thanks number thirteen dashed five nine four to janet everson vs resource health care of america inc oral argument not to exceed fifteen minutes per side  she cared for a lady named miss newsome important to this case miss newsome had a full time disability call it a total care disability and by that i mean it did not interim it did not last only twelve hours it lasted all twenty four hours she had down syndrome she had seizures she could not feed herself she was a total care client the issue in this case concerns my client being asked to remove miss newsome from the facility for four hours without a nurse my client was not a nurse she refused to do that on the grounds that she wasn't a nurse and that mr newsome was intitled to a nurse the employer said that is insubordination you were fired that fact is undisputed that she was fired for refusing to take mr newsome from the home without a nurs we alleged that was it because she was uncomfortable with doing the act i think that was the word that she used or that she thought it violated the law both your honor she did say what the did she use comfortable that was what he did that's a little different than i'm not doing it because it violates the law but i mean a lot of things you might not want to do because you don't feel comfortable about it but i don't necessarily think that's inconsistent however she was uncomfortable with the notion  that not being a nurse would be removing someone from a home that's not a cause of action that was what's what does not cause the action being uncomfortable refusing to do something that would make you uncomfortable now you also have to believe that it would be a violation of  believe that it would be illegal and reasonably so right reasonably so yes your hand and tell me tell me what law she reasonably believe that she was violating if she took out the patient she understood that the patient was legally entitled to have a nurse for twenty four hours so that would be in what laws that we've cited in our in our brief your honor is forty two u s c thirteen ninety six is a patient's right to medical medical care and then tennessee adopts that law at tcas seventy one five one zero one and then a facility does that by putting in place care plan documents which spell out the needs of the client the issue of the twenty four versus the twelve hours came into place because it just so happened that miss newsome had a roommate who was also a total care client and so they had one nurse in one room for both of the total care clients there was no need for two nurses of course the facility could not built twenty four hour for this nurse  twenty four hours for the other patient obviously they split well and well that's how that was the way it's always somebody there there was always interest there and that's the key yes yes there was always twenty four hours a nurse for mr newsome and in fact if you want to drill down even deeper the ultimate issue is what happens when these two patients are not together when they're separated does she get a nurse because if she has twenty four hour care judge why she would have to but if she has only twelve hour care then it wouldn't be necessary and for that issue there is what's called a staffing plan my person my client is a staffer she needs to know how this patient is to be staffed and that staffing planned specifically says if the and i've got it here in the event the roommate is away from the take her to a family visit for four hours so she believed reasonably so backed up by documents backed up by testimony of almost every witness we deposed that she is entitle to a marsh she says i'm not going to do that for good reason there could be civil liability could be potentially criminal liability and she's fired for that we argued in the district court your honor so that we should get the summary judgment here the facts are  undisputed are our client's good faith belief is it's not one of those situations where maybe she was wrong but she had a reasonable belief or a good faith believe me she was right this lady does get twenty four hours care and there's no dispute that she refused to take her without a nurse and there's no dispute that that's the only reason she was fired so we should have gotten this summary judgment the position that the reasonable cause to believe theory appl common law but otherwise as to the actual refusal it would be the sign and so if you look at our evidence which which consists of the individual support plan which is distinguished from the staffing plan the support plan says mrs newsome is approved for twenty four hour nursing she shares a nurse with her housemate who is also approved for twenty four hour nursing however the residential home only bills for twelve hours per day of nursing per person request to decrease nursing to twelve hours per day but that's plainly explaining the context of there being two people in the room if you have to ask the further question what happens when they're not together  client and the home say that the individual support plan is the more detailed one the i s p it's about district court seemed to think there was a conflict i don't think there is a conflict your honor the staffing plan more directly addresses what happens when they're not together in the room so i would say it's more of a more of an on point clarification of ok for a staffer not as detailed but i don't think there's a conflict  the context of the twelve hours because there are two people there the staffing plan says here's what happens when one person is taken away and all of the witnesses agree that ms newsom did in fact get twenty four hours care when i say all the witness i'm talking about the nurse the corporate h r manager who explained the context of twelve hours building the home manager who explained the context of twelve hours bill and maybe most importantly the case manager who is headline if you look at page i think it's twenty one of her deposition where she tries to hedge a little bit what was she when she's pinpointed on the question if the roommate is away does mr newsome get an lpn yes she must have a nurse and then and then finally the whole manager agrees it's one to one with an lpn so in summary if if the documents back her up if that's her understanding from overwhelmingly so we're respectfully asking the court not only to reverse the grant of summary judgment to my friend and colleague in that residential center but to further grant the summary judgment to mark thank you basis for the claim that the i s p the sport plane required twenty four hour nursing for the cloud or that a nurse was required to accompany this clot to her home for christmas there is no reasonable belief held by the plaintiff in this case to the contrary what we have instead is shifting litigation reasons that were given in response to developments in depositions or in  was going to be taken at a time where she would eat lunch or be have be fed take the trip and then be back in time within that four hours it was ok it exactly  long answer but i'm going to get there and we'll start with what the i space says which is what controls the plan of care is the individual support plans now all agree the plaintiff great in her deposition that the highest pay does not require twenty four hour nursing care for this individual she can see that but their response was that requires twelve and the other person requires twelve because that's the way it's paid now and that's one person there twenty four hours  jackie's doctor has recommended twelve hours a day nursing care and the highest paid also says jackie receives twelve hours per day nursing care our contention is that twelve hours in the i s p means twelve hours it does not mean twenty four what do you mean the word the con i'm sorry but there's the context in the context is that she's receiving twenty four they're both receiving twenty four and they're being billed twelve and twelve if you look in th before that that's where this doctor says i don't think the doctor would say i'm going to recommend where he says it would be helpful for her to have twenty four but i'm only going to recommend twelve because what the aspi also says is that the if this patient's roommate is away from home then this patient won't have that that nurse at the home but does not say that if jackie leaves then the nurse goes w know how long that person is going to be away from the home so jack you will need to know that take care but that does not mean of jackie leaves for less than four hours that they nurse has to go with her and again these documents are very significant especially aspi because this is what people this given to scare keepers to take care of them when they can't go we all know that you too have they were exactly but to have the nurse there does not say then that the nurse has to go with her on a short trip away from the home people for her daughter not anything about a staffing plan ok we took the plan of deposition and that's when the theory changed the plan of said no i agree there they asked paedos require two people for what happened was asked why staff in place candice staffing plans and judge brinn quote unquote when the client is out of community and not in a home she is supposed to have a direct care staff and the plaintiff is the only person ever to have seen this already document i asked her about it she said she saw it she knew it was important but she didn't show it to anybody she didn't give it to anybody should make a copy of it she  never seen it but then that behavior to me alone shows she had no reason to leave especially when there's all the communication between going back and forth between people about this issue i think it would have been reasonable for the plaintiff to said look in addition here's the staffing plan that i just found and here it is i made a copy of she didn't do that because it didn't exist then she switched to a new theory deposition new theory is that the staffing plan this is where we get required twenty four hours per day of nursing and that a nurse had to accompany her again as judge brain noted that staffing plan does not say that it doesn't say either of those things to the extent it says again that if her roommate leaves she gets the church that's absolutely right but that does not translate into a short trip mean we're having to have a nurse require  and more importantly or as importantly to what the plaintiff said finally at her deposition was not that the highest p was violated but that the staffing plan i believe the staffing plant was violated violating a statute a staffing plan does not violate any law or rule or regulation that we can find and as significant as judge griffin noted that she said she did not say during all this conversation that this was illegal or she felt it was in the law a lawful she said it was uncomfortable we asked her in her deposition something illegal you need to know that at the time were you not later you don't have to prove that it's actually illegal but you have to know what i think that it broke i think her deposition said that they did not provide her and for me to take her with alba never broke the law she said no she said i was uncomfortable well in her deposition she said it broke them all but we asked her again  heaven and the additional one page document would be the rules that govern what must be done and i understand those to be broken by requiring her to take someone far away from her home one question with al the nurse that still you think not an allegation that breaking the law i would imagine that her supervisor said to her this i think is the wall what you did you're go do this because you have to do this because we've told medicare inflated going to say that that's what we're going to do and if that were the case the claim i would agree with you but what the plaintiff has admitted here was there was no violation of the eyes pity it was the and she has also admitted that to the extent there was any discrepancy between the staffing playing in the eyes be the i speak controls and then again i don't i don't know i want to i don't think a person has to know you violate forty t have your employees testifying that twenty four hours with the expected coverage for jack white when she's in her home yes i guess maybe maybe we're down to what at which really mean you might put your finger on it you want a nurse twenty four hours with her in the home where everything that she needs is one candidate and you don't put her in a car and shipper for four hours down the road to a home that's not where she lives with africa and then you're going to holler back hopefully within the four hours it just seems too many very reasonable that you would think the greater danger to jackie is to be on the run away from where she lives and where all of her facilities and accoutrements for treating her condition reside and that's when she needs the nurse because if she has a seizure the do testimony but is it more dangerous the testimony was if something done earth was needed solely for the peg to be she's the testimony was that if they were on the road something came up they would take her to the hospital twenty four hours why didn't either why does she have even twelve hours if she only needs a nurse every four hours because that's just what the piece says that's that's the issue that you've got to realize that these individual support plans are what controls the case here and if it says twelve hours regardless of why and they say twelve hours if asked pieces twelve hours it's twelve hours and has it been determined that the but this language about both needing twenty four hours just calling it twelve hours that's not what it says though that does not say that it said jackie had been approved for twenty four hours physician recommends a decrease to twelve hours twelve hours is it it also says jack saved twelve question with it necessary for the position to do that in order for you only to bill for twelve i have no idea though the way i look at to do a lot more with a piece educational than i do these but but this is the document where people have to be able to go and say this is the level of care that is provided you don't have  ward nurse has a duty it's spelled out the hospice pacifically spells out that she performs the peg tube functions when it talks about trips away it doesn't say anything about it so inertia is not required i don't think there's any record proof for that she was ever gone more than four hours on it but we're talking about what the i think you're saying because the ip doesn't say you have to have a nurse if you go on a list in four hour trip then under a responsible person or entity it says jackie and staff it does not say nurse and again i would point out where a nurse people coordinating a responsible into people for a company the whole thing is just as responsible person four or entity jackie stack or what responsible person or entity some speak and again i want to point out and connect in order that says nothing about a nurse at page seven of the aspi it specifically says quote only jackie's nurse can administer fluids nutrition and medications so again where they nurse is required it's specifically spelled out in the asti ok and if the i p though that has the language about being approved for twenty four hour having a roommate was also approved for twenty four hour only billing twelve hours per day per person request to decrease p she hadn't looked at it before she was terminated so no i don't think she could have a reasonable belief based on that documents and she never saw that docking what you're saying then she can have no reasonable belief that's correct because you see the stepping plan she said she did after she was terminated everyone thinks there's two and she said first she says and these are both after she was from a she saw the one she said that said quote if jackie goes out on a leave then a nurse those with her that's the one that she never produced to us never made a copy of never did anything she then produced this other one that doesn't say that but she says now this is the one that says if the if her roommate goes away then jackie  is as nurse at the home and everything that she experienced while she was there is that this girl this woman had twenty four hour nursing i'm sorry jackie had twenty four hour nursing all the time right there was a nurse at the home twenty four hours a day under the highest pay and again page full of five quote jackie's doctor has recommended twelve hours a day nursing care again and up these things are used by people who don't know and you can argue about you want to about why doctor did something whatever the bottom line is if and i asked pay or an ip or anything else twelve hours it's not twenty four hours the doctor said reduce it to two hours is that the deal you get we don't randomly pick ours what we did was we did breakfast lunch dinner that's the time the twelve hours the document that controls her care and that but that's required by the federal regulation yes so violation of the ideas would necessarily violate the federal regulations would it not i've thought about that i don't know if it's a person you follow should of it i don't know who is certainly something that i mean you don't want to do that's why you have it so you know what chirico the federal regulations require them to give care consistent with the mr gilbert i think you get three minutes rebuttal yes your honor i've got four kids and i'm like when i was growing up they can watch t v and they can press a pause button i can go out and play with some neighbors and they can come back pick up right where the t v was and that mr show jackie nuisance disability is not that way there is no pause but it is twenty four hours a day it is not twelve hours a day it is not four hours a day it is not intermittent the twelve hours in context and i think judge or judge white used the right word it is just a recognition that there's two people in the room we're not going to double bill  provider to delete four hours in a day and not provide it or do that in the head you work the twelve hours if you send have to respond that it's first i false hypothetical nobody believes that everyone all of the witnesses know she gets twenty four hours care and when they're separated the nurse goes with her in a hypothetical where someone truly only did need twelve hours but they had a twenty four hour around the clock disability it wouldn't make any sense what it just wouldn't and ultimately that's why their case doesn't make sense well it could make sense if you accept that what she needed the nurse for as opposed to someone else is to clean her to if that were the only issue that if this two went off every four hours been yes i guess in that situation yes but but this is someone who cannot swallow cannot speak has the tube issues has down syndrome has seizures and if i were to look at the ideas p i wouldn't go to page twelve as mr henderson cited you too i would go to page six where it explains the context of the billing my client being a staffer you're quite right just rant about why they give that being planned this is what you have to do she has to know who has to accompany this person when she leaves because she's the person that's leading with r and the plans those that are if they're separated the nurse goes with it she didn't even have that duty she did have that yet and i'm not even sure i follow that argument the individual staffing plan has has sometimes been referred to as as an i s p to mock me for my client versus individual service plan also i as a but yes both of those documents are in the record  didn't keep a copy of them after she was fired she's being deposed without having ever she's going from memory off this staffing plan because it wasn't produced a little bit was she asked the question whether she saw it yes i think i think she yes i think she testified as to her memory of the staffing plan yes yes and her memory is correct both the service plan on page six talks about the twelve hours billing and then the staffing plan even more pinpointed lee talks about what happens when they are separated think you do not concede that the ideas only provides for twelve hours i know for a fact it does not i know i know that that's not what the context  page six is i know that's not what what happened in practice and i know their own witnesses say that the twelve hours were only billing particularly mishandle on who said so page twenty one when she was pressed we the district judge though found that right yes yes so you were ruled that this is what it means mr mr henderson told the district judge similar to what he said here let's just look it says here's a twelve hour reference here that's got to be what it means and when in this is first time i've ever had this hot talk to judges but i would think the logical question would be the same one that judge drench asked was and i'll paraphrase it judge strange was was it a twelve hour billing was that in fact the case and mr henderson to my surprise just said i have no idea in response to that question because we do know that because other witnesses testified that the twelve hours as a twelve hour billing the nurse the case manager the home manager the corporate h r the jury will decide that we're asking for summary judgment in our favor however if summary judgment is reversed and it's a tribal issue we will say that our client's belief is not only reasonable but it's right it's the only way that makes any common sense and so yes we've tried to injury i mean usually the issue of reasonable believe is a trial issue for the trier of fact it's not usually ruled as a matter of