, causing the constitutionality of the individual mandate and the ACA as a whole to be called into question. In 2018, a federal district court in Texas struck down the ACA as unconstitutional because the individual mandate no longer served as a method for raising revenue. The federal district court further found that the ACA did not contain a severability clause, and that the individual mandate was an “essential” component of the ACA. The court reasoned that the ACA was unconstitutional where the mandate does not bring in revenue. Furthermore, since the mandate is a keystone component of the law and cannot be severed from the law as a whole, the court held that the entirety of the ACA must fall. In December of 2019, a Fifth Circuit Court of Appeals 3-judge panel reviewed the federal district court’s decision and finally issued its own decision on the matter. The Fifth Circuit Court of Appeals ruled in favor of the federal district court’s opinion

that the individual mandate is no longer constitutional since it does not bring in any revenue for the federal government. However, the Fifth Circuit remanded the case back to the federal district court for further discussion and determination as to the severability issue, calling into question whether the ACA can in fact stand alone without the individual mandate. In other words, the federal district court must now take a closer look at whether the individual mandate is truly an essential component of the law, or whether the ACA can legally be implemented without the individual mandate in place.

During the first week of January 2020, the House of Representatives and a group of twenty-one state attorneys general and governors joined together and made a request to the U.S. Supreme Court relating to the future and viability of the ACA. The group petitioned the U.S. Supreme Court to address three issues: (1) the group requested that a decision be rendered on whether the plaintiffs have standing to challenge the individual mandate; (2) the group requested that the constitutionality of the mandate be reaffirmed immediately; and (3) the group requested that the Supreme Court provide guidance on the viability of the ACA should the individual mandate be struck down as unconstitutional (in other words, the group wants the Supreme Court to rule on the severability issue). The Supreme Court will have a private conference on February 21st to determine whether the case will be heard this term (and, accordingly, issue a decision by the end of June). If not heard this term, the constitutionality of the ACA will remain in limbo throughout the 2020 presidential election. It is unclear how the uncertainty surrounding the ACA’s constitutionality will impact decision making by individuals, businesses, and even insurance companies. If the ACA remains in limbo for too long, the marketplace, funding mechanisms, and individual coverage options will be called into question by many. Given the significance of the district court and Fifth Circuit decision, the case will likely find its way to the U.S. Supreme Court, forcing the U.S. Supreme Court to once again rule on the constitutionality of the ACA. Until then, employers must continue to comply with ACA market reforms, including the employer mandate and reporting requirements. Budget Bill Repeals Cadillac Tax, Health Insurance Tax and Medical Device Tax In late December, Congress used a spending deal (the “Further Consolidated Appropriations Act of 2020”) to fully repeal three ACA taxes that have been hot button issues since the ACA’s passage.



HOT HEALTH CARE MATTERS CONTINUED First, after two effective date delays, the long-feared publish to the public all negotiated rates for inCadillac Tax has been eliminated from the ACA effec- network providers, as well as allowed amounts paid tive in 2020. for out-of-network providers. The Cadillac Tax would have imposed a 40% excise tax on high-cost employer-sponsored coverage, penalizing employers with plans whose premiums exceed a certain threshold. The tax would have applied not only to employers’ and employees’ share of health care coverage, but also to health savings account, flexible spending account, and health reimbursement arrangement contributions. Notably, the premium threshold for “high cost” coverage was low enough that many employers would have been affected.

The same week that the Transparency in Coverage proposed rule was released, the Centers for Medicare and Medicaid and the Department of Health and Human Services released a final rule governing price transparency for hospitals (the “Calendar Year 2020 Outpatient Prospective Payment System & Ambulatory Surgical Center Price Transparency Requirements for Hospitals to Make Standard Charges Public”). Under the final rule, hospitals will be required to publish their standard charges online in a machinereadable format, including all rates they negotiate with third party payers. Hospitals will also be required to publish to the public any payer-specific negotiated rates, the amount the hospital is willing to accept in cash from a patient for an item or service, and the minimum and maximum negotiated charges for 300 common shoppable services. The final rule on hospital pricing is set to take effect on January 1, 2021, after hospitals requested more time to implement the requirements under the rule.

Second, the budget bill repealed the Health Insurance Tax, which imposed a tax on entities providing health insurance, including policies for individual and small groups, insured employer plans, Marketplace plans, and Medicare and Medicaid. The Health Insurance Tax has been in effect on a rolling basis, imposed some years and not others. Finally, Congress repealed the Medical Device Tax starting in 2020, which originally imposed a 2.3% excise tax on the value of certain medical devices from 2013 through The push towards price transparency is desired by 2015, and was later suspended effective January 1, most individual consumers who have been more and more frequently subject to balance-billing and other 2016 through December 31, 2019. surprise medical bills. However, hospital systems Although the repeals will come as a relief to many, it have threatened to challenge the price transparency will be interesting to see how the repeals will impact rules, and push back on the added governance of the ACA’s funding, given that the taxes were origi- employers that sponsor group health plans will likely nally incorporated into the ACA to cover the signifi- ensue. cant costs associated with the expansion of health care reform. The three taxes alone were projected to Supreme Court Agrees to Hear Case on ACA bring in a combined $375 billion. Risk Corridor Program Trump Administration Moves Health Care Price Transparency


Increase Finally, the U.S. Supreme Court has decided to hear arguments this term regarding the ACA risk corridor program. Health insurance companies have sued the Pursuant to President Trump’s Executive Order on federal government for failure to make risk corridor Improving Price and Quality Transparency, the payments promised under the ACA, alleging they are Trump Administration, through the Centers for Medi- owed reimbursements totaling up to $12.3 billion. care and Medicaid Services and the Department of Health and Human Services, released a set of pro- As a refresher, the ACA created a “risk corridor” proposed regulations known as the “Transparency in gram designed to lessen the impact of financial lossCoverage” proposed rule in mid-November of 2019. es sustained during the first three years that the ACA The proposed rule would require health insurance marketplace was in effect. The program permitted issuers and health plans, including employer- insurance companies on the Exchange to enter a risk sponsored group health plans, to inform participants, corridor, under which insurance companies with lossbeneficiaries, and enrollees about price and cost- es would be reimbursed and insurance companies sharing information. Most health plans will be re- with gains would contribute part of their profits. In quired to establish an online tool available to all par- exchange, the insurance companies were to keep ticipants that includes estimates of cost-sharing lia- premiums on the marketplace “affordable.” Federal bility for all covered healthcare items and services, agencies publicly stated that any insurance compaallowing participants to shop and compare costs be- nies not reimbursed for losses through profit contritween providers. The proposed rule would also re- butions by other companies in the risk corridor proquire health insurance issuers and health plans to gram would be reimbursed by the federal gov-



HOT HEALTH CARE MATTERS CONTINUED ernment. Throughout the entirety of the risk corridor program, almost all the insurance companies in the program sustained significant losses, likely due to the fact that many individuals were electing to pay the individual mandate penalty as opposed to purchasing a plan on the Exchange. The federal government has stated it has no duty to reimburse the insurance companies; rather, the profits within the risk corridor program are the only funds that may be used to reimburse the participating insurance companies for any sustained losses.


As a result, insurance companies allege the federal government engaged in a “bait and switch” tactic, using the promise of reimbursement as a mechanism for convincing insurance companies to participate in the Exchange and keep premiums low, but retracting that promise once it was clear the losses to the insurance companies were significant. The funds were allegedly promised by the federal government for the years 2014, 2015, and 2016, but the federal government contends they were never legally bound to funding reimbursements not covered by contributions to the risk corridor program. The lower courts have determined that the federal government has no further financial obligation to the insurance companies. The U.S. Supreme Court began hearing arguments on December 10, 2019.

June 6, 2020

Reprinted with permission, from the 1st Quarter, 2020 McGrath North Publications. Caroline Nelsen is a member of McGrath North’s ERISA, Employee Benefits & Health Care section. Get more information at

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ANALYZING THE 2020 NEBRASKA CONSUMER DATA PRIVACY ACT Keypoint: Nebraska lawmakers will consider proposed legislation that would create CCPA-like privacy rights for Nebraska residents. On January 8, 2020 Nebraska state Senator Carol Blood introduced the Nebraska Consumer Data Privacy Act (LB746) (the “Act”). Below is our analysis of the proposed legislation (as introduced). To Whom Does it Apply?

The Act would apply to any Nebraska resident acting as an individual. The Act does not apply to persons acting in a commercial or employment context. What Entities are Covered? The Act would apply to “businesses,” defined as “any sole proprietorship, partnership, limited liability company, corporation, association, or other legal entity that is organized or operated for the profit or financial benefit of its shareholders or other owners, collects consumers’ personal information or determines the purposes and means of the processing of consumers’ personal information, does business in Nebraska, and satisfies one or more of the following: (A) has an annual gross revenue in excess of ten million dollars; (B) annually buys, receives, sells, or shares the personal information of 50,000 or more consumers (i.e., Nebraska residents); or (C) derives 50% or more of its annual revenue from selling consumers’ personal information. The Act also applies to any entities that control or are controlled by a business, which meets the definition above, and share common branding with said business. The Act’s definition of business largely tracks the California Consumer Privacy Act’s (CCPA) definition; however, the annual gross revenue threshold is much lower ($10 million v. $25 million). What Information is Covered? “Personal information,” which is defined similarly to the CCPA’s definition as any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household. As with the CCPA’s definition of personal information, the Act lists numerous categories of personal information such as identifiers, commercial information, biometric information, and geolocation data.

What Rights are Created? Right to know. A consumer would have the right to know: (1) the categories of personal information a business collected about that consumer; (2) the categories of sources from which the personal information is collected, (3) the business or commercial purpose for the collecting or selling the personal information, and (4) the categories of third parties with whom the business shares personal information. A consumer would have the right to request a business that sells personal information or discloses it for a business purpose, disclose: (1) the categories of personal information that the business collected about that consumer; (2) the categories of personal information that the business sold about the consumer and the categories of third parties to whom the information was sold; and (3) the categories of personal information the business disclosed about the business for its business purpose. Right to access. A consumer would have the right to access the personal information a business collected about the consumer. Right to opt-out. A consumer would have the right to opt out of any potential sales of his or her personal information. Right to deletion. A consumer would have the right to request that their personal information be deleted. Notably, the Act fails to define “sale” or “disclose.” Are there Any Exemptions? Yes. For example, businesses would not be required to (1) retain consumers’ personal information for a single one-time transaction if, in the ordinary course of business, consumers’ personal information is not retained; or (2) link data that, in the ordinary course of business, is not maintained in a manner that would be considered personal information. Additionally, the Act contains exemptions relevant to GLBA and HIPAA-regulated entities, and certain activities covered by the FCRA. Would Companies Need to Update their Online Privacy Policies? Yes. Businesses would be required to update their online privacy policies, including any Nebraskaspecific descriptions of consumers’ privacy rights, to include a description of consumers’ rights under the Act, including:



NEBRASKA CONSUMER DATA PRIVACY ACT CONTINUED How Would it be Enforced? The Attorney General would have authority to enforce the legislation as a civil violation of the Nebraska Consumer Data Privacy Act, subject to the remedies available under that Act. Any business, service provider, or other person that violates the Act would be liable for a civil penalty of up to $7,500 for each violation. In addition, the Attorney General could adopt and promulgate rules and regulations to further the purpose and administration of the Act.

Would it Create a Private Right of Action? No. No private right of action was included in the proposed legislation.

Explicit notice that consumers’ personal information could be sold unless the consumer affirmatively opts When Would it be Effective? out; The Act does not include an effective date.

Consumers’ right to request the business’s deletion Anything Else? of their personal information; The Nebraska Attorney General would be authorized A “Do Not Sell My Personal Information” link, which to promulgate interpretive regulations; however, the would enable consumers to opt out of the sale of requirement is permissive, not mandatory. their personal information. In general, the Nebraska Act is a slimmed down verFurther, the Act would require businesses to pro- sion of the CCPA. Those who are familiar with the vide, “in a form that is reasonably accessible to con- CCPA’s provisions will readily recognize many provisumers,” the following notices to consumers: sions of this proposed law. Two or more designated methods for consumers to submit requests for information, to include a toll-free telephone number and a website (if applicable); and A clear and conspicuous link on the business’s homepage, to the “Do Not Sell My Personal Information,” webpage.

This post first appeared January 16, 2020 on the legal blog Byte Back written by Ephraim Hintz, Jennifer Atwood, and Cassidy Kidwell, Husch Blackwell LLP. Reprinted with permission. Get more information at

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Spring Seminar Mahoney State Park, Ashland, NE May 15, 2020

Mahoney State Park 28500 W Park Highway Ashland, NE **Up to 5.5 hours of CLE, including 1 hour of Ethics

Cost: Members: Free Student Members - $20.00 Non-Members: $55.00 Honorary Members: $20.00 Register at:

Speaker Lineup

Anna Brewer Nebraska Attorney General's Office

Robert L. Kardell Baird Holm LLP

Joel Carney Goosman Law Firm

Eric Tiritilli Lamson, Dugan & Murray

Mark Fahleson Remboldt Ludke LLP

Schedule and Sessions 7:45-8:00 Check-In/Continental Breakfast (Donuts/Pastries/Fruit) 8:00-8:15 Opening 8:15-9:45 Sex Trafficking in Nebraska Anna Brewer, Nebraska Attorney General's Office By attending this presentation, the audience will learn to "Realize" that sex trafficking happens in Nebraska; "Recognize" the signs; and once they "Realize" and "Recognize" that sex trafficking is happening in Nebraska, Anna will offer a venue through which the audience can "Respond."

10:00-11:00 Civility in Law Firms and Life in a Post-#MeToo World Joel Carney, Goosmann Law Firm The #MeToo Movement has drastically changed every workplace and campus across the country. Joel Carney will share real world examples of sexual and non-sexual harassment in the law firm before and after the #MeToo movement. Among other things, attendees will learn to identify the differences between verbal, non-verbal, and physical sexual harassment.

11:00-12:00 NePA Mid-Year Membership Meeting 12:00-12:45 Lunch 12:45-1:45 Marijuana in the Work Place, The Myths, The Realities, and The Best Practices in 2020 Eric Tiritilli, Lamson, Dugan & Murray, LLP The legal landscape on how to address marijuana in the workplace is rapidly changing. Join Eric Tirtilli to hear the latest on laws affecting marijuana testing and use in the workplace and the best practices for complying with the complex and sometime conflicting patchwork of laws.

Schedule and Sessions 2:00-3:00 The Dark Web Robert Kardell, Baird Holm LLP Robert Kardell, former FBI Special Agent, will present a short summary of the history of the dark web, how it evolved to what it is today, and how it can be accessed. He will also discuss information and items for sale on the dark web including drugs, hacking as a service, payment services, fake images and videos, and more.

3:15-4:15 November 2020 and Beyond: How the Elections Will Impact Business and the Practice of Law Mark Fahleson, Rembolt Ludke LLP Mark Fahlsen, former Chairman of the Nebraska Republican Party, will share his thoughts on how President Trump impacted the courts (appointing over 150 judges while in office) and the flipping of the second and third appellate courts to a conservative majority, among other fun facts from President Trump's time in office. Mr. Fahlsen will also share how the upcoming elections will impact business and the legal space in Nebraska.

4:15-4:30 Close/Door Prizes