PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT€¦ · 2:17-cv-12674-GCS-DRG . Honorable George Carem Steeh . Magistrate Judge R. Steven Whalen . PLAINTIFF’S MOTION FOR PARTIAL

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN ___________________________________ LAURA HICKS, on behalf of herself and similarly situated employees, Plaintiff, v. GREAT LAKES HOME HEALTH SERVICES, INC. and GREAT LAKES ACQUISITION CORP., d/b/a GREAT LAKES CARING, Defendants. _________________________________

: : : : : : : : : : : : : :

2:17-cv-12674-GCS-DRG Honorable George Carem Steeh Magistrate Judge R. Steven Whalen

PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT

Laura Hicks worked for Great Lakes Home Health Services, Inc. and Great

Lakes Acquisition Corp. (together “Great Lakes”) as a Registered Nurse. During a

10-week period in 2015, Great Lakes classified Ms. Hicks as exempt from the

FLSA’s overtime pay mandate by virtue of the “professional exemption” described

at 29 C.F.R. § 541.300. In this lawsuit, Ms. Hicks challenges Great Lakes’

classification of her as overtime-exempt and seeks overtime premium pay for hours

worked over 40 per week.1

1 Even though this is a collective action lawsuit, the parties have agreed and the Court has ordered that all “collective” discovery is stayed until after the resolution of dispositive motions pertaining to Ms. Hicks’ individual claims. See Doc. 19.

2:17-cv-12674-GCS-DRG Doc # 27 Filed 01/22/18 Pg 1 of 36 Pg ID 239

2

FLSA overtime exemptions are affirmative defenses and are “‘narrowly

construed against the employers.’” Hughes v. Gulf Interstate Field Services, 878

F.3d 183, 2017 U.S. App. LEXIS 25573, *8 (6th Cir. Dec. 19, 2017) (quoting

Arnold v. Ben Kanowski, Inc., 361 U.S. 388, 392 (1960)). As such, Great Lakes

carries the burden of proving through “clear and affirmative evidence” that Ms.

Hicks falls within the professional exemption’s confines. See id. (internal

quotations omitted).

In this partial summary judgment motion, Ms. Hicks asserts that, based on

the undisputed facts, Great Lakes cannot possibly prove that she is covered by the

professional exemption. Exempt “professionals” must be paid on a “salary or fee

basis,” 29 C.F.R. § 541.300, and the Sixth Circuit has held that employees whose

pay is partially based on the amount of time worked cannot satisfy this

requirement, see Elwell v. University Hospitals Home Care Services, 276 F.3d

832, 839 (6th Cir. 2002). Because Ms. Hicks’ compensation was partially based

on the amount of time she worked, she is not covered by the professional

exemption.2

Thus, Ms. Hicks respectfully asks the Court to find that she was not

overtime-exempt during the 10-week period relevant to this lawsuit. If the Court

2 Here, there is no dispute that Ms. Hicks was not paid on a salary basis. Thus, if Great Leaks is to successfully assert the professional exemption as an affirmative defense, it must show that Ms. Hicks was paid on a fee basis during this 10-week period. It cannot show this.


3

so holds, the jury still must decide how many (if any) overtime hours Ms. Hicks

worked during the relevant period. That is why Ms. Hicks merely seeks partial

summary judgment.

Pursuant to Local Rule 7.1(a), on January 19, 2018, Plaintiffs’ counsel asked

Defendants’ counsel whether Defendants concur in the relief sought. Defendants

do not concur in this motion.

WHEREFORE, Ms. Hicks respectfully requests that the Court grant this

motion and find that she was not overtime-exempt under the FLSA.

Dated: January 22, 2018 Respectfully, s/ Mark J. Gottesfeld Peter Winebrake R. Andrew Santillo Mark J. Gottesfeld WINEBRAKE & SANTILLO, LLC 715 Twining Road, Suite 211 Dresher, PA 19025 (215) 884-2491 [email protected] [email protected] [email protected] Jesse Young SOMMERS SCHWARTZ, P.C. One Town Square 17th Floor Southfield, MI 48076 (248) 746-4027 [email protected]


4

Jerry E. Martin Joshua A. Frank BARRETT JOHNSTON MARTIN & GARRISON LLC 414 Union Street, Suite 900 Nashville, TN 37219 (615) 244-2202 [email protected] [email protected]


IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

___________________________________ LAURA HICKS, on behalf of herself and similarly situated employees, Plaintiff, v. GREAT LAKES HOME HEALTH SERVICES, INC. and GREAT LAKES ACQUISITION CORP., d/b/a GREAT LAKES CARING, Defendants. _________________________________

: : : : : : : : : : : : : :

2:17-cv-12674-GCS-DRG Honorable George Carem Steeh Magistrate Judge R. Steven Whalen

Jesse Young Peter Winebrake Sommers Schwartz, P.C. R. Andrew Santillo One Town Square Mark J. Gottesfeld 17th Floor Winebrake & Santillo, LLC Southfield, MI 48076 715 Twining Road, Suite 211 Dresher, PA 19025 Jerry E. Martin David Garrison Joshua A. Frank Barrett Johnston Martin & Garrison LLC 414 Union Street, Suite 900 Nashville, TN 37219

BRIEF IN SUPPORT OF PLAINTIFF’S

MOTION FOR PARTIAL SUMMARY JUDGMENT


TABLE OF CONTENTS

STATEMENT OF ISSUES PRESENTED……………………………………….ii

CONTROLLING OR MOST APPROPRIATE AUTHORITIES………………...iii

INDEX OF AUTHORITIES…...………………………………………………….iv

I. INTRODUCTION………………………………………………………..1

II. STATEMENT OF MATERIAL FACTS………………………….……..2

A. Great Lakes’ business………………………………………………..3

B. Great Lakes employed Ms. Hicks as an RN on October 27, 2015…...3

C. Ms. Hicks’ job duties as an RN involved visiting patients, completing charting, attending case management conferences, and in-service training and performing on-call duties…………..……4

D. Great Lakes classified Ms. Hicks as overtime-exempt under the FLSA’s professional exemption………………………………………5

E. Prior to January 2016, Great Lakes paid Ms. Hicks on a combination

of a fee basis and on an hourly basis………………………………….6

1. Great Lakes paid Ms. Hicks a combination of a fee basis and hourly basis during the payroll period of November 15, 2015 through November 28, 2015….………………….7

2. Great Lakes paid Ms. Hicks a combination of a fee basis and hourly basis during the payroll period of November 29, 2015 through December 12, 2015……………………..9

3. Great Lakes paid Ms. Hicks a combination of a fee basis

and hourly basis during the payroll period from December 13, 2015 through December 26, 2015…………11


ii

III. STANDARD OF REVIEW……………………………………………12

IV. ARGUMENT…………………………………………………………..14

A. Great Lakes’ Heavy Burden of Proof………………………………14

B. Great Lakes is unable to meet its burden to prove that Ms. Hicks is overtime-exempt under the FLSA’s professional exemption….….15

1. The FLSA’s professional exemption requires that an

employee be paid on a salary or fee basis………….…….15

2. The Sixth Circuit’s opinion in Elwell v. University Hospitals Home Care Services held that an employee is not paid on a fee basis if her compensation is also partially based on the amount of time she worked………..16

3. The U.S. DOL’s fee basis regulation, 29 C.F.R.

§ 541.605, prohibits payment based on the number of hours worked…………………………………………..18

4. Because Great Lakes paid Ms. Hicks on a fee basis and an

hourly basis during the relevant period, Great Lakes is unable to meet its burden in proving that Ms. Hicks is exempt under the FLSA’s professional exemption….……20

V. CONCLUSION………………………………………………………...23


iii

STATEMENT OF ISSUE PRESENTED

Whether Ms. Hicks is entitled to partial summary judgment in her favor

finding that she was not overtime-exempt under the FLSA during the 10-week

period relevant to her individual claims where (i) Great Lakes admits that during

this 10-week period Ms. Hicks was not salaried; (ii) Great Lakes must prove

through “clear and affirmative evidence” that Ms. Hicks was paid on a fee basis in

order for her to be covered by the professional exemption; (iii) Great Lakes paid

Ms. Hicks in part based on the amount of time she worked; and (iv) Elwell v.

University Hospitals Home Care Services, 276 F.3d 832, 839 (6th Cir. 2002) held

that employees whose pay is partially based on the amount of time worked are not

paid on a fee basis.


iv

CONTROLLING OR MOST APPROPRIATE AUTHORITY

Elwell v. University Hospitals Home Care Services, 276 F.3d 832 (6th Cir. 2020)

Hughes v. Gulf Interstate Field Services, 878 F.3d 183 (6th Cir. 19, 2017)

29 C.F.R. § 541.300 29 C.F.R. § 541.605


v

INDEX OF AUTHORITIES

CASES A.H. Phillips, Inc. v. Walling, 324 U.S. 490 (1945)………………………………………………………….14-15 Auer v. Robbins, 519 U.S. 452 (1997)………………………………………………………….14-15 Brock v. Louvers & Dampers, Inc., 817 F.2d 1255 (6th Cir. 1987)…………………………………….………15 Crook v. Rabbit River Enterprises, Inc., 2015 U.S. Dist. LEXIS 74723 (W.D. Mich. June 10, 2015)…………….………15 Elwell v. University Hospitals Home Care Services, 276 F.3d 832 (6th Cir. 2002)……………………………………………2, 14, 16-23 Herman v. Palo Group Foster Home, Inc., 183 F.3d 468 (6th Cir. 1999)……………………………………………………..14 Hughes v. Gulf Interstate Field Services, 878 F.3d 183 (6th Cir. Dec. 19, 2017)…………………………………...…1, 14-15 Rees v. Iron Workers’ Local No. 25 Pension Fund, 141 F. Supp. 3d 742 (E.D. Mich. 2015)…………………………..……..13 Statues and Regulations 29 U.S.C. § 213(a)(1)……………………………………………………………..15 29 C.F.R. § 541.300……………………………………………………..…….15-16 29 C.F.R. § 541.313(b)………………………………………………………...….17 29 C.F.R. § 541.604……………………………………………………………….18 29 C.F.R. § 541.605…………………………………………………….…16-19, 22


vi

Other Authorities U.S. DOL of Labor, Federal Register, Vol. 69, No. 79, April 23, 2004, Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees; Final Rule……………………………..19


I. INTRODUCTION

Laura Hicks worked for Great Lakes Home Health Services, Inc. and Great

Lakes Acquisition Corp. (together “Great Lakes”) as a Registered Nurse. During a

10-week period in 2015, Great Lakes classified Ms. Hicks as exempt from the

FLSA’s overtime pay mandate by virtue of the “professional exemption” described

at 29 C.F.R. § 541.300. In this lawsuit, Ms. Hicks challenges Great Lakes’

classification of her as overtime-exempt and seeks overtime premium pay for hours

worked over 40 per week.1

FLSA overtime exemptions are affirmative defenses and are “‘narrowly

construed against the employers.’” Hughes v. Gulf Interstate Field Services, 878

F.3d 183, 2017 U.S. App. LEXIS 25573, *8 (6th Cir. Dec. 19, 2017) (quoting

Arnold v. Ben Kanowski, Inc., 361 U.S. 388, 392 (1960)). As such, Great Lakes

carries the burden of proving through “clear and affirmative evidence” that Ms.

Hicks falls within the professional exemption’s confines. See id. (internal

quotations omitted).

In this partial summary judgment motion, Ms. Hicks asserts that, based on

the undisputed facts, Great Lakes cannot possibly prove that she is covered by the

professional exemption. Exempt “professionals” must be paid on a “salary or fee

1 Even though this is a collective action lawsuit, the parties have agreed and the Court has ordered that all “collective” discovery is stayed until after the resolution of dispositive motions pertaining to Ms. Hicks’ individual claims. See Doc. 19.


2

basis.” 29 C.F.R. § 541.300. Here, there is no dispute that Ms. Hicks was not paid

on a salary basis. Thus, if Great Leaks is to successfully assert the professional

exemption as an affirmative defense, it must show that Ms. Hicks was paid on a fee

basis during this 10-week period. It cannot show this. The Sixth Circuit has held

that employees whose pay is partially based on the amount of time worked cannot

satisfy this requirement. See Elwell v. University Hospitals Home Care Services,

276 F.3d 832, 839 (6th Cir. 2002). Because Ms. Hicks’ compensation was

partially based on the amount of time she worked, she was not paid on a fee basis

and, therefore, not covered by the professional exemption.

Thus, Ms. Hicks respectfully asks the Court to find that she was not

overtime-exempt during the 10-week period relevant to this lawsuit. If the Court

so holds, the jury still must decide how many (if any) overtime hours Ms. Hicks

worked during the relevant period. That is why Ms. Hicks merely seeks partial

summary judgment.

II. STATEMENT OF MATERIAL FACTS

As is made clear in Ms. Hicks’ complaint, pertaining to her individual claim,

Ms. Hicks only takes issue with the manner in which Great Lakes paid her from

October 27, 2015 until the end of December 2015. See Doc. 1 at ¶¶ 9-18.

Beginning in January 2016, Great Lakes began to compensate Ms. Hicks on a

salary basis. See 30(b)(6) Deposition attached as Exhibit A at 60:22-62:6. Thus,


3

the material facts that are part of this motion only pertain to the 10-week period of

Ms. Hicks’ employment with Great Lakes from October 27, 2015 until the end of

December 2015 (“relevant period”).

A. Great Lakes’ business

Great Lakes employs hundreds of home health workers who provide home

health, palliative, and hospice care to homebound clients. See Plaintiff’s

Complaint (Doc. 1) at ¶ 4. Great Lakes’ principal place of business is located in

Jackson, Michigan. See id. at ¶¶ 5-6. Great Lakes employs home health workers

in Michigan, Ohio, Indiana, Illinois, Kansas, Missouri, Massachusetts, and Maine.

See Marcy Miller Deposition attached as Exhibit B at 5:25-6:6.

B. Great Lakes employed Ms. Hicks as an RN on October 27, 2015 Prior to being employed by Great Lakes, Ms. Hicks was employed by First

Care Healthcare in January 2015 as a Registered Nurse (“RN”). See Deposition of

Ms. Hicks attached as Exhibit E at 18:14-18:18; First Care Healthcare Offer Letter

dated 1/14/15 attached as Exhibit C.

Ms. Hicks became employed by Great Lakes as an RN on October 27, 2015,

which is when Great Lakes acquired First Care Healthcare. See 30(b)(6) Dep. (Ex.

A) at 14:5-14:14, 16:5-16:10; 30(b)(6) Notice attaching Declaration of Marcy J.

Miller attached as Exhibit D at p. 4 ¶ 3 & p. 5 ¶ 5.


4

C. Ms. Hicks’ job duties as an RN involved visiting patients, completing charting, attending case management conferences and in-service training, and performing on-call duties

As an RN during the relevant period, Plaintiff traveled to multiple patients’

homes and provided nursing care to homebound patients. See Deposition of Laura

Hicks attached as Exhibit E at 76:1-79:5; 19:25-20:9; 66:23-66:11, 197:12-197:23;

203:14-203:25; Declaration of Laura Hicks at p. 1 ¶ 2 attached as Ex. F. Great

Lakes required Ms. Hicks to perform charting duties wherein she documented

numerous notes regarding patients that she visited and submitted those notes to

Great Lakes. See Hicks Dep. (Ex. E) at 76:1-79:5; 30(b)(6) Dep. (Ex. A) at 79:8-

81:1.

Ms. Hicks was required to attend case management conferences/team

conference meetings at Great Lakes’ office once a week, which were essentially

staff meetings. See Hicks Dep. (Ex. E) at 99:21-99:24; 173:23-174:22; Hicks

Decl. (Ex. F) at p. 1 ¶ 2; 30(b)(6) Dep. (Ex. A) at 33:9-33:11. Further, Ms. Hicks

went to Great Lakes’ office to receive training during in-service meetings, see

Hicks Dep. (Ex. E) at 175:8-175:16, or to get equipment or supplies for a patient

before going to a patient visit, see id. at 209:5-210:14.

When Ms. Hicks started working for Great Lakes, she was frequently on-call

as there was only one other nurse that shared this duty with her. See id. at 100:22-

101:6. Being on call meant that Great Lakes required Ms. Hicks to carry a


5

business cell phone provided by Great Lakes and answer it. See id. at 60:1-60:19.

Depending on the phone call, Ms. Hicks might have to speak with a physician, go

visit an existing patient, or visit a new patient. See id. at 60:1-63:7.

D. Great Lakes classified Ms. Hicks as overtime-exempt under the FLSA’s professional exemption

Great Lakes classified Ms. Hicks as overtime-exempt during the relevant

period. See 30(b)(6) Dep. (Ex. A) at 15:22-16:7. Specifically, Great Lakes

considered Ms. Hicks as overtime-exempt under the FLSA’s professional

exemption. See id. at 16:14-16:18.

E. Prior to January 2016, Great Lakes paid Ms. Hicks on a combination of a fee basis and on an hourly basis

Great Lakes paid Ms. Hicks, in part, on a fee basis for visits that she

performed as an RN during the relevant period. See 30(b)(6) Deposition (Ex. A)

at 28:20-29:4, 14:5-14:14; Miller Decl. (Ex. D) at p. 4 ¶ 3. Specifically, Ms.

Hicks was paid $30 for routine visits and $50 for OASIS visits. See 30(b)(6) Dep.

(Ex. A) at 28:20-29:4. Great Lakes paid a higher fee for OASIS visits because the

OASIS visit required more paperwork. See id. at 29:24-30:1.

In addition to paying Ms. Hicks on a fee basis for visits, Great Lakes paid

Ms. Hicks hourly compensation for the time that she spent attending team

conference meetings and in-service trainings, and performing on-call duties. See

id. at 43:5-43:24, 53:24-54:11, 60:20-61:18, 63:22-68:25, 70:2-70:7, 122:19-


6

123:23, 141:25-143:9. The more time that Ms. Hicks spent attending team

conference meetings and in-service trainings, and performing on-call duties, the

more money that Great Lakes paid her. See id. at 62:11-63:4,66:3-66:18. Great

Lakes’ corporate designee testified:

Q: So the more time Ms. Hicks would have spent on training the more she would have been paid for that activity? A: Yes. Q: And the more time she would have spent in team conference meetings, the more time she would have been paid for those meetings? A: Yes. [ . . . ] Q: I’m saying if they would have spent two hours on that as opposed to one hour, would they have been paid more for the two hours versus the one hour? A: Yes. Q: Was that based on time? A: Generally, yes.

Id. at 121:5-122:3.


7

A review of three particular payroll periods during the relevant period will

help demonstrate the manner in which Great Lakes paid Ms. Hicks during the

relevant period.2

1. Great Lakes paid Ms. Hicks a combination of a fee basis and hourly basis during the payroll period of November 15, 2015 through November 28, 2015

Ms. Hicks’ payroll check from Great Lakes dated December 11, 2015,

which compensated her for the payroll period from November 15, 2015 through

November 28, 2015, see Exhibit D at p. 13, demonstrates that Ms. Hicks was

paid:3

• a fee basis of $30 per visit for 34 routine/revisit visits for a total of $1,020;

• a fee basis of $50 per visit for 12 OASIS visits for a total of $600; and

• hourly compensation of $349 for time spent in case management conferences, in-service training, and time spent on-call.

30(b)(6) Dep. (Ex. A) at 40:16-41:1; 45:1-46:10; 52:6-53:19; 56:24-57:13.

2 The brief highlights three particular pay periods where Ms. Hicks was paid on a combination of a fee basis and an hourly basis. See Section II.E. However, Ms. Hicks was also paid on a combination of a fee basis and hourly basis for a fourth payroll period – October 18, 2015 to October 31, 2015. See Ex. B at p. 9. As demonstrated by the payroll check dated 11/13/15, Ms. Hicks was paid $198 within the “Other” category for that payroll period, which reflects hourly compensation for time spent in case management conferences and in-service trainings, and time spent on-call. See Ex. B at p. 9; see also 30(b)(6) Dep. (Ex. A) at 37:7-37:16, 45:9-45:15. 3 Ms. Hicks was also paid $143.67 for mileage reimbursement. See 30(b)(6) Dep. (Ex. A) at 45:1-45:8.


8

As demonstrated by a payroll spreadsheet produced by Great Lakes for this

payroll period, see Ex. G at p. 8, the amount of time that Ms. Hicks spent in case

management conference and in-service training time was 8.25 hours as reflected in

the column titled “Office Hours.” See 30(b)(6) Dep. (Ex. A) at 53:17-54:3. Ms.

Hicks was compensated at the rate of $20 per hour for these 8.25 hours and as a

result she received $165 (8.25 hours x $20.00). See id. at 54:4-54:9, 123:18-

123:23. As explained by Great Lakes’ corporate designee, Ms. Hicks would have

informed someone at Great Lakes’ payroll that she should be compensated for

these 8.25 office hours. See id. at 53:24-54:3, 141:25-143:9.

Ms. Hicks was also compensated for $124 and $60, for a total of $184, for

on-call time for this payroll period, which as discussed at Section II.E.2, infra,

means that Ms. Hicks was paid for $1 per hour for the 184 hours of on-call time for

this two-week pay period. See id. at 54:8-54:11; 43:5-43:24.

Thus, as reflected in Ms. Hicks’ December 11, 2015 paystub, Ms. Hicks

received $349 ($165 + $184) in hourly compensation for this pay period for the

time she spent in case management conferences, in-service training, and being on-

call. See id. at 43:5-43:24, 54:4-54:11, 123:18-123:23; see also Ex. D at p. 13.

During this payroll period, Ms. Hicks was also paid an additional $45 for

2.25 hours spent attending case management conferences and in-service training.

See Ex. D at p. 13; Ex. G at p. 7; 30(b)(6) Dep. (Ex. A) at 48:10-51:22. Great


9

Lakes previously admitted that this was hourly compensation. See Miller Decl.

(Ex. D) at p. 5 ¶ 5, n1; 30(b)(6) Dep. (Ex. A) at 116:7-117:19. Great Lakes now

claims that this payment was a mistake, and that Ms. Hicks was overpaid for this

time. See id. at 57:21-58:1. However, whether or not the $45 Ms. Hicks received

for this pay period was an overpayment, the fact remains that this payment also

constitutes hourly compensation as Ms. Hicks was paid $20 for 2.25 hours for a

total of $45.00. See id. at 48:15- 52:5, 57:21-58:8; 72:25-73:10.

2. Great Lakes paid Ms. Hicks a combination of a fee basis and hourly basis during the payroll period of November 29, 2015 through December 12, 2015

Ms. Hicks’ payroll check dated December 24, 2015, for the two-week

payroll period from November 29, 2015 through December 12, 2015, see Ex. D at

p. 15, demonstrates that Ms. Hicks was paid:

• a fee basis of $30 for 32 routine/revisit visits for a total of $960;

• a fee basis of $50 for 10 OASIS visits for a total of $500; and

• hourly compensation of $124 for time spent in case management conferences, in-service training, and time spent on-call.

30(b)(6) Dep. (Ex. A) at 58:23-60:15.4

Further, a payroll spreadsheet produced by Great Lakes, see Ex. G at p. 9,

demonstrates that Ms. Hicks spent 3 hours in case management conferences and in-

4 Great Lakes also paid Ms. Hicks $15 for a phone stipend and $142.60 for mileage reimbursement for this particular payroll period. See 30(b)(6) Dep. (Ex. A) at 65:3-65:6.


10

service training for this payroll period as reflected in the column titled “Office

Hours.” See 30(b)(6) Dep. (Ex. A) at 63:22-67:12. The “3” in the column titled

“Office Hours” represents that Ms. Hicks spent 3 hours in team conferences or in-

service training. See id. at 64:22-65:2; 123:10-123:18. Great Lakes’ corporate

designee testified:

Q: And what does the 3 represent?

A: The amount of time she spent on those items.

Q: And then the rate to the right of that says 20?

A: Correct.

Id. at 65:3-65:6. Thus, Ms. Hicks was paid $20 per hour for a total of $60 ($20 x 3

hours) in this payroll period for the time she spent in team conferences or in-

service training. See id. at 65:17-65:24. Great Lakes’ corporate designee further

testified:

Q: So Ms. Hicks was paid for the three hours that she spent in non-visit patient items for this payroll period?

A: Correct.

Q: At $20 times three?

A: Correct.

Q: That comes out to $60, right?

A: Correct.


11

Id. at 65:17-65:24.

Additionally, the payroll spreadsheet demonstrates that Ms. Hicks was paid

$64 for the time that she spent performing on-call duties for this payroll period.

See id. at 66:3-66:5. Great Lakes paid Ms. Hicks $1 per every hour that she was

on-call. See id. at 66:11-66:18. As a result, the spreadsheet demonstrates that Ms.

Hicks was on call for 64 hours for this particular payroll period. See id.

Thus, as reflected in Ms. Hicks’ December 24, 2015 paystub, Ms. Hicks

received $124 ($60 + $64) in hourly compensation for this pay period for the time

she spent in case management conferences, in-service training, and being on-call.

See id. at 64:22-65:24; 123:10-123:18, 66:3-66:18.

3. Great Lakes paid Ms. Hicks on a combination of a fee basis and hourly basis during the payroll period from December 13, 2015 through December 26, 2015

Ms. Hicks’ payroll check dated December 31, 2015, for the two-week

payroll period from December 13, 2015 to December 26, 2015, see Exhibit D at p.

17, demonstrates that Ms. Hicks was paid:

• a fee basis of $30 per visit for 19 routine/revisit visits for a total of $570;

• a fee basis of $50 for 16 OASIS visits for a total of $800; and

• hourly compensation of $160 for time spent in case management conferences, in-service training, and time spent on-call;


12

30(b)(6) Dep. (Ex. A) at 60:20-61:18.5

Further, a payroll spreadsheet produced by Great Lakes demonstrates that

Ms. Hicks spent 6 hours in case management conference and in-service training as

reflected in the column titled “Office Hours.” See id. at 67:13-68:23, 122:19-

123:9. Great Lakes paid Ms. Hicks $20 for each hour for a total of $120. See id.

at 68:18-68:23.

Additionally, the payroll spreadsheet demonstrates that Ms. Hicks was paid

on an hourly basis for the time she spent performing on-call duties for this payroll

period. See id. at 68:24-68:25, 70:2-70:7.

Q: And then when we look at the on-call column again for $60, are you able to tell how many hours Ms. Hicks worked on-call for that payroll period?

A: I would assume 60 hours.

A: And that’s 60 times what again?

A: $1.

Id. at 70:2-70:7. Accordingly, Ms. Hicks was paid $60, $1 per hour, for the 60

hours that she spent performing on-call duties for this payroll period. See id.

Thus, as reflected in Ms. Hicks’ December 31, 2015 paystub, Great Lakes

paid Ms. Hicks $180 ($120 + $60) in hourly compensation for this pay period for 5 Ms. Hicks was also paid $7.50 for phone reimbursement, $143.36 for mileage reimbursement, and a Christmas bonus of $160 in this particular pay period. See id.


13

the time she spent in team conferences, in-service training, and being on-call. See

id. at 67:13-69:5, 70:20-70:7, 122:19-123:9.

III. STANDARD OF REVIEW

The Court recently described the standard of review for a motion for

summary judgment in Rees v. Iron Workers’ Local No. 25 Pension Fund:

Federal Rule of Civil Procedure 56(c) empowers the court to render summary judgment “forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” See Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir. 2001). The Supreme Court has affirmed the court’s use of summary judgment as an integral part of the fair and efficient administration of justice. The procedure is not a disfavored procedural shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); see also Cox v. Kentucky Dep’t of Transp., 53 F.3d 146, 149 (6th Cir. 1995). The standard for determining whether summary judgment is appropriate is “‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’” Amway Distribs. Benefits Ass’n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). The evidence and all reasonable inferences must be construed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); Redding, 241 F.3d at 532 (6th Cir. 2001). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247-48 (emphasis in original); see also Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001).


https://advance.lexis.com/document/?pdmfid=1000516&crid=6f84678f-d6cb-4523-bd44-87e0f06300f8&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A5H1Y-WBP1-F04D-H0CK-00000-00&pddocid=urn%3AcontentItem%3A5H1Y-WBP1-F04D-H0CK-00000-00&pdcontentcomponentid=6416&pdshepid=urn%3AcontentItem%3A5H11-8T11-DXC7-F4KT-00000-00&pdteaserkey=sr4&pditab=allpods&ecomp=dy_fk&earg=sr4&prid=625a869e-a61a-4af1-9686-f5faef22d2df�

14

If the movant establishes by use of the material specified in Rule 56(c) that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law, the opposing party must come forward with “specific facts showing that there is a genuine issue for trial.” First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253, 270, 88 S. Ct. 1575, 20 L. Ed. 2d 569 (1968); see also McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere allegations or denials in the non-movant’s pleadings will not meet this burden, nor will a mere scintilla of evidence supporting the non-moving party. Anderson, 477 U.S. at 248, 252. Rather, there must be evidence from which a jury could reasonably find for the non-movant. McLean, 224 F.3d at 800 (citing Anderson, 477 U.S. at 252).

141 F. Supp. 3d 742, 751-52 (E.D. Mich. 2015) (Steeh, J.)

IV. ARGUMENT

A. Great Lakes’ Heavy Burden of Proof

The FLSA requires that employees receive overtime premium compensation

not less than “one and one-half times the regular rate” for hours over 40 in a

workweek, unless an employer proves that an exemption to the FLSA applies to an

employee. See Hughes v. Gulf Interstate Field Services, 878 F.3d 183, 2017 U.S.

App. LEXIS 25573, *7-8 (6th Cir. 2017).

Courts hold that FLSA exemptions, such as the professional exemption,

must be “narrowly construed against the employer.” Elwell v. University

Hospitals Home Care Services, 276 F.3d 832, 837 (6th Cir. 2002); Herman v. Palo

Group Foster Home, Inc., 183 F.3d 468, 472 (6th Cir. 1999) (same); accord Auer

v. Robbins, 519 U.S. 452, 462-63 (1997) (“FLSA exemptions are to be narrowly


15

construed against employers.”) (internal quotations omitted); A.H. Phillips, Inc. v.

Walling, 324 U.S. 490, 493 (1945) (“Any exemption from [the FLSA’s]

humanitarian and remedial legislation must therefore by narrowly construed,

giving due regard to the plain meaning of statutory language and the intent of

Congress.”); Crook v. Rabbit River Enterprises, Inc., 2015 U.S. Dist. LEXIS

74723, *5 (W.D. Mich. June 10, 2015) (“FLSA provisions are to be interpreted

liberally in the employee’s favor and its exemptions construed narrowly against the

employer.”).

An employer bears the burden of proof in demonstrating that an employee is

exempt from the FLSA’s overtime provisions. See Brock v. Louvers & Dampers,

Inc., 817 F.2d 1255, 1256 (6th Cir. 1987); Crook, 2015 U.S. Dist. LEXIS 74723 at

*5. In fact, an employer must prove through “clear and affirmative evidence” that

an employee comes “plainly and unmistakably” within each requirement of the

exemption. See Hughes, 878 F.3d 183 at *8; see also Auer, 519 U.S. at 463.

B. Great Lakes is unable to meet its burden to prove that Ms. Hicks is overtime-exempt under the FLSA’s professional exemption

1. The FLSA’s professional exemption requires that an

employee be paid on a salary or fee basis

For an employee to be exempt under the FLSA’s professional exemption,

see 29 U.S.C. § 213(a)(1), the employer must prove that the employee is

“[c]ompensated on a salary or fee basis. ” See 29 C.F.R. § 541.300; see also U.S.


16

Department of Labor Wage and Hour Division Fact Sheet #17N: Nurses and the

Part 541 Exemptions Under the Fair Labor Standards Act (FLSA) attached as

Exhibit I. Because there is no dispute that Ms. Hicks was not paid a salary during

the 10-week period at issue, the applicability of the professional exemption to Ms.

Hicks hinges on whether or not Great Lakes paid her on a fee basis. The U.S.

DOL’s regulation defining the professional exemption states that “fee basis” is

defined at 29 C.F.R. § 541.605. See 29 C.F.R. § 541.300(b). The compensation

Great Lakes paid to Ms. Hicks did not meet this definition.

2. The Sixth Circuit’s opinion in Elwell v. University Hospitals Home Care Services held that an employee is not paid on a fee basis if her compensation is also partially based on the amount of time she worked

In Elwell v. University Hospitals Home Care Services, the Court considered

whether a compensation scheme virtually identical to that which Ms. Hicks

challenges constituted a proper “fee basis” within the meaning of the U.S. DOL’s

regulation. There, the Sixth Circuit held that Elwell, who, like Ms. Hicks, was a

home health care nurse, was not overtime-exempt under the FLSA’s professional

exemption because she was paid both on a fee basis and an hourly basis. See 276

F.3d 832 at 834.

In that case, Elwell was paid on a fee basis and on an hourly basis,

specifically $17.65 per hour for time spent in staff meetings and in-service

trainings and $3.00 per hour for time spent performing on-call services. See id. at


17

835. Elwell filed a motion for summary judgment arguing that she because she

was paid on an hourly basis for meetings, in-service training, and on-call duties,

she was not paid on a fee basis as required for the professional exemption. See id.

at 836. The district court agreed and granted Elwell’s motion for summary

judgment holding that the University had not paid Elwell in accordance with the

professional exemption. See id. The jury awarded Elwell $25,478 in damages and

also awarded her attorney’s fees and costs. See id.

On appeal, the Sixth Circuit affirmed the district court’s granting of

summary judgment to Elwell. See id. at 839-40. The Sixth Circuit found that a

compensation plan that combined fees and hourly compensation does not qualify

as a fee basis as required for by the professional exemption. See id. at 838. The

Sixth Circuit noted that 29 C.F.R. § 541.313(b)6

6 In 2004, 29 C.F.R. § 541.313(b) was slightly amended and is now found at § 541.605; however, as discussed at Section IV.B.3, infra, no substantive changes to this provision were made.

defined payment on a fee basis as

payment for a completed task “regardless of the time required for its completion.”

Id. at 838. The Court held that this language “suggests that a compensation plan

will not be considered a fee basis arrangement if it contains any component that

ties compensation to the number of hours worked.” Id. The Court also found

further support for this view in a comparison of the “fee basis” definition with the

“salary basis” definition. Id. at 838-39. Specifically, the Court noted that—in


18

contrast to the “fee basis” definition—the “salary basis” regulation expressly

permitted additional payments tied to the number of hours or days worked. Id. In

other words:

the Department of Labor knew how to permit hybrid compensation schemes when it desired to do so. The fact that no similar provision is made in the fee basis regulation suggests, therefore, that hybrid compensation plans, which combine both fee based and hourly compensation, are excluded from the definition of fee basis arrangements. This conclusion is consistent with the general rule that exemptions to the FLSA are narrowly construed against the employer.

Id. at 839 (internal citations omitted).7

Because the undisputed facts show that Elwell’s compensation arrangement was based at least in part on the number of hours she worked, we conclude that the district court correctly awarded summary judgment to the plaintiffs as to University’s claim that she was an exempt professional. Although Elwell was paid on a strict fee basis for most of her required job duties, including most of her patient visits, she was also paid on an hourly basis for some duties, including infusion visits that lasted longer than two hours, on-call duty, in-service training, and required staff meetings. As we have already explained, such a hybrid plan does not qualify as a fee basis arrangement.

Accordingly, the Court held:

Id. at 839 (emphasis supplied). 7 Just as the 2004 amendment made no substantive change to the regulation defining a “fee basis,” it continues to maintain this critical distinction between “salary basis” compensation, see 29 C.F.R. § 541.604 (permitting additional compensation, including hourly pay, without violating salary basis requirement), and “fee basis” compensation, see 29 C.F.R. § 541.605.


19

3. The U.S. DOL’s fee basis regulation, 29 C.F.R. § 541.605, prohibits payment based on the number of hours worked

The U.S. DOL has enacted a regulation found at 29 C.F.R. § 541.605 which

establishes the requirements for an employee to be considered paid on a fee basis.

29 C.F.R. § 541.605 states, in pertinent part:

Administrative and professional employees may be paid on a fee basis, rather than on a salary basis. An employee will be considered to be paid on a “fee basis” within the meaning of these regulations if the employee is paid an agreed sum for a single job regardless of the time required for its completion. These payments resemble piecework payments with the important distinction that generally a “fee” is paid for the kind of job that is unique rather than for a series of jobs repeated an indefinite number of times and for which payment on an identical basis is made over and over again. Payments based on the number of hours or days worked and not on the accomplishment of a given single task are not considered payments on a fee basis.

29 C.F.R. § 541.605(a) (emphasis supplied). The language found in 29 C.F.R. § 541.605 does not differ substantively

from the previous version of the regulation, 29 C.F.R. § 541.313(b), which was

cited in Elwell. In fact, the language that Elwell found most significant in 29

C.F.R. § 541.313(b) – “regardless of the time required for its completion” – is

contained verbatim in 29 C.F.R. § 541.605(a). When the U.S. DOL published the

new regulations in 2004, it provided guidance concerning the regulations, and

concerning § 541.605, it stated that “[p]roposed section 541.605 simplified the fee


20

basis provision in the current rule, but made no substantive change.” See U.S.

DOL of Labor, Federal Register, Vol. 69, No. 79, April 23, 2004, Defining and

Delimiting the Exemptions for Executive, Administrative, Professional, Outside

Sales and Computer Employees; Final Rule, attached as Exhibit H at p. 22184.

More significantly, the U.S. DOL recognized that the fee basis regulation, in

accordance with Elwell, continues to prohibit an employee from paying an exempt

employee on a combination of a fee basis and an hourly basis:

The final rule does not make any changes to the proposed rule. Very few comments were submitted on this provision. The Fisher & Phillips law firm notes that the Sixth Circuit in Elwell v. University Hospitals Home Care Services, 276 F.3d 832 (6th Cir. 2002), held that a compensation plan that combines fee payments and hourly pay does not qualify as a fee basis because it ties compensation, at least in part, to the number of hours or days worked and not on the accomplishment of a given task. It asks the Department to amend the rule to permit combining the payment of a fee with additional, non-fee-based compensation. The Department has decided not to change the long-standing fee basis rule because the only appellate decision that addresses this issue accepted the “fee-only” requirement, and Fisher & Phillips concede that this is an “arcane and rarely-used” provision. We continue to believe that payment of a fee is best understood to preclude payment of additional sums based on the number of days or hours worked.

Id. (emphasis supplied).


21

4. Because Great Lakes paid Ms. Hicks on a fee basis and an hourly basis during the relevant period, Great Lakes is unable to meet its burden in proving that Ms. Hicks is exempt under the FLSA’s professional exemption

The undisputed facts show that Great Lakes paid Ms. Hicks in part based on

the amount of time that she worked during the relevant period. See section

II.E,supra. Ms. Hicks was paid pursuant to a compensation scheme that does not

differ in any material respect from the compensation scheme that the Sixth Circuit

held in Elwell failed as a matter of law to satisfy the requirements of the fee basis

definition and, as a result, the professional exemption to the FLSA.

Specifically, Great Lakes paid Ms. Hicks on an hourly basis of $20 for time

spent in meetings and for time spent in in-service trainings, and on an hourly basis

of $1 for time spent performing on-call duties. See id. Great Lakes’ 30(b)(6)

corporate designee was clear that the more time Ms. Hicks spent performing these

non-visit tasks, the more she was paid:

Q: So the more time Ms. Hicks would have spent on training the more she would have been paid for that activity? A: Yes. Q: And the more time she would have spent in team conference

meetings, the more time she would have been paid for those meetings?

A: Yes. [ . . . ]


22

Q: I’m saying if they would have spent two hours on that as opposed to one hour, would they have been paid more for the two hours versus the one hour?

A: Yes. Q: Was that based on time? A: Generally, yes.

30(b)(6) Dep. (Ex. A) at 121:5-122:3; see also section II.E., supra. Likewise, Ms.

Hicks was paid on an hourly basis for the time she spent performing on-call duties.

See section II.E., supra.

As detailed in Section II.E., supra, and reflected by the payroll records

produced by Great Lakes, Ms. Hicks was paid on a combination of a fee basis and

hourly basis during the relevant period. See Section II.E., supra.

As explained by the Sixth Circuit in Elwell, an employee whose pay is

partially based on the amount of time worked cannot satisfy the fee basis

requirement of the professional exemption found at 29 C.F.R. § 541.300. See

Section IV.B.2. Paying an employee in part based on the amount of time worked

is prohibited by the fee basis regulation set forth in 29 C.F.R. §541. 605. See

Section IV.B.2 – IV.B.3.

In fact, a brief review of the facts in Elwell reveals that Great Lakes paid

Ms. Hicks identically in every material respect. Both Ms. Hicks and Elwell worked

as home health nurses, both received fees for patient visits and hourly pay for


23

meetings, in-service training, and on-call duties. Compare Section II.E., supra

(paying Ms. Hicks $30 for routine visits and $50 for OASIS visits, $20 per hour for

meetings and in-service trainings, and $1 per hour for on-call duties) with Elwell,

276 F.3d at 835 (paying Elwell $28 and $38 for patient visits, $17.65 per hour for

meetings and in-service trainings, and $3 per hour for on-call duties). In light of

the undisputed facts regarding Ms. Hicks’ pay during the 10-week period at issue

in this case, Great Lakes cannot escape the same result as in Elwell.

Accordingly, because Ms. Hicks was not paid on a fee basis during the

relevant period, Great Lakes cannot prove that Ms. Hicks is covered by the

professional exemption.

V. CONCLUSION

Ms. Hicks is entitled to partial summary judgment because Great Lakes is

unable to prove that Ms. Hicks is covered by the professional exemption during the

relevant period when her compensation was partially based on the amount of time

she worked.

WHEREFORE, Ms. Hicks respectfully requests that the Court grant her

motion for partial summary judgment and find that she was not overtime-exempt

under the FLSA.


24

Dated: January 22, 2018 Respectfully submitted, s/ Mark J. Gottesfeld Peter Winebrake R. Andrew Santillo Mark J. Gottesfeld WINEBRAKE & SANTILLO, LLC 715 Twining Road, Suite 211 Dresher, PA 19025 Phone: (215) 884-2491 Facsimile: (215) 884-2492 [email protected] [email protected] [email protected]

Jesse Young SOMMERS SCHWARTZ, P.C. One Town Square 17th Floor Southfield, MI 48076 Phone: (248) 746-4027 Facsimile: (248) 936-2138 [email protected]

Jerry E. Martin David Garrison Joshua A. Frank

BARRETT JOHNSTON MARTIN & GARRISON LLC

414 Union Street, Suite 900 Nashville, TN 37219 Phone: (615) 244-2202 Facsimile: (615) 252-3798 [email protected] [email protected] [email protected]

Attorneys for Plaintiff


CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on January 22, 2018, I electronically filed the foregoing document with the Clerk of Court which caused the following counsel for Defendants to be served by electronic means:

Eric J. Pelton at [email protected] Thomas J. Davis at [email protected]

Date: January 22, 2018 Respectfully submitted,

s/ Mark J. Gottesfeld Mark J. Gottesfeld WINEBRAKE & SANTILLO, LLC 715 Twining Road, Suite 211 Dresher, PA 19025 Phone: (215) 884-2491 Attorneys for Plaintiffs


mailto:[email protected]�

mailto:[email protected]�

Exhibit A

2:17-cv-12674-GCS-DRG Doc # 27-1 Filed 01/22/18 Pg 1 of 38 Pg ID 275

Carry Vandemaagdenberg Marcy Miller12/13/2017


Page 1

1 UNITED STATES DISTRICT COURT

2 EASTERN DISTRICT OF MICHIGAN

3 SOUTHERN DIVISION

4

5 LAURA BETH HICKS, on behalf of

6 herself and similarly situated

7 employees,

8 Plaintiff,

9 -vs- No. 2:17-cv-12674-GCS-DRG

10 Magistrate Judge R. Steven Whalen

11 GREAT LAKES HOME HEALTH

12 SERVICES, INC., and GREAT LAKES

13 ACQUISITION CORP., d/b/a GREAT

14 LAKES CARING,

15 Defendants.

16 __________________________________/

17 PAGE 1 to 144

18

19 The 30(b)(6) Depositions of MARCY MILLER

20 and CARRY VANDEMAAGDENBERG,

21 Taken at One Town Square; 17th Floor,

22 Southfield, Michigan,

23 Commencing at 10:10 a.m.,

24 Wednesday, December 13, 2017,

25 Before Bethany Lee Robinson, CSR-3244.



2 (Pages 2 to 5)


2 (Pages 2 to 5)

Page 2

1 APPEARANCES:2

3 MARK J. GOTTESFELD, ESQ.4 Winebrake & Santillo, LLC5 715 Twining Road; Suite 2116 Dresher, Pennsylvania 190257 215.884.24918 [email protected] Appearing on behalf of the Plaintiff.

10

11 ERIC PELTON, ESQ.12 Kienbaum, Opperwall, Hardy & Pelton, PLC13 280 N. Old Woodward Avenue; Suite 40014 Birmingham, Michigan 4800915 248.645.00016 [email protected] Appearing on behalf of the Defendants.18

19 ALSO PRESENT:20 Ms. Carry Vandemaagdenberg21 (For Marcy Miller deposition)22 Ms. Marcy Miller23 (For Carry Vandemaagdenberg deposition)24

25 * * *

Page 3

1 TABLE OF CONTENTS2 Witness Page3

4 MARCY MILLER5 EXAMINATION BY MR. GOTTESFELD 56 CARRY VANDEMAAGDENBERG7 EXAMINATION BY MR. GOTTESFELD 1258

9 INDEX TO EXHIBITS10 (Exhibits are attached to transcript)11 Exhibits Page12 GLC EXHIBIT 1 713 Plaintiff's Amended Notice of Deposition14 Pursuant to Federal Rule of Civil Procedure15 30(b)(6)16 GLC EXHIBIT 2 4217 Laura Beth Hicks Payroll18 GLC EXHIBIT 3 7719 Confidential - Task20 Details/Kinnser Software OASIS-C121 Discharge (Non-Billable)22 GLC EXHIBIT 4 7923 Confidential - Task24 Details/Kinnser Software OASIS-C125 Start of Care

Page 4

1 GLC EXHIBIT 5 922 Great Lakes Caring Chapter 43 Homecare Resources4 GLC EXHIBIT 6 965 Mileage Reimbursement Rate Summary6 GLC EXHIBIT 7 987 Great Lakes Caring Mileage Policy8 GLC EXHIBIT 8 1029 Confidential - Kinnser printout

10 GLC EXHIBIT 9 10711 Confidential - Agent Visit Time Report12 GLC EXHIBIT 10 11213 Defendants' Objections and Responses14 to Plaintiff's First Interrogatories15

16

17

18

19

20

21

22

23

24

25

Page 5

1 Southfield, Michigan2 Wednesday, December 13, 20173 About 10:10 a.m.4 MARCY MILLER,5 having first been duly sworn, was examined and6 testified on her oath as follows:7 MR. GOTTESFELD: Good morning, Ms. Miller.8 My name is Mark Gottesfeld and I am the attorney for9 Laura Hicks in this lawsuit, which is pending in the

10 Eastern District of Michigan, and it's against Great11 Lakes Home Health Services, Inc. and Great Lakes12 Acquisition Corporation, doing business as Great Lakes13 Caring. Do you understand that?14 THE WITNESS: Yes.15 EXAMINATION BY MR. GOTTESFELD:16 Q. Could you state your name for the record so it's17 formally on there.18 A. Sure. It's Marcy Miller.19 Q. Ms. Miller, you understand you are here for a20 deposition today?21 A. Yes.22 Q. Have you ever taken a deposition prior to today?23 A. I have not.24 Q. I will go over some ground rules with you. I will be25 asking you some questions and I just ask that you



3 (Pages 6 to 9)


3 (Pages 6 to 9)

Page 6

1 answer my questions verbally, and so it's important2 that you give a verbal answer and not shake your head3 or shrug your shoulders as the court reporter cannot4 transcribe any verbal gestures made from you.5 Does that make sense?6 A. Yes.7 Q. If at any time you don't understand a question I am8 asking, please just let me know and I will be happy to9 rephrase it.

10 A. Okay.11 Q. Is there any reason you cannot testify truthfully12 today?13 A. No.14 Q. You understand your testimony here today is under oath?15 A. Yes.16 Q. And that means it's similar to if you were testifying17 in court; that means that your testimony is subject to18 penalty of perjury, does that make sense?19 A. Yes.20 Q. Ms. Miller, did you receive what is called an Amended21 Notice of Deposition Pursuant to Rules of Civil22 Procedure 30(b)(6)?23 A. Yes.24 Q. Why don't we mark that as a formal Exhibit now.25

Page 7

1 GLC EXHIBIT 12 (Plaintiff's Amended Notice of Deposition3 Pursuant to Federal Rule of Civil Procedure4 30(b)(6)5 WAS MARKED BY THE REPORTER6 FOR IDENTIFICATION7 MR. PELTON: So it's clear, this is the8 deposition of Great Lakes Home Health Services and9 Great Lakes Acquisition Corp under 30(b)(6).

10 BY MR. GOTTESFELD:11 Q. Ms. Miller, have you had a chance to review this Notice12 of Deposition prior to right now?13 A. Yes.14 Q. And are you prepared to testify regarding the subjects15 1, 2, 3, 4, 5, 6 and 7 listed on this amended16 deposition?17 A. Yes.18 Q. And do you understand that you're providing testimony19 today on behalf of Great Lakes Home Health Services,20 Inc. and Great Lakes Acquisition Corporation today?21 A. Yes.22 Q. And, Ms. Miller, if at any time you need a break today,23 please just let me know and I will be happy to give you24 one.25 A. Okay.

Page 8

1 Q. Just as a formality, Ms. Miller, are you able to2 testify today regarding the process by which Defendants3 determined that Plaintiff is exempt from the mandatory4 overtime pay provisions of the federal Fair Labor5 Standards Act?6 A. Yes.7 Q. Are you able to testify as to subject number 2:8 The identities of all individuals involved in9 Defendants' determination that Plaintiff is exempt from

10 the mandatory overtime pay provisions of the federal11 Fair Labor Standards Act?12 A. Yes.13 Q. Are you able to testify as to subject matter number 3:14 The basis for Defendants' determination that15 Plaintiff is exempt from the mandatory overtime pay16 provisions of the federal Fair Labor Standards Act?17 MR. PELTON: Well, as we stated in the18 Interrogatory responses, we would object to this to the19 extent you are seeking legal determinations getting20 into attorney-client matters or attorney work product,21 in the first instance this would be a legal22 determination.23 Assuming that's not what you are after, she24 is prepared to testify about why the Plaintiff would be25 considered exempt by the company.

Page 9

1 BY MR. GOTTESFELD:2 Q. So, Ms. Miller, are you able to testify today as to why3 Plaintiff is considered exempt by both Defendants in4 this lawsuit?5 A. Yes.6 Q. Ms. Miller, are you able to testify as to number 47 whether Ms. Hicks was classified as overtime-exempt8 during the time period from October 27, 2015 through9 December 31, 2015?

10 A. Yes.11 Q. And, Ms. Miller, are you able to testify as to the12 manner in which Ms. Hicks compensable work hours were13 determined from October 27, 2015 through December 31,14 2015?15 A. I would say no. She wasn't paid hourly during that16 time.17 Q. Let me ask that again. Are you able to testify as to18 how Ms. Hicks' work hours were determined during the19 time period from October 27, 2015 through December 31,20 2015?21 A. Yes. But that's also the same question in number 6.22 Q. Are you able to testify regarding Ms. Hicks' work hours23 just in general during October 27, 2015 through24 December 31, 2015?25 A. Work hours in general, yes.



4 (Pages 10 to 13)


4 (Pages 10 to 13)

Page 10

1 Q. And number 6, the way I look at it, it's a different2 subject, it says:3 The manner in which Ms. Hicks' pay was4 determined during the time period from October 27, 20155 through December 31, 2015.6 Are you able to testify to that today?7 A. Yes.8 Q. Lastly, are you able to then talk about the payroll9 records, the meaning and interpretation of them that

10 were attached to your previous declaration?11 A. Yes.12 Q. So, Ms. Miller, let's look at number 4 -- well, let me13 ask you a general question.14 Do you know Laura Hicks?15 A. I think I met her once.16 Q. And do you remember when you met her?17 A. I don't remember specifically.18 Q. Was Ms. Hicks employed by Great Lakes Home Health19 Services, Inc. and Great Lakes Acquisition Corporation?20 A. She was employed --21 MR. PELTON: I will object to the extent you22 are going outside the topics listed. Certainly you can23 ask her the question, I just don't think it would bind24 the corporation at this point.25 Go ahead and answer.

Page 11

1 A. She was employed by a company called First Healthcare,2 I think, so not Great Lakes Home Health Services, Inc.3 BY MR. GOTTESFELD:4 Q. Are you saying was she ever employed by Great Lakes5 Home Health Services, Inc.?6 A. I don't believe so, so --7 MR. PELTON: Same objection but, again, I8 think we are going off the topics listed and this9 shouldn't bind the corporation as such. She can

10 testify if you want the answer.11 MR. GOTTESFELD: Well, if Ms. Hicks wasn't12 even employed by the Defendants, I'm not sure why we13 are here today then.14 BY MR. GOTTESFELD:15 Q. Let me ask you, are you currently employed by either16 Defendant?17 A. Yes.18 Q. Who are you employed by?19 A. I am employed by Great Lakes Home Health Services, Inc.20 Q. Are you employed by Great Lakes Acquisition21 Corporation?22 A. I don't know.23 Q. But you do know that you're employed by Great Lakes24 Home Health Services, Inc.?25 A. Yes.

Page 12

1 MR. PELTON: Again, I will object to this2 whole line of questioning about corporate structure and3 such because it's not listed as a topic. You can4 explore it with the witness if you choose.5 MR. GOTTESFELD: I just need some kind of6 background.7 MR. PELTON: I just don't want the record to8 suggest it's binding the corporation.9 BY MR. GOTTESFELD:

10 Q. Ms. Hicks, how have you been employed by the Great11 Lakes Home Health Services, Inc.?12 A. I have been employed there since 2001.13 Q. Have you been in the same job title ever since?14 A. No, I started as a Registered Nurse at the bedside and15 have held many titles since then.16 Q. What is your current job title?17 A. Chief clinical officer.18 Q. How long have you held that job title for?19 A. Since 2016.20 Q. What was your job prior to chief clinical officer?21 A. Vice president of Home Health.22 Q. And how long have you held that job title?23 A. I held that title about five years.24 Q. So were you vice president of Home Health during the25 time period from October 2015 through December 2015?

Page 13

1 A. Yes.2 Q. How did you come to meet Ms. Hicks?3 A. I believe I met her in a staff meeting.4 Q. Do you remember where that meeting was held?5 A. It was in the Springfield office that she worked out6 of.7 Q. And where are you currently working out of. You're8 working in Springfield, Illinois?9 A. No, I am working out of our Jackson, Michigan office.

10 Q. What about when you were vice president of Home Health,11 where were you working out of?12 A. Same thing, Jackson, Michigan.13 Q. What were your job duties generally as vice president14 of Home Health?15 A. I oversaw home health operations, clinical financial16 responsibility for the services we provided to Home17 Health patients.18 Q. Were you working anywhere else other than Great Lakes19 Home Health Services during your time as chief clinical20 officer?21 A. No.22 Q. Ms. Hicks, I want to direct you to the Exhibit in front23 of you and there is your Declaration that you24 previously signed. Could you turn to that, please.25 It's in the back of Exhibit 1. It's attached as



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1 Exhibit A there and I just want to direct your2 attention to paragraph 3 there. If you want to take a3 moment to review that.4 A. Okay.5 Q. And then I want to direct your attention to where you6 say that:7 "She became a Great Lakes Caring employee on8 October 27, 2015 when Great Lakes Acquisition Corp9 acquired First Care Healthcare, Inc. and she resigned

10 on February 10th, 2017."11 Do you see that?12 A. Yes.13 Q. Are you speaking about Ms. Hicks there?14 A. Yes.15 Q. At some point Great Lakes, I guess they acquired First16 Care Healthcare, Inc.?17 A. Correct.18 Q. And wasn't at that time then that Ms. Hicks became a19 Great Lakes Caring employee?20 A. They remain -- it's a d/b/a, so they do business as21 Great Lakes Caring.22 Q. And who do you mean by they?23 A. First Care Healthcare, Inc.24 Q. Now, did you have any supervision over Ms. Hicks?25 A. Direct supervision? No.

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1 Q. Did you have any indirect supervision over her?2 A. People that supervised her would report to me.3 Q. And who were those individuals?4 A. Nicole Fleck is the clinical supervisor in Springfield5 and then there is a director, Lisa Scopick, and Lisa6 reports to me.7 Q. Does Nicole Fleck report to you?8 A. No, Nicole reports to Lisa.9 Q. And this Lisa, who does Lisa work for -- strike that.

10 Who did Lisa work for during the time period11 from October 2015 to December 2015?12 MR. PELTON: Again, continue to object on13 these topics that are outside the list of topics. You14 can answer.15 A. Lisa worked for I think it's America at Home16 Healthcare, doing business as Great Lakes Caring.17 BY MR. GOTTESFELD:18 Q. What about Nicole Fleck, who did she work for during19 that time period from October 2015 to December 2015?20 A. She worked for First Care Healthcare, Inc., doing21 business as Great Lakes Caring.22 Q. So Ms. Miller, let me direct you again to this Exhibit23 1. On the second page topic number 4. From the time24 period October 27, 2015 through December 31, 2015, can25 you tell me whether Ms. Hicks was classified as

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1 overtime-exempt during that time period?2 A. Yes, she was.3 Q. And how do you know that?4 A. She is an RN, which is considered exempt in our agency.5 Q. And so was Ms. Hicks an RN from October 27, 20156 through December 31, 2015?7 A. Yes.8 Q. Was that the only job title Ms. Hicks held during that9 time period?

10 A. Yes.11 Q. You said an RN is considered exempt in our agency.12 What agency are you referring to?13 A. Great Lakes Caring.14 Q. Now, let me ask you, do you know under which exemption15 specifically Ms. Hicks was considered falling under as16 overtime-exempt?17 A. She is exempt through the professional exemption18 through her RN duties.19 Q. And can you tell me what duties are that qualified her20 as overtime-exempt.21 A. Sure. She has to hold an RN license, have the proper22 schooling, utilize independent judgment, assess23 patients, set up plan of cares. Evaluate patient care24 services and patient status. Many of that is25 referenced in paragraph 7 of my statement. That's

Page 17

1 probably a good majority.2 Q. So Ms. Miller, can you turn back to topic number 3.3 A. Okay.4 Q. And this one says:5 The basis for Defendants' determination that6 Plaintiff is exempt from the mandatory overtime pay7 provisions of the federal Fair Labor Standards Act.8 Can you tell me the basis for why Plaintiff9 was overtime-exempt?

10 MR. PELTON: Again, I will object to the11 extent you are calling for a legal conclusion and you12 can answer subject to that.13 A. The basis for the termination would be that she's an RN14 and that's how we see RNs, due to their job duties.15 BY MR. GOTTESFELD:16 Q. Is there a job description for RNs?17 A. Yes.18 Q. Was there a job description in place during the time19 period from October 2015 to December 2015?20 A. Yes.21 Q. And would that have applied to Ms. Hicks' employment?22 A. Yes.23 Q. Were all RNs considered exempt by Great Lakes during24 that time period of October 2015 to December 2015?25 MR. PELTON: Object to the extent we are



6 (Pages 18 to 21)


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1 going beyond Ms. Hicks but you can answer.2 A. Full-time RNs, yes.3 BY MR. GOTTESFELD:4 Q. What about part-time RNs?5 A. No. They would have been paid hourly and received6 overtime.7 Q. Was Ms. Hicks a part-time nurse or full-time?8 A. She was part-time during the transition from the9 acquisition date until the first of the year which is

10 the two-month time frame and then full-time as of the11 first of the year, my understanding.12 Q. What about from October 2015 to December 2015, what was13 her full-time or part-time status during those months?14 A. I believe she was part-time based upon what I have15 seen, I wasn't involved in her hire, but it leads me to16 believe she was part-time status.17 Q. If she was part-time status, according to your18 testimony, she would not be overtime-exempt, am I19 right?20 MR. PELTON: Objection, you misconstrued her21 testimony.22 A. I would say for our company, generally practice and23 policy is part-time status, RNs receive an hourly24 compensation and are nonexempt. In this instance there25 was a transition time frame between when we acquired

Page 19

1 this company and when we got them converted over to our2 pay practices in which it appears she was part-time and3 paid on a per visit fee basis.4 Does that answer your question?5 BY MR. GOTTESFELD:6 Q. I'm trying to understand here. So was it not7 consistent with Great Lakes' policy at that time that8 she was not paid hourly?9 A. Correct.

10 Q. So if things had gone as they were supposed to, she11 should have been paid hourly and if she worked over 4012 hours she should have received overtime?13 MR. PELTON: Objection, that's a compound14 question.15 THE WITNESS: Do I answer it?16 MR. PELTON: You can unless he wants to break17 it down.18 MR. GOTTESFELD: I will break it up a little19 bit.20 BY MR. GOTTESFELD:21 Q. Should Ms. Hicks have been paid hourly during the time22 period she was a part-time RN?23 A. Assuming she is part-time, yes, yes.24 Q. How do you know as you sit here today that Ms. Hicks25 was part-time?

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1 A. It's based on the employment agreement she signed with2 us which shows part-time plus based upon the visit3 volume she performed during that time frame.4 Q. Do you see during the employment agreement -- and we5 can look at it later -- do you recall if you saw6 something struck out with an FT over it?7 A. Yes.8 Q. Do you have an understanding what that means there?9 A. It looks to me like they -- and I am assuming -- but

10 they hired her in based upon her status from the prior11 company, which we thought was part-time and then12 somehow it at sometime transitioned her to full-time.13 Q. Why is Great Lakes -- by the way, if I refer to Great14 Lakes, I am going to refer to both Great Lakes Home15 Health Services, Inc. and Great Lakes Acquisition16 Corporation, is that okay for ease of reference?17 A. Yes.18 Q. Why does Great Lakes make a distinction that part-time19 employees are paid on an hourly basis and full-time20 employees are paid a different way for RNs?21 A. I don't know. It's been like that since I started22 here.23 Q. So from October 2015 to December 2015, it was the24 policy that part-time RNs should be paid on an hourly25 basis?

Page 21

1 A. Correct.2 Q. And what was the policy as to how full-time RNs should3 have been paid?4 A. Salaried.5 Q. Let's move backwards again, Ms. Miller, to topic number6 2, and that asks for:7 The identities of all individuals in8 Defendants' determination that Plaintiff is exempt from9 the mandatory overtime pay provisions of the federal

10 Fair Labor Standards Act.11 Are you able to tell me what individuals were12 involved in that determination?13 A. So there wasn't a specific determination for her. It's14 standard through the company but when we do an15 acquisition, we dispatch an integration team that sets16 up these employment agreements and integrates the17 employees into our business so I can tell you who was18 involved in that. They wouldn't make necessarily a19 determination of her job role because she's an RN so20 she is automatically an RN.21 Q. So can you give me a list of those employees?22 A. Sure. From the integration team?23 Q. Right.24 A. Andrew Whooley, probably the most important here25 because he handled payroll stuff.



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1 Q. How do you spell his last name?2 A. W-H-O-O-L-E-Y. Lori Brewis (phonetic) was involved in3 this integration. She was our VP of HR. There is like4 Nakesha Edmonds was a coordinator-type body who would5 answer phones and things like that.6 Sherilyn Deary was our chief integration7 officer at the time. I don't know how involved she was8 with this particular one. There was also a director of9 integration, Roslyn Pryor. Again, I'm not sure if she

10 was very involved in this, and that's it.11 Q. Do you have any knowledge as to when Great Lakes12 decided that RNs should be considered overtime-exempt?13 A. I do not.14 MR. PELTON: Objection. It goes beyond the15 scope of the topics but you can answer.16 A. I don't. It's been like that since I started here in17 2001.18 BY MR. GOTTESFELD:19 Q. Do you have knowledge as to whether anyone from Great20 Lakes consulted with an attorney regarding the21 classification of RNs as overtime-exempt?22 MR. PELTON: Same objection. It goes beyond23 the topics listed that are limited to Ms. Hicks.24 A. I do not have any knowledge of that.25

Page 23

1 BY MR. GOTTESFELD:2 Q. Do you know whether there are any documents concerning3 the reasoning behind why RNs are overtime-exempt?4 MR. PELTON: Same objection.5 A. I do not.6 BY MR. GOTTESFELD:7 Q. You mentioned a job description before for RNs. During8 the time period from October 2015 to December 2015, was9 there just one version or do you know how many there

10 were?11 A. I think there was just one.12 Q. Has that version changed since then?13 A. I would say not substantially. We may change something14 related to a new outcome or new regulation the15 government puts in play regarding patient care but16 substantially, no.17 Q. Has Great Lakes ever done an individual analysis of18 Ms. Hicks' job duties to see whether she is properly19 overtime-exempt?20 A. I don't know.21 MR. PELTON: Object to the extent you're22 asking for a legal conclusion and attorney work product23 in this case.24 BY MR. GOTTESFELD:25 Q. Do you have any understanding as to whether RNs need to

Page 24

1 be paid a certain way in order to be overtime-exempt?2 A. I do not.3 Q. Do you have any understanding as to whether RNs can be4 paid in part on an hourly basis and still be5 overtime-exempt?6 MR. PELTON: Again, I am going to object to7 the extent you are calling for a legal conclusion.8 A. I really do not.9 BY MR. GOTTESFELD:

10 Q. So you don't have an understanding one way or the11 other?12 MR. PELTON: Again, I am going to object.13 You're asking for a legal conclusion that is in dispute14 in the case.15 MR. GOTTESFELD: I am still entitled to ask16 it in my opinion.17 A. I really don't know legally what constitutes exempt and18 not exempt in a pay model.19 BY MR. GOTTESFELD:20 Q. As you sit here today do you know whether Great Lakes21 has any knowledge as to whether paying an employee in22 part on an hourly basis prohibits them from being23 classified as an exempt employee?24 MR. PELTON: Again, I am going to object.25 You're asking for a legal conclusion or else going

Page 25

1 outside the scope of the deposition topics listed in2 the Notice.3 A. Still answer it?4 BY MR. GOTTESFELD:5 Q. Yes.6 A. Can you repeat the question?7 Q. Sure. So as of today, do you know whether Great Lakes8 is aware as to whether paying an employee, specifically9 an RN, in part on an hourly basis prohibits Great Lakes

10 from then classifying that RN as an exempt employee?11 MR. PELTON: I will restate my objection,12 it's going outside the deposition topics and calling13 for a legal conclusion which would be an inappropriate14 topic anyway and on that basis she can't bind the15 corporation with her testimony.16 You can answer the question based on your17 personal knowledge.18 A. I don't know legally, but I think we have a general19 understanding that paying people on a fee per visit20 basis and then hourly is under scrutiny, but I don't21 know that I can say that we know it makes someone22 nonexempt, I think that was the question.23 BY MR. GOTTESFELD:24 Q. And when you say you know that's under scrutiny, what25 do you mean by that?



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1 A. Just industry articles talk about the pay per visit2 model and our Home Health model and there is3 questioning whether or not we can pay people that way.4 Q. Does Great Lakes pay any employees that way?5 MR. PELTON: Objection. I am going to6 instruct her not to answer at this point. It's going7 beyond the scope of the deposition topics listed and8 going beyond the agreement of the parties with the9 court that this will be limited to the six.

10 MR. GOTTESFELD: I'm not sure there is a11 Court Order to that effect.12 MR. PELTON: I didn't say there was an Order,13 but it was discussed with the court and that was the14 discussion we were headed. I would have to look at the15 scheduling order but that was the agreement and that's16 why the deposition Notice was changed the way it was17 when it was amended.18 MR. GOTTESFELD: So you are instructing her19 not to answer that question?20 MR. PELTON: Yes.21 BY MR. GOTTESFELD:22 Q. So, Ms. Miller, let's move then to topic number 1 in23 your Amended Notice of Deposition and that 1 says:24 The process by which Defendants determined25 that Ms. Hicks is exempt from the mandatory overtime

Page 27

1 pay provisions of the federal Fair Labor Standards Act.2 What information do you have regarding this3 topic?4 A. Sure. So I wouldn't say there is a formal process.5 She is an RN. She was considered exempt as an RN due6 to her job duties so that's how I would qualify them.7 Q. Do you have any more information regarding the process8 or deliberations that Great Lakes made in coming to the9 conclusion that RNs are overtime-exempt?

10 A. I do not. It's been like that since I started here.11 Q. Fair enough. Just going back again to the fee per12 visit basis. So if I understand your testimony --13 sorry, strike that.14 Do you have an understanding as to whether15 RNs can be paid on a fee per visit basis and be16 considered overtime-exempt?17 MR. PELTON: Object, calling for a legal18 conclusion and one that goes beyond the scope of the19 deposition topics.20 You can answer in your personal capacity, if21 you can.22 A. So if I heard the question right, do I have an23 understanding if they can be paid on a fee per visit24 basis and still be considered overtime-exempt?25

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1 BY MR. GOTTESFELD:2 Q. Right.3 A. I can speak to our practice. I don't know legally,4 but, yes, I believe if they are paid strictly on a fee5 per visit and not an hourly basis they are considered6 exempt.7 Q. What about if someone, an RN, is paid on a fee per8 visit basis and also an hourly component, do you have9 an understanding as to whether that individual can

10 still be considered overtime-exempt?11 MR. PELTON: Same objection stated in the12 previous question.13 A. I think that goes back to the answer I had which is I14 don't know that makes them nonexempt but I know there15 is a lot of scrutiny on that pay structure.16 BY MR. GOTTESFELD:17 Q. Let's move on, Ms. Miller. I want to make this as18 organized as I can for all of us, and I think it would19 be good if we moved to number 6:20 The matter in which Ms. Hicks' pay was21 determined from October 27, 2015 to December 31, 2015.22 So are you able to tell me how was she paid23 during that time period? I think you hit on that24 before but I just want to go there right now.25 A. Yes. So she, during that time frame was paid on a per

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1 visit basis so we took visit information out of that2 software system and calculated the type of visit she3 did so she was paid $30 for routine visits and $50 for4 what we call an OASIS. She also received bonus pay for5 when she was on-call, in-service, education-type work.6 She also received mileage reimbursement and a phone7 stipend.8 Q. I want to make sure I heard you right there. You said9 $30 for what type of visits?

10 A. What we call routine, or revisit some people call it.11 Q. And then you said there were OASIS visits?12 A. Yes.13 Q. How much?14 A. $50 for an OASIS.15 Q. And what does OASIS mean?16 A. OASIS is a standard government form we have to fill out17 when we do a Home Health admission, discharge,18 resumption of care.19 Q. So does it fall under one particular visit or are there20 multiple visits that fall under the OASIS category?21 A. There can be different types of visits that require an22 OASIS; start of care, agency discharge, resumption of23 care, recertification and a follow-up, also.24 Q. Why are the OASIS visits paid at $50 versus the other25 visits at $30?



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1 A. They require more paperwork.2 Q. So you mentioned the phone stipend, right?3 A. (Affirmative).4 Q. Can you tell me what that involves or what that is for?5 A. I wasn't involved in this and generally usually if6 maybe somebody uses their own cellphone, you reimburse7 them a stipend for that use.8 Q. And what would Ms. Hicks be using the phone for?9 A. To contact patients, to contact our office, to

10 coordinate patient care, call a physician perhaps if11 she doesn't do it from a patient's home.12 Q. And you mentioned mileage reimbursement. What is that13 for?14 A. Traveling to and from patients' homes.15 Q. And then you mentioned in-service, there is a pay for16 that?17 A. (Affirmative).18 Q. Can you tell me what that means more specifically.19 A. If she were to come in and receive training on an OASIS20 or some particular new kind of wound product or21 something, they receive -- I think she received bonus22 compensation to offset her time not doing visits.23 Q. Was it the policy of Great Lakes to pay RNs for any24 time spent on training?25 A. Yes, I think we would have, yes.

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1 Q. And then you mentioned on-call, can you tell me about2 that?3 A. Sure. So their normal workdays, you know, 8 to 5 or 94 to 6 and then if they took on-call at night, they just5 needed to be available to go out if we had a patient6 need arise unexpectedly and we would reimburse them a7 stipend for that on-call pay. And then if they went8 out and did visits, we also paid them and a bonus for9 the time they did the visits.

10 Q. If an RN was on call, were there set hours for that11 on-call time?12 A. Yes. During the week it's 5 p.m. until 8 a.m. the next13 morning and on the weekends, it's 24 hours.14 Q. Why do you, when you refer to payments for on-call and15 in-service refer to them as bonuses?16 A. Because that's what they were, so for on-call, they are17 -- I guess I don't know -- that's just how we have done18 it.19 Q. Is that the terminology Great Lakes uses?20 A. Yes.21 Q. Did Great Lakes have, if Ms. Hicks did some on-call for22 a weekend, did Great Lakes as a matter of policy always23 pay her for that?24 A. I believe so, yes.25 Q. So, in other words, did Great Lakes have discretion to

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1 say, well, we may or may not pay Ms. Hicks for the time2 she spends on-call?3 A. Not that I am aware of.4 Q. And same question regarding in-service, did Great Lakes5 have discretion to decide whether or not to pay her for6 in-service time?7 A. Not that I am aware of.8 Q. So it was the policy RNs would be paid for time spent9 on-call?

10 A. Yes.11 Q. And it was Great Lakes' policy to also pay RNs for any12 time spent for in-service meetings?13 A. Yes.14 MR. PELTON: Talking about Ms. Hicks?15 BY MR. GOTTESFELD:16 Q. Well, that question was about RNs.17 MR. PELTON: Well, object to the extent it's18 going beyond Ms. Hicks.19 BY MR. GOTTESFELD:20 Q. I just want to go into in-service a little bit more.21 So in-service was a type of meeting you explained22 about, right?23 A. (Affirmative).24 Q. Were there other types of meetings besides in-service25 meetings?

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1 A. We had team conferences where they come in and talk2 about patients. Training, which probably called3 in-servicing. They have, again, probably called it4 in-servicing but mandatory annual education that has to5 be completed.6 Q. Just so I make sure I understand, in-service refers to7 a meeting that is just regarding training?8 A. Yeah, I would say so.9 Q. And then so team conferences, did those happen with any

10 regularity?11 A. They are usually weekly.12 Q. Was it Great Lakes' policy to pay Ms. Hicks for team13 conferences?14 A. I assume so.15 Q. And why do you say you assume so?16 A. I don't know how many team conferences she attended,17 you know.18 Q. If she had attended one, though, would it have been19 Great Lakes' policy to pay her for that?20 A. Yes.21 Q. What about mandatory annual education, would it have22 been Great Lakes' policy to pay Ms. Hicks for that23 time?24 A. Yes.25 Q. And, by the way, let me know if you have any confusion



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1 at all but for purposes of this deposition, unless I2 say otherwise, we are just referring to the time period3 during Ms. Hicks' employment from October 2015 to4 December 2015, do you understand that?5 A. Yes.6 Q. I think it would help if we just look a little bit at7 the payroll records just to get a little bit more in8 detail about how Ms. Hicks was paid.9 Ms. Miller, in that same Exhibit there, if

10 you go to the back of your Declaration. I think the11 first time that we see some information regarding12 Ms. Hicks in payroll, at the top it says page 6 of 22.13 A. Okay.14 Q. Do you see that?15 A. Yes.16 Q. First of all, can you tell me, is there a certain name17 to this document we are looking at?18 A. This looks like a pay stub. We could probably19 reference it as a pay stub.20 Q. To make sure we are on the same one here, I am looking21 where it says Employee: Hicks, Laura Beth.22 A. Okay.23 Q. And it says there is -- it looks like redactions above24 it?25 A. Yes.

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1 Q. And there are redactions at the bottom, too?2 A. Yes.3 Q. I see the part that is not redacted at the bottom check4 date: 11-13-2015. Do you see that?5 A. Yes.6 Q. Can you tell me what does that mean; does that mean7 that a check was issued to Ms. Hicks on November 13,8 2015?9 A. Yes.

10 Q. Can you walk me through a little more. The first item11 we see under Ms. Hicks, it says regular --12 A. Sure.13 Q. And to the right of that we see 32?14 A. Yes.15 Q. And then 30 --16 A. Yes.17 Q. -- to the right of that. And to the right of that is18 960, is that right?19 A. Yes.20 Q. What does the 32 represent?21 A. Number of routine and revisits she completed during22 this pay cycle.23 Q. And brings me to another good point. What is this pay24 cycle comprised of. Do you have an idea how long the25 time period is?

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1 A. Typically two weeks in nature. I don't know if I have2 the exact dates of this.3 Q. There is another document we can look at later and I4 think we will be able to figure that out, but do you5 have an understanding as to when Great Lakes' workweek6 starts and when it ends?7 A. Yes. It's Sunday to Saturday workweek.8 Q. And so that was true during Ms. Hicks' employment from9 October to December 2015?

10 A. Yes.11 Q. Is it still the same today, Sunday through Saturday, as12 the payroll period?13 A. Yes.14 Q. And just to make sure I understand, so this, what we15 are looking at here, this is for a two workweek pay16 period?17 A. Yes.18 Q. So you said the 32 means there were 32 routine or19 revisits during that pay period?20 A. Yes.21 Q. And what does the 30 to the right of that mean?22 A. That is how much per visit she was paid on those 3223 visits.24 Q. And then is the 960 then just the total of 32 times 30?25 A. Correct.

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1 Q. Let's move to the next row. We see Regular again and2 then you see 16 to the right of that?3 A. Yes, so that would be 16 OASIS visits at $50 a visit.4 Q. And then to the right of that is 800, so that means she5 got paid $800 for OASIS visits in that pay period?6 A. Correct.7 Q. And then we see Other, zero, so I was going to ask you8 what does other mean?9 A. Other is when they bonused her for call hours or

10 in-services, team conferences, things like those.11 Q. And it says to the far right of that Other row, 198, do12 you see that?13 A. Yes.14 Q. So does that mean Ms. Hicks was paid $198 for that pay15 period?16 A. Yes, in that bonus area, yes.17 Q. Looking at that, are you able to tell what that $19818 was for specifically?19 A. Looking at this? No.20 Q. Like it could have been in-call -- could have been a21 combination of on-call and in-service?22 A. Correct.23 Q. Or could have just been on-call by itself, right?24 A. Correct.25 Q. Or could have just been in-service?



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1 A. Correct.2 Q. And then below that is Phnrmb, what is that?3 A. That's the phone reimbursement.4 Q. Does it look like Ms. Hicks received phone5 reimbursement for this pay period?6 A. Yes, 7.50.7 Q. Underneath that mileage reimbursement non-taxable?8 A. Yes.9 Q. Can you explain again what that means?

10 A. She received mileage reimbursement traveling to and11 from patient visits in the amount of $184.12 Q. Would that reimbursement have been for that payroll13 period?14 A. Correct.15 Q. And then we see in the row below that 48 and to the16 right is $2,149.50.17 A. Yes.18 Q. Is it $2,149.50 how much Ms. Hicks was paid for that19 payroll period?20 A. Gross pay, yes.21 Q. What does, in the row below that, we see check date22 11-13-2013 and to the far right we see $1,636.01. Do23 you see that?24 A. Yes.25 Q. Is that her net pay?

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1 A. I assume so. I didn't do the math but I assume so.2 Q. So just going back to the first column where we saw3 regular and 32 written there, that's the number of4 regular or revisits there, but that's not the hours5 that Ms. Hicks spent on those visits, right?6 A. Correct.7 Q. And, similarly, the 16 underneath that is not the8 number of hours she spent on those visits, is it?9 A. No.

10 Q. Are the number of visits -- strike that.11 Are the number of hours Ms. Hicks worked12 reflected in this document anywhere?13 A. No.14 Q. Thank you. Let's turn two more pages then in this15 Exhibit. So this looks similar to what we looked at16 this is for a new payroll period, right?17 A. Correct.18 Q. So the check date here says 11-27-2015?19 A. Yes.20 Q. That's when Ms. Hicks would have received her paycheck21 then?22 A. Correct.23 Q. And we see there were 18 what you call routine or24 revisits for that payroll period?25 A. Correct.

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1 Q. They were paid at $30 per visit?2 A. Yes.3 Q. And then there were 17 OASIS visits for that payroll4 period?5 A. Yes.6 Q. Paid at $50 a visit?7 A. Yes.8 Q. Ms. Hicks again received phone reimbursement for $7.50?9 A. Correct.

10 Q. And her mileage reimbursement was $175.38 for that11 payroll period?12 A. Yes.13 Q. And are Ms. Hicks' hours worked for this payroll period14 reflected anywhere on here?15 A. No.16 Q. Why don't we go another two pages, please. Let's go17 towards the bottom of this page. Do you see the three18 rows there at the bottom?19 A. Yes.20 Q. The first one says Check Date 12-01-2015, manual check.21 Do you see that?22 A. Yes.23 Q. And there are two other entries below it, the check24 dates, both of them are for December 11, 2015, do you25 see that?

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1 A. Yes.2 Q. Do you have an understanding as to why there is three3 different check dates for this document?4 A. I do. She had two manual checks for some -- the first5 one for $13.72 was paid off from a mileage form that6 was submitted on paper.7 The second one is what appears to be some8 bonus pay that somebody thought was missing for on-call9 work and some in-service time but after we looked at it

10 further, she actually was double paid for that so they11 cut a manual check and then that last line would be12 just her regular pay based upon this stub.13 Q. So are you saying that the $92.10 was an overpayment to14 Ms. Hicks?15 A. Yes.16 Q. And you said it represents bonus pay for on-call and17 in-service time?18 A. Yes.19 Q. How did you come to that conclusion?20 A. Based upon payroll records, spreadsheets that we found21 that were submitted from that branch to our payroll22 department.23 Q. Do you have those payroll records and spreadsheets with24 you today?25 A. I believe I do.



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1 Q. I may have those same documents, too. I just want to2 know what you're referencing.3 MR. PELTON: They were payroll records --4 BY MR. GOTTESFELD:5 Q. I think I know the first set you're looking at here --6 A. This is the $13.72 mileage came from --7 MR. GOTTESFELD: Let's mark this as an8 Exhibit so I know exactly what you are referring to.9 So this is GLC 2.

10 GLC EXHIBIT 211 (Laura Beth Hicks Payroll)12 WAS MARKED BY THE REPORTER13 FOR IDENTIFICATION14 BY MR. GOTTESFELD:15 Q. Ms. Miller, do you have Exhibit 2 in front of you?16 A. I do.17 Q. So you were just referencing I believe the fifth page18 of Exhibit 2 there?19 A. At the bottom it says GLC 006, yes.20 Q. And so there I see it says mileage reimbursement at the21 top?22 A. Yes.23 Q. And so what you're saying is that represents the 13.7224 that we see on what was previously the payroll document25 in Exhibit GLC-1?

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1 A. Correct.2 Q. And that's for the manual check that was cut on3 12-1-2015?4 A. Correct.5 Q. So now I just want to try to figure out with you what6 this $92.10 is for and you said you think it represents7 overpayment for on-call and in-service time.8 A. Give me a second. Sorry.9 Q. Sure. Take your time.

10 A. Okay. So if you look at -- at the bottom, it says11 GLC 0008 and at the top, it says 12-11-15 manual12 checks. This is a spreadsheet that was sent from the13 branch to our payroll department which shows on call of14 $60, in-servicing office hours of 2.25, a total of $10515 there. So that is the gross of the $92.10 take home.16 Q. I'm not sure I follow. So I see the 60 there that17 you're referring to on GLC 0008, right?18 A. Correct, yes.19 Q. And then it says -- I see the $60. What is 60 under on20 call mean?21 A. That's $60 on-call pay she received during that time22 frame.23 Q. Ms. Hicks, correct?24 A. Correct.25 Q. And then I see to the right of that you're referencing

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1 the $105, right?2 A. Yes.3 Q. And so what are you saying now the $105 represents?4 A. $105 is the total of $60 plus $20 rate times 2.25.5 Q. So my math doesn't add up to that. Are you saying that6 2.25 times 20 comes to 45?7 A. Yes, plus 60 is 105.8 Q. Okay, I see it now. So what I don't see, though, how9 does that translate over to this Exhibit to your

10 Declaration she received the $92.10?11 A. Yes, the $105 would have been the gross amount so that12 92.10 is after taxes.13 Q. So are you saying the $92.10 is the net amount that was14 paid to her?15 A. Correct.16 Q. How do you know that?17 A. Just based upon these records. This GLC 0008 says18 12-11-15 manual checks and has both the $13.72 mileage19 and then $105 gross, just logically it makes sense.20 Q. Do you have a copy of the 12-11-15 check that shows the21 gross amount?22 A. I do not.23 Q. You're saying the gross amount would have been $105,24 though?25 A. Correct.

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1 Q. Let's just work our way, we are looking back at this2 page 10 of 22 which is an Exhibit to your Declaration,3 GLC-1, and so we see mileage reimbursement nontaxable,4 it says $143.67?5 A. Yes.6 Q. And so was that how much Ms. Hicks was paid for that7 payroll period?8 A. In mileage reimbursement, yes.9 Q. And then what is the other above there, it says $349,

10 right?11 A. Yes.12 Q. What is that for?13 A. That would be same as the others, bonus for on-call14 pay, in-servicing, meetings during that time -- during15 that pay cycle.16 Q. Is that 600 there in addition to what would have been17 the gross amount of $105 for that payroll period?18 A. The $600 is for the OASIS.19 Q. I'm sorry, that's my bad.20 A. The $349, yes, that's in addition to -- that's in a21 different check.22 Q. So just to make sure this is clear. So in this payroll23 period here, Ms. Hicks was paid a portion of her money24 was $349 for the other category?25 A. Correct.



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1 Q. And that would have been for a combination potentially2 of on-call and in-service time or might have just been3 one or the other?4 A. Correct.5 Q. In addition to that, she received a gross amount check6 you believe in the amount of $105?7 A. Yes.8 Q. Which also would have been for some on-call and meeting9 time?

10 A. Correct.11 Q. So why do you say that $105 amount is an overpayment?12 A. Sure. So if you look at the other spreadsheets -- let13 me find it.14 So the one GLC 00009 at the bottom, this one15 (indicating), that has on-call of 124 and total office16 of 289 and through our research on this, the 289 plus I17 believe she had six hours of holiday pay in this, and18 if you look at the notes, it says add 23 miles plus six19 hours holiday over to the right.20 Q. Right.21 A. That comes out to the $349 bonus, which includes this22 separate amount of 92.10.23 Q. You said the 349. Where are you seeing that at?24 A. 349 is in the pay stub in the other category.25 Q. So the 289?

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1 A. Yes.2 Q. Plus 60 --3 A. No, the 289 plus she got six hours of holiday pay.4 Q. How much was that --5 A. It would have been -- I don't know.6 Q. By my math, it's $289 plus 60 brings us to 349.7 A. Gotcha. So that's what it is.8 Q. You are saying you believe Ms. Hicks was paid $60 for9 holiday pay for that pay period?

10 A. No. I'm sorry, the total office time of 289 plus the11 $60 from that manual stub equals 349, I apologize.12 Q. Let me just follow you there. Where is the manual stub13 at $60?14 A. Well, GLC 00008, that spreadsheet so that adds up to15 the 349, which was paid, and then you can see in that16 separate check for $92.10, she was double paid for that17 $60, it's included in those.18 Q. How do you know Ms. Hicks wasn't entitled to that19 reimbursement of that office time in the amount of $60?20 MR. PELTON: Talking about on-call.21 MR. GOTTESFELD: Strike that.22 BY MR. GOTTESFELD:23 Q. What exactly is it that you're saying Ms. Hicks was24 overcompensated for?25 A. I believe she was overcompensated for the $60 on-call

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1 and $13.72 mileage.2 Q. And your basis for saying that is because you are3 seeing it on these two different pages here?4 A. Correct.5 Q. How do you know that was a mistake, how do you know6 that Ms. Hicks didn't really work those hours in the7 office and is, therefore, entitled to that pay?8 A. Because when you look at these pay stubs compared to9 these spreadsheets, they all match up otherwise.

10 Q. So let's take GLC 0008, for example, right?11 A. Correct, yes.12 Q. You are looking at that and we see $60 for on-call13 there?14 A. Yes.15 Q. And to the left of that we see rate of 20. Do you see16 that?17 A. Yes.18 Q. What does that 20 mean?19 A. That was the bonus rate she received when she did20 in-servicing, team meetings, training.21 Q. And then to the left of that we see office hours 2.25,22 right?23 A. Correct.24 Q. What does that mean?25 A. That is the amount of credit she got during that pay

Page 49

1 time for the in-servicing and non-visit type time.2 Q. Does that mean that Ms. Hicks spent 2.25 hours in the3 office for that payroll period?4 A. Not necessarily. It doesn't mean she was always in the5 office. So sometimes she might have done a visit that6 -- she might have gone and drawn blood on a patient and7 not documented the patient visit, and in that case it8 would fall under this category, too.9 Q. I just want to figure out what it could be so you don't

10 know what for sure that 2.25 represents then?11 A. I do not know exactly, no.12 Q. Could it have been for a time for in-service?13 A. Yes.14 Q. It also could have been for something else and you said15 for a certain --16 A. Non-visit patient time. Whether that be in-servicing,17 training maybe a supervisory aide type visit that isn't18 billable to the government, that type of work.19 Q. Is there anything else it could have been for besides20 that?21 A. Probably. Team meetings, I don't know what all I have22 listed.23 Q. Could it have been for time Ms. Hicks spent in the24 office completing paperwork?25 A. It could be.



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1 Q. You're not able to tell just by looking at that?2 A. Correct.3 Q. But does the 2.25, what does that represent. Does that4 represent time spent doing a certain task?5 A. It represents an accumulation of activities. I don't6 think it's timed to the minute. I think it's generally7 an hour maybe for an in-service or for a team meeting.8 Maybe it's an accumulation of those types of activities9 during that pay time.

10 Q. But 2.25, is not a dollar amount. It's not saying11 2.25, it's a component of time in some sense?12 A. Yes.13 Q. Who would have input that 2.25, would that have come14 from Ms. Hicks?15 A. I don't believe so. I don't know exactly during this16 time frame I believe somebody in the branch submitted17 this to payroll, this type of spreadsheet.18 Q. How do you know that?19 A. Just through this work process. I don't see any record20 of Ms. Hicks submitting something that says 2.25.21 Q. Would there have been a record of that?22 A. No. I don't think that was the process. I think --23 whether it was Andrew Whooley was the payroll24 processor, or somebody in the branch during this25 transition time before we put them on our software

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1 systems submitted payroll data in this manner.2 Q. So there is obviously in this category, it says office3 hours, is that right?4 A. Yes.5 Q. And that's something that RNs during that time period6 would input if they spent time doing certain non-visit7 patient time?8 MR. PELTON: I will object to the extent we9 are going beyond Ms. Hicks.

10 A. I do not believe the RNs entered numbers into this11 spreadsheet. I don't know how the numbers were entered12 or where they came from into the spreadsheet.13 BY MR. GOTTESFELD:14 Q. But was there some way that RNs could tell payroll they15 spread a certain amount of time performing non-visit16 patient time?17 A. I assume so, but I don't know that process during that18 time frame. I wasn't involved.19 Q. Is it possible Ms. Hicks told someone she spent 2.2520 hours for that workweek performing non-visit patient21 time, right?22 A. I think that's possible, yes.23 Q. And then that's what we would see there and that would24 represent, like you said, perhaps time in the office or25 perhaps time spent in an in-service meeting?

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1 A. Correct.2 Q. So you don't know for sure, do you, that Ms. Hicks did3 not spend 2.25 hours performing some type of non-visit4 patient time, do you, for that payroll period?5 A. I do not. I don't know for sure.6 Q. When we look at this GLC 00008, we see redactions above7 and below Laura Beth Hicks' name, correct?8 A. Correct.9 Q. I am assuming that is entries for other employees at

10 Great Lakes?11 A. Correct. I assume so, yes.12 Q. So, Ms. Miller, if you turn to the next page, GLC 000913 in Exhibit 2.14 A. Okay.15 Q. And I believe is this also referring to the same16 payroll period, right, November 16 to November 30th?17 A. November 16th through November 30th, yes.18 Q. And that's the payroll period we have been dealing with19 right now, is that right?20 A. Yes. Check date 12-11-15, yes.21 Q. So when we look at GLC 00009 from Ms. Hicks, the first22 row we see under Visit Hours 34, do you see that?23 A. Correct.24 Q. What does that mean?25 A. This means she did 34 routine/revisits during that time

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1 frame.2 Q. And next to that we see rate of $30, do you see that?3 A. Correct.4 Q. That means she was paid $30 for those visits?5 A. Per visit, yes.6 Q. And that seems to line up with that payroll document7 that is attached to your Exhibit that we are looking8 at?9 A. Correct.

10 MR. PELTON: Attached to her Declaration.11 BY MR. GOTTESFELD:12 Q. Sorry, attached to your Declaration?13 A. Yes.14 Q. It says at the top of that, Payroll document page 10 of15 22, right --16 A. Correct.17 Q. -- just we are on the same page. And then we see to18 the right of that, office hours 8.25, do you see that?19 A. Yes.20 Q. What does that represent?21 A. That would be again the accumulation of any22 in-services, team meetings, non-visit patient time that23 she was credited for that pay cycle.24 Q. And so again you don't know who actually input that25 data into the spreadsheet but would you assume that



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1 Ms. Hicks would inform someone at payroll that she2 should be compensated for 8.25 office hours?3 A. Yes.4 Q. And then to the right of that is rate of $20. Do you5 see that?6 A. Yes.7 Q. And what does that stand for?8 A. So that she would get $20 times 8.25 and then you would9 add that on-call of 124 hours for the total of $289.

10 Q. Right, and I did that math before so that does add up11 to 289.12 And then Total Payroll, $1,309, I am assuming13 that just adds up the Total Visit plus the total Office14 there, I think, right?15 A. I assume the same, yes.16 Q. And then we see phone of 7.5. Do you see that?17 A. Yes.18 Q. How come I don't see that then on the payroll document19 that is attached to your Declaration?20 A. I don't know why it was missed, but if you go directly21 two pages back, that next page, Cycle, she had phone22 reimbursement of 15 to make up for that.23 Q. Two weeks later?24 A. Two pages, yes, for the next pay stub.25 Q. And you are looking at page 12 of 22?

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1 A. Correct.2 Q. That is attached to your Declaration?3 A. Yes.4 Q. Okay, I follow you. Going back to GLC 0009.5 A. Okay.6 Q. We see miles, 226. Do you see that?7 A. Yes.8 Q. Is that the number of miles or is that the --9 A. -- that's number of miles.

10 Q. And to the right of that we see mileage of $129.95 --11 A. Correct, and then there is a note to the right that12 says add 23 miles, per Andrew.13 Q. And then am I correct we take $129.95, add the $13.72?14 A. No, you would add the $129.95 and then add 23 miles to15 that and times that 23 miles by her mileage16 reimbursement rate to come up with the $143.67.17 Q. I believe I did the math, $129.95 plus the $13.72, that18 comes to $143.67. Remember you mentioned the $13.72 on19 GLC 0008?20 A. Yes, which was in a manual check. I don't know if the21 miles were -- let's see. One second.22 Q. Sure.23 A. If I add the 23 miles to 129.95, I am coming up with24 $143.17 wherein she was paid $143.67. So my25 understanding of that mileage reimbursement on that

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1 check was that it was $129.95 plus the 23 miles.2 Q. Just do it one more time with me, though. You take3 129.95, do you see that under the Mileage column,4 right?5 A. Yes.6 Q. And then if you go to GLC 0008, add the $13.72 that we7 see from there?8 A. I don't believe that's where that's from. I know the9 math works out but it was as a separate check.

10 Q. How come when I add that $13.72 it comes to exactly11 143.67 which is on page 10 of 22?12 A. Yes.13 Q. It seems consistent, doesn't it?14 A. It does.15 Q. But why don't you think that's the case there? I'm not16 following you.17 A. Because it was cut in a separate check down below, the18 manual check.19 Q. So, again, just tell me again how do you think it came20 to that $143.67 on that page 10 of 22?21 A. What I thought was it was the $129.95 plus 23 more22 miles which actually comes out to 143.17 instead of 6723 cents so that's what I thought. I was 50 cents off.24 Q. So looking back at GLC 00009, let's just go to the next25 row there.

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1 A. Okay.2 Q. Do you see were it says RN OASIS next to Beth's name?3 A. Yes.4 Q. 12 under the Visits/Hours code?5 A. Correct.6 Q. Does that mean she performed --7 A. -- 12 OASIS visits.8 Q. For that payroll period?9 A. Correct.

10 Q. And is that she was compensated at the rate of $50?11 A. Yes.12 Q. And the total was then 600?13 A. Yes.14 Q. Let's go back then to page 10 of 22 which is attached15 to your Declaration. Do you see the top there under16 Ms. Hicks' name, we see regular and to the right of17 that 2.25?18 A. Correct.19 Q. And to the right of that 45?20 A. Yes.21 Q. What is your understanding of what those numbers22 represent?23 A. What I assume is that that 2.25 should have been in the24 other column and that this was an error, a payroll25 error. That's the only place on any of these checks



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1 that we see that row show up.2 Q. So it seems the $45 that you see there, is that the3 amount she was paid for that row?4 A. Correct.5 Q. And it seems to have been basically 2.25 times 20?6 A. Correct.7 Q. Is how they get to 45?8 A. Correct, yes.9 Q. Have you ever seen that happen to any other RNs

10 employed by Great Lakes during the same time period?11 A. These are the only pay records I have reviewed.12 Q. So do you have any knowledge as to whether that has13 happened to any other RNs during the same time period14 at Great Lakes?15 MR. PELTON: Let me object to the extent this16 goes beyond the corporate dep topics.17 A. No, I have no knowledge of that.18 (Short recess)19 MR. GOTTESFELD: Ready to resume your20 testimony?21 THE WITNESS: Yes.22 BY MR. GOTTESFELD:23 Q. I believe now we are still on the payroll records24 attached to your Declaration. Can we now look at the25 top that says page 12 of 22.

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1 A. Okay.2 Q. At the bottom of that you see check date of 12-24-2015?3 A. Correct.4 Q. We see the first row there says regular and to the5 right of that is 32?6 A. Yes.7 Q. And I know this is getting really familiar to you now8 and repetitive, but what does the 32 stand for?9 A. 32 is number of 13 Routine/Revisits she did during that

10 pay cycle.11 Q. She, being Ms. Hicks?12 A. Yes.13 Q. She was compensated $30 for each of those visits?14 A. Correct, for a total of $960.15 Q. And below that we see regular and then 10 next to that?16 A. Correct. That would be 10 OASIS visits.17 Q. And she was compensated at $50 for each of those18 visits?19 A. Correct.20 Q. Ms. Hicks was paid a total of $500 for those visits?21 A. Yes.22 Q. The next row says Other?23 A. Yes.24 Q. And then we see zero and to the right of that 124?25 A. Yes. That would be $124 for on-call or in-servicing

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1 for a combination on both during that pay cycle.2 Q. And we don't know how long she spent performing those3 tasks based on this document, right?4 A. Correct.5 Q. It just says zero to the left of that 124, right?6 A. Correct.7 Q. And Phnrmb?8 A. That is phone reimbursement.9 Q. And we see zero next to it and 15 to the far right?

10 A. Correct, so that's the $15 phone stipend which makes up11 for $7.50 which was missing off the last pay.12 Q. And then the mileage reimbursement nontaxable for the13 next row?14 A. Correct. She received $142.60 this pay mileage15 reimbursement for patient visits.16 Q. And the number of hours Ms. Hicks worked for the17 payroll period are not listed on this payroll document,18 correct?19 A. Correct.20 Q. And if you turn two more pages, we see page 14 of 22.21 A. Okay.22 Q. And do you see check date at the bottom of it,23 12-31-2015?24 A. Yes.25 Q. And again it looks like Ms. Hicks performed 19 regular

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1 or revisits during that payroll period?2 A. Correct, and she received $30 per visit for a total of3 $570.4 Q. And she performed 16 OASIS visits at $50 a visit for5 total $800?6 A. Correct.7 Q. Did Ms. Hicks receive a Christmas bonus for that8 payroll period?9 A. Correct, for $160.

10 Q. And then we see in the Other category Ms. Hicks11 received $180?12 A. Correct, so that would be like the others on-call13 stipends, in-servicing, et cetera.14 Q. And Phnrmb, the phone reimbursement again?15 A. Correct, $7.50.16 Q. And then the mileage reimbursement for this payroll17 period was $143.36?18 A. Correct.19 Q. Is it your understanding this was the last payroll20 period for Ms. Hicks when she was not paid on a salary21 basis?22 A. Yes.23 Q. Let me ask that question again. Was this the last24 payroll period for Ms. Hicks prior to her being paid on25 a salary basis?



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1 A. I believe so, yes.2 Q. After like in January 2016, how was Ms. Hicks paid?3 A. She was paid on a salary basis.4 Q. And prior to that she was not paid on salary basis, was5 she?6 A. Correct.7 Q. And because you testified previously she was paid on a8 -- how was it you described her being paid prior to9 January 2016?

10 A. Per visit.11 Q. What about then when we take into account the fact she12 is paid for her in-service and time spent being paid13 for in meetings and non-visit time. How do you square14 that with her being paid on a per visit basis?15 A. Per visit means for patient care so the other things we16 bonused her for were non-patient care related.17 Q. So you are making the distinction that the Other18 category is non-patient care related?19 A. I guess there were non -- I don't know -- no. The20 other category was accumulation of non-routine and21 non-regular OASIS visits.22 Q. And there was a time component to that payment, was23 there not?24 A. Yes.25 Q. So the more time that Ms. Hicks spent either in the

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1 office or in-service training or at a team meeting the2 more money she would have been paid under that other3 category?4 A. Correct.5 Q. Were other RNs paid on the same basis during that same6 time period from October 2015 to December 2015?7 MR. PELTON: I'm going to object. You are8 going beyond the scope of the other dep topics and also9 going beyond the agreement that this is a single plan

10 case at this point related to Ms. Hicks only.11 MR. GOTTESFELD: Is that instruction not to12 answer?13 MR. PELTON: Yes.14 BY MR. GOTTESFELD:15 Q. Ms. Miller, we are done with the payroll documents that16 were attached to your Exhibit. There were some more17 documents, though, in GLC 00002.18 A. Okay.19 Q. So we looked at the payroll period for November 16 to20 the 30th already that were on G-8 and G-9, right?21 A. We did, yes.22 Q. It looks like is the next payroll period then from23 GLC-10 November 29 to December 12?24 A. Yes.25 Q. What kind of documents do you call these. Did they

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1 have a certain name that Great Lakes used to call2 these?3 A. This spreadsheet, this GLC --4 Q. Yes.5 A. No, this was just something in place during this6 transition time.7 Q. Have you seen them before today?8 A. I have seen them before today.9 Q. So let's look quickly at GLC-10, Ms. Miller. We see

10 for Ms. Hicks the first row there under Visits/Hours,11 it says 32.12 A. Correct.13 Q. Again is that for visits and revisits?14 A. Correct. That's the number of visits -- number of15 routine/revisits she did.16 Q. And then that was at the rate of $32, right?17 A. $30.18 Q. Sorry.19 A. That's okay.20 Q. And then that comes out to a total of $960?21 A. Correct.22 Q. To the right of that, we see office hours and then23 below that is 3?24 A. Correct.25 Q. What does that represent?

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1 A. That would be in-servicing, team conference, those2 types of things.3 Q. And what does the 3 represent?4 A. The amount of time she spent on those items.5 Q. And then the rate to the right of that says 20?6 A. Correct.7 Q. And what does that mean?8 A. That is what she was paid in a bonus format for those9 non-visit patient time items.

10 Q. And was Great Lakes required to pay her for that11 non-visit patient time items?12 MR. PELTON: Object, the question is vague13 and calls for a legal conclusion.14 A. Required? I'm not sure I understand what you mean by15 required.16 BY MR. GOTTESFELD:17 Q. Sure. So Ms. Hicks was paid for the three hours that18 she spent in non-visit patient items for this payroll19 period?20 A. Correct.21 Q. At $20 times three?22 A. Correct.23 Q. That comes out to $60, right?24 A. Correct.25 Q. Did Great Lakes have discretion to not pay her for that



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1 time?2 A. Not that I am aware of.3 Q. And on-call says 64, that's the amount Ms. Hicks was4 paid for that on-call?5 A. In dollars, yes.6 Q. Are you able to tell how long she spent on-call for7 that period?8 A. Not based upon this, no.9 Q. What was Great Lakes' policy as far as compensating RNs

10 -- strike that.11 What was Great Lakes' policy regarding its12 payment for Ms. Hicks for on-call time, how much was it13 paying her for that time period?14 A. I believe during this time frame she was paid $1 per15 hour on-call.16 Q. So can't we, by looking at that, see she was 64 hours17 on-call?18 A. Yes. Yes.19 Q. And to the right of that, we see total office of $124?20 A. Correct.21 Q. And is that a combination of 20 times three which is 6022 for the non-visit patient items?23 A. Correct.24 Q. Plus the $64 for on-call?25 A. Correct.

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1 Q. Then going to column, we see the phone, and underneath2 that $15?3 A. Yes.4 Q. So Ms. Hicks was paid $15 for phone reimbursement for5 that payroll period?6 A. Yes. Well, it was making up for the last payroll7 period, yes.8 Q. And then to the right of that we see that Ms. Hicks had9 248 miles there?

10 A. Correct.11 Q. She was paid $142.60 for that?12 A. Correct.13 Q. Why don't we do another one, Ms. Miller, on the next14 document, GLC-11.15 A. Okay.16 Q. Just do you see at the top of the page, it says17 December 13 to December 26?18 A. Yes.19 Q. And does that mean that this is for that payroll20 period, that's what Ms. Hicks is being reimbursed?21 A. Yes.22 Q. And then we see the Office Hours in the first row says23 6?24 A. Correct.25 Q. Does that mean Ms. Hicks spent 6 hours in non-visit

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1 patient items?2 A. I don't know if it's exactly 6 hours. I know she was3 reimbursed 6 -- we considered it a bonus at $20 bonus4 so whomever created these spreadsheets, whether it was5 her or whomever said, yes, that's what she should be6 paid.7 Q. Would Ms. Hicks have been the one to tell someone that8 6 hours was the amount of time that she worked?9 A. I'm sorry, I don't know the process at that time.

10 Q. Do you have any reason to believe that someone in11 payroll would just themselves decide how much they12 should compensate Ms. Hicks for --13 A. No, no reason to believe that.14 Q. Do you have any reason to believe that it should be the15 employee's duty to tell payroll at Great Lakes as to16 how long they spend on non-visit patient items?17 A. Yes.18 Q. And so when we see to the right of office hours, it19 looks like three columns over we see $20, do you see20 that?21 A. Yes.22 Q. Does that rate correspond to office hours of 6?23 A. Correct.24 Q. And to the right of that we see on-call for $60, right?25 A. Correct.

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1 Q. And to the right of that we see total office 180?2 A. Correct.3 Q. Is that a combination again of the $60 for on-call and4 then the 6 office hours times $20?5 A. Correct.6 Q. The holiday hours there says 8 in that column, do you7 see that?8 A. Yes.9 Q. Is that for Christmas bonus or do you have an

10 understanding what that was for?11 A. I do not. Maybe that's something Carry knows something12 about, I'm not sure, but I do not, because I think the13 holiday bonus is 160 which is 8 times 20.14 Q. Did Great Lakes pay bonuses to part-time employees?15 A. Yes.16 Q. Let me ask you, how come at the bottom of this page17 here in small print under Notes, it says part-time18 staff do not get paid holidays. Do you see that?19 A. Correct, yes.20 Q. Is that just a mistake there?21 A. I do not know.22 Q. But it's your testimony part-time employees do get paid23 for holidays?24 A. Correct.25 Q. How do you know that?



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1 A. Per our policies.2 Q. And then when we look at the on-call column again for3 $60, are you able to tell how many hours Ms. Hicks4 worked on-call for that payroll period?5 A. I would assume 60 hours.6 Q. And that's 60 times what again?7 A. $1.8 Q. So l, to move back little bit to GLC-5 --9 A. Okay.

10 Q. Do you have an understanding as to what this document11 is?12 A. I do not.13 Q. Have you ever seen anything similar to it?14 A. No.15 Q. With the redactions there, are they names of other16 employees?17 A. I do not know. This wasn't attached to my Declaration.18 Q. Have you seen this document before?19 A. I have.20 Q. I am guessing was it just in preparing for today's21 deposition that you saw it?22 A. Correct.23 Q. The app side of it, you haven't seen a similar document24 to this?25 A. Correct.

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1 Q. Do you have an understanding as to what the $60 for2 Ms. Hicks is there regarding?3 A. I do not.4 Q. Would that have been her on-call time?5 A. I don't know.6 Q. What about that 2.25 next to her name under the hours7 column, do you see that?8 A. Yes.9 Q. Is that going to the 2.5 we talked about before?

10 A. I don't know.11 Q. Do you know who would know the answer to that?12 A. No.13 Q. Can we back up a page for me?14 A. Okay.15 Q. At the top of the page, it says payroll for period16 11-16-2015 to 11-28-2015?17 A. Correct.18 Q. It says payroll for staff not included in Kinnser.19 What is Kinnser?20 A. Kinnser is Electronic Medical Record software where the21 patient visits their chart in.22 Q. So is that going to basically compensation for23 Ms. Hicks outside of her patient visits? Do you have24 an understanding as to what this document is?25 A. I do not. I mean I can see it says mileage and I can

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1 see that it says additional stipends for things but I2 have never seen this besides preparing for this.3 Q. It says there a quarter of the way down the page hourly4 employees, timesheets, meeting reimbursement, add5 additional stipend for admin charting/duties, do you6 see that?7 A. Yes.8 Q. Did Ms. Hicks receive additional stipends for9 administrative work?

10 A. I assume so, in that other category.11 Q. Do you see this $124 at the bottom of the page for12 on-call employees that says next to Ms. Hicks?13 A. Yes.14 Q. Do you know if that matches up to one of Ms. Hicks'15 payroll records?16 A. I can look.17 Q. It might be hard because it will be subsumed in the18 other record?19 A. No, there is on-call column. If you look at GLC 0000920 it says on-call 124. That matches.21 Q. And then the $12.88 mileage reimbursement, that's not22 listed on that GLC-9 as well, is it? Maybe because23 that was just a portion of the mileage she was owed?24 A. It could be.25 Q. We see that 2.25 number again on there, don't we, in

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1 the middle of the page on GLC-4?2 A. Yes.3 Q. Do you understand what it means on this page here?4 A. I do not.5 Q. Could it be compensation for time that she spent doing6 charting?7 A. It could be.8 Q. Or could it be additional compensation for time spent9 doing administrative work?

10 A. Yes, it could be.11 Q. You can put that aside. Let me ask you a general12 question.13 When Ms. Hicks was paid for her visits, you14 talked before it was either a $30 rate or $50 rate,15 right?16 A. Correct.17 Q. Does that include any charting time that she would have18 performed, that compensation?19 A. Generally, yes. If they have -- if she had an overly20 complicated patient that she talked to her supervisor21 about then they may bonus her additionally but, in22 general, the per visit pay includes charting as well.23 Q. And does it also include communications with family24 members?25 A. Yes.



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1 Q. Or communications with any other employees as needed?2 A. Yes.3 Q. So if Ms. Hicks had an overly complicated patient and4 Ms. Hicks spent additional time charting for that5 visit, how would she go about asking for additional6 compensation?7 A. I don't know how she specifically did it but, in8 general, they would talk to their supervisor who would9 then bonus them.

10 Q. How would the amount of the bonus be determined. Would11 it be based on the amount of time that was spent on12 that task?13 A. It may be. It's discretionary so it may be, yes.14 Q. Why do you say it's discretionary?15 A. I would say the supervisor is going to look at the16 amount of time she spent with the patient and not just17 on charting.18 Q. Now as far as time that Ms. Hicks would have spent for19 training, Great Lakes compensating her for that would20 not be discretionary, am I right?21 A. Correct.22 Q. And time that Ms. Hicks spent in a conference meeting23 would not be discretionary as far as compensating her24 for that, am I right?25 A. Correct.

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1 Q. Let's change gears a little bit and talk about2 Ms. Hicks' work hours during the period from October3 2015 to December 2015.4 A. Okay.5 Q. Did Great Lakes require her to keep track of her hours6 worked?7 A. I don't know. It does not appear so but I do not know.8 Q. Why do you not know?9 A. I wasn't involved in this agency at that time, because

10 it was in integration.11 Q. During that time period did Great Lakes have a policy12 that RNs such as Ms. Hicks should keep track of their13 work hours?14 A. Yes.15 Q. So if Ms. Hicks -- strike that.16 So you admit that Great Lakes had this policy17 that RNs such as Ms. Hicks should keep track of their18 work hours but you just don't know whether or not they19 actually required Ms. Hicks to do so, is that what20 you're saying?21 A. I admit that we have a policy that says employees, RNs22 are to enter time worked. I do not know if Ms. Hicks23 did that.24 Q. In preparing for this deposition today or just in25 general, do you have knowledge as to whether Ms. Hicks'

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1 hours worked are documented anywhere?2 A. Besides these spreadsheets which really talk about3 visits so, no.4 Q. Which spreadsheets are you referencing? Are those the5 ones in Exhibit 2?6 A. Yes.7 Q. How was Ms. Hicks supposed to keep track of her hours8 worked?9 A. I don't know, because she was in this transition time

10 frame so I don't know what she was taught.11 Q. I understand you don't know specifically but there was12 a policy that as an RN she was supposed to follow,13 right?14 A. Yes.15 Q. And so regarding the time spent on visits, was16 Ms. Hicks supposed to record how long she was in a17 visit?18 A. During this time frame she was paid per visit so, no,19 she would not record her -- it's recorded in the20 software system her time on the visit. She wouldn't21 have to keep that in a separate log. We can see her22 time in/time out.23 Q. So tell me how does that work. So how would Ms. Hicks'24 visit time be captured by Great Lakes?25 A. On the visit notes, there is a visit date and time in

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1 and time out which the employee documents.2 Q. And how does the employee document that. Is it done on3 a tablet?4 A. Correct.5 Q. Did Ms. Hicks' have a tablet while she was an RN from6 October to November 2015?7 A. I don't know if they were on tablets or laptops in8 Kinnser.9 Q. Do you have knowledge whether Ms. Hicks was submitting

10 the time worked for visits?11 A. I do not.12 Q. Let me introduce GLC-3.13 GLC EXHIBIT 314 (Confidential - Task15 Details/Kinnser Software OASIS-C116 Discharge (Non-Billable)17 WAS MARKED BY THE REPORTER18 FOR IDENTIFICATION19 BY MR. GOTTESFELD:20 Q. Do you have Exhibit 3 in front of you?21 A. Yes, I do.22 Q. I will tell you this was produced by Great Lakes in23 this lawsuit and this is the -- not specifically, but24 does this generally look familiar to you, what you're25 looking at?



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1 A. Yes.2 Q. What is it?3 A. It's a printed visit note out of the Kinnser software.4 Q. Is that something that Ms. Hicks would have completed5 on her tablet or laptop?6 A. Correct.7 Q. Do you know which one?8 A. I do not.9 Q. So is this something that Ms. Hicks would have

10 completed during a patient visit?11 A. This particular example appears to be a non-billable12 discharge which can be completed with or without a13 patient.14 Q. So looking at this, are we able to tell whether or not15 Ms. Hicks actually visited a client for this event?16 A. Let me look. I would say she did not see the patient.17 Q. I just -- let me try a better example to use so we can18 try to pin down this. Would a skilled nurse visit be19 one where Ms. Hicks would have visited a client?20 A. Yes. Yes.21 Q. What about Start of Care visit, would that have been22 one where Ms. Hicks would have visited a client?23 A. Yes.24 Q. Let me introduce that, and I think it will make our25 lives easier as well.

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1 GLC EXHIBIT 42 (Confidential - Task3 Details/Kinnser Software OASIS-C14 Start of Care)5 WAS MARKED BY THE REPORTER6 FOR IDENTIFICATION7 BY MR. GOTTESFELD:8 Q. Do you have GLC-4 before you?9 A. Yes.

10 MR. PELTON: I will state for the record11 these two Exhibits are produced under Protective Order12 with HIPAA information and this portion of the13 transcript, to the extent it refers to a patient name14 or Exhibits themselves, should be maintained pursuant15 to that Protective Order.16 BY MR. GOTTESFELD:17 Q. Ms. Miller, do you see at the top OASIS-C1 Start of18 Care?19 A. Correct.20 Q. It looks like a quarter of the way down, it says21 clinician, and underneath it Beth Hicks?22 A. Yes.23 Q. Can you describe this to me; is this something24 Ms. Hicks completed for a Start of Care visit?25 A. Yes.

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1 Q. Would this have been on a laptop or tablet?2 A. Yes.3 Q. Can you tell which one?4 A. No.5 Q. Now looking at this, can you tell how long she spent on6 this particular visit?7 A. Her time in is 8:30 and time out is 10:00.8 Q. Is that one way you are able to tell how long Ms. Hicks9 was performing some of her job duties?

10 A. Yes.11 Q. How did she indicate time in 8:30 and time out 10:00,12 did she do that contemporaneously, do you know?13 A. I do not know. They are taught to enter time in when14 they see the patient, when they walk in the patient's15 home and time out when they walk out.16 Q. And where would they input that?17 A. Either in the laptop or tablet, whatever they were18 working on.19 Q. So it looks like this is 31 pages, am I right on that?20 A. Yes.21 Q. And would you call this charting?22 A. This is an assessments. This is charting. This is23 developing a Plan of Care. This is an OASIS visit.24 Q. Was this documentation something that Ms. Hicks was25 required to do as part of her employment as an RN?

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1 A. Yes.2 Q. Are you able to tell how long it took her to complete3 this documentation?4 A. No.5 Q. Do you see all these little notes here, on the first6 page under user and there are like all these dates and7 times?8 A. Yes.9 Q. What does it mean when it says: User, E. Lannon;

10 status, task created, December 3rd, 2015.11 A. That would be whomever assigned this Start of Care in12 the system.13 Q. And then like underneath it, it says B. Hicks?14 A. Yes.15 Q. I guess that is referring to Ms. Hicks?16 A. Correct.17 Q. Patient signature created, what does that mean?18 A. I'm not familiar with Kinnser that well so I'm not19 sure.20 Q. To the right of that, December 4, 2015, 8:43:10 CST21 mean?22 A. 8:43 Central Standard Time on December 4, 2015.23 Q. But what does that mean; does that mean that at 8:4324 Ms. Hicks started documenting or she finished25 documenting, do you know what that means?



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1 A. I don't. I assume it means that this patient's2 signature created was done at that time.3 MR. PELTON: Mr. Gottesfeld, let me just in4 the interest of time, I think she is starting to guess5 at some things, and as I mentioned to you6 Ms. Vandemaagdenberg is here and I believe can answer7 those questions concerning Kinnser, she is more8 familiar with it. So if you want to pursue that as9 part of the corporate dep, we need to substitute

10 witnesses at this point on behalf of the corporation11 dep --12 MR. GOTTESFELD: She will be able to answer13 the rest of the questions then about this document?14 MR. PELTON: Yes.15 BY MR. GOTTESFELD:16 Q. Let me ask you, Ms. Miller, do you know how long it17 would generally take an RN to complete the18 documentation you are looking at in Exhibit 4?19 A. Yes. Typically an RN to do Start of Care spends an20 hour to an hour and a half in the patient's home, and21 anywhere maybe from 30 minutes to an hour outside of22 the home.23 Q. And what are they doing, just for purposes of24 clarification, what are they doing outside the home for25 the 30 minutes to one hour?

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1 A. Finishing documentation for the charting, maybe calling2 a physician.3 Q. And when the RN is doing the charting, is he or she4 doing that on the laptop or tablet?5 A. Correct.6 Q. And when you go back, if you can, to GLC-3 --7 A. Okay.8 Q. -- are you able to tell me how long it typically would9 take an RN such as Ms. Hicks to complete this type of

10 documentation?11 A. Non-billable discharge would take roughly a half an12 hour.13 Q. Would that typically be done outside of the patient14 visit?15 A. No. That would be all-inclusive.16 Q. So you said -- let me clarify that. So when there is a17 discharge, sometimes they will visit the client and18 sometimes the nurse will not?19 A. Correct.20 Q. Let's say the nurse did not visit the client, where21 would the nurse be performing this documentation?22 A. They can do it anywhere outside -- anywhere. In the23 office, in their house, anywhere.24 Q. If a nurse had visited a client for a discharge, would25 the nurse typically complete the documentation at the

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1 client's house --2 A. Yes.3 Q. -- or would they typically do it at home?4 A. They would do it at the client's house.5 Q. For the Start of Care, would the nurse typically6 perform the charting outside the patient visit?7 A. They do most in the home and some outside. Start of8 cares take longer than a non-billable discharge.9 Q. You said they do most in home and some outside. I

10 thought you said previously most are performed outside11 the home?12 A. No, I don't think I said that.13 Q. And why do you say that. What is your basis?14 A. I have done them myself. I have worked in this world15 for 16 years.16 Q. So some of them are done outside the patient visit,17 too?18 A. Some of the charting, the tracking?19 Q. Yes.20 A. Yes.21 Q. Are there other types of visits besides Start of Care22 that are also performed outside of the patient visit?23 A. It could be.24 Q. Can you give me some other examples?25 A. Really it's dependent upon the clinician so they can do

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1 as much of the documentation in the home as they can or2 as they are willing to do.3 Q. Great Lakes doesn't prohibit a clinician from4 performing the charting at home outside the patient5 visit, do they?6 A. They have to do some documentation in the home because7 it's an assessment of the patient.8 Q. That way they remember what they saw and what they9 observed and everything, right?

10 A. Correct.11 Q. Does it have to be on the tablet or laptop or could it12 have been like some of it handwritten notes and then13 allowed to transfer it over?14 A. Some staff do take notes when they are in the patient's15 home and then document it in their electronic record.16 Q. What about a wound care visit, is there documentation17 that an RN must complete for that type of visit?18 A. Yes. That would be a regular routine/revisit.19 Q. And how long does that visit typically take?20 A. Usually about 45 minutes.21 Q. How long does the documentation associated with that22 usually take?23 A. Most of it is done in the home. Any outside, I think24 10, 15 minutes.25 Q. What about just a skilled nurse visit --



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1 A. Same thing, that's a routine/regular visit. They are2 usually in the home for about 45 minutes.3 Q. And is there documentation that an RN must complete in4 association with the skilled nurse visit?5 A. Yes, they have to document their visit.6 Q. How long does that documentation usually take?7 A. Usually they can do a routine/revisit in the home8 within that 45-minute timeline. If they can't, it may9 be 10 or 15 minutes outside of the home.

10 Q. Is it fair to say that a Start of Care visit is one of11 the most lengthiest visits as far as the documentation12 that is involved?13 A. Yeah, I think it's fair to say.14 Q. Are there other ones that also have a large amount of15 documentation besides Start of Care?16 A. Probably a re-certification visit.17 Q. Anything else besides re-certification?18 A. Tell me exactly what the question is again, please.19 Q. Looking at the types of visits by an RN that require a20 fair amount of documentation?21 A. So OASIS visits require more documentation than routine22 but the discharge OASIS visits don't take as much time23 as the Start of Care.24 Q. Generally how long does an OASIS visit take in general25 for an RN like Ms. Hicks?

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1 MR. PELTON: Of any type?2 A. Across all --3 BY MR. GOTTESFELD:4 Q. Yes, of any type.5 A. Oh, boy, I don't know if I can generalize it that way.6 The visits are very different. So the general OASIS7 visit time, probably maybe an hour and 15 minutes, if I8 am averaging all those different visit types.9 Q. Is there a general range for OASIS visits in general?

10 A. A general range?11 Q. As far as are you able to say an RN, such as Ms. Hicks,12 will generally spend anywhere from a minimum of 3013 minutes to a maximum of an hour and a half?14 A. No. It's really dependent upon the patient and their15 acuity.16 Q. Could it just take 5 minutes?17 A. No.18 Q. Is there a minimum?19 A. There is not a minimum from the government. In20 general, I would say to really properly assess a21 patient, you would be there at least 30 minutes.22 Q. And is there a general amount of time that it takes an23 RN, such as Ms. Hicks, to complete documentation24 associated with an OASIS visit?25 A. Across all OASIS types?

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1 Q. Yes.2 A. From an average perspective, I would say probably a3 half hour to 45 minutes.4 Q. And is some of that usually done outside of the patient5 visit, the documentation?6 MR. PELTON: It's been asked and answered but7 go ahead.8 A. Depending on the OASIS type, yes.9 BY MR. GOTTESFELD:

10 Q. And is the re-certification visit a type of OASIS11 visit?12 A. Yes.13 Q. How long does a recertification visit usually take?14 A. In the home, you are probably in the home about an15 hour, an hour and 15 minutes maybe.16 Q. How long does a documentation with recertification17 visit usually take?18 A. Most of it is done in the home so outside of the home,19 I assume you're asking, probably another half hour.20 Q. How much does the documentation take during the visit,21 would you say, on average?22 A. Probably a half an hour of that from the time you are23 in the home, it's cumulatively documenting.24 Q. So as you sit here today, do you have any knowledge as25 to how many hours Ms. Hicks worked each workweek from

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1 October 2015 to December 2015?2 MR. PELTON: Object to the extent this goes3 outside the deposition topics.4 THE WITNESS: Still answer.5 MR. PELTON: If you can.6 A. I have knowledge of her visit times so, yes.7 BY MR. GOTTESFELD:8 Q. How do you have knowledge of her visit times?9 A. Because we can see them in Kinnser.

10 Q. And you have no reason to think they wouldn't be11 accurate?12 A. Correct.13 Q. So besides visit times, what about the time that it14 took Ms. Hicks to travel between client houses, do you15 have knowledge as to how long that took her?16 MR. PELTON: Same objection.17 A. Travel time is not documented in Kinnser. We can see18 mileage but not travel time.19 BY MR. GOTTESFELD:20 Q. So the amount of time it took Ms. Hicks to travel21 between client visits is not something that Great Lakes22 has knowledge of?23 MR. PELTON: Same objection, going outside24 the corporate dep topics but go ahead.25 MR. GOTTESFELD: Let's me strike that.



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1 BY MR. GOTTESFELD:2 Q. Does Great Lakes have any documents that show how long3 it took Ms. Hicks to travel between client visits?4 A. On the software system?5 Q. Anywhere.6 A. We looked at her mileage and calculated but nothing7 that --8 MR. PELTON: Same objection. You're still9 talking about the time period of 2015?

10 MR. GOTTESFELD: Just focusing on11 October-December 2015.12 BY MR. GOTTESFELD:13 Q. From what I understand you're saying, tell me if I am14 wrong, but you are able to see the amount of mileage15 Ms. Hicks drove during that time period, right?16 A. Yes.17 Q. Do you have any documentation that says Ms. Hicks spent18 five hours driving this week, she spent zero hours19 driving the next week -- or she spent zero minutes?20 A. No.21 Q. You just have the amount of mileage?22 A. Correct, from patient to patient.23 Q. But no time associated with that driving?24 A. Correct.25 Q. Are you able to look at any documents to figure out how

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1 long Ms. Hicks spent with charting duties?2 A. We can look at the visit notes in the software system3 -- and, again, just during this time frame?4 Q. Yes. Just focusing on October 2015 to December 2015.5 A. Then I would say we would use visit times.6 Q. How would visit times help you determine the amount of7 time Ms. Hicks spent charting?8 MR. PELTON: Again a continuing objection on9 the line of questioning that goes beyond the corporate

10 dep topics. Go ahead and answer if you can.11 A. I mean they chart most of their work in the visit.12 BY MR. GOTTESFELD:13 Q. To the extent Ms. Hicks would spend time outside of the14 patient charting, do you have any idea as to how much15 time she would have spent outside of the patient visit16 charting?17 A. No.18 Q. Do you have any document that tells us the amount of19 the time that she would have spent charting outside of20 the patient visit?21 A. No, not that I'm aware of.22 Q. Are you aware of how long Ms. Hicks spent during the23 same time period again communicating with family24 members outside of patient visits?25 A. No.

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1 Q. Is that something that Ms. Hicks would have done,2 though; communicate with family members outside of the3 patient visit?4 A. She might have. It wouldn't be routine practice but5 she might have.6 Q. Is there a way for us to determine then how long7 Ms. Hicks was on-call during the same time period?8 A. Just based upon the spreadsheets GLC 0009, those9 documents.

10 Q. I just want to finish up some documents with you.11 GLC EXHIBIT 512 (Great Lakes Caring Chapter 413 Homecare Resources)14 WAS MARKED BY THE REPORTER15 FOR IDENTIFICATION16 BY MR. GOTTESFELD:17 Q. Ms. Miller, do you have Exhibit 5 in front of you?18 A. Yes, I do.19 Q. Do you recognize this document?20 A. I do not.21 Q. The reason I am showing it to you is I want to ask you22 about the third page called Productivity Points23 Expectations.24 A. Okay.25 Q. Are you familiar with that?

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1 A. Yes.2 Q. Can you tell me what they are. What are Productivity3 Points Expectations?4 MR. PELTON: I will object to the testimony5 concerning this document from the corporate6 perspective; it's outside the corporate dep topics.7 You can answer if you can.8 A. Productivity points are like a routine visit is 1 and9 an OASIS is 2, and this document shows what we expected

10 full or part-time staff to complete per week in11 productivity points.12 BY MR. GOTTESFELD:13 Q. And why isn't OASIS at 2 instead of 1?14 A. Because the documentation is more than a routine visit.15 Q. So it takes the clinician more time then?16 A. Correct.17 Q. And why is it that OASIS -- changing gears to OASIS18 visits and compensation -- why is an OASIS visit paid19 at $50 versus $30. Is that because it takes a20 clinician more time to complete?21 A. Yes.22 Q. Do productivity points influence an RN's compensation?23 A. When they are paid per visit, yes.24 Q. How so?25 A. They do 20 visits a week, they get paid 20 times



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1 whatever their rate is. The expectations have nothing2 to do with their compensation.3 Q. I think I'm following you. So did Ms. Hicks have an4 expectation during that time period of October to5 December 2015?6 A. I do not know. I can speak to generally during the7 acquisition time frame, which is when this was, and if8 she was hired on part-time, we would have talked about9 17 points per week but there is no enforcement on that

10 because they're working in two different systems in11 their transition timeline.12 Q. And that's consistent here; it says part-time, 1713 points a week, right?14 A. Correct.15 Q. If she had been full-time, it would be 27 points per16 week, right?17 A. Correct.18 Q. What consequence is there to if Ms. Hicks had gone19 under 17 per week? Say she only did 10 for a certain20 week, is there any consequence?21 A. No.22 Q. So what is the purpose then of assigning these23 productivity points?24 A. Regarding Ms. Hicks during this time frame?25 Q. Yes.

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1 A. I don't know that she was assigned these productivity2 points during that time frame. We use these in our3 Homecare Homebase software. Not in Kinnser.4 Q. What about just for an RN during that time period from5 October to December 2015, what consequence would there6 be if an RN was working under the say 17 points per7 week requirement?8 A. Really we would evaluate why in general terms, why are9 they under. Is it because they are missing patient

10 visits and we are not meeting patient needs; is it11 because we don't have enough visits for them? We would12 just look into it further.13 Q. Could an RN be terminated if they didn't meet their14 Productivity Points Expectations?15 A. They could be, if they are not meeting it because they16 are missing patient visits and not meeting patient17 needs.18 Q. And so are the visits that are assigned 2 points19 instead of 1, is that because they involve more work by20 the RN?21 A. Correct.22 Q. And it takes the RN longer to complete than a visit23 that just has 1 point?24 A. Correct.25 Q. Was this Productivity Point Expectation policy in

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1 effect during October to December 2015 at Great Lakes?2 A. Yes.3 Q. And so it would have applied to Ms. Hicks' employment?4 MR. PELTON: It's been asked and answered.5 A. I don't think it probably was during that time frame6 because they are transitioning to Great Lakes so we7 wouldn't apply that to them. This is a Homecare8 Homebase which is a different software system.9 BY MR. GOTTESFELD:

10 Q. Do you know for sure, though --11 A. I do not.12 GLC EXHIBIT 613 (Mileage Reimbursement Rate Summary)14 WAS MARKED BY THE REPORTER15 FOR IDENTIFICATION16 BY MR. GOTTESFELD:17 Q. Ms. Miller, do you recognize this document that has18 been marked as GLC 6?19 A. Yes.20 Q. And what is it?21 A. This is a summary of how we reimburse for mileage.22 Q. And would this have applied to Ms. Hicks from the time23 period we are talking about, October to December 2015?24 MR. PELTON: I will object at this point;25 that she doesn't have the advantage of seeing the

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1 entire document. This appears to be page 11 of2 something that is presumably a handbook that may well3 have a date in it, but answer if you can. Again, I am4 objecting because it's beyond the scope of the dep5 topics.6 A. I do not believe this applied to her during that time7 frame. Again, they were in this transition timeline8 through the end of the year there and I believe she was9 reimbursed at the mileage rate of her prior company

10 during this time frame of 54-ish cents.11 BY MR. GOTTESFELD:12 Q. But from October to December 2015 it was Great Lakes13 that was compensating her for mileage, correct?14 A. Correct.15 Q. So you don't dispute Great Lakes paid Ms. Hicks from16 October to December 2015, right?17 A. Correct.18 Q. And Great Lakes had a policy, did they not, that RNs19 during that time period should be reimbursed for their20 mileage, right?21 A. Correct.22 Q. So are you just saying that she was reimbursed at a23 different rate than the rate that is listed here?24 A. Correct, at a higher rate.25 Q. Are you certain of that or are you just assuming that?



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1 What rate was Ms. Hicks compensated on?2 A. I believe 54 cents a mile based upon her pay3 spreadsheets we looked at. Let me go to Exhibit 2, I4 believe. 57.5 Q. I want to go to another document that also talks about6 mileage, this will be GLC 7.7 GLC EXHIBIT 78 (Great Lakes Caring Mileage Policy)9 WAS MARKED BY THE REPORTER

10 FOR IDENTIFICATION11 BY MR. GOTTESFELD:12 Q. Do you have GLC-7 in front of you, Ms. Miller?13 A. Yes, I do.14 Q. Are you familiar with this document?15 A. Yes.16 Q. What is it?17 A. Our policy manual on mileage.18 Q. Did this policy apply to Ms. Hicks during October to19 December 2015?20 A. I don't know.21 Q. And in the first sentence, it says:22 It is the policy of Great Lakes Caring to23 ensure that all staff are compensated for any24 reasonable mileage they incurred during the course of25 their daily work assignments.

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1 Do you see that?2 A. Yes.3 Q. Did that hold true for Ms. Hicks from October to4 December 2015 that, indeed, she was compensated for her5 mileage?6 A. Yes.7 Q. You don't have any reason to dispute that, do you?8 A. No.9 Q. So why are you unsure as to whether or not Great Lakes'

10 mileage policy applied to Ms. Hicks during that time11 period?12 MR. PELTON: Object to being outside the13 scope of this whole line of questioning on the Exhibit14 but go ahead. It's also asked and answered.15 A. I am questioning it because she was reimbursed at the16 higher mileage, right, and; therefore, I wasn't17 involved in that time frame so I don't know during this18 transition to us what policies, you know, applied to19 her right away and what took more time to convert.20 BY MR. GOTTESFELD:21 Q. Besides the rate of the reimbursement being different,22 is there anything else in which you can different from23 the Great Lakes Care policy regarding mileage and what24 applied to Ms. Hicks during that time period?25 A. Yes, the excessive mileage section. I don't see any

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1 evidence in those spreadsheets that that was calculated2 for her.3 Q. And how do you know that. What would we see if there4 was excessive mileage?5 A. You would see additional reimbursement per the policy6 in the visit column.7 Q. In the visit column. So which visit column are you8 talking about. In one of the payroll documents?9 A. Correct.

10 Q. Can you direct my attention? I want to make sure I am11 on the same page as you.12 A. GLC-2 and then GLC 0007, for instance.13 Q. Let's look at the 7 there. So are you saying there14 would be an additional column somewhere?15 A. No. I am saying in that Visit/Hours column where it16 says she did 18 routine visits, that number would17 differ than the actual number she completed of patient18 visits.19 Q. So, for example, there she did 18 of a certain type of20 visit, right?21 A. Correct.22 Q. What would you see a number in addition to the 18 there23 if there was excess mileage?24 A. I believe that's 18.25 MR. PELTON: It's 18 or 16.

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1 MR. GOTTESFELD: It looks like 18.2 BY MR. GOTTESFELD:3 Q. Would there be an additional number there for excessive4 mileage in that column, you're saying?5 A. I can only speak generally -- because I don't know6 where the spreadsheets came from -- generally for the7 excessive mileage, if they had excessive mileage they8 would convert that mileage into a visit pay and,9 therefore, I would assume that this 18 would change if

10 she was following this policy and she had excessive11 mileage. I don't know either of those things.12 Q. But how do they know that hasn't already happened13 there, how do you know that that hasn't been increased14 on account of excessive mileage?15 A. You can see the number of visits she did at Kinnser16 matches this number exactly.17 Q. Have you actually compared those visits in this18 spreadsheet to the actual numbers in Kinnser?19 A. I have not.20 Q. So you don't know then for sure whether or not21 excessive mileage isn't in that column, are you?22 A. No.23 Q. Let me direct your attention, do you see in the second24 paragraph of this policy, the last sentence, it says:25 The non-field employee is required to log



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1 their mileage and time for reimbursable travel that is2 work related in the software system.3 Do you know whether Ms. Hicks was required to4 log her time for travel?5 A. She is a field employee. She is not a non-field6 employee.7 Q. Okay, I've got it. Just to make sure I'm clear,8 though, was Ms. Hicks required to log her time spent9 traveling?

10 A. No.11 GLC EXHIBIT 812 (Confidential - Kinnser printout)13 WAS MARKED BY THE REPORTER14 FOR IDENTIFICATION15 BY MR. GOTTESFELD:16 Q. This is small and it was produced by Great Lakes17 Counsel in this case. Have you reviewed this before,18 Ms. Miller?19 A. I have seen it, yes.20 Q. Can you tell me generally what it is?21 A. This is a printout out on a Kinnser as to the visits22 completed by Ms. Hicks in that software system.23 MR. GOTTESFELD: Did you want to note this is24 Confidential, too?25 MR. PELTON: Yes. As well as 3, 4 and 8 is

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1 Confidential.2 BY MR. GOTTESFELD:3 Q. Ms. Miller, do you have an understanding that this is4 for all the visits completed by Ms. Hicks from October5 to December 2015?6 A. Yes.7 MR. PELTON: I will just note, it starts at8 October 18. Counsel, if you are referring to the time9 period we have been referring to or the entire month.

10 BY MR. GOTTESFELD:11 Q. So, Ms. Miller, the seventh column over, Task Type, do12 you see that?13 A. Yes.14 Q. There is two types, there is either HHA or SN. Okay.15 A. Okay.16 Q. What does it stand for?17 A. HHA, Home Health Aide, and SN means Skilled Nurse.18 Q. What does Home Health Aide mean?19 A. It appears that those are associated when she, as an20 RN, created an aide care plan for our home health aides21 to follow.22 Q. What does it mean when you say SN for Skilled Nurse?23 A. Skilled Nurse in the home health world can be an RN or24 an LPN and that's been tied to the type of visit that25 she can be assigned.

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1 Q. So, for example, the first row there where it says HHA,2 to the left of that, it says Task Name Aide Care Plan.3 A. Yes.4 Q. And so does that mean that Ms. Hicks completed an Aide5 Care Plan for that patient to the left of her there for6 10-18-2015?7 A. That is my assumption. I am not very familiar with8 Kinnser but that makes logical sense to me.9 Q. So what is an Aide Care Plan again?

10 A. An Aide Care Plan lists what type of services our Home11 Health Aides can perform for the patient.12 Q. And would that have required a visit by Ms. Hicks?13 A. No, not necessarily.14 Q. Could it have entailed a visit?15 A. It could have, yes.16 Q. When we look at this document, are we table to tell17 when we see an HHA whether Ms. Hicks completed a visit18 with that HHA task? Does my question make sense?19 A. It does.20 MR. PELTON: Again, I think when it comes to21 Kinnser, you may get better testimony on behalf of the22 corporation from Ms. Vandemaagdenberg.23 MR. GOTTESFELD: We may move on but if you24 are able to answer it.25

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1 BY MR. GOTTESFELD:2 Q. Do you know?3 A. I do not know. I would be guessing.4 Q. When we see an SN Task Type, do you know if that's5 always associated with an actual visit?6 A. Not necessarily, so there could be those non-billable7 discharges or supervisory visits associated to that.8 Q. Do you understand what it means for the Status column9 when there are these different categories: Returned

10 w/signature, exported, completed, or is that something11 you're not sure about?12 A. I'm not sure.13 Q. What about the next two columns, Time In/Time Out. Do14 you understand that?15 A. I assume it's time in and time out of -- no, I guess I16 do not.17 Q. Do you see documentation time to the right there then?18 A. Yes.19 Q. Do you have an understanding as to what that means?20 A. No.21 Q. And, again, what is the purpose of this document; why22 is this created?23 A. I have never seen one outside of this because I'm not24 familiar with Kinnser so I couldn't tell you.25 Q. So you haven't seen this for any other employees prior



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1 to today?2 A. Correct.3 Q. We'll come back to that with the other witness then if4 you will put that aside, please.5 Ms. Miller, have you reviewed any pay stubs6 of Ms. Hicks prior to today?7 A. Nope.8 Q. Do you know whether Great Lakes has copies of her pay9 stubs?

10 A. I do not know.11 MR. PELTON: I assume your question is pay12 stubs as part of Exhibits 1 or 2?13 BY MR. GOTTESFELD:14 Q. Other than the one we looked at today, are you aware of15 any other pay stubs that Great Lakes has concerning16 Ms. Hicks?17 A. During that time frame?18 Q. Yes, during that time frame from October to December19 2015?20 A. No.21 Q. Have you ever heard of an Agent Visit Time Report22 before?23 A. Yes, I have.24 Q. Are you familiar with them?25 A. Yes.

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1 GLC EXHIBIT 92 (Confidential - Agent Visit Time Report)3 WAS MARKED BY THE REPORTER4 FOR IDENTIFICATION5 BY MR. GOTTESFELD:6 Q. I will tell you this was just produced yesterday by7 Great Lakes in this lawsuit. Have you seen this set of8 documents before? It looks like there is nine pages of9 this.

10 A. I have.11 MR. PELTON: I will again object to the12 extent this goes beyond the scope of the corporate dep13 topics so the testimony shouldn't be binding on the14 corporation but go ahead.15 BY MR. GOTTESFELD:16 Q. Can you tell me what this is generally?17 A. This is report out of Homecare Homebase related to18 patient visits completed by Ms. Hicks.19 Q. What is Homecare Homebase?20 A. It's another medical record system that Great Lakes21 utilizes.22 Q. When did Great Lakes start using that?23 A. We started using it in 2009.24 Q. And when did you start using it as applied to25 Ms. Hicks?

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1 A. I do not know the exact date. I believe it was after2 the first of the year, after January 1st, 2016.3 Q. So do you know whether there are similar documents such4 as this for Ms. Hicks prior to 2016?5 A. No.6 Q. No, there are not or, no, you don't know?7 A. I assume there are not, because they weren't8 documenting it in Homecare Homebase.9 Q. So when do you think Ms. Hicks started documenting it

10 in Homecare Homebase?11 A. I don't know the exact date but I believe it was after12 the first of the year.13 Q. What is purpose again of Homecare Homebase; to document14 what?15 A. Patient care.16 Q. Is that different from Kinnser?17 A. Correct. So the old company used Kinnser. We use18 Homecare Homebase.19 MR. PELTON: It probably goes without saying20 but, again, this is another one of the Confidential21 Exhibits with patient information.22 BY MR. GOTTESFELD:23 Q. So does Homecare Homebase record the amount of time24 that an RN, such as Ms. Hicks, completes her25 documentation?

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1 A. Yes.2 Q. Does Kinnser do that?3 A. Just the in-visit documentation time. Not outside of4 the visit.5 Q. And does Homecare Homebase document that outside of the6 visit?7 A. Homecare Homebase captures documentation time outside8 of the visit, yes.9 Q. And just so I understand, how so, how can you tell

10 that? Like so looking at this first Discharge row11 here, does the amount of time that Ms. Hicks spent for12 this individual on documentation time, is that13 reflected here?14 A. Yes. So if we look at the first discharge patient,15 JH --16 MR. PELTON: Just use the initials.17 MR. GOTTESFELD: I know what you are talking18 about.19 A. In-home time was 29 minutes.20 BY MR. GOTTESFELD:21 Q. So that means 29 minutes that she spent on the actual22 visit?23 A. With the patient in the home. No additional24 documentation time on that particular discharge visit.25 Q. That means no additional documentation time outside the



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1 visit?2 A. Yes. For a total time of 29 minutes.3 Q. How come drive times says zero throughout? Does this4 not record the amount of time spent driving?5 A. Correct.6 Q. Is there another system that does record that?7 A. No. They can enter drive time in the non-visit8 activity of Homecare Homebase but that wouldn't be9 reflected in this report.

10 So if we go down to the third patient on this11 section Discharge, patient NH, in-home time, 5512 minutes, additional documentation time -- which would13 be outside of the visit of 14 minutes -- for a total14 time of 1 hour and 9 minutes.15 Q. Do you see the Documentation Completion Time column?16 A. Yes.17 Q. What does that represent?18 A. It represents the time in the tablet that she actually19 clicked complete.20 Q. Is there anywhere that says the start time?21 A. Not on this report.22 Q. Is there another report that does?23 A. You could look at her patient visit and see her start24 time of her visit. If we pulled each visit note up.25 Q. That documentation time was outside the patient visit

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1 then, how would we know what time, say, she did the2 documentation outside the visit, right?3 A. Yes.4 Q. How would we know when she started the documentation5 then?6 A. That shows in another report, in Homecare Homebase.7 Q. There so there is another report that shows that?8 A. Yes.9 Q. What does Sync Time mean, do you know?

10 A. Sync is something they do on their tablet to send it11 back to their office.12 Q. Is that just saying, for example, at 2:22 p.m. I13 submitted this client's information to the office?14 A. Correct.15 Q. What does In Home End Time mean?16 A. In Home End Time would be the time she ended her visit17 in the home.18 Q. What does Hours In Home End to Sync?19 A. This is how long it took her from the end of her visit20 to sync back to the office.21 Q. Do you know if similar information such as what is22 found on this Exhibit exists for Ms. Hicks prior to23 2016?24 A. I do not.25 Q. Is that you do not know or it does not exist?

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1 A. I do not know.2 GLC EXHIBIT 103 (Defendants' Objections and Responses4 to Plaintiff's First Interrogatories)5 WAS MARKED BY THE REPORTER6 FOR IDENTIFICATION7 BY MR. GOTTESFELD:8 Q. These are Defendants' Objections and Responses to9 Plaintiff's Interrogatories. Do you see that?

10 A. Yes.11 Q. Have you seen this before?12 A. Yes.13 Q. Did you provide any of the information that is14 contained in the responses to these questions?15 MR. PELTON: I will object to the extent it's16 beyond the scope of the deposition topics.17 A. I do not believe so.18 BY MR. GOTTESFELD:19 Q. Let me just direct you to page 6 here. In number 4, it20 says:21 Marcy J. Miller -- that's you, right?22 A. Yes.23 Q. -- represents to the court that from October 27, 201524 through October 31, 2015, Plaintiff was paid per visit.25 Declaration of Marcy J. Miller, which is attached at

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1 paragraph 5, note 1: What it means to be paid "per2 visit."3 There is objections by Great Lakes legal4 Counsel, and it says: Subject to and without waiving5 the foregoing objections. Then it says:6 Plaintiff -- meaning Ms. Hicks -- was paid7 $30 for each regular visit she completed the paperwork8 for.9 You testified about that, and you agree with

10 that, right?11 A. Correct.12 Q. Ms. Hicks was paid for each OASIS visit she completed13 the paperwork for, is that right?14 A. Right.15 Q. The visit pay constitute compensation for direct16 patient care, travel time, charting, and communication17 with patient's family, position and other healthcare18 providers.19 Do you agree with that?20 MR. PELTON: I think it should be physician.21 My dictation didn't get transcribed.22 BY MR. GOTTESFELD:23 Q. If we change that to physician and other healthcare24 providers, do you agree with that?25 A. Yes.



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1 Q. And then it says:2 As described in Plaintiff's deposition, a3 visit does not necessarily include an actual visit to a4 patient's home.5 Do you agree with that?6 A. Correct.7 Q. It goes on to say:8 Such as when a patient is discharged from9 care or transferred to a facility but the completion of

10 the required documentation is a visit for pay purposes?11 Do you agree with that?12 A. Yes.13 Q. Likewise, a visit may include supervisory visits where14 Plaintiff did not directly perform patient care (such15 as a visit to supervise a Licensed Practical Nurse),16 but was paid for a visit once the supervisory visit was17 documented.18 Do you agree with that?19 A. Yes.20 Q. Turn the page then, so number 5 says:21 Marcy J. Miller represented to the Court22 that, from October 27, 2015 through December 31, 2015,23 Plaintiff's records indicate that with the possible24 exception of one pay period, there was no component of25 Plaintiff's pay that was based on the number of hours

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1 she worked.2 Do you see that?3 A. Yes.4 Q. Do you remember putting that in the Declaration?5 A. I do.6 Q. And was that true when you said that?7 A. Yes.8 Q. Do you still think that's true today?9 A. No.

10 Q. Why do you say that?11 A. Because we have now found those spreadsheets that show12 time logged that's incorporated into that other column13 on her pay stubs.14 Q. I hate to do this to you but let's switch documents15 quickly and look at your Declaration, it's attached to16 Exhibit GLC-1?17 A. Okay.18 Q. And on the second page of that, do you see the footnote19 at the bottom of the page?20 A. Yes.21 Q. Is that where you said:22 The records likewise reflect that, with the23 possible exception of one pay period, there was no24 component of her pay that was based on the number of25 hours she worked; rather, she was paid per visit, with

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1 expense reimbursement and a fee for agreeing to be on2 call during certain weeks.3 A. Correct.4 Q. And when you say with the possible of exception of one5 pay period, which pay period were you referring to at6 that time?7 A. The check date 12-11-2015. At the top of the page, it8 says page 10 of 22.9 Q. Right.

10 A. Yes.11 Q. And so what were you referring to that time period that12 is specifically in there that might have had a13 component of her pay based on the number of hours she14 worked?15 A. I was referring to at that time the regular row where16 it says 2.25 for $45.17 Q. And so you no longer agree with what you say in your18 Declaration now, right?19 A. Regarding the hourly component, correct.20 Q. I want to go back then to Exhibit Number 10, which is21 in the Interrogatory Responses number 5. After the22 objections there, we see where it says with respect to23 the second statement Defendants state as follows:24 Ms. Miller's affidavit reference a pay stub25 attached as Exhibit A to the Hicks Declaration in the

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1 Hutchins matter, that showed a payment of $45. At the2 time the Declaration was executed, it appeared that3 this may have reflected a $20 per hour payment for the4 undescribed activity.5 Do you see that?6 A. Yes.7 Q. Was that your understanding at the time as well?8 A. Correct, correct.9 Q. And:

10 But since the Declaration was executed, the11 Company has determined that this payment on the paystub12 was made by mistake resulting in an overpayment to the13 Plaintiff.14 Do you see that?15 A. Yes.16 Q. And do you agree with that?17 A. Yes.18 Q. How was that mistake made. Do you have any idea?19 A. I do not.20 Q. Have you done an investigation as to why there was a21 mistake allegedly?22 A. I don't know -- an investigation, no. We tried to23 figure out the process when the payroll was sent from24 that location to our corporation and that's how we25 found our spreadsheets but investigation into the



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1 payroll error, no.2 Q. Do you have any idea as to why the mistake was made?3 A. I do not.4 Q. Any idea what the 2.25 represents as you sit here5 today?6 A. I think we saw 2.25 in many other documents today so I7 can assume it's one of those but I don't know exactly.8 MR. PELTON: Again, I think that's one of9 those areas that you have exhausted her on and what

10 Ms. Vandemaagdenberg will be able to get.11 BY MR. GOTTESFELD:12 Q. And:13 During the transition period between the14 purchase of First Care Healthcare and the time that15 Plaintiff was fully converted to the Great Lakes Caring16 pay system, Plaintiff received in addition to per visit17 pay, compensation in the form of bonuses for on-call18 time and in-office meetings and training.19 Right?20 A. Yes.21 Q. So regarding on-call time, is that something that Ms.22 Hicks was required to do between October and December23 2015?24 A. Yes.25 Q. And what about in-office meetings, was that something

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1 she was required to do between October and December2 2015?3 A. Yes.4 Q. What about training, was that something Ms. Hicks was5 required to do between October and December of 2015?6 A. Yes.7 Q. And it goes on to say:8 These types of bonus payments are reflected9 in the other section of the paystub, right?

10 A. Correct.11 Q. Again I just want to go over it. How was it that an12 RN, such as Ms. Hicks, would tell someone at Great13 Lakes the amount of time that she spent in training?14 MR. PELTON: Again, you have already15 exhausted it with her on that, and Ms. Vandemaagdenberg16 is prepared to testify to that.17 A. I don't know during this time frame.18 BY MR. GOTTESFELD:19 Q. Do you have an understanding that Great Lakes was20 required to pay RNs, such as Ms. Hicks, compensation21 for time spent in office meetings during that time22 period?23 MR. PELTON: Object. Again, it's been asked24 and answered and the same objection previously about25 ambiguity in terms of calling for a legal conclusion.

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1 A. I don't know if I can say that they were required. I2 know that we did but I don't know if I can speak to3 whether it was required.4 BY MR. GOTTESFELD:5 Q. So Great Lakes did pay RNs, such as Ms. Hicks, for time6 spent in office meetings between October and December7 of 2015?8 A. Yes.9 MR. PELTON: Object to the extent it goes

10 beyond Ms. Hicks.11 BY MR. GOTTESFELD:12 Q. Did Great Lakes pay RNs, such as Ms. Hicks, for time13 spent in training between October and December of 2015?14 MR. PELTON: Objection to the extent it goes15 beyond Ms. Hicks and the corporate dep topics.16 A. Yes.17 BY MR. GOTTESFELD:18 Q. In addition to in-office meetings and training, what19 other things did Great Lakes pay RNs, such as20 Ms. Hicks, for in regards to non-visit patient21 activity?22 MR. PELTON: Again, I will object to the23 extent we are going beyond Ms. Hicks.24 A. Meetings, team conference meetings and servicing -- I25 am just thinking -- meetings. Training, annual

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1 education requirements. If they did a non-billable,2 like the Aide Care Plan piece or non-visit discharge,3 things like that would be lumped in that category.4 BY MR. GOTTESFELD:5 Q. So the more time Ms. Hicks would have spent on training6 the more she would have been paid for that activity?7 A. Yes.8 Q. And the more time she would have spent in team9 conference meetings, the more time she would have been

10 paid for those meetings?11 A. Yes.12 Q. And you mentioned the last thing was non-billable Aide13 Care Plan, is that what you said?14 A. (Affirmative).15 Q. And then would RNs, such as Ms. Hicks, tell Great Lakes16 how long they spent on those tasks?17 A. I don't know at this time how that was communicated.18 Q. But the more time that someone like Ms. Hicks would19 have spent on that, would she have been paid more20 through that type of test?21 A. They didn't get a different wage, is that what you are22 asking?23 Q. I'm saying if they would have spent two hours on that24 as opposed to one hour, would they have been paid more25 for the two hours versus the one hour?



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1 A. Yes.2 Q. Was that based on time?3 A. Generally, yes.4 MR. PELTON: Object to the extent the5 questions and answered are going beyond Ms. Hicks.6 BY MR. GOTTESFELD:7 Q. The non-billable Aide Care Plan, is that what we saw8 referenced in that Exhibit 9 --9 A. 8. That's in Kinnser.

10 Q. That's the HHA, right?11 A. Correct.12 MR. GOTTESFELD: Give me a quick minute. We13 may be done here.14 (Short recess)15 BY MR. GOTTESFELD:16 Q. We were back on the record. Did you want to clarify17 any of your testimony previously?18 A. Not -- no.19 Q. Sorry to bring you back to this again but let's look at20 Exhibit GLC-2 one last time.21 A. Okay.22 Q. Do you have that in front of you?23 A. Yes.24 Q. And turn to the last page, please.25 A. Okay.

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1 Q. I just want to make sure I understand your testimony.2 When we see the office hours column there for December3 13 to 26, does that represent that Ms. Hicks worked 64 hours performing some type of non-visit activities for5 that payroll period?6 A. Yes.7 Q. And by non-visit, I guess I mean non-patient visit8 activities?9 A. Correct.

10 Q. Can you turn to the previous page, GLC-10.11 A. Okay.12 Q. And we see the column office hours and a 3 underneath13 that there?14 A. Yes.15 Q. Does that 3 mean Ms. Hicks was paid for 3 hours of16 non-visit patient items for that payroll period?17 A. Yes.18 Q. And the previous page GLC-9, do you see 8.25 under19 office hours?20 A. Yes.21 Q. Does that mean that Ms. Hicks was paid 8.25 hours for22 non-visit patient items for that payroll period?23 A. Yes.24 Q. And then there is a discrepancy there in the work25 payroll period of whether or not the 2.25 was an

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1 overpayment or not, right? Would say 2.25 is an2 overpayment?3 A. Correct.4 Q. How do you know Ms. Hicks didn't work, for example,5 10.5 hours that payroll period performing non-visit6 patient item activities?7 A. I am just going off these spreadsheets.8 Q. You think it's basically because you are seeing two9 separate ones that makes you think there was some sort

10 of mistake or understanding?11 A. Yes, I think manual check and I think Carry finally has12 little more information on this. I think the manual13 check leads me to believe it was double paid.14 MR. GOTTESFELD: That's what I have for the15 30(b)(6). I have just some quick follow-up questions16 that I don't want to keep getting objections outside17 the corporate representative's testimony just asking18 what Ms. Miller's job duties are and were as vice19 president of Home Health. Should I do that now or20 should I just wait until --21 MR. PELTON: Let's finish the 30(b)(6)22 transcript then we can depose her --23 MR. GOTTESFELD: -- in a separate one.24 MR. PELTON: Yes.25 MR. GOTTESFELD: I don't have any further

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1 questions for you, Ms. Miller, under the 30(b)(6).2 (Conclusion of the 30(b)(6) deposition of3 Marcy J. Miller at 1:30 p.m.)4 * * *5 MR. PELTON: So there were some areas I think6 you may want to do follow-up on, but I think7 reconciling the overpayment you just left off with,8 there was a process by which office hours, et cetera,9 how it got into the payroll system. There was

10 questions about Kinnser and the Kinnser Exhibits and11 whether laptops or tablets were used, et cetera, and12 that was Exhibit 8 as well and there maybe others but13 I'll leave that up to you.14 (Whereupon the (30)(b)(6) deposition of15 Carry VandeMaagdenberg commenced at 1:30 p.m.16 as follows):17 CARRY VANDEMAAGDENBERG,18 having first been duly sworn, was examined and19 testified on her oath as follows:20 MR. GOTTESFELD: Your first name again is21 Carry?22 THE WITNESS: Yes. You can go by Carry.23 EXAMINATION BY MR. GOTTESFELD:24 Q. Are you currently employed by Great Lakes?25 A. Yes.



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1 Q. What is your job title there?2 A. Chief operating officer.3 Q. And how long have you held that job title?4 A. For about nine months.5 Q. When did you start working at Great Lakes?6 A. In 1997.7 Q. What job title did you hold prior to being the chief8 operating officer?9 A. Chief information officer.

10 Q. How long did you hold that job title with Great Lakes?11 A. I think it was about a year and a half.12 Q. What job title did you hold with Great Lakes prior to13 that?14 A. Chief operating officer.15 Q. How long did you hold that job title?16 A. For about three years or so.17 Q. What was your job title back in the period we have been18 talking about --19 A. Chief operating officer.20 Q. So you were chief operating officer from October to21 December 2015?22 A. Correct.23 Q. Because I should ask you, have you ever taken a24 deposition before?25 A. Nope.

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1 Q. So this is your first time?2 A. Yes.3 MR. PELTON: She hasn't given one either.4 MR. GOTTESFELD: That was a better one.5 BY MR. GOTTESFELD:6 Q. You have never been subjected to a deposition before?7 A. No.8 Q. You were sitting here in the previous one, you9 understand your questions were under oath right now?

10 A. Yes.11 Q. Please just answer my questions with verbal statements.12 Don't shrug your shoulders or shake your head because13 the court reporter can't get it down, do you understand14 that?15 A. Yes.16 Q. Is there any reason you can't testify truthfully today?17 A. No.18 Q. Let me know if you don't understand any question and I19 will be happy to rephrase it for you, all right?20 A. Okay.21 Q. You understand the testimony you are giving now is22 being given on behalf of Great Lakes Home Health23 Services, Inc., and Great Lakes Acquisition24 Corporation?25 A. Yes.

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1 Q. Have you seen what was previously marked as GLC2 Exhibit 1?3 A. Okay.4 Q. Have you seen that prior to today?5 A. Yes.6 Q. Are you able to testify today as to some of these7 topics listed here?8 A. Yes.9 Q. So let me ask you this. Do you know Laura Hicks?

10 A. No.11 Q. Never met her?12 A. No.13 Q. But you're familiar with Great Lakes' operations during14 the time period she was there from October to December15 2015?16 A. Correct.17 Q. Was Great Lakes using the Kinnser system during that18 time period?19 A. First Care Healthcare was.20 Q. So Great Lakes bought out First --21 A. We acquired First Care Healthcare which was using the22 Kinnser system so we transitioned, which is our general23 process when we do acquisitions, this wasn't the first24 one, we transitioned them from whichever EMR was25 around, which in this case was Kinnser, to Homecare

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1 Homebase.2 Q. Do you know when that transition was completed?3 A. Yes.4 Q. When was that?5 A. It was transitioned in January but it was a6 transitional period so it wasn't completed in January7 because of how the patients have to be transitioned.8 Q. So prior to January of 2016 Ms. Hicks was using the9 Kinnser system?

10 A. Correct.11 Q. Prior to 2016 was Ms. Hicks being compensated by Great12 Lakes?13 A. Yes. Through First Care Healthcare.14 Q. At what point did it stop being through First Care15 Healthcare, do you know?16 A. Legally I still believe they are being paid from that17 entity so because it's an acquired entity, however, we18 switched them from their payroll system to our payroll19 system in January of 2016 so just systems that changed20 and the processes that changed through the transaction21 of the integration.22 Q. So is First Care Healthcare, that's a payroll system?23 A. No, that's the legal entity name.24 Q. I'm sorry, right.25 A. Kinnser was not the payroll system.



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1 Q. I'm sorry, the Homecare --2 A. -- Homebase was not the payroll system.3 Q. What do you call it?4 A. That was an Electronic Medical Record system and a time5 and attendance system. Not payroll. Just time and6 attendance.7 Q. So Homecare Homebase was the Electronic Medical System8 that Ms. Hicks was eventually transitioned over to at9 some point after January of 2016, right?

10 A. Yes.11 Q. Prior to that the Electronic Medical System she was12 using was Kinnser?13 A. Correct.14 Q. During the 2015 time frame, what payroll system was15 Ms. Hicks using or was she being paid under?16 A. She was paid under a system called Paycor.17 Q. And did that then change at some point?18 A. Yes, it changed in January.19 Q. And what did it change to?20 A. To Ultipro, U-L-T-I-P-R-O.21 Q. So when Homecare Homebase was starting to be used, did22 that also track, you said it took care of attendance as23 well?24 A. Correct.25 Q. For the employees such as Ms. Hicks?

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1 A. Yes.2 Q. Besides attendance, did it keep track of hours worked?3 A. Through the attendance, yes.4 Q. Prior to 2016, was there an equivalent to Homecare5 Homebase that was applicable to Ms. Hicks' employment?6 MR. PELTON: Make sure to wait until he7 finishes his question. Just pause a moment and then8 you can answer.9 BY MR. GOTTESFELD:

10 Q. Let me start the question again. So prior to January11 of 2016, was there an Electronic Medical System similar12 to Homecare Homebase that was applicable to Ms. Hicks'13 employment?14 A. Yes.15 Q. What was that?16 A. Kinnser.17 Q. There was nothing else besides Kinnser?18 A. Not to my knowledge.19 Q. Did Kinnser keep track of the time that it would take20 an RN, such as Ms. Hicks, to complete documentation21 outside of a client visit?22 A. No.23 Q. Are there any documents that Great Lakes has that shows24 the amount of time that Ms. Hicks spent performing25 documentation outside of client visits prior to January

Page 132

1 2016?2 A. Not to my knowledge.3 Q. Are there any documents that Great Lakes has that shows4 the amount of time that Ms. Hicks spent driving prior5 to 2016?6 A. Nothing other than the Kinnser records where there were7 some assumptions we can make where it seems logic for8 the number of miles that she entered that, you know,9 the visit is from 10 to 10:30 and she said she drove 5

10 miles and her next visit starts 10:45, so we can assume11 the 15 minutes was travel time but it's not entered as12 travel time so it's not identifiable on the report as13 such.14 Q. So there was nowhere that Ms. Hicks would have input15 each day or each week, hey, I spent two hours traveling16 this week?17 A. Not to my knowledge.18 Q. We looked at Exhibit 9 before, and I don't know if you19 want it in front of you or not, but on there it showed20 the time that a patient chart would be submitted to21 Great Lakes. Do you have Exhibit 9 in front of you?22 A. Yes.23 Q. So it's my understanding from what Ms. Miller testified24 to was Sync Time, do you see the Sync Time column on25 there?

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1 A. Hours in Home, End to Sync -- or the Sync Time?2 Q. Yeah, I'm looking at that column there.3 A. (Affirmative).4 Q. My understanding, and do you have the same5 understanding, is that that Sync Time shows when a6 patient's chart was submitted to Great Lakes, is that7 what that Sync Time shows?8 A. The Sync Time shows at that point the interface between9 the Point of Care application which sits in the house

10 on the tablet is communicating with the back office11 application. Sometimes that includes visit12 documentation and sometimes it does not. It may just13 be a change to a patient address so it's only14 essentially updating those fields that changes were15 made to on the Point of Care device.16 Q. So we know Ms. Hicks, for example, she would have done17 something to submit information which would have18 generated a Sync Time?19 A. It's simply shows the time that she started and20 initiated the Sync.21 Q. Started it or ended it?22 A. Well, depending. This one the Sync Time: 2-15-16 for23 patient JH, it says Sync Time: 4:44 p.m.24 Q. Does that mean she started altering some information in25 the system or is that when she hit send?



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1 A. It is when she hits Sync.2 Q. And that means as she's finished with the process?3 A. No.4 Q. Just starting the process?5 A. No. Just simply means that she activates on her Point6 of Care device, the "interface" to communicate back to7 the back office. She can do that without changing8 information and she can do that with changing9 information.

10 Q. So using the same example here, and we will just call11 him John, do we know what Ms. Hicks did in reference to12 this patient as far as documentation, do we know was13 she completing discharge documentation, do we know by14 looking at this?15 A. Yes.16 Q. What was she doing exactly?17 A. So we will stay with that same patient, so the visit18 date shows 2-15-2016, so the in-home time is .29, so 2919 minutes. She did not do any additional documentation20 time, which means she would have completed the21 documentation required to complete the visit in the 2922 minutes in-home time, so the total for that specific23 visit was 29 minutes, and the documentation was24 completed at 4:44 p.m. at which time she immediately25 hit the Sync button and was syncing the information

Page 135

1 back to the back office.2 Then if you go over to Hours In Home and to3 Sync, it's zero because the documentation completion4 time and the time she decided to sync are equal but5 there is no time in between.6 Q. I follow you on that example so let's go to the third7 patient. Do you see the third patient there?8 A. Sure. NH?9 Q. Yes.

10 A. Yes.11 Q. So there we see an example, for 55 minutes was how long12 Ms. Hicks spent with the patient visit, right?13 A. Yes.14 Q. 14 minutes additional documentation time?15 A. Correct.16 Q. So 14 minutes she spent performing documentation17 outside the client visit?18 A. Correct.19 Q. Can we tell how long she spent actually -- strike that.20 What time did she start that documentation21 outside the client visit?22 A. You can't see that on this report.23 Q. I can tell what time she completed it, right?24 A. The documentation is completed on 3-10 at 2:22 p.m.25 Q. Let me see if there is another example here. Do you

Page 136

1 mind turning to the second page. Toward the bottom, do2 you see the visit type, Resumption of Care?3 A. Yes.4 Q. For this LE there, that client, right?5 A. Yes.6 Q. So I guess there was a visit that was for 46 minutes?7 A. Yes.8 Q. Would that have been on 3-30-2016?9 A. Yes.

10 Q. And underneath that we see an asterisk 3-31-2016?11 A. Correct.12 Q. Activity data does not match visit date?13 A. Correct.14 Q. Does that mean that Ms. Hicks would have done the15 documentation for this client on the 31st of March?16 A. Correct.17 Q. Why is there under additional documentation time 218 minutes and then 43 minutes?19 A. Because the additional time that she was documenting on20 3-31 was a total of 43 minutes.21 Q. And is the 2 minutes saying that she spent 2 minutes22 outside the visit on 3-30?23 A. Correct.24 Q. Documentation completion time --25 A. Might I just add something?

Page 137

1 Q. Sure. Absolutely.2 A. That the system calculated.3 Q. That the system calculated?4 A. Right. That's not something she enters. We enter.5 It's every time she starts the documentation and every6 time she ends it, the system calculates that duration7 so the 43 minutes is calculated by Homecare Homebase,8 by the system.9 Q. Do you have any reason to suspect that would be

10 inaccurate?11 A. No.12 Q. Then we look to the right of that and we see13 documentation completion time 9:20 p.m.?14 A. Yes.15 Q. Which day is that for?16 A. 3-31.17 Q. So that means that she completed that documentation for18 that client at 9:20 in the evening?19 A. Correct.20 Q. And is that something that nurses would sometimes do21 complete documentation in the evening?22 A. Yes.23 Q. So prior to 2016, are there any documents that show24 what time Ms. Hicks completed her documentation outside25 of client visits?



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1 A. No. As far as her behavior, you mean, or as far as the2 duration of the total documentation? Because I would3 have to have you rephrase that.4 Q. I guess I don't understand what your distinction is5 that you're making.6 A. The distinction is there is a system that generates it7 and it keeps the exact track and it doesn't matter how8 many times she goes back in. So if I am the nurse, I9 go do the visit; I come home and get my kids off to

10 school and eat dinner, I start documentation.11 Five minutes later, I get interrupted and I12 stop documentation, and I start documentation again, I13 stop documentation, and they can go back and forth so14 the total of the 43 minutes simply says all additional15 documentation time combined adds up to 43 minutes.16 That same calculation in that same system function does17 not exist in Kinnser.18 So Kinnser does not keep track of total19 documentation time like Homecare Homebase does, so20 there is no evidence in the Kinnser record how much21 time she spent.22 Q. Any records outside of Kinnser either prior to 2016 for23 Ms. Hicks?24 A. Not to my knowledge.25 Q. Going back to the point that you made about this

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1 Homecare Homebase system, how do you know that the2 system doesn't just track active time by the nurse3 completed documentation. You gave an example where4 someone spends 5 minutes charting and gets interrupted5 and then does another 5 minutes.6 Let's assume they did it over a two-hour7 period but they were interrupted three times. Do you8 know whether or not the system accurately tracks the9 amount of time that the nurse is active on there or

10 does it just look at the start and end time. Do you11 get what I mean?12 A. So the nurse, when she goes back into the visit and13 resumes documentation, it's going to start the14 documentation time.15 Q. What happens if she stops for awhile, does the system16 then --17 A. She has to incomplete the system at the time.18 Q. Does what?19 A. Incomplete.20 Q. What does that mean?21 A. It's again a system function in the Homecare Homebase22 and it's when they stop the documentation, they have to23 click a button that says incomplete.24 Q. And then will it save it and she can come back to it25 later?

Page 140

1 A. Correct, until she actually marks it complete at which2 time it creates that documentation completion time.3 Q. So, again, you think this Homecare Homebase system4 accurately records the time that an RN is sending5 documentation outside of a client visit?6 A. Yes.7 Q. So prior to 2016, are you able to say definitively how8 many hours Ms. Hicks worked each week as an RN?9 A. Based on?

10 Q. At all. Based on anything. I just want to know11 whether or not someone at Great Lakes has knowledge of12 that?13 A. We have the Kinnser report which gives us the visit14 time and then we have the other category that reflects15 the combination of -- I think it's on-call.16 Q. So the other category reflects the time spent17 performing on-call duties?18 A. Yes.19 Q. The other category will reflect the amount of time that20 Ms. Hicks spent performing on-call duties, right, a21 combination of on-call duties or in training or time22 spent in meetings, is that correct?23 A. On-call is on the log. The other is the total24 mentioned. I don't think it -- I don't think what we25 have here states if she was in orientation or education

Page 141

1 or in-service.2 Q. We don't know specifically what she was doing during3 that time?4 A. The patient-related activities but they are generally5 not related to just one patient or it's related to her6 license as a nurse so either further education,7 in-service, patient conference, again it's not one8 patient, it's multiple. They are recorded separately.9 Q. I am just saying that other category shows the total

10 amount of time combined for that payroll period that11 Ms. Hicks would have spent such activities, is that12 right?13 A. Right.14 Q. Which is, delving deeper, is there any documentation we15 can look at prior to 2016 that will show Ms. Hicks16 specifically spent 2 hours in training and then just 117 hour regarding case management conference, there is a18 way to break down the specific duties she was19 performing?20 A. Not to my knowledge.21 Q. And just going back to getting a whole picture, is22 there any way for you to say Ms. Hicks worked a total23 of exactly this many hours for this work week in 2015?24 A. No.25 Q. And then the other categories we wanted to talk to you



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1 about, the process by which the office received hours,2 so again talking about the 2015 time frame, how would3 an RN such as Ms. Hicks submit the hours that she4 worked performing, for example, time spent in a5 meeting?6 A. She verbally communicated those hours to her then7 supervisor-director Mary Kay Reed, who communicated8 with Andrew Whooley, he created the spreadsheets. The9 spreadsheets were populated from his information into

10 the spreadsheet that is attached, I think sections of11 it is attached to the pay stubs, which was then12 processed through the Paycor system and the paycheck13 was generated.14 Q. And was that true for the entire portion of Ms. Hicks'15 employment during that 2015 time period?16 A. Correct. I assume you were talking about after17 acquisition --18 MR. PELTON: Yes.19 THE WITNESS: So post-acquisition.20 BY MR. GOTTESFELD:21 Q. Good point. I was talking the October to December22 2015.23 MR. PELTON: We set that ground rule earlier24 on and it's good to be clear, thank you.25

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1 BY MR. GOTTESFELD:2 Q. So is that the same process that Ms. Hicks would do if3 it was regarding training as well the amount of time4 she spent in training?5 A. Correct.6 Q. And would that hold true with the same process for the7 amount of time that she spent performing work in the8 office?9 A. Correct.

10 MR. GOTTESFELD: I don't think I have any11 more questions for you. Thank you.12 That ends the corporate deposition and we13 will reserve the right to read it and make any14 corrections.15 (Deposition concluded at 2:00 p.m. of the16 30(b)(6) corporate deposition of Carry17 Vandemaagdenberg)18

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1 CERTIFICATE OF REPORTER2

3

4 STATE OF MICHIGAN )5 ) SS6 COUNTY OF OAKLAND )7

8 I HEREBY CERTIFY that I reported9 stenographically the foregoing proceedings and

10 testimony under oath at the time and place hereinbefore11 set forth; that thereafter the same was reduced to12 computer transcription under my supervision; and that13 this is a full, true, complete and correct14 transcription of said proceedings.15

16

17 ______________________________18 Bethany Lee Robinson, CSR 3244,19 Notary Public,20 Oakland County, Michigan21 My Commission expires: July 5, 201822

23

24

25


Exhibit B


Marcy Miller12/13/2017


Page 1

1 UNITED STATES DISTRICT COURT

2 EASTERN DISTRICT OF MICHIGAN

3 SOUTHERN DIVISION

4

5 LAURA BETH HICKS, on behalf of

6 herself and similarly situated

7 employees,

8 Plaintiff,

9 -vs- No. 2:17-cv-12674-GCS-DRG

10 Magistrate Judge R. Steven Whalen

11 GREAT LAKES HOME HEALTH

12 SERVICES, INC., and GREAT LAKES

13 ACQUISITION CORP., d/b/a GREAT

14 LAKES CARING,

15 Defendants.

16 __________________________________/

17

18 PAGE 1 to 14

19

20 The Deposition of MARCY MILLER,

21 Taken at One Town Square; 17th Floor,

22 Southfield, Michigan,

23 Commencing at 2:00 p.m.,

24 Wednesday, December 13, 2017

25 Before Bethany Lee Robinson, CSR-3244.



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1 APPEARANCES:2

3 MARK J. GOTTESFELD, ESQ.4 Winebrake & Santillo, LLC5 715 Twining Road; Suite 2116 Dresher, Pennsylvania 190257 215.884.24918 [email protected] Appearing on behalf of the Plaintiffs.

10

11 ERIC PELTON, ESQ.12 Kienbaum, Opperwall, Hardy & Pelton, PLC13 280 N. Old Woodward Avenue; Suite 40014 Birmingham, Michigan 4800915 248.645.00016 [email protected] Appearing on behalf of the Defendants.18

19 ALSO PRESENT:20 Ms. Carry Vandemaagdenberg21

22 * * *23

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1 TABLE OF CONTENTS2 Witness Page3

4 MARCY MILLER5 EXAMINATION BY MR. GOTTESFELD 46

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8 INDEX TO EXHIBITS9

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1 Southfield, Michigan2 Wednesday, December 13, 20173 About 2:00 p.m.4 MARCY MILLER,5 having first been duly sworn, was examined and6 testified on her oath as follows:7 EXAMINATION BY MR. GOTTESFELD:8 Q. You are under the same instructions as before. You9 understand you are under oath?

10 A. Yes.11 Q. I just want to get into a little bit more about your12 job duties and the job title you had during the time13 period that Ms. Hicks was working from October 2015 to14 December of 2015, so you said you were vice president15 of Home Health?16 A. Yes.17 Q. And you said you oversaw health operations, clinical18 financial responsibilities, and what else did you do in19 that job position?20 A. That role oversees just any care provided to Home21 Health patients, making sure we are regulatory22 compliant, making sure processes meet the patient23 needs.24 Q. Anything else?25 A. I don't know how deep you want me to go. I created

Page 5

1 quality assurance for home improvement programs,2 created performance evaluations. I could go on and on.3 Q. Were those your main job duties?4 A. Yes.5 Q. Who did you report to during that time period?6 A. That time frame, I reported to the CEO.7 Q. And who was that?8 A. William Deary.9 Q. Now you say you oversaw health operations in your

10 position of vice president of Home Health?11 A. Yes.12 Q. What area was that over. In other words, was that just13 Michigan or was it Michigan and Illinois?14 A. Yes. It would have been all states.15 Q. What states did you oversee operations for?16 A. 2015, Michigan, Ohio, Indiana, Illinois.17 Q. And you are presently the chief clinical officer?18 A. Correct.19 Q. And what are your job duties in that position?20 A. I also now oversee hospice as well as home health.21 Q. So you have an additional division?22 A. Yes.23 Q. Prior you were just dealing with home health?24 A. Correct.25 Q. And what areas of hospice and home health, in what



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1 states are you covering?2 A. Michigan, Ohio, Indiana, Illinois -- is this in that3 same time frame or no?4 Q. I think you became chief clinical officer after that5 time frame so talk about the current time frame.6 A. Kansas, Missouri, Massachusetts, and Maine.7 Q. Who do you report to now?8 A. The CEO, the new CEO.9 Q. And what is that individual's name?

10 A. Adam Nielsen.11 Q. Is First Care Healthcare still operating today?12 A. Yes.13 Q. But it's doing business as Great Lakes?14 A. Correct, Great Lakes Caring.15 Q. And does First Care Healthcare just operate in16 Illinois?17 A. Correct.18 Q. Do you know how many RNs are employed by First Care19 Healthcare currently?20 A. I do not know the exact number.21 Q. Do you have an estimates?22 A. Yes. I can guess maybe 10.23 Q. Do you know what the answer was during the October to24 December 2015 time frame?25 A. Again, I don't know the exact number but an estimate,

Page 7

1 three or four.2 Q. And do you know how many RNs are -- strike that.3 Do you know how many companies are doing4 business under Great Lakes right now similar to First5 Care Healthcare?6 A. Again, not the exact number, I would say eight home7 health companies -- no, probably six, and you want me8 to also --9 Q. Yes, and including hospice.

10 A. Three or four.11 Q. Do you know what the answer was as of October-December12 2015?13 MR. PELTON: I will object, we are again14 getting beyond I think the scope of the current15 discovery plan in the lawsuit but go ahead and answer16 if you can.17 A. Again, an estimates, for home health, six, and hospice,18 two or three.19 BY MR. GOTTESFELD:20 Q. Do you know as of today whether Great Lakes pays any21 RNs for the combination of a fee shift and hourly22 component basis?23 MR. PELTON: I will object. Again, it's24 beyond the scope of the agreed discovery and instruct25 her not to answer.

Page 8

1 MR. GOTTESFELD: Eric, just because of that2 instruction, we are going to have to hold the3 deposition open and the 30(b)(6) too.4 MR. PELTON: We are beyond the 30(b)(6).5 MR. GOTTESFELD: I am saying you did the same6 instruction to the 30(b)(6). Do we have to have7 another deposition one day? It just seems a waste of8 time and money.9 MR. PELTON: This is what was contemplated in

10 the status conference; that we would focus on Hicks,11 and put the tolling agreement in place, which was the12 quid pro quo and then once we get through the summary13 judgment stage on Hicks, we would reopen discovery and14 focus on the class issues leading up to conditional15 certification and thereafter, and so it is contemplated16 that Ms. Miller or the corporate dep would come back at17 that time so we don't need to spend a lot of time on18 this today, and I appreciate some context but --19 BY MR. GOTTESFELD:20 Q. Ms. Miller, you talked about it before about21 documentation that Ms. Hicks would complete, remember22 that testimony in the 30(b)(6)?23 A. Yes.24 Q. Was the documentation that RNs, such as Ms. Hicks would25 complete, would someone at Great Lakes review that on

Page 9

1 occasion?2 A. Yes.3 Q. What sort of employees would review the documentation4 submitted by an RN such as Ms. Hicks?5 A. It could be the education department, their6 supervisors, Q/A, compliance, those are probably the7 main areas.8 Q. This may seem like a silly question but what is purpose9 of an RN, such as Ms. Hicks, completing documentation

10 for a visit?11 A. To document the care provided to the patient.12 Q. And is that company policy?13 A. Yes.14 Q. And that is just as important to provide good and15 proper care to the patient?16 A. Yes.17 Q. Let me ask you, did you ever provide a type of analysis18 as to how many hours Ms. Hicks worked in a typical19 week?20 A. I have not.21 Q. Do you know -- strike that. We are almost done here.22 We talked about training at length before.23 Just tell me what happens during a training. What24 information is an RN receiving?25 A. Well, it depends on the type of training but we train



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1 them on OASIS, how to complete an OASIS. We train them2 on what is called the Home Health Conditions of3 Participation, which are the rules that the government4 puts in place to be a home health provider. Train them5 on wound care, procedures, bag technique as they take6 bags into patients' homes, hand washing. It could be7 lots of -- IVs.8 Q. Are those examples of types of training that Ms. Hicks9 might have received during the period of 2015, October

10 to December?11 A. Yes.12 Q. And where did such trainings take place for Ms. Hicks?13 A. I do not know during that time frame.14 Q. Who conducts these types of trainings. There is a15 certain job title, a certain type of employee?16 A. It could be different people. Education does a lot of17 our training, our nurse preceptors. It could be the18 clinical supervisor doing training. We may bring in an19 external vendor who is going to teach on a particular20 IV product. They may do that training.21 Q. Is it fair to say such trainings are mandatory for the22 RN to attend?23 A. Yes.24 Q. Tell me, we talked about office meetings before. What25 kind of topics are covered in an in-office meeting?

Page 11

1 A. It might be topics about how we are doing on our QAPI2 plan, which is a performance improvement project, maybe3 talking about a particular patient outcome that needs4 improvement in that market or just office staffing or,5 you know, anything to do with that location could be6 talked about.7 Q. Were such in-office meetings mandatory for RNs?8 A. Not all. The team meetings, we are not necessarily9 mandatory, it's encouraged but not mandatory.

10 Q. Were there some meetings that were mandatory?11 A. Yes.12 Q. Which ones would they be?13 A. Depended on the topic honestly. It's not like set by14 meeting title. It's more based on the topic content.15 Q. Can you give me a example of topic that might be16 mandatory for RN to attend?17 A. Sure. OASIS training. That's a big part of their role18 so they need to know how to do it.19 Q. But regardless whether or not it was mandatory, if an20 RN such as Ms. Hicks attended a team meeting from21 October to December 2015, would she have been22 compensated for that meeting?23 A. Correct.24 Q. Just tell me about on-call, what that would entail;25 just what is that exactly?

Page 12

1 A. On-call is after-hours nursing coverage so the nurses2 that do on-call don't have assignments scheduled to3 them. They are just available if an unexpected patient4 need arises.5 Q. So they have to be available to answer or pick up a6 phone?7 A. Correct. And potentially go see a patient.8 Q. To travel or go see the patient for a visit?9 A. Correct.

10 Q. And we see that Ms. Hicks was paid for on-call at the11 time, correct, from that October to December 2015?12 A. What I can see in those payroll records is she was not13 paid to be on-call. I can't tell exactly how much time14 she spent doing any visits during that call.15 Q. Understood. Was it mandatory Ms. Hicks be on-call at16 certain points during that time period?17 A. I do not know.18 Q. Does Great Lakes have a policy that RNs have to be19 on-call?20 A. We have a policy that we have to have RN coverage but21 it's not a requirement for every RN to take on-call.22 Q. If an RN is on-call, though, is it Great Lakes' policy23 that the RN be paid for that?24 A. They are paid a stipend to be available at night, yes.25 MR. GOTTESFELD: That's all the questions I

Page 13

1 have for you. Thank you, Ms. Miller.2 MR. PELTON: Thank you.3 (Deposition concluded 2:15 p.m.)4

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1 CERTIFICATE OF REPORTER2

3

4 STATE OF MICHIGAN )5 ) SS6 COUNTY OF OAKLAND )7

8 I HEREBY CERTIFY that I reported9 stenographically the foregoing proceedings and

10 testimony under oath at the time and place hereinbefore11 set forth; that thereafter the same was reduced to12 computer transcription under my supervision; and that13 this is a full, true, complete and correct14 transcription of said proceedings.15

16

17 ______________________________18 Bethany Lee Robinson, CSR 3244,19 Notary Public,20 Oakland County, Michigan21 My Commission expires: July 5, 201822

23

24

25





Page 1


Page 1

AACQUISITION 1:13Adam 6:10additional 5:21after-hours 12:1agreed 7:24agreement 8:11ahead 7:15analysis 9:17answer 6:23 7:117:15,25 12:5

APPEARANCES 2:1Appearing 2:9,17appreciate 8:18area 5:12areas 5:25 9:7arises 12:4assignments 12:2assurance 5:1attend 10:2211:16

attended 11:20available 12:3,512:24

Avenue 2:13

Bback 8:16bag 10:5bags 10:6based 11:14basis 7:22behalf 1:5 2:92:17

BETH 1:5Bethany 1:2514:18

beyond 7:14,248:4

big 11:17Birmingham 2:14bit 4:11bring 10:18business 6:137:4

Ccall 12:14called 10:2care 4:20 6:11

6:15,18 7:59:11,15 10:5

Caring 1:14 6:14Carry 2:20CEO 5:6 6:8,8certain 10:15,1512:16

CERTIFICATE 14:1certification8:15

CERTIFY 14:8chief 5:17 6:4class 8:14clinical 4:175:17 6:4 10:18

combination 7:21come 8:16Commencing 1:23Commission 14:21companies 7:3,7company 9:12compensated11:22

complete 8:21,2510:1 14:13

completing 9:9compliance 9:6compliant 4:22component 7:22computer 14:12concluded 13:3conditional 8:14Conditions 10:2conducts 10:14conference 8:10contemplated 8:98:15

content 11:14CONTENTS 3:1context 8:18CORP 1:13corporate 8:16correct 5:18,246:14,17 11:2312:7,9,1114:13

County 14:6,20COURT 1:1coverage 12:1,20covered 10:25covering 6:1

created 4:25 5:2CSR 14:18CSR-3244 1:25current 6:5 7:14currently 6:19

Dd/b/a 1:13day 8:7dealing 5:23Deary 5:8December 1:244:2,14 6:2410:10 11:2112:11

deep 4:25Defendants 1:152:17

dep 8:16department 9:5Depended 11:13depends 9:25deposition 1:208:3,7 13:3

different 10:16discovery 7:157:24 8:13

DISTRICT 1:1,2division 1:35:21

document 9:11documentation8:21,24 9:3,9

doing 6:13 7:310:18 11:112:14

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Page 3


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Exhibit C


924 Clocktower Drive, Suite BRrst Care ,.,,,"hpoe 2 18 4

849i

HE A LTHC A REFax: 217 679-2076

January 14, 2015

Laura Beth Hicks2629 S. Price AvenueSpringfield, IL 62704

Dear Laura Beth,

I am pleased to formally confirm our offer of part-time employment as a Registered Nurse (RN) for First CareHealthcare, with an effectivestart date of January 14, 2015, reporting to the Nursing Supervisor.As a staff member working within our Agency you will receive compensation of $30 per patient visit, $50 perOASIS patient visit, and $20 per office hour (for meetings and training) worked as well as mileage reimbursementat the published federal mileage reimbursement rate as per the stated policy. Please note that this employmentoffer is contingent upon receipt of no inappropriate findings as a result of your previous work history andbackground checks.

If you accept this offer, please indicate by signing below and returning it to the Administrator. In so doing youagree to abide by the high ethic standards outlined in all First Care Healthcare Inc. policies and procedures,HIPAA requirements, and Medicare and our accrediting agency standards; to perform the duties andresponsibilities as outlined in the job description provided; and to return any Agency-owned equipment orsupplies upon Agency request.

Further, you understand that as a part-time employee your workload assignments are not guaranteed,Assignment of workload will depend on the number of patients admitted to First Care Healthcare Inc., theAgency's staff level, and your availability at the time of the patient's admission/servicerequirement.

Notwithstandinganything in this letter or any other communications to the contrary, the employment relationshipbetween you and First Care Healthcare, Inc. shall at all times remain at-will. Accordingly, either you or FirstCare Healthcare may terminate the employment relationship at any time and for any reason with or withoutnotice, except as prohibited by law.

We look for your expertise to help us achieve our mission of providing central illinois with the highest qualityhome healthcare agency and to help become a trusted resource with all medical professionals in thecommunities we serve. It is our goal to grow an organization with people who have passion for quality, awillingness to innovateand a desire to achieve greatness while vigilantly maintaining our integrity. We would bedelighted to have you join us.

Roger Walsh Patricia WalshPresident Treasurer / AdministratorFirst Care Healthcare Inc. First Care Healthcare Inc.

I accept the terms herein as outlined in the above letter:

La

(*Date: f46.

1/1

F

E P. . N


Exhibit D



















Exhibit E


In The Matter Of:Hicks vs.

Great Lakes Home Health Services, Inc., et al.

Laura Beth Hicks

October 24, 2017

Original File HICKS_LAURA BETH.txt

Min-U-Script® with Word Index


Hicks vs.Great Lakes Home Health Services, Inc., et al.

Laura Beth HicksOctober 24, 2017

Page 1

1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN 2 SOUTHERN DIVISION 3 LAURA BETH HICKS, on behalf ) of herself and similarly ) 4 situated employees, ) ) 5 Plaintiff, ) ) 6 vs. ) No. 2:17-CV-12674 ) 7 GREAT LAKES HOME HEALTH ) SERVICES, INC., and GREAT ) 8 LAKES ACQUISITION CORP., ) d/b/a GREAT LAKES CARING, ) 9 ) Defendants. )10 11 The deposition of LAURA BETH HICKS taken 12 before Jennifer L. Bernier, Certified Shorthand 13 Reporter, Registered Professional Reporter, Certified 14 Realtime Reporter, and Notary Public, at U.S. Legal 15 Support, 200 West Jackson Boulevard, Suite 600, Chicago, 16 Illinois, commencing at 9:32 a.m. on October 24, 2017. 17 18 19 20 21 22 23 24 25

Page 2

1 APPEARANCES: 2 ON BEHALF OF THE PLAINTIFF: 3 BARRETT, JOHNSTON, MARTIN & GARRISON, L.L.C. DAVID GARRISON, ESQUIRE 4 414 Union Street Suite 900 5 Nashville, Tennessee 37219 Phone: (615) 244-2202 6 [email protected] 7 8 ON BEHALF OF DEFENDANTS: 9 KIENBAUM, OPPERWALL, HARDY & PELTON, P.L.C. ERIC J. PELTON, ESQUIRE10 THOMAS J. DAVIS, ESQUIRE 280 North Old Woodward Avenue11 Suite 400 Birmingham, Michigan 4800912 Phone: (248) 645-0000 [email protected] [email protected] 14 15 16 17 18 19 20 21 22 23 24 25

Page 3

1 TRANSCRIPT INDEX 2 3 EXAMINATION OF LAURA BETH HICKS PAGE 4 5 By Mr. Pelton 5 6 By Mr. Garrison 196 By Mr. Pelton 206 7 8 9 INDEX OF EXHIBITS (Attached to transcript.)10 NUMBER DESCRIPTION MARKED11 Exhibit 1 Walsh Letter Dated 1/14/15..... 23 Exhibit 2 Documents in Response to ...... 2612 Production Request Exhibit 3 First Request for Production... 2613 Exhibit 4 Employment Agreement........... 47 Exhibit 5 Stipulated Qualified .......... 8814 Protective Order Exhibit 6 Documents Bates ............... 8815 GLC/HICKS000001-18 Exhibit 7 Documents Bates GLC/HICS ...... 11716 000256-260 Exhibit 8 Documents Bates GLC/HICS ...... 12317 000349-355 Exhibit 9 Documents Bates GLC/HICS ...... 12618 000055-84 Exhibit 10 Resumption of Care............. 12919 Exhibit 11 Discharge Nonbillable.......... 143 Exhibit 12 Documents Bates GLC/HICKS ..... 14820 000345-348 Exhibit 13 Declaration of Laura Beth ..... 17521 Hicks Exhibit 14 Collective Action Complaint.... 19322 23 24 25

Page 4

1 (Witness sworn.) 2 WHEREUPON: 3 LAURA BETH HICKS, 4 called as a witness herein, having been first duly 5 sworn, was examined and testified as follows: 6 DIRECT EXAMINATION 7 BY MR. PELTON: 8 Q. Good morning, again, Ms. Hicks. 9 A. Good morning.10 Q. You'll recall my name is Eric Pelton, and I11 represent the defendants in this lawsuit that you've12 brought against them. Do you understand that?13 A. Yes.14 Q. Have you ever had a deposition taken before?15 A. One time. I was in a car accident --16 Q. I see.17 A. -- involved.18 Q. How long ago was that?19 A. In 2008.20 Q. Okay. So you understand, or you may recall,21 this is my opportunity or my client's opportunity to22 find out the factual basis for the claims you're23 bringing against my client.24 A. Sure. Yes.25 Q. Right?

Min-U-Script® Bienenstock / U.S. Legal SupportPh: 248.644.8888 Toll Free: 888.644.8080

(1) Pages 1 - 4




Page 5

1 And you understand you're under oath, supposed 2 to tell the truth? 3 A. Yes. 4 Q. So I'll be asking you a series of questions 5 about the facts that you know that support the claims 6 you're bringing against my clients. And I'll ask that 7 you let me know if you don't understand one of my 8 questions or let me know if you just spaced out a minute 9 and missed it. We'll be happy to reread the question or10 rephrase it so you understand it. Is that fair?11 A. Sure. Yes.12 Q. Okay. And, otherwise, we're going to assume13 that you understood the question if you answer it.14 A. Correct.15 Q. Okay. You understand it comes out on a16 black-and-white transcript?17 A. Yes.18 Q. Okay. So just let me know if there is a19 problem with the question.20 A. Sure.21 Q. All right. If you need a break at any time,22 just let me know, and we'll find a convenient time to23 break so you can use the restroom, talk to counsel, tend24 to your husband, or whatever you need to do.25 A. Okay.

Page 6

1 Q. Are you on any medications today that would 2 affect your ability to testify truthfully? 3 A. No. 4 Q. All right. Where do you currently live? 5 A. Springfield, Illinois. 6 Q. Do you have an address? 7 A. 2629 South Price Avenue; P-r-i-c-e, Avenue. 8 Q. How long have you lived on South Price? 9 A. I have lived there for four-and-a-half years.10 Q. Is that a home that you own?11 A. Yes, with my husband.12 Q. What is your husband's name?13 A. Daniel, Daniel Hicks.14 Q. How long have you been married?15 A. We've been married for three years.16 Q. Do you have any children?17 A. No.18 Q. Okay. And the home is in both of your names?19 A. It's just in my husband's name.20 Q. Okay. Do you have any dependents at all?21 A. No.22 Q. Where are you currently working?23 A. I work for Dr. David Bitzer, B-i-t-z-e-r.24 He's a private practice urologist in Springfield,25 Illinois.

Page 7

1 Q. Have you lived in Springfield your entire 2 life? 3 A. No. 4 Q. How long have you been in Springfield? 5 A. Six years. 6 Q. Where did you live prior to that? 7 A. I lived in Cantrell, Illinois; 8 C-a-n-t-r-e-l-l, Illinois. 9 Q. Where is that?10 A. It's just outside of Springfield, a very small11 town. There's only, like, 60 residents.12 Q. I see. Have you lived in the Springfield area13 your entire life?14 A. Yes. I've lived in Central Illinois my entire15 life.16 Q. Try and wait until I finish my question before17 you answer. In conversation, we tend to talk rapidly,18 but she needs to take it all down. And I'll try and do19 the same, let you finish your answer before I ask the20 next question.21 A. Sure.22 Q. So you're from the Springfield area?23 A. Yes.24 Q. And you grew up there and you still live25 there, right?

Page 8

1 A. Yes. 2 Q. Do you have any sort of criminal history? 3 A. No. 4 Q. No misdemeanors or felony convictions? 5 A. No. 6 Q. What types of things do you and your husband 7 like to do? 8 A. For fun? 9 Q. Yeah.10 A. I sing in a competitive barbershop chorus11 through what's called Sweet Adelines International.12 It's an international organization of female singers. I13 sing in that. I've been singing in that for almost five14 years. We competed in Las Vegas last year and won third15 place in the world for small choruses.16 Q. Congratulations.17 A. And my husband sings in the barbershop men's18 chorus, been involved in that for 19 years. Other than19 that, we're very involved in our church and spend a lot20 of time with our family. Most or all of our immediate21 family lives close by. We're very family-oriented.22 Q. All right. And this Sweet Adelines Group that23 you're in, that's a local group?24 A. It's a local chorus. It's part of an25 international organization.


(2) Pages 5 - 8




Page 9

1 Q. So you rehearse locally? 2 A. Yes, in Springfield. 3 Q. I take it your church is right there in the 4 area as well? 5 A. Yes. 6 Q. What -- tell me about your educational 7 background? 8 A. I have an associate's degree in applied 9 science in -- with a focus in nursing.10 Q. From where?11 A. Lincoln Land Community College, in12 Springfield, Illinois.13 Q. Any other education?14 A. No, a high school diploma.15 Q. Sure. When did you get your associate's16 degree?17 A. Where?18 Q. When?19 A. When? I graduated in 2003, so I went there20 from 1999 to 2003.21 Q. And then did you go right into nursing?22 A. Yes.23 Q. And I understand you're an RN?24 A. Yes.25 Q. When did you get your license, your

Page 10

1 registration to be an RN? 2 A. My registration began in May of 2014. That's 3 when I took my boards. 4 Q. Between graduating in 2003 and taking your 5 boards to be an RN in 2014, what was your nursing 6 status? 7 A. Meaning, was I working as a nurse? 8 Q. Yeah. 9 A. I was working as what we call an RN license10 pending, in Peoria, Illinois, in a hospital that I had11 signed a contract with.12 Q. What did you have to do to become an RN?13 A. Pass my boards.14 Q. Okay.15 A. To change my status --16 Q. Yes.17 A. -- you mean from an RN license pending? Get18 my license, pass my boards.19 Q. All right. Did you take any additional20 classes to prepare to do that?21 A. I took an NCLEX preparation course. NCLEX is22 the nursing exam, N-C-L-E-X. It's our exam that we took23 to get our licensure.24 Q. And was that the first time you took the25 board?

Page 11

1 A. No. I took it one other time. 2 Q. When was that? 3 A. In December. I'm sorry, in January. 4 Q. 2014? 5 A. January of 2014. 6 Q. Okay. Where were you working at the time you 7 became an RN? 8 A. Can you clarify your question? 9 Q. Where were you working; for who? Who was your10 employer at the time?11 A. When I was working as an RN license pending?12 Q. When you got your RN registration from the13 State.14 A. And got my license?15 Q. Yes, where were you working?16 A. Methodist Medical Center, in Peoria, Illinois.17 Q. And then it was some time later that you18 joined First Care --19 A. Yes.20 Q. -- Healthcare?21 Do you hold any other licenses or22 registrations?23 A. No. I had a CNA license prior to getting an24 RN license.25 Q. All right. Have you taken any other training

Page 12

1 courses or college courses? 2 A. I take continuing education. I take 3 continuing education credits every year -- at least, 20 4 credits -- to maintain my license. Usually I do in 5 excess of that every year. 6 Q. To keep your license, you have to have a 7 certain amount of continuing education? 8 A. Twenty, yes. 9 Q. We're talking over each other. And I10 apologize; but, again, you need to wait until I ask a11 question, too.12 Okay. To keep your license, you have to have13 a certain amount of continuing education?14 A. Correct.15 Q. You said it's 20 hours?16 A. Yes.17 Q. But you said you also take beyond the 2018 hours?19 A. Yes.20 Q. All right. Approximately, how many have you21 taken each year since 2014?22 A. I would say 25 to 30 hours.23 Q. These are all courses related to your skills24 as a nurse?25 A. Yes.


(3) Pages 9 - 12




Page 13

1 Q. Where do you take these types of courses? 2 A. Usually online. 3 Q. Through a particular company? 4 A. Medscape it's called. 5 Q. Spell it? 6 A. M-e-d-s-c-a-p-e. 7 Q. Any other training, or degrees, or education 8 you've had? 9 A. No.10 Q. After graduating with your nursing or applied11 science degree in 2003, who did you work for?12 A. After graduating? I did not -- I worked for13 the same, Methodist Medical Center.14 Q. How long were you at Methodist?15 A. I left there in July of 2005.16 Q. What did you do at Methodist Medical Center?17 A. I was a Registered Nurse, a staff nurse they18 called us.19 Q. Is that like a hospital?20 A. Yes.21 Q. Were you assigned to any particular areas?22 A. It was called Seven Crescent Medical23 Respiratory Unit.24 Q. Any other areas you worked in while at the25 hospital?

Page 14

1 A. No. 2 Q. Where did you go after Methodist Medical 3 Center? 4 A. I moved back to Springfield, and I took a job 5 at the Springfield Clinic. 6 Q. What type of clinic was it? 7 A. It was an ambulatory surgery center that I 8 worked in, an outpatient surgery center. 9 Q. What did you do there?10 A. I was an admissions and recovery nurse was my11 title.12 Q. How long were you at Springfield Clinic?13 A. I was there from July of 2005 until,14 approximately, July of 2006.15 Q. Then where did you go?16 A. I worked for a private physician who was an17 allergist. The clinic was called Central Illinois18 Allergy and Respiratory Clinic.19 Q. Was that in Springfield?20 A. Yes. I was his office nurse.21 Q. Why did you leave Springfield Clinic?22 A. The hours and the pay were better in the next23 position.24 Q. Okay. As an office nurse, what type of things25 did you do for the allergist?

Page 15

1 A. I brought patients back to the room, did their 2 vital signs, did complete scratch and intradermal 3 allergy testing for them, breathing treatments, IV 4 treatments, basically, the whole gamut of treatments 5 that the doctor did as an allergist. 6 Q. Did you have any special training for that? 7 A. I was trained on the job. 8 Q. Learned on the job. Where did you go after 9 that position?10 A. After leaving there, I became an OB/GYN office11 nurse at Springfield Clinic, OB/GYN.12 Q. The same clinic as previous?13 A. The same clinic, but not in the same building.14 Q. When did you go to Springfield Clinic?15 A. In 2006.16 Q. So you weren't at the allergist very long?17 A. No.18 Q. Why did you leave the allergist?19 A. Wait a minute. I'm sorry. I was at the20 allergist's office from 2006 to 2010. I left there in21 2010 and went to Springfield Clinic.22 Q. So you were there four years?23 A. Yes.24 Q. Almost four years?25 A. Yes.

Page 16

1 Q. Why did you leave the allergist? 2 A. I had always wanted to work in the OB/GYN 3 specialty. I never had the opportunity to do it until 4 that time. 5 Q. Tell me, again, the name of the allergist? 6 A. Dr. David Wright, W-r-i-g-h-t. 7 Q. What did you do as an OB/GYN nurse? 8 A. The same kinds of things; vital signs, checked 9 patients in for their appointments, urinalysis testing,10 assisted the doctor with Pap smears and other testing11 for female patients.12 Q. Did you do any deliveries, that type of thing?13 A. No.14 Q. And your --15 A. We were outpatient, so I was never at the16 hospital when patients were in labor.17 Q. Right. Did you report to other nurses, or18 just worked directly with doctors; how did that work?19 A. I worked under the supervision of the20 physician, and then there was an operations manager, she21 was called, who was essentially like a nursing22 supervisor, although she was not a nurse herself.23 Q. Where did you go after the Springfield Clinic,24 the second time?25 A. I was there until 2014. When I left there, I


(4) Pages 13 - 16




Page 17

1 went to SIU School of Medicine, in the Simmons Cancer 2 Institute, working for Dr. Robert Mocharnuk, 3 M-o-c-h-a-r-n-u-k. 4 Q. Why did you go to SIU? 5 A. I went to SIU to work in the cancer specialty. 6 Q. Did you receive any special training for that? 7 A. I was trained on the job. 8 Q. The same with the OB/GYN work? 9 A. Yes.10 Q. How long did you stay at SIU?11 A. I was there from February of 2014 until April12 of 2014 when I became ill and I resigned.13 Q. So you withdraw from working there altogether?14 A. Yes.15 Q. I don't mean to get too far into your personal16 medical history, but what was going on at that time?17 A. I was on a 90-day probation, and I knew that18 my time off of work for the sickness was going to exceed19 the amount of allowed time, so I resigned.20 Q. What was the nature of the illness?21 A. I had bronchitis, a sinus infection, and a22 double ear infection. I directly took care of23 chemotherapy patients and did not feel safe being around24 them with a 103 degree fever.25 Q. That's wise. Did you ever go back to SIU

Page 18

1 then? 2 A. No. 3 Q. What was your next job? 4 A. I took a period of time off of work after that 5 to care for my husband. He was having some medical 6 issues at the time. 7 Q. Were you able to get yourself better then? 8 A. Yes. 9 Q. Over the 90 days?10 A. Yes.11 Q. And what was your husband's issue?12 A. He has continuing medical problems related to13 his paralysis.14 Q. When did you finally go back to work?15 A. I started my job with a company called First16 Care Healthcare, and that was -- I had an interview in17 December of 2014, but my actual start date was not until18 January of 2015.19 Q. Who did you interview with?20 A. His name was Roger Walsh, W-a-l-s-h. He and21 his wife, Patricia Walsh, owned the corporation.22 Q. They owned First Care Healthcare?23 A. They owned First Care Healthcare.24 Q. And that was a home care --25 A. Company, yes.

Page 19

1 Q. -- outfit? 2 What were you interviewing to do? 3 A. Be an RN case manager, excuse me, and field 4 RN. 5 Q. Now, while you were out -- so you left SIU in 6 April of '14 and then took your boards in May? 7 A. Excuse me? 8 Q. You left SIU School of Medicine in April of 9 '14?10 A. No.11 Q. When did you leave there?12 A. I left there -- my boards were taken in 2004.13 Q. Oh, I'm sorry. I thought you said '14.14 A. No. 2004.15 Q. Got you. So all of these jobs you were16 working in was as an RN?17 A. Yes.18 Q. Got you.19 A. After I was licensed.20 Q. I apologize. Thank you.21 All right. So you interviewed with the owners22 of First Care Healthcare to do what type of position?23 A. An RN case manager.24 Q. What did they tell you that would involve?25 A. They told me that would involve a variety of

Page 20

1 different types of visits that I would go on with 2 patients and that I would admit patients. I would do 3 60-day recertification visits for patients. I would do 4 discharges for patients. I would supervise LPNs and 5 home health aides, within the agency, to follow the 6 Medicare guidelines, and I would be seeing patients in 7 their home. 8 Q. And did you end up doing all of those things? 9 A. Yes, I did.10 Q. All right. What did they tell you about the11 compensation structure?12 A. How I was paid, you're referring to?13 Q. Yes.14 A. In the beginning, when I took my job with15 them, I was paid per visit. There was a $50 fee that I16 was paid for starts of care, which was an admissions17 visit. And all other OASIS visits, they were called,18 were paid at $50 per visit. And then supervisory visits19 or follow-up visits where the OASIS was not the focus of20 my visit, they were paid at a rate of $30 per visit.21 Q. And OASIS is an acronym?22 A. Yes.23 Q. O-A-S-I-S?24 A. Yes.25 Q. What does that mean?


(5) Pages 17 - 20




Page 21

1 A. I don't know what the acronym stands for. 2 Q. What is it? 3 A. It's Medicare guidelines. 4 Q. And, generally, what does it require? 5 A. It required -- it's a set of guidelines that 6 we use to determine whether a patient meets criteria for 7 home health or whether they meet criteria to stay in 8 home health. It's a set of predetermined questions from 9 Medicare.10 Q. So all of the agencies would use these --11 A. Yes.12 Q. -- to make --13 A. I would assume so.14 Q. -- to make Medicare determinations?15 A. I would assume so.16 Q. All right. And I think you said something17 about a 60-day --18 A. Recertification.19 Q. -- recertification?20 That's an OASIS recertification?21 A. Yes.22 Q. So you might certify them initially, and then,23 within 60 days, you have to recertify?24 A. Right, if they meet the criteria.25 Q. Were you told anything else about the pay

Page 22

1 structure at the time you were interviewing and 2 accepting the job? 3 A. No. 4 Q. You then worked for First Care Healthcare 5 until, was it, February 11th, 2017? 6 A. Yes. 7 Q. And your start date was January 14th, 2015? 8 A. That's correct. 9 Q. When you started there, were you considered10 part-time or full-time?11 A. When I started for First Care?12 Q. Yeah.13 A. My status was always full-time in the time14 that I worked for that home health agency.15 Q. Did they have a part-time status for16 employees?17 A. They did.18 Q. For the home care --19 A. Yes.20 Q. -- nurses and --21 A. Yes.22 Q. -- others?23 A. There was the availability of being part-time.24 Q. What was the difference? How was a full-timer25 and a part-timer defined?

Page 23

1 A. That, I don't know. I never opted to be 2 part-time, so I wasn't -- I do not know. 3 Q. Okay. Let's mark this as Exhibit 1. 4 (Hicks Exhibit 1, Walsh Letter Dated 5 1/14/15, was marked for purposes of 6 identification.) 7 Q. Do you recognize Exhibit 1? 8 A. Yes. 9 Q. Okay. This is a letter to you, from Roger10 Walsh and Patricia Walsh, who you identified as the11 owners at the time?12 A. Yes.13 Q. And is that your signature accepting the terms14 outlined in the letter?15 A. Yes, it is.16 Q. Now, the first line of the letter says, "I am17 pleased to formally confirm our offer of part-time18 employment as a Registered Nurse." Do you see that?19 A. Yes.20 Q. All right. Is that mistaken, or was that your21 initial status?22 A. To my knowledge, I was always a full-time23 employee to be expected to work 40 hours per week.24 Q. Did you ever bring to their attention that25 this was -- said you were part-time when you thought

Page 24

1 you'd be full-time? 2 A. I don't recall. 3 Q. Okay. The fourth paragraph also highlights 4 that you were considered a part-time employee, and, as 5 such, your workload assignments are not guaranteed. Do 6 you see that -- 7 A. Yes. 8 Q. -- in the middle of the letter? 9 A. Yes.10 Q. At any particular time, how many different11 patients might you be working with?12 A. Depending on the day, how many admissions we13 received, how many referrals we received, I would say a14 range of three to seven or eight patients a day,15 depending on the day.16 Q. That you would visit, between three and seven17 or eight per day?18 A. Yes.19 Q. I see. But how many would be assigned to you20 at any particular time?21 A. You mean a total number of patients?22 Q. Yeah.23 A. I don't know if I could accurately describe24 that number.25 Q. Since leaving First Care Healthcare in, I


(6) Pages 21 - 24




Page 25

1 guess, it was February of '17, what have you been doing? 2 A. I work as a Registered Nurse for Dr. David 3 Bitzer. 4 Q. Where is he located? 5 A. Springfield, Illinois. 6 Q. What type of doctor is he? 7 A. A urologist, private practice. 8 Q. When did you begin employment with him? 9 A. February 11th, 2017.10 Q. Why did you leave First Care Healthcare to go11 to Dr. Bitzer?12 A. He was private practice. It was a position13 where I was able to work Monday through Friday with no14 call on the weekends.15 Q. Anything else?16 A. Better hours.17 Q. Okay.18 A. Better hours, less working hours, more time at19 home with my husband.20 Q. And I assume, during that time frame, he also21 needed some care?22 A. Yes.23 Q. All right. Were you at all unhappy at First24 Care Healthcare, that was part of your reason for25 leaving?

Page 26

1 A. I was unhappy with the number of hours that I 2 had to work. 3 Q. Too many? 4 A. And the fact that I had to be away from my 5 spouse for long hours every day and on-call time, on the 6 weekends, with me away from him and his physical needs. 7 Q. Mark that as 2. 8 (Hicks Exhibit 2, Documents in 9 Response to Production Request, was10 marked for identification.)11 Q. The court reporter has handed you, as12 Exhibit 2, a set of documents that were provided to us13 in response to a request for production of documents.14 MR. PELTON: Mr. Garrison, I apologize. I don't15 have a third copy of it, but maybe you two could share.16 MR. GARRISON: I have copies of it.17 MR. PELTON: You have one. Okay. Great.18 MR. GARRISON: Do you need another set for19 yourself?20 MR. PELTON: No. I'm fine. Thank you.21 THE REPORTER: 3?22 MR. PELTON: Yes.23 (Hicks Exhibit 3, First Request for24 Production, was marked for25 identification.)

Page 27

1 Q. Exhibit 3 is Defendant's First Request For 2 Production of Documents. Have you seen this document 3 before? 4 A. Yes. 5 Q. All right. Did you review it carefully to 6 determine what documents you were being asked to produce 7 in this case? 8 A. Yes. 9 Q. If you could, turn to page 4. That's where10 the document requests start. And you'll see we have 3211 different requests for documentation, right?12 A. Yes.13 Q. All right. What did you do to find documents14 that were responsive to this request?15 MR. GARRISON: I'm going to object to the form of16 that question. Go ahead.17 MR. PELTON: Okay.18 MR. GARRISON: There's 31 requests, not 32.19 MR. PELTON: That was the prior question.20 MR. GARRISON: Anyway, I thought it was two.21 MR. PELTON: I have 32.22 MR. GARRISON: You have 32? There's one more on23 the last page.24 MR. DAVIS: The very last page.25 THE WITNESS: I only have 31.

Page 28

1 MR. GARRISON: I only have 31 on my copy. 2 MR. PELTON: Oh, it got cut off. 3 MR. GARRISON: And 30 and 31 are the same question, 4 I guess. But, anyway, there's 31 in the exhibit that 5 you've handed us. I want to make sure we're looking at 6 the same exhibit. 7 MR. PELTON: More importantly is what we served. 8 MR. GARRISON: What was served had 31. 9 MR. PELTON: Really? All right.10 MR. GARRISON: And 30 and 31 are the same question.11 So there's really only 30 requests.12 Q. Okay. Well, approximately, 30 requests.13 We'll go over that for now. The question, though, is,14 what you did to look for documents responsive to this15 request?16 A. I reviewed this document to see whether I had17 any of the documents that were being requested for me to18 produce.19 Q. Where did you look?20 A. In my home.21 Q. Okay. Did you look in hard file copies,22 electronic files?23 A. I did not have any electronic files.24 Q. You had nothing on your computer?25 A. Nothing.


(7) Pages 25 - 28




Page 29

1 Q. No e-mails -- 2 A. No. 3 Q. -- or folders? 4 A. I never use a computer that was not provided 5 to me by the agency and was returned to them when I 6 left. 7 Q. Okay. You never transferred anything from -- 8 A. No. 9 MR. GARRISON: Please, make sure he finishes his10 question before you answer. Just slow down, and it will11 go, I think, a little bit easier on both sides.12 Q. Yep. We're good.13 All right. Your testimony is, you used a14 computer provided by the agency?15 A. Yes.16 Q. You returned that when you left the agency?17 A. Yes.18 Q. You didn't take anything off of the computer19 at any time?20 A. No. No. I'm sorry.21 Q. We'll get there. I'm sorry.22 MR. GARRISON: Make sure he's finished with his23 question and then answer.24 Q. Just pause. Just relax.25 And you never transferred anything from the

Page 30

1 company's computer to your own? 2 A. No. 3 Q. All right. Did you create any documents of 4 your own on your computer, while you were employed, 5 concerning Great Lakes or First Care Healthcare? 6 MR. GARRISON: Object to the form. 7 Q. You can answer. 8 A. Not to my knowledge. 9 Q. You didn't create a diary, or time records, or10 anything like that?11 A. Those were within the charting program that we12 used that calculated our time. I did not use a calendar13 on my tablet for time.14 Q. But as far as a personal computer, did you15 create any notes or time records or anything like that?16 A. No.17 Q. And you didn't write it down in a calendar18 book or a diary?19 A. I had a calendar book, when I was working20 there, to keep track of my appointment times for the21 day, which I do not have. I destroyed it when I left22 because it contained patient information --23 Q. Okay.24 A. -- that was protected by HIPAA. It was25 shredded the last day that I worked for them, put in a

Page 31

1 shred bin. 2 Q. Good. So you're pretty confident you don't 3 have any sort of electronic records -- 4 A. Yes. 5 Q. -- related to these requests? 6 A. Not to my knowledge. 7 Q. And then, as to the rest of it, you looked, 8 what, in your files, or in boxes in the garage; or where 9 did you find things?10 A. I looked through to see if I had a request11 for -- there was a request for tax documents --12 Q. Yes.13 A. -- which I keep in my own office, in my house,14 and I produced, for the W2s, the W2 documents.15 Q. Do you have the 1040s?16 MR. GARRISON: We're objecting to the production of17 the 1040s.18 MR. PELTON: Okay. All right. Just so the record19 is clear, we have not yet received -- there was some20 discussion, off the record, about the written objections21 or responses to the requests, so, I guess, we'll make22 arrangements for that.23 MR. GARRISON: Sure. We're serving those today.24 MR. PELTON: Okay.25 MR. GARRISON: So you'll have those if you don't

Page 32

1 them already. 2 MR. PELTON: Great. 3 Q. And then, as far as Exhibit 2 goes, why don't 4 you take a moment to look through that, which we 5 received from your counsel, and let me know if that's 6 the sum total of all of the documents you were able to 7 find responsive to our request. 8 A. Yes. 9 Q. Now, I understand, from your counsel's10 objection, that you do have some tax returns that you're11 going to object to producing at this point?12 A. Correct.13 MR. PELTON: And just to expedite, Mr. Garrison,14 are there any other documents that you're objecting to15 at this point, anything we should know about?16 MR. GARRISON: No, nothing else.17 MR. PELTON: Okay. So just that's the only thing18 being withheld?19 MR. GARRISON: Correct.20 MR. PELTON: All right. Good.21 Q. Turn to -- it's control label Hicks 0041.22 What is this document?23 A. This is a document that would have been24 contained in our financial side of our system, where our25 time was calculated, called Ultipro. I would have had


(8) Pages 29 - 32




Page 33

1 access to this document. 2 Q. It's called a "Compensation Summary," right? 3 A. Yes. 4 Q. It says from Dr. Bitzer, so it looks like you 5 were faxing it from your employer's office; is that what 6 that is? 7 A. Correct. 8 Q. And then it has a date, "5/12/2017, Print 9 Preview." Do you see that?10 A. Mm-hmm.11 Q. Yes?12 A. Yes.13 Q. Does that mean this document was printed on14 that date?15 A. Yes.16 Q. Now, you had left First Care Healthcare, or17 Great Lakes, employ back on February 11th, 2017, right?18 A. Correct.19 Q. How did you get access to print this on20 May 12th?21 A. I still had access to that system.22 Q. And how did you still have access?23 A. My username and password still worked to24 access my own information.25 Q. Okay. And was that intentionally done, or had

Page 34

1 they forgot to turn off your access? 2 A. That, I don't know. 3 Q. What all did that give you access to? 4 A. Just my compensation summary, my previous pay 5 stubs, from the time that I worked there, and any other 6 HR documents that had been scanned into my account 7 within Ultipro. 8 Q. What might those be? 9 A. Any change in my salary would have been10 recorded there.11 Q. Okay.12 A. Basically, the only thing I use the system for13 was to print these documents.14 Q. All right. So the account and the password15 were for what's called Ultipro?16 A. Correct.17 Q. Were you still able to access their Homecare18 Homebase system?19 A. No.20 Q. Kinnser?21 A. No.22 Q. This has an original hire date of November 13,23 2015. Do you know why there's that designation?24 A. That would have been around the time when25 Great Lakes Caring went through -- or First Care

Page 35

1 Healthcare went through a transition period to be 2 managed by Great Lakes Caring, and our pay would have 3 changed at that time. 4 Q. So the Walshes sold the company, Great Lakes? 5 A. Yes. 6 Q. And, at that time, on November 13th, this 7 reflects you were salaried? 8 A. Correct. 9 Q. Did you receive a salary from that point on?10 MR. GARRISON: Object to the form. You can answer.11 A. Can you restate the question?12 Q. Yeah. This reflects your salary with a hire13 of 11/13/15. And the question was, did you become14 salaried at that point?15 MR. GARRISON: Object to the form.16 A. I don't recall whether my salary began on that17 date or whether it began in January of 2016, in the new18 calendar year.19 Q. Do you recall there being a period of time20 when you were paid on a per-visit basis, as you21 described earlier?22 A. Yes.23 Q. You're just not sure how long that continued?24 A. To my knowledge, it was from my hire date with25 First Care Healthcare until January of 2016.

Page 36

1 Q. I noticed that you printed a number of check 2 advices. So page 1, or control label 1, is, again, 3 dated 5/12. So it looks like this is also from Ultipro? 4 A. Yes. 5 Q. All of these pay stubs then were printed out 6 by you from Ultipro? 7 A. Correct. 8 Q. All right. Did you have anything prior to 9 the -- prior to January of 2016? In other words --10 MR. GARRISON: Object to the form.11 Q. Let me clarify. In other words, starting on12 page 1, it looks like these go in reverse chronological13 order. And then the earliest pay statement you've14 provided from Ultipro is on page 40, and that's with a15 period start date of 12/27/2015, a period end date of16 January 9, 2016?17 A. Correct.18 Q. With a pay date of January 15, 2016?19 A. Correct.20 Q. All right. Did you print any -- were you able21 to access any pay statements prior to that time?22 A. No. This was the first available pay23 statement in Ultipro.24 Q. All right. Where would prior pay statements25 be found?


(9) Pages 33 - 36




Page 37

1 A. We weren't using the Ultipro system prior to 2 this. I honestly don't know where they would be found. 3 Q. I take it you didn't keep any hard copies of 4 your own pay stubs? 5 A. No. 6 Q. You received pay stubs from the company, 7 right? 8 A. No, not -- I didn't receive a paper copy. My 9 copy was an Ultipro pay statement.10 Q. Oh, okay. I apologize. If you ever needed11 one, you'd go into Ultipro?12 A. Yes.13 Q. How about prior to that time?14 MR. GARRISON: Object to the form.15 Q. Prior to that time of Ultipro, how would you16 obtain your pay stubs?17 MR. GARRISON: Objection to the form.18 A. I don't recall.19 Q. Did you get hard copy pay stubs?20 MR. GARRISON: Object to the form.21 A. I don't recall how my pay stubs were given to22 me. They would -- prior to being on Ultipro and prior23 to using Homecare Homebase, there was a different24 charting system with First Care Healthcare that was25 called Kinnser, and our time was automatically

Page 38

1 calculated in that system for us. I'm just trying to 2 remember whether we had access to a pay stub in that 3 system, because it was long ago. I don't recall whether 4 I had an electronic copy or a hard copy. 5 Q. Do you recall receiving a hard copy? 6 A. I don't recall receiving a hard copy. 7 Q. All right. And given your search for records 8 in response to our document request, are you pretty 9 confident you would have come across those?10 A. Yes.11 Q. Is there anyplace else you might look?12 A. No.13 Q. And you said a moment ago that Kinnser would14 automatically calculate your time?15 A. Yes.16 Q. Was that a time calculation or a visit17 calculation?18 A. In Kinnser, the charting system, when you19 access that patient's chart in their home and started a20 visit, it would calculate a start time for your visit21 and then it would calculate a stop time when that visit22 was submitted.23 Q. Did it track any other time periods, Kinnser?24 A. No.25 Q. Page 43 is a W2 from First Care Healthcare.

Page 39

1 It's not a very good copy. Do you have a better copy of 2 this, or is this the best we're going to do? 3 MR. GARRISON: This is the copy I have. Is it 4 better than yours? 5 MR. PELTON: Marginally, but... 6 MR. GARRISON: Do you want it? 7 MR. PELTON: Not really. I just wondered if we 8 could get one ultimately. 9 Q. Do you have a better copy of this; do you10 know?11 MR. GARRISON: Do you have the original?12 THE WITNESS: I do, in my home.13 MR. GARRISON: I mean, I've seen you have it, too.14 THE WITNESS: This is a screenshot.15 MR. PELTON: We probably do, yeah.16 MR. GARRISON: If you need a cleaner copy, we'll17 endeavor to get you a cleaner copy.18 MR. PELTON: I have 2016. I don't think we have19 2015. We should be able to. It looks like a photograph20 maybe.21 MR. GARRISON: I think she said it was a22 screenshot.23 A. It was a photo that I took with my phone and24 electronically submitted it.25 Q. So maybe you can get an original to your

Page 40

1 counsel. 2 A. Mm-hmm. 3 Q. Page 45 appears to be a copy of a text? 4 A. That's a private Facebook message. 5 Q. Oh, I see. And is this printed from a 6 Facebook screen? 7 A. This is a screenshot of that. 8 Q. From whose Facebook? 9 A. My friend. My Facebook account, my private10 message inbox.11 Q. I see. And who is Heather Cope, C-o-p-e,12 Hamm, H-a-m-m?13 A. She is an LPN that I worked with, at Great14 Lakes Caring, and a personal friend of mine.15 Q. Is she still employed there?16 A. To my knowledge.17 Q. Okay. Have you talked to her about your18 lawsuit?19 A. No.20 Q. Was this an effort to bring your lawsuit to21 her attention?22 MR. GARRISON: Object to the form.23 A. Can you restate your question?24 Q. Was this an effort by you to bring to25 Ms. Hamm's attention your lawsuit against the company?


(10) Pages 37 - 40




Page 41

1 A. No. This message was sent to me from Heather. 2 Q. Did you respond to the message? 3 A. No. No. 4 Q. You didn't write her back -- 5 A. No. 6 Q. -- or e-mail, or call her? 7 A. This is the extent of the screen, of the 8 message. 9 Q. I see. When did you last talk to Ms. Hamm?10 A. Probably, three or four months ago.11 Q. Have you talked to her at all about your12 lawsuit?13 A. No, never.14 Q. And this is the entirety of the Facebook15 posts --16 A. Yes.17 Q. -- on this topic, between the two of you?18 A. Yes.19 Q. All right. The next page, 46, and for several20 pages after that, appear to be pay stubs for a Sandra21 Hutchins?22 A. Correct.23 Q. Do you know Ms. Hutchins?24 A. I've only seen her name on paperwork.25 Q. Have you ever spoken to her in your life?

Page 42

1 A. No. 2 Q. And did you obtain these from her? 3 A. No. 4 Q. Have you seen these before? 5 A. Yes. 6 Q. I assume these were provided to you by 7 counsel? 8 A. Correct. 9 Q. When did you receive these?10 A. When did I see them for the first time?11 Q. When did you receive them, yes.12 A. I saw them last night.13 Q. Oh, okay.14 Now, in May of 2017, May 12, 2017, you went15 into Ultipro to access your pay stubs and your16 compensation?17 A. Correct.18 Q. What caused you to go into the system, at that19 point, to access these items?20 A. I never had copies of them when I left. I21 felt that I should have copies of my pay stubs.22 Q. Had you heard from Ms. Hamm by then? I think23 that was dated in April.24 A. That was dated in April.25 Q. When did you first learn something about the

Page 43

1 pay issues that are the subject of that Facebook post? 2 A. I felt I was not compensated adequately the 3 entire time that I worked for Great Lakes Caring. I was 4 made aware of this lawsuit, through this Facebook 5 message, from Heather Hamm. 6 Q. This is the first you heard of it? 7 A. That was the first I had heard of it. 8 Q. And I take it was -- this is a -- go back to 9 page 45.10 Is this a -- something you click on? Is there11 a link then?12 A. Yes.13 Q. Did you access that link?14 A. I accessed the link.15 Q. And what did you learn there?16 A. When you access the link, it takes you to a17 screen, basically, a bigger information of the lawsuit18 on a Web site, on a Facebook page, of this Winebrake &19 Santillo, LLC.20 Q. Did that page reference a specific lawsuit?21 A. No.22 Q. One that was being contemplated?23 A. Can you rephrase your question?24 Q. Was it referencing -- you said it was25 referencing a -- you said, when you go to the screen, it

Page 44

1 was basically bigger information of the lawsuit? 2 A. Right. 3 Q. I'm trying to understand. 4 A. It said it was working on a lawsuit 5 representing residents of, at least, four different 6 states on a compensation lawsuit against Great Lakes 7 Caring Home Health. 8 Q. And this is the first you heard of the 9 lawsuit?10 A. Yes.11 Q. Is that what caused you then to go get your12 pay stubs in May?13 A. I saw this. I clicked on this. I did some14 research on my own regarding the law firm that was doing15 the lawsuit, and I contacted the law firm. And then I16 was advised to, if I didn't have --17 MR. GARRISON: Object to --18 MR. PELTON: Yeah. We don't need to --19 MR. GARRISON: I'm going to ask you not to discuss20 anything that you talked about with any lawyer or21 anybody from a law firm.22 THE WITNESS: Okay.23 MR. GARRISON: Okay?24 THE WITNESS: Mm-hmm.25 Q. That's fair. Yeah. And I think it's probably


(11) Pages 41 - 44




Page 45

1 okay to say you accessed them at their request. But any 2 substantive communications -- 3 MR. GARRISON: Well, that wasn't her testimony, and 4 so I'm going to object to that. 5 MR. PELTON: As not being her testimony? 6 MR. GARRISON: Well, you -- 7 MR. PELTON: I asked the question. 8 MR. GARRISON: Your question started with, "I think 9 it's okay to say."10 MR. PELTON: Yeah. I'm testing the limits of where11 you think the privilege is. Well, let me just ask it,12 and you can object.13 MR. GARRISON: Sure.14 MR. PELTON: Pause, so he can object.15 MR. GARRISON: If it gets too far off base, I think16 we should probably have this conversation outside the17 presence of the witness.18 MR. PELTON: I don't think it will go very far.19 We'll find out.20 MR. GARRISON: Let's see.21 Q. All right. Did you access them at the request22 of counsel, your pay stubs?23 A. I requested them on my own reconnaissance,24 getting my own pay stubs, because I didn't have a copy25 of them for myself.

Page 46

1 Q. So you're saying it was not at the request of 2 counsel? 3 A. I requested them myself. I went into the 4 program and got them for myself. 5 Q. I understand that. 6 A. So I would have a copy of them. 7 Q. Right. But did somebody ask you to do that? 8 A. Not before I had already done it. 9 Q. Had you gone into Ultipro at any prior time,10 between February 11th and May 12th?11 A. Not to my knowledge.12 Q. Have you gone into it since then?13 A. No.14 Q. Do you still have access to it?15 A. I don't know.16 Q. Okay.17 A. They must be working in this building.18 Q. Yeah. We're still on the record. There's a19 little construction going on.20 THE REPORTER: This is 4.21 MR. GARRISON: Is now a good time for a break?22 MR. PELTON: Let me just get --23 MR. GARRISON: I'll put it differently. I need a24 break. If you have a couple of short questions, that's25 fine.

Page 47

1 MR. PELTON: Yeah. Just a couple. I'm not going 2 to spend much time on this. 3 Q. So this is an employment agreement. Do you 4 recall this document, Exhibit 4? 5 THE REPORTER: Hold on. I was finishing. 6 (Hicks Exhibit 4, Employment 7 Agreement, was marked for 8 identification.) 9 A. Can you restate your question or reask your10 question?11 Q. Yeah. Do you recall signing this employment12 agreement?13 A. Yes, I do.14 Q. Who presented it to you?15 A. It would have been the HR representative from16 Great Lakes Caring that came to our local Springfield17 branch, Lori Brewis.18 Q. Was this sent to you in advance of her visit?19 A. No.20 Q. I don't see a date of your signature. Do you21 know what date you signed it? There are initials. It22 looks like 1/18 on each page. Is that the date you23 would have signed it? Excuse me, 11/18, in the lower24 left corner of each page.25 A. Correct. I see that date. There was no date

Page 48

1 requested for when I signed it. 2 Q. Mm-hmm. Would you agree you signed it on the 3 same date you initialed each page? 4 A. Yes, and she signed it in front of me. 5 Q. Okay. 6 A. Laurie Brewis. 7 Q. As far as you know, is the writing that's in 8 blue Ms. Brewis' writing? 9 A. Yes.10 Q. The writing in black is yours?11 A. Correct.12 Q. Now, this, in paragraph a., 1.a, on the first13 page, it says, "We employ you to serve as Registered14 Nurse/part-time." And it's crossed out and "FT" is15 written in?16 A. Correct.17 Q. Do you know when that change occurred?18 A. On the same day.19 Q. Do you recall discussing that with Ms. Brewis?20 A. Yes.21 Q. What was the discussion?22 A. The discussion was that I was informed that I23 was going to not have a change in my status, from24 full-time to full-time, moving from First Care25 Healthcare under the management of Great Lakes Caring.


(12) Pages 45 - 48




Page 49

1 Q. Did Ms. Brewis indicate they were under the 2 impression you were part-time? 3 A. She didn't indicate that to me at the time. 4 Q. But something caused her to put part-time into 5 this agreement, right? 6 A. Correct. 7 Q. In other words, someone -- you didn't draft 8 this agreement. Somebody at the company did? 9 A. Correct. I did not.10 Q. All right. So that's a clarification.11 And then let me just ask real quick, and we12 can take a break and come back to it. But are all of13 the changes here, which appear to be written in blue and14 initialled by you, are these all made on the same day?15 A. Yes.16 Q. So this document was complete with changes as17 of November 18th, 2015?18 A. "'16" it says on here. Oh, "'15." I'm sorry.19 I have a bad copy of reading whether that's a "5" or a20 "6." It looks like a "5."21 Q. Yeah. It's not the clearest, but I think it's22 "'15" on each page, right?23 A. Correct.24 MR. PELTON: All right. Let's take a break and25 come back.

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1 (A short recess was had.) 2 Q. Ms. Skopick, you understand you're still under 3 oath? 4 A. My name is not Skopick. I'm Laura Beth. 5 Q. I'm sorry. I'm thinking Ms. Skopick because 6 she left the room. 7 Ms. Hicks, you understand you're still under 8 oath? 9 A. Yes, I understand.10 Q. Okay. Lisa's time might come. We'll see.11 MR. GARRISON: She's still Ms. Hicks.12 Q. Still Ms. Hicks. Good. All right.13 We're looking at Exhibit 4, which is your14 employment agreement. And how is the salary of15 $2,192.31 biweekly arrived at?16 MR. GARRISON: Object to the form.17 A. During the meeting with Laurie Brewis, when we18 were discussing this contract, it was just the two of us19 together in the room, a conference room like this. She20 stated to me that their company, on a normal basis,21 would either offer RNs a per-visit rate of $50 for OASIS22 visits and a $30 rate for regular visits or a salary. I23 opted to take the salary at that time.24 Q. Did you negotiate the amount?25 A. I did not.

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1 Q. So she offered that amount and you accepted? 2 A. Yes. 3 Q. In paragraph 2.b., it says you were expected 4 to maintain an average of 17 patient visit productivity 5 points per week, and that's crossed out and it says 6 "27"? 7 A. Correct. 8 Q. What are patient visit productivity points? 9 A. Each patient visit was assigned a certain10 number of productivity points of which those were set by11 the company.12 Q. Do you recall what they were? In other words,13 what --14 A. How many points?15 Q. -- points were associated with which type of16 visit?17 A. I don't recall the exact amounts --18 Q. All right.19 A. -- off the top of my head.20 Q. I'm sure we can find a record on that.21 Paragraph 19 refers to work requirements, and22 it mentions on-call time?23 A. Correct.24 Q. It says you're not expected to fill a regular25 on-call rotation as part of your regular schedule. You

Page 52

1 may be required to work a reasonable amount of extra 2 hours in the form of on-call, extra shifts, et cetera. 3 What was the on-call rotation or extra hours 4 that you were assigned under this contract? 5 MR. GARRISON: Object to the form. 6 Q. Did you do on-call time after executing this 7 agreement? 8 A. Yes. 9 Q. How often?10 A. At the time that this was signed, I was the11 only RN within the agency.12 MR. GARRISON: I was just clearing my throat.13 A. Oh, that's okay. I was the only RN within the14 agency. So my call schedule was different at different15 times, within the agency, depending on the number of16 staff that we had for RN field nurses. In the17 beginning, I was every other weekend, which I shared18 with my clinical nursing supervisor.19 Q. Who was that?20 A. Her name was Nicolle Fleck, N-i-c-o-l-l-e21 F-l-e-c-k.22 Q. And this every other weekend changed at some23 point?24 A. Yes, when they hired two new nurses.25 Q. Who were they?


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Page 53

1 A. Mary Jane Stahr, S-t-a-h-r, and Clarissa -- 2 I'm sorry. I'm not remembering her last name right now. 3 Q. That's all right. When were they hired? 4 A. They were hired, approximately, July of 2016. 5 Q. At the same time? 6 A. Yes. 7 Q. Did your on-call time or on-call assignments 8 reduce at that point? 9 A. Not until they were trained. I had to train10 them on the job.11 Q. All right.12 A. Neither of them had home health experience in13 the past.14 Q. So part of your responsibility was to train15 them?16 A. Was to train them.17 Q. That would involve going out on visits with18 them?19 A. Correct.20 Q. Anything else?21 A. Teaching them the charting system, talking22 them through the normal process of being a home health23 nurse, how to evaluate a patient in a home by yourself24 without a supervising physician present in the room with25 you.

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1 Q. How long until they started taking over some 2 of the on-call weekends that you were assigned? 3 A. I don't recall the exact date of when they 4 started. I'm thinking it was within four to six weeks 5 of their start date. 6 Q. Once that occurred, how often were you 7 assigned on-call? 8 A. I was on-call every third weekend, because 9 then there were three active RNs in the agency.10 Q. Did Ms. Fleck no longer do it?11 A. She did not, unless someone called in sick or12 someone was unavailable. To my knowledge, she did not13 any longer.14 Q. Did the every third weekend continue then15 through the remainder of your employment?16 A. To my knowledge, yes.17 Q. Do you recall whether Ms. Brewis or anyone18 else, after November 17th, 2015, indicated to you what19 constituted part-time or full-time status in terms of20 workload?21 A. After the date that this was signed --22 Q. Yes.23 A. -- you're saying?24 I don't recall ever having a conversation25 regarding part-time or full-time --

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1 Q. Do you recall -- 2 A. -- requirements after that. 3 Q. I'm sorry. I didn't mean to cut you off. 4 A. After that date. 5 Q. Do you recall if it had something to do with 6 the 17 versus 27 productivity points? 7 A. I do recall productivity points being 8 discussed, whether I met them or not, which I could see 9 my productivity points in the tablet to know whether I10 was meeting my productivity or not.11 Q. You refer to the "tablet." That's the12 Homecare Homebase system?13 A. Yes.14 Q. Do you have anything else? Do you recall15 anything else you discussed with Ms. Brewis at the time16 you signed this agreement?17 A. I do not.18 Q. Was this agreement ever changed or amended19 after it was signed?20 A. No.21 Q. Did your pay ever change after it was signed?22 A. I did receive a 2 percent raise at some point23 within the time frame that I worked for them.24 Q. Would that be reflected in Ultipro?25 A. I assume it would be somewhere in that

Page 56

1 program. 2 Q. You mentioned, before the break, that you felt 3 you were not compensated adequately the entire time that 4 I worked for Great Lakes Caring. What did you mean by 5 that statement? 6 A. I felt, for the number of hours that I put in 7 on a daily and weekly basis, that my compensation was 8 not adequate. 9 Q. But that's what you agreed to in the10 employment agreement, right?11 A. Correct.12 Q. Did you ever voice that concern to anyone?13 A. I did.14 Q. Who did you voice that concern to?15 A. I spoke regarding that to Nicolle Fleck.16 Q. On what occasions?17 A. My nursing supervisor.18 Q. When did you talk to Nicolle Fleck about it?19 A. I'm sorry. What did you say?20 Q. When did you speak to Nicolle Fleck about this21 compensation issue or hours issue?22 A. I don't recall a specific date, but I did23 speak to her.24 Q. Do you recall, roughly, a time frame?25 A. It would have been prior to the time when they


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1 hired the other two RNs in the agency when I was the 2 only RN working -- 3 Q. Okay. 4 A. -- and covering a lot more time on-call. 5 Q. Did you feel some relief after these other two 6 were hired in July of '16? 7 A. Once they had been trained. In the beginning, 8 there was more on my plate to train them and do my own 9 job at the same time.10 Q. All right. Any other ways in which you felt11 you weren't compensated adequately the entire time you12 worked for Great Lakes Caring?13 MR. GARRISON: Object to the form.14 A. Can you restate your question?15 Q. Yeah. Your testimony was you felt you were16 not compensated adequately the entire time that I worked17 for Great Lakes Caring. You just testified that you18 thought you were undercompensated for the number of19 hours you were putting in, at least prior to the hiring20 and training of Ms. Stahr and Clarissa, whose last name21 you can't remember.22 My question is whether there's any other ways23 in which you felt you weren't compensated adequately?24 A. I felt the time I was putting in kept me away25 from my home and my husband and his needs. I did not

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1 feel I had an adequate amount of time off of work or 2 away from my work on a daily basis. 3 Q. Ultimately, that led to your decision to 4 change careers? 5 A. Correct. 6 Q. Or change employers, I should say? 7 A. Correct. 8 Q. You were still in a career of medicine, in 9 general?10 A. Yes.11 Q. All right. Anything else, in terms of your12 compensation, while at Great Lakes Caring?13 A. Not that I recall.14 Q. At the time you met with Ms. Brewis in15 November -- I guess, on November 18th, 2015, did you16 discuss with her your hours or your compensation level?17 A. We discussed my salary, what my salary would18 be. That would be my compensation level.19 Q. Sure. Okay. Did you express any unhappiness20 to Ms. Brewis about the terms and conditions of your21 employment up to that point?22 A. No.23 Q. Did you discuss any displeasure with this24 agreement or what would be expected of you going25 forward?

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1 A. No, not at that time. 2 Q. You said you spoke to Ms. Fleck about your 3 concerns on adequacy of your compensation and hours. 4 Was that on one occasion or more than one occasion? 5 A. On, at least, two occasions that I can recall. 6 Q. How far apart were the two conversations? 7 A. I would say a period of 30 to 60 days. 8 Q. You believe this was prior to the hire of 9 Ms. Stahr and Clarissa?10 A. Correct.11 Q. Was Ms. Stahr and Clarissa still employed when12 you left?13 A. Yes.14 Q. Had they hired any other nurses at that point?15 A. Not to my knowledge.16 Q. And were they RNs?17 A. Yes. RN case managers was their title.18 Q. Same as you?19 A. Correct.20 Q. Other than speaking to Ms. Fleck on, at least,21 these two occasions about your hours and compensation,22 did you raise your concerns with anyone else at the23 company?24 A. Not to my knowledge. I only spoke to Nicolle,25 my direct supervisor.

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1 Q. All right. When you were on-call, what was 2 required of you? 3 A. When we were on-call, we carried -- we all 4 carried a personal -- I'm sorry. We carried a business 5 cell phone, along with our own personal cell phone, 6 which was not to be used during business hours. But we 7 carried a business cell phone provided by Great Lakes 8 Caring. 9 When that cell phone was to ring, we were10 expected to answer it. Usually it was either, maybe, a11 physician calling us back that we had left a message12 for, an on-call physician that we had called and left a13 message for. Usually it was a call center14 representative calling to let us know about a patient15 who had called in requesting to be seen, or we were16 receiving information over the phone regarding17 information regarding a patient who needed to be seen, a18 referral that had come in after hours or over the19 weekend that needed to be seen on a specific time line.20 Q. You said you would be on-call for a weekend.21 What were the hours you were on-call?22 A. Our call time would begin Friday evening at23 5:00, when the local office closed, and our call time24 would end on Monday morning at 8:00, when the local25 office reopened.


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1 Q. And you would receive calls either from a 2 physician or a call center rep? 3 A. Correct. 4 Q. Anyone else? 5 A. Not that I recall. 6 Q. How often, on a typical weekend, did you 7 receive calls on the business cell phone? 8 A. That would depend on the number of referrals 9 that happened to come in.10 Q. So it varied?11 A. It varied.12 Q. All right. It could be several?13 A. It could be several.14 Q. It could be zero?15 A. It could be none.16 Q. And other than answering the phone and maybe17 speaking to a physician or call center rep, you're18 saying there would be occasions, if it was a new19 referral, where you would have to go out and see that20 new patient?21 A. Correct.22 Q. Do you call them patients; am I using the23 right term?24 A. Clients/patients.25 Q. Clients?

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1 A. People use different phrasing. 2 Q. What should we settle on today? 3 A. I always said client myself. 4 Q. We'll talk about clients then. So it would be 5 a new client, and you'd go out and do a new start? 6 A. Correct. 7 Q. Were there any other types of calls or visits 8 to client homes that you would have to do while on-call? 9 A. On occasion, there may be a patient whose10 certification was ending and had not been able to be11 seen on Friday, the day before the call began. We12 weren't allowed to go and see patients the same day that13 they saw a physician.14 So if their certification was ending, say, on15 a Saturday or a Sunday and they had a doctor's16 appointment on Friday, or depending on other referrals17 during the week, if we had not been able to see them,18 physically get to their home in the time, then we would19 go and see them for a certification visit on the20 weekend. That happened rarely. Usually more it was21 admission visits or an acute visit for a patient who22 needed assistance in their home and needed to be seen by23 the RN that day.24 Q. I assume there's some admissions that could25 wait until Monday?

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1 A. There may have been some admissions. 2 Q. In which case, they probably wouldn't call you 3 at all? 4 A. Correct. 5 Q. All right. Now, you said you might get a call 6 and it would require a visit, right? 7 A. Correct. 8 Q. And that would all get logged into their 9 Homecare Homebase system?10 A. Correct.11 Q. And if you received a call and it did not12 require a visit, maybe you talked to a physician, does13 that get logged into the Home- --14 A. Yes.15 Q. Does it get logged into the Homecare Homebase16 system?17 A. Yes.18 Q. So any activity, work-related activity, gets19 logged into the Homecare Homebase system?20 A. Correct.21 Q. While on-call, you could use your personal22 phone, right?23 A. While on-call?24 Q. Yeah, on the weekend.25 A. To make my own personal calls --

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1 Q. Yes. 2 A. -- or receive calls personally? 3 Q. Yes. 4 A. Yes. 5 Q. And you were free to go about your activities 6 on a weekend? 7 A. Correct. 8 Q. So you might go to church on Sunday? 9 A. Correct.10 Q. You might go to choir rehearsal, right?11 A. For my chorus?12 Q. Yes.13 A. It's never on the weekend, so, no.14 Q. But you could have, if you wanted, if you had15 a special rehearsal?16 A. Correct.17 Q. And only then, if you got a call, would you18 have to kind of stop what you're doing and respond to19 the call?20 A. Correct.21 Q. Was there an expected response time, do you22 know?23 A. In response to a call, returning a call?24 Q. Yes.25 A. Or --


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1 Q. Yes. 2 A. We would receive calls from the call center. 3 There were also times we also received an e-mail from 4 them, or they would call us and say, "I'm sending you an 5 e-mail on this referral." And there was a set form that 6 they would send us in our e-mail to give us information 7 about the patient. 8 Q. Mm-hmm. 9 A. About their name, address, what problem they10 were having, those different things. And then we were11 to use that information to contact the patient and set12 up an appointment to go and see the patient if it was a13 referral. We were expected to answer the phone, when it14 rang, to keep our call phone on us at all times, and15 respond appropriately depending on what the problem was16 that the patient had and needed to be seen for.17 Q. So if it -- you keep it on buzzer if you're at18 some activity, or a movie or something?19 A. I just kept it on the ringer myself so I20 wouldn't miss a call.21 Q. If you were at Sunday church service, would22 you leave it on ringer?23 A. I would see the screen light up and leave the24 room.25 Q. Okay. All right. And was there any sort of

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1 policy or procedure on response time? 2 A. I was never advised of a policy regarding 3 response time. My response time was the same, and I 4 returned the call immediately. 5 Q. Okay. Were you ever disciplined or spoken to 6 or coached about not responding quickly enough? 7 A. No. 8 Q. Sitting here today, are you able to recall, 9 typically, how many times you might get called on a10 weekend?11 A. I can't recall an exact number of times.12 Q. Okay. But that would be reflected in Homecare13 Homebase?14 A. Yes.15 Q. What about Kinnser, did it also log any of16 these weekend on-call calls?17 A. It did not automatically count them, but I had18 to go in and put a note --19 Q. Yeah. You would have to log them?20 A. -- in a patient's chart. So, yes, there was a21 log that was initiated by our note of what we did or22 received.23 Q. Okay. So you described earlier there were a24 number of types of visits that you would make as an RN25 prior to Great Lakes purchasing First Care Healthcare

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1 and previous, right? 2 A. Yes. 3 Q. Did that change at all? 4 A. Did the types of visits change? 5 Q. Yes. 6 A. No. 7 Q. Did your work duties change? 8 A. No. 9 Q. Is everything pretty much the same before and10 after?11 A. To my knowledge.12 Q. But Kinnser changed to Homecare Homebase?13 A. Correct.14 Q. At some point, you changed to salary?15 A. Correct.16 Q. Any other changes you can recall, in terms of17 the conditions of your employment, before and after18 November 13th?19 A. Not that I'm aware of.20 Q. So you referred to OASIS, which is some sort21 of Medicare certification system, right?22 A. Correct.23 Q. And the types of visits you might have would24 be a start of care?25 A. Correct.

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1 Q. A resumption of care? 2 A. Correct. 3 Q. Recertification? 4 A. Correct. 5 Q. Those are the 60 days we talked about earlier? 6 A. Yes. 7 Q. Or a discharge? 8 A. Correct. And there was also a transfer of 9 care visit. When a patient was transferring out of our10 care, in home care to hospitalization, there was not a11 physical visit in their home, but there was a12 documentation that that patient was leaving our care and13 going to a different type of care.14 Q. Okay.15 A. There were also supervisory visits they were16 called.17 Q. During OASIS?18 A. Sometimes during OASIS, sometimes without19 OASIS.20 Q. All right.21 A. The RNs were required to supervise the LPNs22 and the home health aides --23 Q. All right.24 A. -- within the agency, on a specific time25 frame.


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1 Q. All right. So those would be supervisory 2 visits? 3 A. Correct. 4 Q. But they're combined with other types of 5 visits, right? 6 A. Correct. 7 Q. And there's non-OASIS visits, right? 8 A. Correct. 9 Q. Which made a difference in how you got paid10 while at First Care Healthcare?11 A. Yes.12 Q. So there was an RN skilled nursing visit?13 A. Correct.14 Q. Was that different than a skilled nursing15 visit?16 A. Usually, when I was assigned an RN skilled17 nursing visit, it included a supervisory portion, and18 that is the reason why that visit is required to be19 completed by an RN.20 Q. There would be wound care visits?21 A. Correct.22 Q. Skilled nursing assessments?23 A. Correct.24 Q. Discharge?25 A. Correct.

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1 Q. You mentioned supervisory visits? 2 A. I'm sorry? 3 Q. You mentioned supervisory visits? 4 A. Yes. 5 Q. Any other kinds of visits you can recall? 6 A. Not that I can recall -- 7 Q. All right. 8 A. -- other than the ones we've already listed. 9 Q. And then, generally -- but I assume not10 exclusively -- OASIS visits took a little longer than11 the other visits?12 A. Correct.13 Q. Okay. Is it all right if we call them OASIS14 and regular?15 A. Yes.16 Q. And of the OASIS visits we identified, what17 would typically take the longest?18 A. Normally, the longest visit that we had was an19 admission visit.20 Q. So start of care?21 A. Start of care --22 Q. Mm-hmm.23 A. -- or admission.24 Q. Okay. And then maybe a resumption of care?25 A. Resumption of care, when they came home from

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1 the hospital, would probably be second in line. 2 Q. And then a recertification? 3 A. Correct. 4 Q. And then a discharge? 5 A. Correct. 6 Q. For a transfer of care, you didn't even do a 7 visit, right? 8 A. Right. There was no inpatient or in-home 9 visit for that visit type.10 Q. Let's talk about the Kinnser system. So when11 you did a visit, you would log the visit into Kinnser,12 right?13 A. Correct.14 Q. And you would manually input the day and time15 of the visit?16 A. No.17 Q. How did that happen?18 A. That was generated on a schedule page, and19 then you clicked on the visit type that was next to the20 patient's name and it would log the time that you21 entered that visit.22 Q. Okay. So you go into -- well, you tell me.23 You go to a client for a visit, and then what happens?24 A. In the screen, when you logged into the25 system, there was a schedule set up for your day, on the

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1 first page, that would come up in the system. It would 2 have your list of patients, the date. It would have 3 your list of patients and what your visit type was. And 4 your visit type was a link to open up that note for that 5 type of visit, so you would click on that and it would 6 generate the time that the visit started. 7 Q. When would you click on it? 8 A. When you were in the patient's home in front 9 of the patient.10 Q. You arrive at the home and you click on it?11 A. No. You arrive at the home, you knock on12 their door, you enter their home and see that the13 patient is there, and then you start your visit.14 Q. Okay. And that would be noted, that start of15 visit is noted in the Kinnser system?16 A. It should be, yes.17 Q. All right. And then how do you conclude --18 how does the system notate the time, the day and time19 that you concluded there?20 A. It notates the day and time, at the conclusion21 of the visit, when the visit is completed and submitted.22 There was a "submit" button at the end of the visit.23 Q. Okay.24 A. And then you could save the visit, and it25 would document that time. If, for instance, you had a


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1 patient where you needed to call a physician, you called 2 the physician, and they didn't call you back before the 3 end of that visit. And so you save that visit so that 4 you can document that physician's response, in that 5 note, for that patient. 6 Q. Mm-hmm. And this is in the Kinnser system? 7 A. Yes. 8 Q. Okay. But the amount of time you're in the 9 patient's home is notated by clicking on it once you10 enter the home and start the visit?11 A. Correct.12 Q. And then how does the time, at the end of the13 visit, get logged?14 A. When you save the visit, you were to save --15 it would automatically save every page for you when you16 flip to the next page in the document. And then when17 you got to the end of the document, you could save it,18 and it would take you back to the schedule and it would19 document that time.20 Q. All right. And that's what you would do when21 you would leave the home?22 A. Correct.23 Q. And so the system, if we go back, should24 accurately indicate the dates and the times of your25 visit?

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1 A. Correct. 2 Q. All right. And then, ultimately, once 3 documentation was done, or physician calls, or whatever, 4 the visit gets submitted? 5 A. Correct. 6 Q. Is that the right term? 7 A. Correct. 8 Q. And who is it being submitted to? 9 A. Once in Kinnser, once we've submitted the10 visit, it went from us to our nursing supervisor, who11 would then review the document for completeness, make12 sure there were no blanks in the document, nothing had13 been omitted, as far as a checkbox or a group of14 questions where there wasn't an answer there, and then15 she would submit it on from there.16 Q. Okay. And what designates when you're17 submitting it to the nursing supervisor? Is there18 anything in Kinnser that designates when that goes to19 the nursing supervisor?20 THE REPORTER: I'm sorry. I didn't hear.21 Q. Is there anything in Kinnser that designates22 when that goes to the nursing supervisor?23 A. Nothing in the program. We submitted it to24 her when the visit was completed. You hit "submit," at25 the end, to remove that visit from your tablet and send

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1 it off. 2 Q. All right. The date and time would be 3 notated? 4 A. Yes. 5 Q. And you can't do a visit without entering 6 something in Kinnser, right? 7 A. Can't do a visit without charting -- 8 Q. Yes. 9 A. -- in the system?10 Q. Right.11 A. No.12 Q. Okay. So, in other words, if we look back at13 Kinnser, every single one of your visits should be14 logged as to the date and time of those visits?15 A. Correct.16 Q. All right. And you couldn't get credit for a17 visit without logging it into Kinnser, right?18 A. Correct.19 Q. And you always tried to log as accurately as20 you could?21 A. Absolutely.22 Q. You never falsified a visit?23 A. No.24 Q. You wouldn't do that?25 A. No. Never.

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1 Q. And then once your -- once you're in the home 2 and you click the box to start your visit, or you click 3 on the schedule to start your visit -- 4 A. Yeah. 5 Q. -- what then takes place in terms of what 6 you're going to have to input into Kinnser? 7 A. What was my process for seeing a patient? Or 8 I'm not sure I'm understanding your question. 9 Q. Well, my question went more towards Kinnser,10 although I think it probably overlaps with what you're11 doing with the patient, right?12 A. It does.13 Q. Okay. So just describe that process to me.14 A. You're doing a nursing assessment on that15 patient. And while you're assessing that patient,16 you're inputting information from that assessment, vital17 signs. You're talking to them about the questions18 within the form and putting their answers with that as19 well. There is a lot of overlap, during the visit,20 between your documentation and your actual hands-on21 assessment with the patient.22 Q. So you'd have, you said, vitals. So, for23 example, a blood pressure, you'd take a blood pressure24 and you'd put it into Kinnser?25 A. Correct.


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1 Q. And certain other activities you engage with 2 the patient on are questions and answer. You make your 3 observation or you ask a question and you get an answer 4 and you put it into Kinnser? 5 A. Correct. 6 Q. And this all takes place during the visit? 7 A. In the home. 8 Q. In the home, right? 9 A. Yes.10 Q. What type of documentation -- you said11 sometimes you have to -- I can't remember the term you12 used -- put it on hold?13 A. Save.14 Q. Save?15 A. Save the visit.16 Q. You'd save the visit so you can go back and17 complete something later?18 A. Correct.19 Q. What types of things would you be charting or20 putting into Kinnser for that particular patient visit21 that you didn't do in the home?22 A. I wouldn't be documenting any process that23 hadn't been physically assessed or a question that24 hadn't been answered. There were certain types of25 questions, within the OASIS, where it was based on your

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1 observation of the patient during the exam, so those I 2 chose to answer after I left the patient's home. I did 3 keep a notepad with me and jotted down observations of 4 the patient, as well as there were times with patients 5 who had multiple wounds, and you would use a wound 6 worksheet to measure their wounds from visit to visit. 7 And I would jot down those wound measurements and then 8 put them into the system at a later time because of the 9 amount of time it required to input them in the system10 at that time to try to stay efficient with the amount of11 patients I had to see during the day.12 Q. Why wouldn't you just put it right into the13 system if you're going to bother to write it down?14 A. Because there were times where I had such a15 great number of patients that I needed to see and drive16 time in between them that I would never have been able17 to see them all in one day.18 Q. So you're saying it was faster to write it19 down on a pad of paper than to put it right into the20 system?21 A. Than put it in when I was right under the22 patient's nose in the visit, so I could finish the visit23 with them, document what had to be documented in their24 home, finish their visit, and complete their physical25 care of them, and then leave their home and move on to

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1 the next patient. 2 Q. And the types of items you would jot on paper 3 and later transfer after the visit you said were 4 observations required by OASIS? 5 A. Correct. 6 MR. GARRISON: Object to form. 7 Q. And you said there were some wound care 8 observations you would make and measure, and you'd put 9 that down later?10 A. Correct.11 Q. Did you always do them later, or sometimes12 you'd do them --13 A. Sometimes they were done in the visit.14 Q. So it might depend on how many visits you had15 in the day?16 A. Correct.17 Q. Any other types of visit activities that are18 required to be noted in Kinnser that you would choose to19 do after the visit rather than during the visit?20 A. No, other than the narrative note that was21 required at the end of every visit.22 Q. Once you did a start of care and did23 narratives, those remained in Kinnser, right?24 A. Correct.25 Q. So on a subsequent visit, you could review

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1 that and then edit it if it needed updating or changing, 2 right? 3 A. I'm not aware that we could ever edit anything 4 that we did unless we typed a brand-new note and stated 5 that there had been something, a typo or something had 6 been done incorrectly. 7 Q. But you could cut and paste that prior visit 8 note into the new visit and -- 9 A. That capability may have been there, but I10 never did that.11 Q. Can you wait? Please, hold on.12 MR. GARRISON: I'd ask that you let her finish13 answering her question.14 MR. PELTON: I apologize.15 MR. GARRISON: Including my objection, there's16 numerous responses to her questions that she's not been17 able to complete because you're interrupting her. And,18 of course, I'll instruct you as well. If you would,19 please wait until he's finished with his question. I20 know the court reporter is struggling to write all of21 this down.22 Q. You could cut and paste the prior visit note23 into the new visit note and then edit it for that24 particular visit, correct?25 A. I never did that.


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1 Q. Never? 2 A. Not to my knowledge. 3 Q. Are you sure about that? 4 MR. GARRISON: Object to the form. 5 Q. I just want you to be sure. 6 A. Not to my knowledge. 7 Q. Okay. Were some of the fields in the Kinnser 8 visit called a report, a log? 9 A. Note.10 Q. Note?11 A. You mean what we would call it?12 Q. A chart?13 A. A chart.14 Q. Okay. In the Kinnser chart, for a particular15 visit, are there some fields that are auto filled?16 A. The patient's name, usually their date of17 birth, their address would have been in there as an auto18 fill. I'm trying to think if there were any other19 fields that would have been.20 In Kinnser, the wound care worksheet portion21 of that note would have carried over from visit to22 visit. The measurements that were taken on a previous23 visit would have carried over so that you could see them24 in that note to refer to, rather than having to go out25 of that note and open the previous note and look at

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1 those measurements to compare, so you knew whether your 2 wounds were healing or not. 3 Q. Now, when you chose to take a documented note 4 and complete Kinnser observations or narratives, or 5 notes I guess you called them, later, what did you do 6 with the paperwork, the handwritten? 7 A. Shredded it. 8 Q. And when you chose to do it that way, when 9 would you complete the chart?10 A. I would usually attempt to complete it the11 same day.12 Q. Were there times you didn't?13 A. There were times I was unable to.14 Q. Okay. How many visits might you have in a day15 when you decided you would take handwritten notes and16 put them in the system later rather than doing it on the17 spot?18 MR. GARRISON: Object to the form.19 A. I don't recall.20 Q. If you had one or two visits in a day, would21 you typically do it all within Kinnser?22 A. On the same day?23 Q. During the visit.24 A. During the visit, if I was able to, yes, if I25 wasn't waiting for a return phone call from a physician

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1 or something that I needed to wait to document. 2 Q. One of the visits we talked about or that you 3 identified anyway was a supervisory visit? 4 A. Correct. 5 Q. This is when you're as the lead RN or as the 6 RN who had been there training these new folks -- 7 A. Mm-hmm. 8 Q. -- that you mentioned earlier? 9 A. The RNs you're referring to?10 Q. Yes.11 A. I did not have to supervise. I had to observe12 their work and supervise their work while I was training13 them. After that, I did not have to do a supervisory14 visit on my fellow RNs.15 Q. Who did you do supervisory visits with?16 A. The LPNs and the home health aides.17 Q. Were you ever in the patient's home or the18 client's home with another employee when you did that?19 A. When I supervised them, on occasion, yes.20 Q. How often did that occur?21 A. I would say -- I can't recall a percentage --22 Q. Okay.23 A. -- of the amount of time. There were times24 when we were both there together.25 Q. On that type of visit where you're both there

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1 together, would you make a separate Kinnser entry, or is 2 it logged in by the other employee that you're 3 supervising? 4 A. No. I would have had my own visit note to 5 document my supervision of that staff member. 6 Q. That's a much shorter form, I take it? 7 A. Yes. 8 Q. That other employee is doing all of the main 9 Kinnser --10 A. Hands-on. They would have been doing the11 hands-on assessment. So I would have been observing12 them and supervising them and then speaking with the13 patient regarding that other staff member.14 Q. You mentioned that the -- once you're done15 with the Kinnser visit chart, it would get sent to a16 supervisor?17 A. Correct.18 Q. That was Nicolle Fleck?19 A. She was the next person in line that the note20 would go to.21 Q. And you said it might come back if there were22 mistakes or incomplete entries?23 A. If she saw something in the note, say, for24 instance, you selected two answers instead of just one25 or she noticed a typo, she would usually call us or have


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1 us come to the office and see the note with her, and 2 then she would send the note back to us and we would 3 have to make the correction ourselves. 4 Q. Do you recall the kinds of mistakes or 5 omissions that you typically would hear back from 6 Ms. Fleck about? 7 MR. GARRISON: Object to the form. 8 A. I don't recall specific things that she would 9 send me.10 Q. Nothing repeatedly you did wrong?11 A. Correct.12 Q. Just minor mistakes or errors?13 A. Correct.14 Q. How often would she actually ask you to come15 to the office to look at a note, rather than just16 looking at it on your laptop?17 A. Very rarely.18 MR. GARRISON: Let him finish his question before19 you answer.20 Q. You mentioned, with Homecare Homebase, you had21 a pad, like an iPad?22 A. Homecare Homebase, we had a tablet.23 Q. A tablet?24 A. I didn't tell you what the maker of it was,25 but it was a tablet.

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1 Q. What did you have with Kinnser that we've been 2 talking about? 3 A. It was an iPad. 4 Q. And so if you received a call from Ms. Fleck 5 about a quality issue or an omission or error or a 6 question, you could pull it up on your iPad at the time 7 she called? 8 A. I don't recall whether, once I submitted a 9 visit, if I could actually see that visit on my tablet10 or not once it had been submitted.11 Q. How would corrections be made or omissions be12 completed?13 A. There was a way, when we submitted our visits14 to her, she could send the visit back to us in the15 system.16 Q. All right.17 A. Usually, once it had been submitted to her,18 there was a way in the system -- the way Kinnser was set19 up, the note would change its owner to whoever it had20 been assigned to once it had gone through the flow, and21 no one else could access the note at that time, the22 actual opening of the note to be in the physical note.23 Q. How long would it take to make most of these24 corrections or complete the omissions?25 A. I would estimate no more than ten minutes.

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1 Q. So they're easy, quick things to fill in? 2 A. Correct. 3 Q. I want to get into some medical records, 4 charts, if you will, because I think it will be easier 5 to cover the things we've been talking about, if we can 6 visual it. 7 A. Okay. 8 Q. I didn't redact patient names, because I 9 thought it might be easier for you if you could -- in10 recalling back, what an issue might be or what you were11 dealing with at the time. And I failed to and should12 have redacted the Social Security numbers that are on13 there, which we will do.14 But these are going to be covered by a15 protective order in the case that requires all of us16 sitting here to keep things confidential, and I know17 you're aware of HIPAA regulations.18 A. Yes, very much.19 Q. Right. So there is a portion of this, then,20 that your counsel signed it so we can get it entered21 with the court. We've agreed to live by this until it22 gets entered by the court, and then, of course, it23 becomes a court order. Okay?24 A. Okay.25 MR. GARRISON: Instead of you advising her about

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1 that document, I would suggest we go off the record for 2 five or ten minutes -- 3 MR. PELTON: Sure. 4 MR. GARRISON: -- and, assuming she agrees with it, 5 we'll have it signed and produced. 6 MR. PELTON: Okay. Yeah. I was trying to figure 7 out if she needed to sign this or not, but we might as 8 well. 9 MR. GARRISON: Well, let's go off the record.10 MR. PELTON: Yeah. Let's go off the record.11 (A short recess was had.)12 (Hicks Exhibit 5, Stipulated13 Qualified Protective Order, was14 marked for identification.)15 Q. All right. We're back on the record. We made16 Exhibit 5 a copy of the signed protective order that17 will be submitted to the court. And so we'll operate18 under that understanding.19 I want to provide you with a chart and have20 you identify it. Let's mark it first. It will be21 Exhibit 6.22 (Hicks Exhibit 6, Documents Bates23 GLC/HICKS000001-18, was marked for24 identification.)25 Q. Do you recognize Exhibit 6 as a patient or a


(22) Pages 85 - 88




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1 client chart from Kinnser? 2 A. Correct. 3 Q. You're familiar with this type of printout? 4 A. I don't know that I ever would have seen this 5 exact layout. 6 Q. You're used to looking at it on an iPad? 7 A. Yes. 8 Q. Why don't you flip through? It looks like 9 there is a page attached then, 17 pages, 1 through 17.10 Take a moment to look through it. Okay?11 A. Mm-hmm.12 Q. You've had several minutes to look through it.13 Do you recognize the printout from Kinnser?14 A. Yes.15 Q. All right. So it appears to be, maybe, two16 documents. The first page says, "Task Details." And17 that's the first page of the exhibit that you said18 didn't look very familiar?19 A. Correct.20 Q. Are you familiar with it now that you've21 looked at the whole exhibit?22 A. Yes.23 Q. Okay. So you've seen that type of report24 before?25 A. This would have been a task that would have

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1 been sent to me from my supervisor stating that I needed 2 to put in a discharge order for this patient -- 3 Q. Okay. 4 A. -- place an order in the system that the 5 patient was being discharged from home health services. 6 Q. Where does it say that? 7 A. Where it says, under "Comments, DC order, 8 please, and thanks." 9 Q. Do you know what date that comment would have10 been sent to you?11 A. It doesn't reflect that on this form.12 Q. All right. And then the next is -- it seems13 to be labeled, "Print Preview." And, it says, "page 114 of 17," and all 17 pages are here. And this makes up15 this visit chart, right?16 A. This would be the visit note.17 Q. Visit note. All right.18 Is there any other -- well, let's start. The19 first page says the client's name. And then it says,20 "OASIS-C1 Discharge." So this is an OASIS-regulated21 visit?22 A. Wait. I'm sorry.23 Q. On the first page of the exhibit, the top24 left.25 A. Yes.

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1 Q. Right. 2 MR. GARRISON: Are you asking about 0001? 3 Q. Yes. Yes. 4 A. Under the "Task" -- 5 Q. "Task" -- 6 A. -- where it says "OASIS." 7 THE REPORTER: I'm sorry. 8 Q. Yes, the "Task Details." It has the client's 9 name.10 A. Correct.11 Q. And then, it says, "OASIS-C1 Discharge." Do12 you see that?13 A. Yes.14 Q. So this is an OASIS-regulated visit?15 A. Correct.16 Q. And all of the documentation related to this17 visit is on pages 1 through 17?18 MR. GARRISON: Object to the form.19 A. No.20 Q. What's missing?21 A. There would have been an order, in addition to22 this, put into the system.23 Q. Who puts that in?24 A. Me.25 Q. All right. What does that order consist of?

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1 A. It would have consisted of saying that the 2 patient was going to be discharged from home health 3 services due to the reason for his discharge. 4 Q. And that's a document that the comment, on the 5 first page of the exhibit, indicates is missing? 6 A. Correct. 7 Q. All right. How long is the order that has to 8 be submitted stating they're being discharged; is that 9 one page?10 A. How long is the order, my wording within the11 order?12 Q. Sure.13 A. Depending on the patient and how in depth you14 needed to be with what their reason for discharge was or15 wasn't, maybe, at the most, five or six lines of type,16 maybe not even that much.17 Q. Is the form one page?18 MR. GARRISON: Object to the form.19 A. I don't know what it would be if you printed20 it out on paper.21 Q. You're used to looking at it on the iPad?22 A. It was always electronic in the form that I23 saw it.24 Q. This, do you know what the "C1" stands for in25 the "Task Detail" description?


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1 A. I do not. 2 Q. This form indicates the visit date is 3 December 29, 2015. The time in is 12:45, and the time 4 out is 13:35, correct? 5 A. Correct. 6 Q. Those are the time stamps we discussed earlier 7 that are inputted into this when you check the box on 8 that schedule when arriving at the patient's home? 9 MR. GARRISON: Object to the form.10 Q. Is that right?11 A. When I started the visit in front of the12 patient and opened the link to open the note, it would13 have logged that time when I was physically in front of14 the patient.15 Q. Right. So you enter the home, you see the16 patient, and you log in?17 A. Correct.18 Q. Down below, under the "Work Log," there's some19 columns for "User, Status, and Date." Do you see that?20 A. Yes.21 Q. Okay. The first two entries appear to be from22 Nicolle Fleck?23 A. Correct.24 Q. And their "task created" and "updated task25 details," do you know what those entries mean?

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1 A. "Task created" would be when she created this 2 task to send to me requesting the order. I don't know 3 what "updated task details" indicates. 4 Q. Okay. Well, let me just work through that 5 with you. I was assuming that, when she says "DC order, 6 please, and thanks," that was something that was not 7 done after the visit. You're saying that was what you 8 were being tasked with doing prior to the visit? 9 A. I can't speak to when I received this task,10 whether it was prior to me entering the home that day or11 whether it was after the visit was completed and12 submitted.13 Q. Do you know if a task created relates to14 filling up your schedule for a particular day? In other15 words, it would be scheduling this for December 29th?16 MR. GARRISON: Object to the form.17 A. I don't know.18 Q. Your first entry says, "Patient signature19 created December 29"?20 A. Correct.21 Q. What is that referring to?22 A. "Patient signature created"? I'm not aware --23 Q. Okay.24 A. -- what that would refer to.25 Q. So the visit date and time is 12:45. I assume

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1 that's p.m. And then the patient's signature created is 2 12:58, so about 13 minutes later. Does that help in 3 your understanding of what "patient signature created" 4 might mean? 5 A. No, it doesn't. 6 Q. All right. The next entry is sent to QA 7 manager. Do you know what that entry means? 8 A. That means, after I submitted the note and it 9 went to my supervisor, she would have submitted it on to10 the QA manager, which would have been the coder.11 Q. Who was that person?12 A. There was a woman, whose name was Nancy, that13 was the coder. I don't know what her last name was --14 is.15 Q. It says, "Sent to QA manager," and the user is16 you. So is that you sending it to Nicolle, or you think17 it's Nicolle sending it to the coder, if you know?18 A. I don't know if Nicolle was designated as the19 QA manager or whether that was Nancy in the system. I20 don't know.21 Q. That's fine. And then the third entry with22 your name next to it, as submitted, was "signature." Do23 you know what that means?24 A. That would mean, once that chart had been25 coded, it would have been sent back to me to put my

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1 final signature on that visit. 2 Q. Do you know why 18 days would go by between 3 the visit and submitted with signature? 4 A. I don't know. 5 Q. Was that an unusual amount of time? 6 A. I would receive things back to sign in varying 7 times after visits had been -- after patients had been 8 seen. 9 Q. Mm-hmm.10 A. I didn't keep track of how long it was between11 when I submitted a note and when I received it back to12 sign it.13 Q. Mm-hmm. Going back in time to when you were14 paid on a per-visit basis --15 A. Mm-hmm.16 Q. -- was the -- what would trigger the visit for17 purposes of you getting it in your payroll? Was it the18 visit, itself, once you have a time in and out, or was19 it submitted with signature? In other words, did it20 have to be completed, or did you just have to have made21 your visit?22 MR. GARRISON: Object to the form.23 A. I don't know.24 Q. Okay. Did you track your visits to make sure25 you were getting paid for the proper number of visits?


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1 A. I did. 2 Q. Were they ever out of whack? 3 A. Not to my knowledge. 4 Q. All right. But your testimony is, you don't 5 recall what -- or maybe you never knew what triggered 6 the payment for a visit. 7 A. I don't know what actually triggered that 8 moving across to my payroll. 9 Q. All right. So whether it was the initial10 visit or the completion of the paperwork --11 A. Correct.12 Q. -- or something else, you're not sure?13 A. I don't know. Excuse me.14 Q. Go to the next page, which would be the first15 page of -- should we call this the chart?16 A. Sure.17 Q. Okay. And there's demographics. Again, it18 shows the time in and out and visit date and name of the19 patient and Medicare/Medicaid numbers, et cetera, birth20 dates. Is that all auto fill?21 A. That would have all been in the note for us,22 that information.23 Q. All right. You don't have to fill it out?24 A. Correct, unless we notice, maybe, a gender had25 not been selected. But usually all of that was

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1 inputted -- 2 Q. Okay. 3 A. -- in the note. We did not have to put it in 4 ourselves. 5 Q. Did you review the note prior to your visit, 6 or would you open it upon arriving or meeting with the 7 patient? 8 A. No. I never accessed the note until I was in 9 front of the patient in their home.10 Q. Did you -- I'm sorry. I didn't mean to cut11 you off.12 A. In their home.13 Q. Did you review anything prior to a visit?14 A. I did.15 Q. What?16 A. If I was going to discharge a patient, I would17 review what their plan of care had been during our time18 so that I would know what goals they had met, within19 their plan of care, so that I knew, during their20 discharge, to state that they had met certain goals of21 their plan of care.22 Q. So this exhibit we're looking at is a23 discharge, right?24 A. Yes.25 Q. Your testimony is, you would have looked at

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1 something prior to arriving at the home on 2 December 29th? 3 A. Yes. 4 Q. Is what you looked at contained within the 5 chart or -- 6 A. Within this note. 7 Q. Yes. In other words, a prior version of the 8 note, or what is it? What exactly were you looking at 9 prior to the visit?10 A. I probably would have looked at their last11 note for their last visit by a nurse to see if there was12 a statement by a previous nurse or a goal that had not13 been met or of a goal that had been met for that14 patient.15 At the time, when this one was completed, I16 was the only RN in the agency, so I knew every patient17 and I knew what their plans of care were and what they18 were addressing for them. So I may or may not have, for19 this particular patient, because I may have already20 known what his goals were.21 We, also, once a week, had what we called a22 team conference meeting, and we would have discussed23 what goals this patient had met or not met, at that24 meeting, prior to this discharge being scheduled.25 Q. You've used the term "note" several times.

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1 What do you mean by "note"? 2 A. This note. 3 Q. Okay. 4 A. This actual document that was completed. 5 Q. All right. What I've been calling a chart? 6 A. A chart. 7 Q. You call it a note? 8 A. Yes. 9 Q. Is that term used interchangeably at First10 Care Healthcare?11 A. We would always consider -- we would call it a12 note.13 Q. All right. So when you go into Kinnser, you14 could look under this particular patient or client, pull15 out the current note or history of notes, and look at16 it?17 A. Correct.18 Q. All right. But given you were the only RN,19 you're saying, at least, at this time, you had a pretty20 good idea of what was going on?21 A. Correct.22 Q. Were you the only RN from the time of your23 hire, in January of 2015, until the two nurses were24 hired in July of 2016?25 A. Within the agency, were there any other RNs?


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1 My supervisor was an RN, and our director of nursing was 2 an RN. And the supervisor did split the call time with 3 me, so she was out seeing patients on-call. 4 Q. Ms. Fleck? 5 A. Yes. But she was the only other one doing 6 patient care. 7 Q. After the demographics, there is a coding here 8 that seems to say "M," and then it has a code. So under 9 "Patient ID Number," it's "M0020"?10 A. Correct.11 Q. A little further down, "Discipline of person12 completing the assessment, M0080"?13 A. Correct.14 Q. Those "M" designations, that's part of the15 OASIS, right?16 A. Correct.17 Q. That means it's an OASIS chart?18 A. Correct.19 Q. Or note?20 A. Yes.21 Q. Okay. And then the information here would be22 filled out during the visit, right?23 A. Correct.24 Q. So you've got pulse, height, weight, that kind25 of thing?

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1 A. Correct. 2 Q. The next page is a risk assessment. And I see 3 a portion of this has the "M" designation and a portion 4 does not, right? 5 A. Correct. 6 Q. So does that mean the risk assessment section 7 is found on regular visits also? 8 MR. GARRISON: Object to the form. 9 A. I don't recall.10 Q. And all of this page would be done during the11 visit; is that correct?12 MR. GARRISON: Object to the form.13 A. It may not have been.14 Q. What portions would you have not have filled15 out during the visit?16 A. If I had a patient who couldn't tell me17 whether they had had a pneumonia or a flu vaccine, when18 I was physically in front of them and I needed to19 contact their doctor, call and leave a message and ask20 whether they had received their vaccine or not and wait21 for an answer to come back.22 Q. Now, if they had received a vaccine prior, in23 the fall, it would have been noted on an earlier visit?24 A. Correct.25 Q. Would that automatically auto fill into this

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1 particular visit? 2 A. I don't recall if it automatically filled in 3 or not. 4 Q. Anything else on that page you might not have 5 done during the visit? 6 A. Not that I'm aware of. 7 Q. On the next page, it starts with "Sensory 8 Status." And this is determining whether they have 9 glasses and whether that's corrected within normal10 limits, hearing, nose, that kind of thing?11 A. Correct.12 Q. And then there is another "M," category for13 speech and oral or verbal expression, right?14 A. Correct.15 Q. And those items -- so the first half of the16 page would have been filled out during the visit?17 A. Correct.18 Q. And then you get to the pain scale. And here19 you're asking the patient questions?20 A. Correct.21 MR. GARRISON: Object to the form.22 Q. And then you're noting the responses on this23 form?24 MR. GARRISON: Object to the form.25 A. That would have been both observation and

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1 verbal communication with the patient during this 2 assessment. 3 Q. And this is the type of data you would note 4 during the visit? 5 A. Correct. 6 Q. The next page gets into integumentary? 7 A. Correct. 8 Q. Did I say that right? 9 A. Yes.10 Q. And this is a skin review?11 A. Correct.12 Q. So the first part, you're noting what their13 skin looks like and feels like?14 A. Correct.15 Q. And that would be noted during the visit?16 A. Correct.17 Q. "Instruct them on measures to control18 infections," and you note "yes"?19 A. Where are you at? I'm sorry. Oh, yes. I20 see. "Instructed on" --21 THE REPORTER: I'm sorry. Just a little slower.22 A. Oh, I was just trying to notice where he was23 talking about on the page. Yes, I answered, "yes," to24 that question.25 Q. And then there is a "Comments" section. Is


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1 that filled out at the time of the visit? 2 A. I don't recall, in this particular case, 3 whether it was done during the visit or not. 4 Q. If there were a next visit, I understand this 5 was a discharge, but were there a next visit, would 6 the -- well, let me state this differently. Strike that 7 question. Let me start over. 8 Would this "Comments" section have auto filled 9 from a prior visit; do you recall?10 A. I don't recall whether that would have auto11 filled or not.12 Q. Okay. Then it gets into some "M" coded13 questions about pressure sores and that type of thing,14 right?15 A. Yes.16 Q. Looking at this particular note, it looks like17 there aren't any, so you simply checked "no." And then18 none of the rest of these questions need to be filled19 out?20 A. Correct.21 Q. And is that done at the time of the visit?22 A. Correct.23 Q. The next page appears to continue the24 questions about the status of any ulcers or sores,25 right?

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1 A. That's correct. 2 Q. And the next page is a picture you would fill 3 out to show where a wound might be, which isn't 4 applicable in this case? 5 A. Correct. 6 Q. There is a comment noted here. Is that 7 something that would have auto filled from a prior 8 visit? 9 A. No. We would have had to type that in10 usually. I'm not aware of it automatically coming11 across.12 Q. Is that done during the visit?13 A. Correct.14 Q. The next page gets to respiratory status.15 And, again, it looks like you're taking some measures16 and observing respiratory checks and noting here what17 you're finding, right?18 A. Correct.19 Q. And you do that during the visit, right?20 A. Correct.21 Q. And then there is an "M" question. Is that22 done during the visit, "M1400"?23 A. Yes.24 Q. And there is some endocrine question. The25 patient is not diabetic, so none of the rest of that

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1 needs to be filled out? 2 A. Correct. 3 Q. And if they were diabetic, would that be 4 filled out during the visit? 5 A. Yes. 6 Q. The next page has a section on cardiac status, 7 right? 8 A. Correct. 9 Q. And, again, you're taking some measures and10 noting those here during the visit?11 A. Correct.12 Q. And then there is some "M" questions about13 heart failure, and those are filled out during the14 visit?15 A. Correct.16 Q. The next page is called "elimination status,"17 and I guess this goes to the digestive system?18 A. Correct.19 Q. To put it politely. And this is all filled20 out during the visit?21 A. Correct.22 Q. There is then a section on nutrition?23 MR. GARRISON: Object to the form.24 Q. Correct?25 A. The form reflects nutrition status and

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1 neuroemotional behavioral status on this form. 2 Q. All right. And these are filled out during 3 the visit? 4 A. Correct. 5 Q. And there is a cognitive functioning section 6 with the "M" codes on the bottom half of that page, on 7 page 10 of 17, right? That's filled out during the 8 visit? 9 A. Correct.10 Q. Page 11, "ADL," is that activities of daily11 living?12 A. Correct.13 Q. And what is IADLs?14 A. I treated them as the same phrase.15 Q. All right.16 A. Activities of daily living, what they were17 able to do during -- what their normal activities were18 during their daily basis and what of those activities19 they were able to accomplish independently.20 Q. And your answers to these questions would come21 from either observation or questioning the patient or22 family member?23 A. Correct. Assessment and observation and24 speaking with the patient.25 Q. And all of this would get filled out during


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1 the visit? 2 A. It may or may not. 3 Q. What would cause you not to document this 4 during the visit? 5 A. If I had a patient whose cognitive status was 6 that they could not accurately describe to me their 7 activities of daily living or what they had been able to 8 do on their own, I would have spoken to therapy staff, 9 other LPNs, the home health aide, other disciplines that10 had been in that home to see what they had observed and11 what the patient had been able to accomplish or not12 accomplish.13 Q. Would you also ask family members who might be14 present during the visit?15 A. If they were present and I had the patient's16 permission to speak to them, I would ask them.17 Q. And then are these -- are these types of18 things that are auto filled from visit to visit and then19 either changed or not?20 A. I don't recall that they would have ever been21 brought over from another visit. We had to assess this22 on our own at each visit, as far as I'm aware.23 Q. The next page, 12, looks like a carryover of24 these activities of daily living. Do I have that right?25 A. Correct, and a listing of their medical

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1 equipment, provider, and the medication administration 2 record. 3 Q. All right. And are those auto filled? 4 A. The DME provider? 5 Q. Yes. 6 A. As far as I'm aware, I always had to put that 7 information in myself. 8 Q. And would that remain on the note from visit 9 to visit?10 A. I don't --11 MR. GARRISON: Object to the form.12 A. I don't recall, if it was put in on a previous13 visit, whether it carried over or not. I don't know.14 Q. Fine. The bottom third of the page is15 medication administration record?16 A. Correct.17 Q. It looks like nothing is filled out on this18 one?19 A. Correct.20 Q. When is this filled out normally? Or when21 needed, I should say.22 A. I don't recall ever using a medication23 administration record in Kinnser, on this note, at all.24 If, for instance, we had a patient who was completely25 homebound and they needed to have a flu vaccine, we

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1 would call that physician, get an order for a flu 2 vaccine. It would be called to a pharmacy, picked up by 3 a family member, brought to the home. We would 4 administer that vaccine to the patient and we would 5 document the date, time, and fill out this form. As an 6 example, I would use a flu vaccine as an example of 7 that. 8 Q. All right. When you said you didn't recall 9 using an administration medication record on this note,10 did you mean as to this patient?11 A. Because there is nothing filled out. There is12 nothing here, so I would not have administered anything13 that needed to be documented here, or it would have been14 filled out.15 Q. You gave me an example of what you might fill16 out for a different patient?17 A. Correct.18 Q. Got you. All right.19 The next page, 13, gets to more "M" questions.20 Are these filled out during the visit?21 MR. GARRISON: You're actually on 0014, correct?22 MR. PELTON: 13 of 17.23 MR. GARRISON: I was just making sure you were24 looking at the same thing.25 Q. Yeah. Making sure the record is clear, I've

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1 not been referring to the control label numbering. I'm 2 referring to page 13 of 17. I've been using the page 3 numbers. 4 A. Yes. 5 Q. You're with me, right? 6 A. Yes. 7 Q. Okay. So on page 13 of 17, are these all the 8 measures and questions that are filled out during the 9 visit?10 A. Yes, as long as the patient was cognitive,11 they could help me with my observation and assessment of12 this if there was no one else to speak to.13 Q. Do you recall if this particular patient had14 that cognition?15 A. Yes, he did.16 Q. Page 14, "Emergent Care" sections, are these17 all items you'd fill out during the visit?18 A. Yes.19 Q. And then, again, depending whether you20 answered yes or no, there might be more questions to21 fill out?22 A. At the top of the page.23 Q. Yeah.24 A. Like, in the "Emergent Care" section?25 Q. Right.


(28) Pages 109 - 112




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1 A. Yes. 2 Q. Page 15 of 17, are these all inputted into the 3 note during the visit? 4 A. The "Discharge Disposition," the "M2420," 5 would have been. The "Skilled Intervention" section may 6 or may not have been completed in front of the patient 7 because it was a listing of their goals that they had 8 met or not met. 9 Q. Do you recall if, in this case, it would have10 been filled out during the visit?11 A. I don't recall.12 Q. Is there anything in the note at all or from13 your recollection of this particular patient that would14 allow you to answer or to recall whether this section15 was filled out during the note?16 A. During -- I'm sorry. Can you state that17 again?18 Q. Yeah. I'm just trying to -- you said you19 weren't sure whether the skilled intervention section20 would have been filled out during the visit. And all21 I'm asking is, is there anything in the note that might22 refresh your recollection as to whether it was or was23 not?24 A. There is not --25 Q. Okay.

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1 A. -- that would lead me to believe whether I had 2 or hadn't. 3 Q. The next page is the discharge summary? 4 A. Correct. 5 Q. Is this all filled out during the visit? 6 A. This would have been, actually, a separate 7 notation on the schedule. The note, "OASIS-C1 8 Discharge," would have been one selection you could 9 select for the patient as a note, and then this would10 have been a separate document that would have said11 "Discharge Summary," and you would have entered that12 note and then filled that out.13 Q. Is this what was being asked of you on the14 first page of the exhibit?15 A. No.16 Q. Okay. And the items here -- so, for example,17 condition at discharge, current status, care summary --18 are those items that would be transferred on to the19 discharge order that's being requested on the first page20 of the exhibit?21 A. In a discharge order to the physician, there22 were times where we would include the goal set and what23 had been met and not met for that patient to document so24 the physician was aware if there were goals that had not25 been met.

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1 Q. Are these items filled out during the visit, 2 these last two pages? 3 A. The discharge summary? 4 Q. Yes. 5 A. It would have been, unless, as in the other 6 cases, if there was a patient with a cognitive status 7 and I needed to check with other disciplines regarding 8 any goals that I may have not been aware were met or not 9 met if they weren't related to a skilled nursing problem10 or goal.11 Q. The last page appears to be a continuation of12 notes from different sections. Do you see that on page13 17 of 17?14 A. I see it.15 Q. So, it says, "Skilled intervention:16 Assessment/instructions/performance continued"?17 A. Correct.18 Q. Where is it continuing from?19 A. It would have been normally, from page 15 of20 17, where it says "Skilled Intervention" section, and21 then underneath that, it says, "Assessment/Instruction22 and Performance," that's where it would be continuing23 from.24 Q. Right. So on that page 15, it says,25 "Continued," and then it picks up then on 17?

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1 A. Correct, at the top. 2 Q. And where is the discharge summary, care 3 summary, being continued from? 4 A. Let's see here. Under the "Discharge Summary" 5 page, on 16, approximately, a third of the way down, it 6 says, "Current status, needs assistance," below, and 7 then it says "Care Summary." 8 Q. Got it. 9 A. And then it says "continued" in a couple of10 different spots there.11 Q. Mm-hmm.12 A. It says, "Continued."13 Q. Okay. So this is noted as a 50-minute visit.14 And unless you had some follow-up with a physician or15 another LPN or a home care person, this would have been16 all completed within the 50 minutes?17 MR. GARRISON: Object to the form.18 Q. Is that correct?19 A. I'm not aware whether that would have been20 completed within 50 minutes or not.21 Q. It could have been. It might not have been.22 You're just not sure sitting here today?23 A. Correct.24 Q. It wouldn't be unusual for you to finish the25 documentation in a visit like this; would it?


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1 A. It wouldn't -- can you say that again? 2 Q. It wouldn't be unusual for you to finish the 3 documentation during the visit -- 4 A. Depending on -- 5 Q. -- in this type of visit? 6 A. Depending on the patient, I may have been able 7 to, and their circumstances and their plan of care -- 8 Q. Okay. 9 A. -- and cognition, as previously stated.10 MR. PELTON: It's 12:20. Do you want to break11 early, or do you need to break at 12:30?12 MR. GARRISON: Well, we can break whenever. Why13 don't we take advantage of our time? I know you want to14 finish to make your flight.15 MR. PELTON: I do. If we broke now, can we be back16 in an hour?17 MR. GARRISON: I suppose so.18 MR. PELTON: I'm going to get into another19 document. We'll go off the record.20 (Lunch break.)21 (Hicks Exhibit 7, Documents Bates22 GLC/HICS 000256-260, was marked for23 identification.)24 Q. Okay. Exhibit 7 is another chart or note, as25 we've been calling it; is that right?

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1 A. Do you have a question about this? 2 Q. Yeah. Is this another chart or note of the 3 nature we've been talking about? 4 A. It's a note. 5 Q. Okay. And what type of visit is this? 6 A. Under the "task," it says it's an RN skilled 7 nursing visit. 8 Q. This is the same patient as Exhibit 6? 9 A. Yes.10 Q. The date of the visit is November 17, 2015; is11 that correct?12 A. Yes.13 Q. And it says time in 9:10, and the time out is14 10:30, correct?15 A. Correct.16 Q. All right. And then if you turn to page 3 of17 4, there is a signature digitally signed by, it says,18 "Beth Hicks, RN"?19 A. Correct.20 Q. Is that something you manually put in?21 A. I had to click a button. If I was going to22 sign a chart, I had to click a button, and then it23 digitally put my signature. I had to put in a code, a24 four-digit code, and click a button.25 Q. And then it says the time in and out, which

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1 matches the cover page, and the date matches, right? 2 A. Correct. 3 Q. How do those times in and out get there? 4 A. How would they get on the first page or -- 5 Q. The signature page. 6 A. The signature page, the time in, is generated 7 when the note is opened. The time out is generated -- I 8 don't know if that time is generated when the note was 9 closed or when it was submitted. I don't know.10 Q. Is this extra?11 MR. GARRISON: Yeah.12 Q. And then if you look at the work log, on the13 first page of the exhibit, it says, "Patient's signature14 created November 17th at 9:17."15 Is there something that triggers the16 "patient's signature created" time stamp as opposed to17 the time in of 9:10?18 A. The "patient's signature created" would be19 when -- "patient's signature created"? Each note, when20 you signed out on the patient's house, in Kinnser and21 in -- I'm sorry. It's leaving my brain, the other22 charting system.23 Q. Homecare Homebase?24 A. Homecare Homebase, the patient had to sign in25 the chart, and it was GPS-tracked, the date, the time

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1 stamp of their signature. 2 Q. In Homecare Homebase? 3 A. And in Kinnser. 4 Q. Okay. 5 A. Both, to state that you had been in their home 6 that day. 7 Q. You're saying -- I'm sorry. I don't mean to 8 interrupt you, but you're saying Kinnser was 9 GPS-tracked?10 A. I don't know about the GPS tracking part, but11 we had to have the patient sign.12 Q. All right. And that doesn't seem to show up13 on these notes?14 A. The --15 Q. The patient signature?16 A. No. It was the separate screen.17 Q. All right. But that would be the time you're18 asking them that they're actually physically signing19 something on your pad, on your iPad?20 A. I'm not sure if that's what this reflects.21 Q. The next task entry is sent to QA manager on22 November 17, 2015, at 10:23:48 seconds, right?23 A. Correct.24 Q. All right. And then the time out -- and then25 it says, "Submitted with signature, 10:23:48," right?


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1 A. Correct. 2 Q. And then your time out is 10:30. So it looks 3 like you've completed the notes and the chart and 4 submitted it to the QA manager while still in the home 5 at the visit; is that correct? 6 A. It appears so. 7 Q. So it looks like everything was completed here 8 and submitted. All of the paperwork was completed prior 9 to leaving the home; is that correct?10 A. That's what it looks like in this instance.11 Q. Yeah. And then there's a couple of weeks12 later, on November 30, there is a signature removed and13 then completed, and then a signed document, again, by14 you. Do you see those three entries on the 30th?15 A. Mm-hmm.16 Q. What does that mean? Was there a mistake that17 you had to correct or an omission?18 A. I don't know what that reflects, where it says19 "signature removed." That's under a different person's20 name.21 Q. Yep. Okay.22 A. So I don't know.23 Q. And then it says "signed document" under your24 name. Do you know what that means?25 A. That means I signed the chart.

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1 Q. The second time? 2 A. Yes. It would be a second time, a second 3 signature time stamp. 4 Q. Is there one on -- is there a second signature 5 time stamp outside of the task list work log, I mean? 6 A. What are you saying? 7 Q. I'm sorry. You said there was a second time 8 stamp? 9 A. When it came back, I would have had to sign10 the note initially to send it to a QA manager when I11 completed the note. I would have put in my four-digit12 code and hit "send."13 Q. That would be the "submitted with signature"?14 A. On the last page.15 Q. Right?16 A. Digitally signed by me there --17 Q. Right.18 A. -- on the 17th.19 Q. And it would then show up as submitted with20 signature in the work log?21 A. Up here? (Indicating.)22 Q. Yes.23 A. On the 17th, yes.24 Q. Okay. Then you're saying it is signed a25 second time after something?

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1 A. It would come back to me for a second 2 signature once it had gone to the QA manager. 3 Q. And who is "M. Reed"? 4 A. Mary Kay Reed. She, during this time, was the 5 director of nursing. 6 Q. All right. So it looks like she removes a 7 signature, does something that says "completed." You're 8 not sure what those mean? 9 A. I don't know.10 Q. And then you have to sign it again as the11 nurse?12 A. Is there a reason why it doesn't say --13 elaborate over here? Is it just because it's the end of14 the screen and it doesn't go over that far, or what's15 this "RE"?16 Q. I don't know.17 A. I don't know what that is either.18 (Hicks Exhibit 8, Documents Bates19 GLC/HICS 000349-355, was marked for20 identification.)21 Q. Exhibit 8 is a -- it says, under "Task22 Details, SNV with LPN supervision." What does that23 mean?24 A. Skilled nursing visit with LPN supervision.25 Q. All right. And it says time is -- or the date

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1 is October 15th. The time is 10:23, and the time out is 2 11:30, right? 3 A. That's what it says here. 4 Q. And this looks like a fairly short chart 5 compared to the others we've looked at. This is six 6 pages. 7 A. There are six pages here. 8 Q. Now, the sixth page says, "SNV with LPN 9 supervision." And it's a visit assessment. It lists10 you as supervisor, and it lists the clinician as Heather11 Hamm, right?12 A. Correct.13 Q. It says, "Clinician present at time of visit,"14 and you checked the box "No"?15 A. Correct.16 Q. And then there is a number of questions, I17 guess, of the patient or client next to what you have18 put, "Excellent"?19 A. Correct.20 Q. So you're asking the client about Heather and21 then giving the rating that the client gives them?22 A. Correct.23 Q. All right. And there is a comment about24 Heather at the bottom?25 A. Correct.


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1 Q. Okay. And this is done during this 2 hour-and-seven-minute visit? 3 A. At times, yes. 4 Q. Are there other times where you go to the 5 patient's home and only for the purpose of doing this 6 one-page assessment? 7 A. I don't recall if there was a time that the 8 only thing I was there for was the supervision by 9 myself. I may have been there and only had this visit,10 this skilled nursing visit with LPN supervision, or it11 would have just said "LPN supervision," while I was12 there with another clinician, and they were doing the13 skilled nursing visit and I was only doing the14 supervision.15 Q. So you're saying there might be times where16 you were there with, say, Heather Hamm?17 A. Or another person.18 Q. And you're observing and filling this out?19 A. Correct.20 Q. And they're filling out the chart, not you?21 A. Correct.22 Q. On those occasions, would you be there23 necessarily for the entire time, or might you drop in24 for part of the visit, fill this out, and leave?25 A. There were times I was there the entire time

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1 of the visit. 2 Q. And were there times you were there for only 3 part of the visit? 4 A. There were times. 5 Q. And you're saying you're not recalling any 6 times where you would go, it wouldn't be an official 7 visit or it would be a nonbillable visit to Medicare or 8 the insurance, but you would just stop in, ask how 9 things are going with the patient, and fill out this10 type of one-page form. Do you recall doing that?11 A. I don't recall doing that.12 Q. Are you thinking you didn't, or you're just13 not recalling it?14 A. I'm not recalling if I did that.15 THE REPORTER: 9.16 (Hicks Exhibit 9, Documents Bates17 GLC/HICS 000055-84, was marked for18 identification.)19 Q. What type of visit is Exhibit 9? You've had a20 few minutes to look at the document.21 A. Mm-hmm.22 Q. The question was, what type of exhibit is23 Exhibit 9?24 A. It's an OASIS-C1 recertification or a 60-day25 recertification I've referred to earlier.

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1 Q. So this person has been in the program and is 2 being recertified for Medicare purposes? 3 A. Correct. 4 Q. All right. And this says the time in is 12:45 5 and the time out is 14:45? 6 A. Correct. 7 Q. And having looked at the document, do you know 8 why this visit took two hours? 9 A. This patient had some cognitive issues. Her10 son was always present during visits because he lived11 with her in the same home and was able to help our staff12 understand how things were going when we weren't there.13 This patient also, at different times when we cared for14 her, had wounds. She had a lot of risks because of her15 diagnoses and needed to be evaluated very fully during16 each visit.17 Q. And it looked like you had, in the last page,18 another one of these supervisory visits.19 A. Correct.20 Q. And, again, this clinician wasn't present on21 that particular occasion either?22 A. Correct.23 Q. Actually, you did two of them. It looks like24 you did one for Heather Hamm and one for Rochelle25 Carver?

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1 A. She was the home health aide. 2 Q. But neither of them were present, right? 3 A. No. 4 Q. And I'm sorry. Rochelle was, what did you 5 call her, a home health aide? 6 A. Home health aide was her title. 7 Q. Now, when you do, initially do -- at the 8 initial start of care, you would do some sort of plan of 9 care with goals and interventions and such; is that10 right?11 A. Correct.12 Q. All right. And do those carry over to your13 60-day recertification?14 A. Can you elaborate on what you mean by15 "carryover"?16 Q. Yeah. Do they stay consistent throughout the17 60 days at the point of recertification?18 MR. GARRISON: Object to form.19 A. They may or may not, depending on the20 patient's condition.21 Q. And then, on each visit, you would do an22 assessment, right?23 A. Correct.24 Q. And that would change from visit to visit?25 A. Yes.


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1 Q. All right. I'll mark, as Exhibit 10, another 2 chart for the same person/patient that is not yet 3 stamped confidential and produced pursuant to a 4 protective order or control label, but we would consider 5 it to be under the protective order. 6 MR. GARRISON: Say that again. 7 MR. PELTON: Yeah. We didn't have an opportunity 8 to stamp it. 9 MR. GARRISON: You're going to stamp it as10 confidential?11 MR. PELTON: Right. And we're going to consider it12 as it being under the protective order that was marked13 earlier as Exhibit 5.14 THE REPORTER: 10.15 (Hicks Exhibit 10, Resumption of16 Care, was marked for17 identification.)18 Q. All right. Ms. Hicks, I would like you to19 keep Exhibit 9 out at the same time. Exhibit 10 is what20 type of visit?21 A. It says it's a resumption of care after22 inpatient stay.23 Q. What does that mean?24 A. That patient had been transferred out to a25 hospital or a facility and then came back into our

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1 services. 2 Q. Okay. 3 A. So we would have had to go out and formally 4 assess the patient and resume their care with our 5 agency. 6 Q. All right. And this is the same patient as in 7 Exhibit 9 that had been recertified on December 3rd? 8 A. Correct. 9 Q. And the visit date here is January 12th, 2016?10 A. Yes.11 Q. So this person had some -- had been12 hospitalized or had been out of the home in between13 those dates?14 A. Yes.15 Q. If you go to page 18 of Exhibit 10, and then16 go to page 16 of 29 of Exhibit 9, under the section on17 cardiovascular --18 A. Mm-hmm.19 Q. -- the peripheral pulses, cap refill, and the20 comments are identical on both charts; is that correct?21 A. They are.22 Q. And do you know if the -- if hose carried over23 from the prior chart; in other words, did those auto24 fill on 10 from Exhibit 9?25 A. Not to my knowledge.

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1 Q. So you retyped them in as they are here, or 2 you're not sure? 3 A. I would have had to have retyped them in. 4 Q. Looking at the next page, 19, "Additional 5 Orders," comparing that to page 16 of Exhibit 9, those 6 are identical orders, correct? 7 A. Yes. 8 Q. And the same with "Additional Goals"? 9 A. Yes.10 Q. Is it your testimony those auto fill, or that11 you retyped them in verbatim?12 A. That was auto filled.13 Q. Okay. Go to page 23 of 32, on Exhibit 10, and14 look at page 20 of 29 on Exhibit 9.15 Under "Mental Status," the boxes for16 "oriented" and "forgetful" are both checked, right, on17 both documents?18 A. I'm sorry. Can you repeat?19 Q. Yes. Under "Mental Status," comparing page 2320 of Exhibit 10, and page 20 of Exhibit 9, the mental21 status are both checked the same, correct?22 A. No, they're not.23 Q. Okay. But one has checked "oriented," and the24 other "forgetful"?25 A. Correct.

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1 Q. Okay. And what's different? 2 A. On this document, on page 20, the patient was 3 oriented to person, place, and time and was not 4 forgetful. On page 23 of 32, the patient was oriented, 5 but forgetful. 6 Q. They're both checked "oriented" and 7 "forgetful," right? 8 A. No. 9 Q. Where are you looking?10 A. Oh, here. I'm looking up here, where it says11 "neurological, person, place, and time," and "forgetful"12 is not checked. I'm up higher on the page than you.13 Q. On which exhibit?14 A. This is 9. Under "neurological," on the left15 side, where it says "oriented to person, place, and16 time," I thought that's where you were.17 Q. I see.18 A. Not at the bottom of the page. If we're going19 for the bottom of the page, they match, "oriented" and20 "forgetful."21 Q. Okay. So on page 20 of 29, on Exhibit 9, it22 says, "oriented to person, place, and time"?23 A. Under the "Neurological" section.24 Q. Right. And where does that compare on page --25 on Exhibit 10?


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1 A. The previous page, page 22. 2 Q. Mm-hmm. 3 A. Under "Neurological, person, place, and time." 4 Q. Okay. So those match? 5 A. Those match. 6 Q. All right. And then further down, page 20, on 7 Exhibit 9, it says, "Oriented and forgetful"? 8 A. Under "Mental Status." 9 Q. Right. And it says the same on page 23?10 A. On both documents.11 Q. Now, are those inconsistent?12 A. No. They're the same.13 Q. So you can be oriented to person, place, and14 time, but forgetful? In other words, under15 "neurological," it's not checked?16 A. Right.17 Q. But down below it is checked. Is there a18 difference?19 A. A patient can be forgetful, but still be able20 to tell me who they are, where they are, and what time21 it is, what month it is, what day it is, what year it22 is, and they can be confused about something else or23 forgetful about something else, like forgetting to take24 their medication.25 Q. So let me ask it this way. What's the

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1 difference between being forgetful under the 2 neuroemotional and behavioral status and being forgetful 3 under mental status? 4 A. There is no difference. Forgetful is 5 forgetful. 6 Q. Okay. So should the box have been checked 7 differently up above, under "neuroemotional behavioral 8 status"? 9 A. Yes. It should have been checked "forgetful,"10 as well.11 Q. And that's not checked on either chart, right?12 A. Correct.13 Q. So they're the same; the same mistake, right?14 A. Correct.15 Q. Okay. And then under "activities permitted"16 and "musculoskeletal," all of the same boxes are17 checked, right?18 A. Where are you at? I'm sorry.19 Q. On page 23 of Exhibit 10 and comparing page 2120 of Exhibit 9.21 A. Correct.22 Q. And these items we're looking at, in terms of23 the neuroemotional, behavioral, and mental status24 activities, these are all what you'd call an assessment,25 right?

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1 A. Correct. 2 Q. That's something you should do each time 3 you're there? 4 A. Yes. 5 Q. All right. 6 A. And something I did do every time I was in the 7 patient's home. 8 Q. Okay. But we have the same mistake on both. 9 And my question is, did they auto fill from one to the10 next, and then you have to change it, or is it a blank11 sheet, the second time, and you have to check them?12 A. No. To my knowledge, I had to check the box13 each time.14 Q. Okay. That's your recollection.15 A. Yes.16 Q. And how would you explain making the same17 mistake twice on the forgetfulness inconsistency?18 MR. GARRISON: Object to the form.19 A. I simply didn't check the box --20 Q. Okay.21 A. -- twice in a row.22 Q. Let's go to page 31 out of Exhibit 10, okay,23 and on page 26 of Exhibit 9.24 A. 26, he said.25 Q. Page 26 of Exhibit 9, page 31 of Exhibit 10.

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1 And this is under the section "Skilled 2 Intervention." Do you see those, Ms. Hicks? 3 A. Yes. 4 Q. All right. Under "Assessment, Instruction, 5 and Performance," this is part of the assessment, right? 6 A. Yes. 7 Q. And the entries are identical concerning the 8 congestive heart failure, right? 9 A. Correct.10 Q. And then that's continued on page 27, the note11 entry, right, and on page 32?12 A. Right.13 Q. Okay. And those are all the same, right?14 A. No.15 Q. There is a --16 A. There are additions to the one on Exhibit 9.17 Q. Okay.18 A. Under "Skilled Intervention Assessment,19 Instruction, and Performance Continued."20 Q. Right. I see that.21 A. On page 27.22 Q. Yep. The rest of it is verbatim identical,23 right?24 A. Probably close.25 Q. So does this section auto fill from the prior


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1 visit, and then you can edit it by adding something or 2 changing something? 3 A. It does auto fill. 4 Q. Okay. 5 A. This "Assessment and Goals" section auto 6 fills. 7 Q. Let's go back to page 26 and 31. On 8 Exhibit 9, which is the December 3rd visit, page 26, 9 under "Plan for next visit," it says, "Assessment,10 education, wound care," right?11 A. Correct.12 Q. And you testified earlier that Exhibit 9, this13 recertification, one of the things that you had to deal14 with that made it a longer visit was the wound issues15 and risks?16 A. Correct.17 Q. All right. When you look at Exhibit 10, which18 is the resumption of care document dated January 12, at19 this time, there were no wound issues. They had20 resolved; is that right?21 A. At this time, I said I performed a complete22 skin assessment and did not note any evidence of skin23 breakdown, and there were no signs or symptoms of edema24 at this time.25 Q. And you're reading from page 15 of 32?

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1 A. Yes. 2 Q. All right. Now, go back to 31, "Plan for next 3 visit." It looks like it auto typed the same as you had 4 for the December visit, "assessment, education, and 5 wound care," right? 6 A. Correct. 7 Q. And it appears you forgot to change it by 8 removing the words "wound care"? 9 A. Correct.10 Q. And is it your testimony that this whole11 section auto fills, and then you'd have to go through12 and make any changes that are necessary?13 A. Which section, this entire "skilled14 intervention" section?15 Q. Yes.16 A. Or this, from the title of "Teaching Tool Used17 and Given" down?18 Q. I was referring to the "skilled intervention"?19 A. The "assessment, instruction, and20 performance" --21 Q. Yes.22 A. -- always carried over.23 Q. Okay.24 A. As far as the title, "Teaching Tool Used and25 Given," you conferenced with what it was regarding, what

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1 your plan was. The plan for the next visit would carry 2 over, and the other things I had to put in. 3 Q. What do you mean "other things"? 4 A. Next physician visit, discharge planning, 5 whether I contacted a physician or not, who I had 6 conferenced with, if I had conferenced with someone -- 7 Q. Okay. 8 A. -- during this visit. There were certain 9 things that did auto fill and others that I had to fill10 in myself.11 Q. Very good.12 A. I would like to slightly elaborate on this13 patient because of her cognition and her son having to14 be there. It did take an extra amount of time to15 educate this patient and her son regarding her care plan16 and regarding what needed to be done for them.17 Q. The son was there on each of the visits, you18 said?19 A. Yes.20 Q. And he was able to understand the instructions21 and had the cognition to assist his mother with the22 instructions you gave?23 A. Yes.24 Q. All right. And I don't see particular time25 stamps on Exhibit 10, do you?

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1 A. There is a time in and a time out. 2 Q. What page? 3 A. On the first page, on the "Demographics" page, 4 at the top. 5 Q. Okay. So this was an hour and five minutes? 6 A. Correct. But that "time in" and "time out," 7 the "time out" does not always accurately convey when 8 the documentation was fully submitted. The "time out" 9 stamp is generated when you save that visit and had a10 patient sign at the end of the physical in front of the11 patient visit.12 Q. Right.13 A. That's what that time is stamped.14 Q. Right.15 A. That does not include any documentation done16 outside of the visit, phone calls to the physician, or17 anything else.18 Q. Right. We discussed that this morning?19 A. Right. I'm just stating that.20 Q. Sure. I think we've established that. There21 are visits where you complete the paperwork while in the22 visit, within the time stamped, and there's visits where23 you don't?24 A. Right.25 MR. GARRISON: Object to the form.


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1 Q. Right. 2 A. I would not say it in that manner. 3 Q. How would you say it? 4 A. I would state there were times where I could 5 not complete the documentation because I needed more 6 time. 7 Q. And there were times where you could during 8 the visit? 9 MR. GARRISON: Object to the form.10 A. I would say that there was a greater number of11 times that I could not complete the documentation in the12 patient's home than what there were when I could.13 Q. So you're agreeing there were times where you14 could finish the paperwork during the visit?15 A. Not on an everyday basis.16 Q. There were times where you could finish the17 paperwork during the visit; is that correct?18 MR. GARRISON: Answer the question.19 A. Yes.20 Q. And we just looked at one, right?21 A. There may have been a time when I was able to22 complete it.23 Q. We looked at one, right?24 A. Yes.25 Q. The amount of time it might take you to

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1 complete paperwork you didn't finish during the visit 2 would also vary, right? 3 A. Correct. 4 Q. It could be one phone call with a physician, 5 it could be transferring a lot of your handwritten notes 6 from wound care or other types of things you testified 7 you would write down on a pad? 8 A. Correct. And before I submitted a note, I 9 went through the entire note, from beginning to end, to10 make sure that I had not omitted any information or that11 I had answered every single question.12 Q. And even with that, you were getting them back13 with mistakes and omissions?14 A. I'm not going to confess to be perfect.15 Q. Okay. I'll take that as a yes.16 MR. GARRISON: Object to the form.17 Q. Even with your double-checking it, you were18 getting back charts with mistakes and omissions, right?19 A. There may have been an omission that was noted20 by someone else looking in the chart.21 Q. You mentioned this morning -- I believe you22 mentioned this morning that there were what we'll call23 transfer of care visits?24 A. Yes.25 Q. And that you were paid, I guess, during the

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1 First Care home care, before you became salaried, you 2 were paid $50 for those? 3 A. The transfer of care would be an OASIS chart, 4 so it would have been paid at $50. 5 Q. All right. And on those transfer of care 6 documentation, you didn't always do a visit, right? 7 A. Correct. 8 Q. Okay. So you'd get -- still get paid the 9 visit rate even though you hadn't done a visit?10 A. To my knowledge, I was paid the $50.11 THE REPORTER: 11.12 (Hicks Exhibit 11, Discharge13 Nonbillable, was marked for14 identification.)15 Q. Exhibit 11 is a discharge nonbillable, right?16 A. That's what it states here.17 Q. All right. And the fact that it's not18 billable, is that because -- it means not billable to19 Medicare --20 A. Correct.21 Q. -- Medicaid?22 And the fact that it's not billable is because23 there was no visit associated with it?24 A. Correct.25 Q. So this is an example of what we were just

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1 talking about where you would do a transfer and there 2 would be no -- or a discharge, I guess, in this case, 3 and there would be no visit required, right? 4 A. There was -- I would not have had this note if 5 I had been in front of a patient. 6 Q. Right. And then, in the work log, it doesn't 7 indicate there is a patient signature created, and that 8 would be another signal that this was not a visit, 9 right?10 A. Correct.11 Q. The time in and out are 6:30 to 7:00, so it's12 a half an hour?13 A. Correct.14 Q. So that means it took a half an hour to fill15 out this paperwork?16 MR. GARRISON: Object to the form.17 A. No. That may indicate that I started this18 form and then saved it.19 Q. Do you know that?20 A. Do I know that that means, that I saved it and21 that --22 Q. Can you tell whether you did or didn't save23 it, or whether you completed it in a half hour? Is24 there a way to tell, by looking at this document?25 A. There is not a way to tell by this document.


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1 Q. You signed it on November 26th, 2015, right? 2 That's on page 16 of 17? 3 A. Correct. 4 Q. And, again, would much of this information 5 have auto filled from a prior note? 6 A. The demographics would have carried over. 7 Other than that, the document would have been blank on 8 all of the assessment areas. 9 Q. Are those the ones quoted --10 A. Quoted in saying --11 Q. Quoted with an "M"?12 A. Yes. An "M," or above those where -- say, for13 instance, on page 7 of 17, it says, "Respiratory14 status," I would not have put anything under15 "Assessment," because I did not assess the patient. So16 then, under the "Comments," I would say, "No skill17 nursing assessment completed due to a nonbillable18 discharge." For each one of those sections that19 included an assessment that would have been typed, I20 would have had to have typed that in there.21 Q. Do we know if this was a transfer or just a22 discharge out of the system?23 A. Let me see here.24 Q. I'm just looking on page 16, and, it says,25 "Living Arrangements, discharge as home."

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1 A. Where? Where are you seeing "home"? "Home," 2 and then under "other," I put "Mill Creek," which is a 3 facility. 4 Q. That's home for them? 5 A. Correct. It's wherever. 6 Q. For her? 7 A. Yes. At the top, even under "Condition of 8 Discharge, Physical, and Psychosocial Status," it says, 9 "Living at Mill Creek."10 Q. All right. Well, I interrupted your review of11 the document. Is there anything in here that would tell12 us then whether she was being transferred or whether she13 was just leaving your system?14 A. On page 15 of 17, "Discharge, transfer, or15 death date," it says "11/26/15." On the very next page,16 on page 16 of 17, at the top, "Reason for discharge,17 maximum potential received. Discharge date 11/26/15."18 It would not have been typed as a discharge if it was a19 transfer of care. It was a true discharge from our20 services.21 Q. So your care had ended?22 A. Correct, because she was living in a facility23 at that time.24 Q. All right. So you could have discharges where25 it results in a transfer, and then you can just have a

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1 discharge like this one, right? 2 MR. GARRISON: Object to form. 3 A. Can you restate the question, or ask the 4 question again? 5 Q. Yeah. You could have a discharge that results 6 in a transfer to some other facility, or you could have 7 a discharge like Exhibit 11, which is just an end of 8 care; is that correct? 9 A. Correct.10 Q. And in both of those instances, you wouldn't11 necessarily be doing an on-site visit with the patient.12 You would just be filling out paperwork?13 A. You may, unless your visit happened to --14 unless you happened to have a physical visit prior to15 their transfer of care and you knew they were going to16 transfer care.17 Q. Yeah. I'm just trying to identify instances18 where you fill out paperwork, you get a credit for a19 visit, but you're not actually doing a visit. And those20 are two instances where that could happen? Am I making21 sense? You look perplexed.22 MR. GARRISON: Object to the form.23 A. I'm not sure what you're asking.24 Q. That's fine. Let me back up and make sure25 we're clear. So Exhibit 11 was an example of work that

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1 you did where you're paid for a visit, an OASIS visit, 2 but you don't physically go see the patient. You're 3 doing paperwork? 4 A. That is correct. 5 Q. All right. And another example of that would 6 be where you're discharging them, but it's also a 7 transfer into the care of someone else. 8 MR. GARRISON: Object to the form. 9 A. I can't recall a time where I discharged a10 patient and transferred them at the same time.11 Q. Okay. So a transfer would look different than12 a discharge?13 A. A transfer of care would look different.14 Q. Are there instances where you would do a15 transfer of care without visiting the patient?16 A. Yes.17 Q. Okay. Great. And you'd get paid for that?18 A. Yes.19 Q. All right.20 (Hicks Exhibit 12, Documents Bates21 GLC/HICKS 000345-348, was marked for22 identification.)23 Q. What type of visit is Exhibit 12?24 A. It states, under "Task," it's a skilled25 nursing discharge.


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1 Q. What does that mean? 2 A. A skilled nursing discharge would mean that we 3 were discharging the patient from nursing care, but 4 there was not being an OASIS visit completed, which 5 would indicate there were other disciplines seeing this 6 patient normally is what that would indicate. 7 Q. All right. And this took you, it looks like, 8 25 minutes to do this visit? 9 A. I would agree that, under "time in," it says,10 "9:10," and then under "time out," it says, "9:35."11 Q. And that reflects your visit time, right?12 A. It would have reflected when the note was13 opened and when the patient signed.14 Q. Which you control, right?15 A. Correct.16 Q. And you said this morning you did that17 accurately?18 A. Correct.19 Q. All right. So it's fair to say this visit20 took 25 minutes, correct?21 A. This, I don't know when this visit was saved22 or submitted.23 Q. Okay. But to submit it later means it's after24 the visit has ended?25 A. Correct.

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1 Q. All right. So the visit, itself, took 25 2 minutes; would you agree with that? 3 A. The time that I was physically in front of the 4 patient. 5 Q. Yes. 6 A. Yes. 7 Q. All right. And I take it then that this 8 skilled nursing discharge is a lot less complicated than 9 the OASIS discharge that we looked at under Exhibit 11?10 A. Correct, because I was not discharging the11 patient completely from the agency.12 Q. I see.13 A. Only from my own care.14 Q. All right.15 A. In skilled nursing.16 Q. And there's only three pages of paperwork,17 instead of 17, right?18 A. Correct.19 MR. PELTON: Okay. Let's take a really quick rest20 break and come back.21 (A short recess was had.)22 Q. Before the break, you stated that there were23 visits where you would not complete the paperwork during24 the visit, that you would complete it later, whether it25 was to transfer handwritten notes you had taken or call

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1 a physician or other staff member, right? 2 A. Correct. 3 Q. Do you have any way of estimating how much 4 time you spent, on those kinds of visits, where the 5 paperwork was not completed during the visit? 6 A. At the time, in my calendar, I would keep 7 track -- 8 Q. Right. 9 A. -- of the number of hours that I worked10 outside the normal business hours.11 Q. That's part of the calendar you destroyed,12 right?13 A. Yes.14 Q. All right. And you don't have that15 information anymore?16 A. No, I do not. That's how I documented it at17 the time.18 Q. Documentation time, you documented on your19 calendar?20 A. On my calendar.21 Q. Okay.22 A. What I used my time for outside.23 Q. Do you now have any way of going back either24 looking at the records we've -- the types of records25 we've looked at today -- in other words, the notes or

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1 charts -- or any other way that you can think of to go 2 back in Kinnser and determine how much time you spent 3 documenting? 4 A. I can tell when I timed it on a visit. I can 5 tell there is a time out on the visit. I can't tell, 6 from that time out, whether that time out was when the 7 visit was paused or saved and the signature was obtained 8 from the patient and I left the home. I have no way of 9 telling on these notes today.10 Q. Nor how long, if you did pause or save it, how11 much time you spent completing it?12 MR. GARRISON: Object to the form.13 Q. Is that right?14 A. On the actual note in front of me today, there15 is no indication of that.16 Q. All right. And you have no other information17 with which to estimate or calculate that time you spent18 completing documentation outside of the visit?19 A. I don't have any written, because of20 destroying the calendar, due to HIPAA reasons.21 Q. At some point, you went to Homecare Homebase,22 right?23 A. Correct.24 Q. And was that similar to Kinnser?25 A. As far as the flow of the OASIS, the OASIS,


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1 itself, did not change. The program changed. The setup 2 of the software changed. 3 Q. It's a lot more of a robust and complex 4 system; would you agree? 5 A. I would say, yes, as far as the software. 6 Q. Yeah. Your duties didn't change, but you had 7 to interface with a different software once you started 8 using Homecare Homebase? 9 A. No. I would say I completed the same duties.10 Q. That's what I said, yeah.11 A. Yes.12 Q. Your duties did not change?13 A. Correct.14 Q. But your interface with the software changed?15 A. Yes.16 Q. Okay. And you'd still have to document the17 same kinds of information, particularly for OASIS,18 because that's government regulated?19 A. Yes.20 Q. All right. In completing information in21 Homecare Homebase, did you find that it would take you a22 similar amount of time as it did in Kinnser to do23 documentation, or did it take more time?24 A. I found it took me longer.25 Q. In Homecare Homebase?

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1 A. In Homecare Homebase. 2 Q. And why was that? 3 A. The setup of the software, the way the 4 software was made, was not the same amount of space on 5 the tablet available, between an iPad and a smaller 6 tablet, to view an entire page worth of information at 7 once. So there was a lot more flipping between screens 8 to look for things, to move from screen to screen. 9 Q. Okay. Did it also not auto fill the way10 Kinnser did in terms of some of these notes and11 narratives that we've looked at in Kinnser?12 A. I don't recall there was any auto fill.13 Q. Could you cut and paste like you could in14 Kinnser?15 A. Not to my knowledge.16 Q. Are there any other reasons it may have taken17 a little longer to do in Homecare Homebase than in18 Kinnser?19 A. If there was a particularly more complicated20 patient, it would have taken me longer to document in21 their chart.22 Q. Oh, sure. But that would be true of Kinnser,23 too, I suppose. Yeah.24 MR. GARRISON: Object to the form.25 Q. Right?

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1 MR. GARRISON: Object to the form. 2 A. (No verbal response.) 3 Q. And as with Kinnser, you used Homecare 4 Homebase accurately, right -- 5 A. Yes. 6 Q. -- putting in the information as best you 7 could? 8 A. Yes. 9 Q. You never tried to falsify anything, correct?10 A. Correct.11 Q. And when you talked about -- I think the word12 you used was "pause" or "save." You could do that in13 Kinnser?14 A. You could save a visit, at the end of the15 visit, without submitting it.16 Q. Okay. And then go back and complete it later?17 A. Correct.18 Q. Was there a similar feature in Homecare19 Homebase?20 A. The terminology was different. In Homecare21 Homebase, you would do what's called incompleting the22 visit. You would select a button or an option that was23 called "incomplete."24 Q. Mm-hmm.25 A. And then you could still have the patient sign

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1 the visit proving that you were in their home that day, 2 and that was GPS timed and date stamped, and then you 3 could simply later go back in and finish your 4 documentation on that visit. 5 Q. Do you know what happened in Homecare 6 Homebase? So you do an incomplete visit? 7 A. Mm-hmm. 8 Q. And you sit down that night to -- and you open 9 it back up, right?10 A. Mm-hmm.11 Q. Yes?12 A. Yes.13 Q. Okay. And Homecare Homebase would then allow14 you to put in more information?15 A. Correct.16 Q. And then what would happen if you got17 distracted and left the system open?18 A. If I stepped away from the computer?19 Q. Yeah.20 A. I would pause the visit at that time. I would21 not let the clock keep running --22 Q. Okay.23 A. -- when I was not physically in front of my24 computer.25 Q. All right. Homecare Homebase clocks when


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1 you're in the document, right? 2 A. Correct. 3 Q. All right. If you forgot to pause it or stop 4 it, they would just think you're still at the computer 5 screen? 6 A. Correct. It would continue to count the 7 clock. 8 Q. So you could -- it could be left open by 9 mistake, you'd go do something else and come back, and10 it still thinks you're on the system; is that true?11 A. That could happen --12 Q. So if you had --13 A. If it did.14 Q. If you had to stop doing something for several15 hours or something, you should go in and stop it and16 start up again later?17 A. Correct.18 Q. All right. And if you -- is that called19 stopping the visit, like it's an incomplete visit again?20 A. Yes. You would mark it again as incomplete.21 Q. All right. You can also pause a visit, right?22 A. In Kinnser, you could pause a visit. To my23 knowledge, in Homecare Homebase, you had to, each time24 you exited a note, mark it as complete or incomplete.25 Q. Do you remember being taught you should not

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1 pause it, you should stop it? 2 A. Yes. 3 Q. Okay. But did you ever pause it by mistake, 4 if you recall? 5 A. I don't recall if I ever put a visit on pause. 6 Q. Okay. Let's go back to Kinnser for a moment. 7 It did not -- unlike Homecare Homebase, it did not track 8 the time you were logged onto the system to do 9 documentation outside of visits, right?10 A. I don't know.11 Q. You said you weren't aware of any written or12 any documented way to figure out your time documenting13 outside of visits, right?14 A. Correct. I no longer have that calendar.15 Q. And is there any other way you would go about16 figuring out how much time you may have spent17 documenting outside of visits?18 MR. GARRISON: Object to the form.19 A. My family and friends.20 Q. What do you mean?21 A. My husband would know how much time, when I22 was at home, I was away from him and at the computer23 documenting, at the time, when I was outside of work24 hours.25 Q. Did he keep --

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1 A. And at home. 2 Q. Did he keep some record of it? 3 A. A written record? 4 Q. Yes. 5 A. No. 6 Q. So if you -- for example, you're doing the 7 OASIS recertification we looked at as Exhibit 9. If you 8 did documentation after the two hours of visit time, 9 you're saying your husband could tell us how much time10 you spent documenting that chart?11 A. Not on a specific chart. I never talked to12 him about patients. That would be a breach in13 confidentiality. He couldn't tell you for a specific14 patient. He could tell you that I was on my computer in15 excess of two hours every single night that I worked16 that day.17 Q. He would know what you were doing on the18 computer, though, you're saying?19 A. Yes. He would know that I was working.20 Q. Well, and you could be surfing the Web, I21 suppose?22 A. No.23 MR. GARRISON: Object to the form.24 A. That was my work computer. I never did25 anything but work-related materials on that computer.

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1 Q. Where did you work when you were at home? 2 A. I'm sorry? 3 Q. Where did you work when you were at home? 4 A. I have an office in my home. 5 Q. Would he sit in the office with you? 6 A. No. He was across the hall. 7 Q. I see. And you said some friends or other 8 family that could say how much time you spent 9 documenting?10 A. They would know that I missed various -- a11 variety of family events because I was either at work or12 at home working outside of work hours.13 Q. And who are those family members and friends?14 A. My mother, my father, my sister, my husband's15 family, my director of my chorus.16 Q. Who is that?17 A. His name is Terry Ludwig, L-u-d-w-i-g. There18 was also another director during the time, and her name19 is Gena Sommer, G-e-n-a S-o-m-m-e-r.20 Q. And you're saying they would be, what? They21 would be aware that you missed part of that?22 A. They would be aware that I missed rehearsal,23 that I came late to rehearsal, because I was late in a24 patient's home.25 Q. And they would know that because you told them


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1 that? 2 A. They would know it because I came in my 3 uniform and I never came in my uniform unless I came 4 straight from work. 5 Q. All right. That would be when you were coming 6 from a visit, not necessarily doing documentation, 7 though, right? 8 A. It may have been either. 9 Q. Okay. Anyone else?10 A. Not that I can think of right now.11 Q. Okay. Is there any other way you personally12 can determine how much time you spent documenting13 outside of visits?14 A. On paper?15 Q. No, outside of --16 A. I'm sorry.17 Q. You said you didn't have any paper?18 A. Correct.19 MR. GARRISON: Object to the form.20 Q. So is there any other way you, personally, can21 determine how much time you spent documenting outside of22 visits?23 A. I know I spent the time that I spent on these24 charts.25 Q. Okay.

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1 A. I know that I would have not claimed that I 2 spent time on patient information, charts, 3 documentation, e-mail, work-related items. I would not 4 have spent my personal time during work time. I would 5 not have accessed personal things during work time. I 6 would have been dedicated to my task. 7 Q. All right. But you can't come up with 8 specific times for specific charts or specific days or 9 specific work weeks; is that correct?10 MR. GARRISON: Object to the form. You haven't11 asked her that.12 Q. I'm asking her that.13 MR. GARRISON: Okay.14 Q. You can't come up with specific times or15 specific charts or specific days or specific work weeks;16 is that correct?17 A. I don't have --18 MR. GARRISON: Object to the form.19 A. I don't have that in written form.20 Q. And you can't come up with it in your head,21 can you?22 A. If I was handed a chart for a patient that I23 was very familiar with, I could tell you whether that24 patient's condition required me to spend more time on my25 documentation, because of the complicated nature of

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1 their case or because it was a patient that I 2 consistently had to speak with a physician on or speak 3 with other staff on. 4 Q. Okay. And we looked at several charts today. 5 Were you able to tell me how much time you spent 6 documenting outside of visits on those charts? 7 A. There was no way for me to correlate the time 8 in and time out, on these charts, on whether that 9 included documentation outside of the visit, the10 physical and face-to-face visit.11 MR. GARRISON: Are you asking her was she able to,12 or can she?13 MR. PELTON: Can she?14 MR. GARRISON: Okay.15 A. I can.16 Q. Well, we went over that. You're telling me17 you can tell me how much time you spent outside of a18 visit?19 A. I can tell you which one of these cases were20 more complicated than the other.21 Q. I understand that.22 A. Which cases would require further assessment23 in the home, which cases would have required more phone24 calls to the physician, which cases would have required25 more documentation outside of the house.

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1 Q. All right. And are you able to tell me on 2 what days you did that and how much time you spent doing 3 it by looking at the chart? 4 A. Not with the information I was provided with 5 today. 6 Q. Is there some other information you'd want to 7 look at? 8 A. Well, I was only provided with charts from 9 Kinnser. I was not provided with any charts from10 Homecare Homebase --11 Q. Okay. Anything --12 A. -- which documented time of documentation13 time.14 Q. Right. So one way to get at it would be to15 look at similar types of visits in Homecare Homebase and16 determine how much time you spent documenting, because17 Homecare Homebase will tell us, right?18 A. Yes. It would show up.19 Q. So you could correlate that then to the period20 of time you used Kinnser?21 MR. GARRISON: Object to the form. Is that what22 you're suggesting?23 A. No. I'm not suggesting that I could take a24 different patient's information and correlate it with25 another different patient's information on knowing how


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1 much time I spent on the time of the visit. I'm not 2 saying that. 3 Q. All right. But you could determine, while 4 using Homecare Homebase, how much time you spent 5 documenting, right? 6 A. I could determine that on that Homecare 7 Homebase chart. 8 Q. Right. 9 A. But I could not say, in Homecare Homebase, if10 a skilled nursing discharge took me an hour-and-a-half11 in the home and then I also had another hour-and-a-half12 of documentation, that, in Kinnser, it would have been13 the same. I cannot say that.14 Q. Right. Okay. Anything else, any other15 documentation you would want to see in trying to make a16 determination how much time you spent documenting17 outside of visits while using Kinnser?18 A. I would also like to see a copy of any19 non-visit activity that I billed for.20 Q. We're going to get to that in a minute. Let's21 stick with documentation outside of visit time.22 Anything else you'd want to see?23 A. None that I can think of right now.24 Q. What other tasks did you perform that were25 paid for by the per-visit time? You talked about

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1 visits, documentation, calls to physicians, calls to -- 2 A. Other staff members. 3 Q. Other staff, right. Any other activities? 4 A. E-mail. 5 Q. What types of e-mails would you be sending? 6 A. Business e-mails, e-mails -- I would receive 7 e-mails regarding referrals. From the call center, I 8 would receive -- I may receive e-mails from the LPNs 9 updating me on patient's condition. I may receive them10 from other disciplines telling me, prior to a11 recertification date, whether they plan on recertifying12 that patient or not. I received all kinds of e-mails13 from the staff and the agency. I'm not able to list for14 you all of the different types of e-mails that I15 received.16 Q. All right. And were those typically requiring17 a response back, or something to put into the chart, at18 some point, or what do you do with the types of e-mails19 you were getting, say, from LPNs with an update?20 A. If it warranted a response, I responded as21 soon as I read the e-mail.22 Q. Well, it may not require a response?23 A. And if it didn't require a response, I didn't24 respond.25 Q. I'm sorry. If you receive a referral from the

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1 call center, what do you do with that e-mail? 2 A. I kept the e-mail. If I had a question on the 3 actual referral form, it would -- either on the referral 4 form or down at the bottom, under the signature, it 5 would tell me the person's name and phone number that it 6 was being sent to me from. If I had a question, I would 7 call them. I never wanted to assume that someone would 8 check their e-mail within a suitable amount of time for 9 me just to reply to the e-mail regarding a referral, so10 I would call.11 Q. But if you're getting a referral, is it12 directing you then to go out in a certain amount of time13 and visit with the patient?14 A. In the referral form, I believe there was a15 section where it would state what date was being16 requested for you to see the patient. Normally, that17 response was the same day or within 24 hours of their18 discharge from wherever they were coming from or within19 24 hours of us receiving the referral.20 Q. All right. So you'd get the e-mail. It says21 you've got a new referral. You've got to do a start of22 care, right?23 A. It would tell me that, or it may be an e-mail24 from the call center saying, "Such-and-such patient has25 been discharged from the hospital. This patient needs

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1 to have their care resumed." 2 Q. Do you know how many e-mails a day you might 3 receive? 4 A. I would estimate somewhere between 10 and 50, 5 depending on the day. Maybe in excess of 50 on certain 6 days. 7 Q. And what percentage of those might require a 8 response, if you have any idea? 9 A. I would estimate, at least, half.10 Q. And what do you base that on?11 A. The fact that I was receiving lots of e-mails12 from my coworkers who needed a response from me --13 Q. Was this --14 A. -- in the e-mail.15 Q. I apologize.16 Was this throughout your time working, or was17 it just in this Kinnser time frame we've been talking18 about?19 A. I don't recall having a work e-mail under20 First Care Healthcare. I don't recall having an e-mail21 address, period, with them. We spoke to each other over22 the phone. We did not e-mail.23 Q. Okay.24 A. But we did all -- we did e-mail frequently25 during the time of Great Lakes Caring and the use of,


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1 I'm sorry, Homecare Homebase. 2 Q. Are you able to estimate the amount of time 3 you spent doing e-mails on a particular workday? 4 A. Under "Non-visit Activity," when we would 5 chart under "Non-visit Activity," we had to give a time 6 frame of what the non-visit activity was, and I would 7 put my time in. It was responding to e-mails or 8 checking e-mail, speaking with a physician, receiving a 9 phone call back from a physician within Homecare10 Homebase.11 Q. That's in Homecare Homebase?12 A. In Homecare Homebase, under "Non-visit13 Activity," that would have been documented.14 Q. All right. What about in Kinnser?15 A. There was no way to document the amount of16 time you were on the phone. You were expected to put in17 a note or put in your note for that day that you spoke18 to a physician, whether there were any orders received.19 Q. Where would that note be, in the chart?20 A. That would be in the chart.21 Q. Okay.22 A. There is a section where it says, "Was the23 physician contacted," in the Kinnser charts.24 Q. Those would be phone calls?25 A. Correct.

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1 Q. All right. 2 A. Yeah. It would say, "Physician contacted 3 regarding," and you would fill that in, if there were 4 order changes. 5 Q. We're talking about e-mails. Is there any way 6 to -- 7 A. No -- 8 Q. -- determine -- 9 A. -- not in Kinnser.10 Q. All right. Is there any way to determine the11 amount of time you spent on e-mails during a particular12 workday?13 A. In the "Non-visit Activity," it would be14 documented.15 Q. In Homecare Homebase?16 A. A range of time, in Homecare Homebase.17 Q. I thought you said you didn't use e-mails in18 Homecare Homebase?19 A. No, in Kinnser.20 Q. Oh, I apologize.21 A. Kinnser was the old system that we used under22 First Care Healthcare, before Homecare Homebase came.23 We did not have e-mail, when we were using Kinnser, that24 designates.25 Q. Okay. So you didn't do any e-mail time during

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1 Kinnser? 2 A. Correct. 3 Q. I got you. All right. 4 A. Only under Homecare Homebase. 5 Q. By then you were salaried, correct? 6 A. Yes. 7 Q. Okay. What about calls to physicians and 8 calls to other staff, is that documented in -- 9 A. That's documented.10 Q. -- Kinnser?11 A. Not in Kinnser.12 Q. Okay. But it is in "Non-visit Activity" in13 Homecare Homebase?14 A. Correct.15 Q. And that Homecare Homebase, were the calls to16 physicians and calls to other staff similar to what you17 would have done while working under Kinnser in terms of18 the amount of time?19 A. Depending on the case.20 Q. It would average out, right?21 A. It may not have been.22 Q. It would average out, wouldn't it?23 A. The length of time I was on the phone?24 Q. Mm-hmm.25 A. Possibly.

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1 Q. Okay. 2 A. Depending on what the discussion was 3 regarding. 4 Q. While working with Kinnser, any other 5 activities that were part of your per-visit pay? 6 A. I'm sorry? 7 MR. GARRISON: Object to the form. 8 Q. While you were working with Kinnser, were 9 there any other work activities, such as calls to10 physician, calls to other staff, that were part of your11 per-visit pay?12 A. No.13 Q. Okay. And then it mentioned, in your14 complaint -- and, again, I think in this Exhibit 1, at15 least, with First Care Healthcare, under the "Walshes,"16 that you were receiving $20 per office hour. What does17 that mean?18 A. That will be for a meeting.19 Q. Okay.20 A. Time spent in the office, which was only paid21 for a weekly team meeting.22 Q. How was that time tracked?23 A. We were all in the office and we had to sign a24 sheet stating that we were there. There was a time,25 printed name, signature sheet.


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1 Q. And then it would just show up in your 2 payroll? 3 A. Yes. 4 Q. Did you track that time? 5 A. I would have tracked it on my calendar. It 6 would have been circled every Wednesday at noon to 7 report to the office for a meeting. 8 Q. Any other kinds of meetings for which you were 9 paid a per hour, $20 per hour?10 A. If there was an in-service education time,11 that would have been considered office time.12 Q. How are those tracked?13 A. Same way; form, date, printed name, signature.14 Q. All right.15 A. If it happened to be a continuing education16 in-service, we would also receive a certificate for17 completing that education.18 Q. While the Walshes owned the company, were you19 paid that time, as far as you know?20 A. Was I paid?21 Q. For this type of activity you were just22 describing here.23 A. Office time, meeting time, yes.24 Q. After October, when Great Lakes Caring had25 bought the company, were there any activities for which

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1 you were paid per hour? 2 A. I was paid for meetings. 3 Q. And do you have any record of those meetings? 4 A. I don't have any written documentation. It 5 would have been in the calendar. 6 Q. Okay. And were you also able to participate 7 in those meetings by phone? 8 A. With Great Lakes Caring? 9 Q. Yeah.10 A. There were certain meetings where you could11 call in and be a part of that, like a net meeting. You12 could either log in and hear it through your computer or13 you could call in and do that.14 Q. And would you do that while you were, say,15 commuting or between client visits?16 A. No.17 Q. Do you have any idea how many of these18 meetings you had while at, say, between October 27th,19 2015, and January 1st, 2016?20 A. Team meetings or meetings of any kind?21 Q. Yeah, in the office.22 A. There was usually a meeting every single week.23 Q. Do you recall those or have any materials from24 those meetings?25 A. I don't have any materials from those

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1 meetings. Because they would have had the patient's 2 name and identifiers on them -- 3 Q. Were you paid -- 4 A. -- they were destroyed. 5 Q. I apologize. 6 Were you paid for those meetings? 7 A. To my knowledge, yes. 8 Q. How long would those in-office weekly meetings 9 or inservice or training orientation meetings take while10 you were in that same time period, between October 27,11 2015, and January 1st, 2016?12 A. A meeting may have lasted as little as 3013 minutes and may have been in excess of an hour, an14 hour-and-a-half, depending on the itinerary for that15 meeting and how many patients there were to discuss, how16 many staff members were present. There were variables.17 Q. And then, at some point, you went salaried,18 and that was all rolled into your salary, I take it?19 A. Yes.20 (Hicks Exhibit 13, Declaration of21 Laura Beth Hicks, was marked for22 identification.)23 Q. Do you recognize Exhibit 13?24 A. I do.25 Q. This is your declaration, right?

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1 A. Correct. 2 Q. Did you sign this document? 3 A. I electronically signed this document. 4 Q. How did you do that? 5 A. Through a system called DocuSign. The 6 document was sent to me. I received an e-mail stating 7 that I had a document to sign. I clicked on a link. It 8 took me to the document to review and sign. 9 Q. Did you draft the document?10 A. No.11 Q. Did you make any changes after you received it12 and before signing it?13 A. No. What I received was simply a scanned14 copy.15 Q. How much time did you take reviewing it before16 you signed it?17 A. Probably, an hour to an hour-and-a-half.18 Q. Okay. Go to paragraph 4. And, it says, "As19 an RN case manager, I typically performed the following20 types of visits," and then you list certain types of21 visits, right?22 A. Correct.23 Q. You said you received $30 for each visit,24 right?25 A. I stated that.


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1 Q. It's not an accurate statement, is it? 2 A. I realize I should have said "for OASIS," 3 because it was $50. 4 Q. So it's not an accurate statement, right? 5 MR. GARRISON: Object to the form. 6 Q. You didn't receive $30 for each visit? 7 A. I received at least $30 for each visit. Some 8 visits I received $50 for. 9 Q. Okay. Paragraph 5 says you received an hourly10 rate of $20 per hour for time I spent working in the11 office attending meetings or case conferences, right?12 A. Correct.13 Q. Do you know how much you received, in that14 type of compensation, between October 2015 and the end15 of December 2015?16 A. Do I know what the total amount of money I17 received in $20 increments?18 Q. Yeah, as referenced in paragraph 5.19 A. I don't know the total amount.20 Q. You said you were required to work on-call.21 "Working on-call entailed being available to make and22 receive calls from patients and providers for 24 hours.23 I received, approximately, $50 for 24 hours," quote,24 "on-call," end quote, right?25 A. Correct.

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1 Q. That's not a correct statement, is it? 2 A. I did receive $50 on-call pay for being 3 on-call for 24 hours, and then I was also compensated 4 for visits. 5 Q. I thought you testified this morning that you 6 received $100 for on-call? 7 A. That was on the weekend. Monday through 8 Thursday it was $50. 9 Q. During the time -- and this doesn't give a10 time period in paragraph 6. But during the time,11 October 27th, 2015, to December 31, 2015, was it $5012 during the week?13 MR. GARRISON: Object to the form.14 A. I don't recall.15 Q. And it was still $100 on the weekend?16 A. During the time of October through December,17 to my knowledge, I was not compensated only for being18 on-call. I was only paid per visit. If I went and saw19 a patient in their home, I was paid for the time I20 entered their home until the time I left their home,21 which did not cover any documentation outside of the22 patient's home. I don't recall, between October and23 December, being compensated simply for being on-call.24 Q. Are you saying you weren't, or you don't25 recall it?

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1 A. I don't recall being paid for that time of 2 simply being on-call and not seeing a patient. 3 Q. Right. And my question is, when you say you 4 don't recall it, are you affirmatively saying it didn't 5 happen, or are you saying you just don't recall either 6 way? 7 A. I'm saying I don't recall. 8 Q. Okay. After January 1st, 2016, did you 9 receive any sort of on-call time just for being on-call?10 A. Yes.11 Q. Okay. So paragraph 6 of your declaration12 doesn't necessarily speak to what occurred during the13 October 2015 to the end of December 2015 time period; is14 that correct?15 A. I don't recall whether it does or not.16 Q. Okay. Well, did you believe it did at the17 time you signed this, or did you not look at it that18 carefully?19 A. I read the document from start to finish.20 Q. Okay.21 A. And I understood what I was reading.22 Q. Paragraph 7 says you tip- -- from October 201523 to December 2015, you typically worked more than 4024 hours each workweek. And I think we talked about this25 earlier, but do you have any documentation of those work

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1 hours? 2 A. I don't have written documentation, because of 3 the calendar being destroyed for HIPAA, and I'm not 4 aware of whether the Kinnser system documented time 5 stamps of when I re-entered a chart to document and when 6 I left it. 7 Q. Okay. 8 A. I don't know whether that system calculated 9 that or not.10 Q. Let's go to paragraph 9, page 3. In the11 second sentence on that page, it says, "In fact, as an12 RN case manager, I exclusively performed the types of13 visits listed above in almost every week, and they14 lasted, at a minimum, one hour in each patient's home15 and usually longer," right?16 A. Correct.17 Q. All right. Now, we've looked today at some18 that didn't last an hour; isn't that a fact?19 A. There is a time stamp on these notes. I don't20 know if that indicates the time that I left the home or21 the time the documentation was submitted.22 Q. Okay.23 A. That's not clear to me.24 Q. But if we look at these Kinnser time stamps,25 would you be surprised to learn that they actually


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1 average under one hour? 2 MR. GARRISON: Object to the form. 3 A. These charts are not an accurate 4 representation of all of the patients that I saw during 5 my time. 6 Q. Would you be surprised if all of the charts, 7 during the October 29th to -- excuse me, October 27 to 8 October -- December 31 time frame of 2015 showed that 9 your average visit time was under one hour?10 MR. GARRISON: Object to the form.11 A. I would be surprised.12 Q. And if that's a fact, then this estimate of a13 minimum of one hour would be -- for each patient home14 visit would be wrong; wouldn't it?15 MR. GARRISON: Object to the form.16 Q. Right?17 A. Can you say it again?18 Q. Yeah. The estimate of a minimum of one hour19 in each patient's home is inaccurate; isn't it?20 MR. GARRISON: Object to the form.21 A. Without seeing the other documentation of22 times, I can't speak to that.23 Q. Okay. You were estimating here, right?24 A. Correct.25 Q. And then you say, "Additionally, I spent at

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1 least as long completing the corresponding charting for 2 each visit outside of business hours from my home." Do 3 you see that? 4 A. Yes. I see that here. 5 Q. And how did that estimate get in here? Is 6 that your estimate? 7 A. That is my estimate. 8 Q. Okay. And how did you come up with that 9 estimate?10 A. Because for certain visit types, I know the11 amount of documentation that's required for that chart,12 and I know the amount of documentation time that I spent13 for those documentation -- those note types.14 Q. All right. But we've agreed that you have15 certain charts you completed during the visit; didn't16 we? We established that earlier today, right?17 MR. GARRISON: Object to the form.18 A. There may have been a visit type that could19 have been completed for a specific patient --20 Q. All right.21 A. -- in their home.22 Q. So it would be wrong to say you spent at least23 as long completing corresponding charting for each visit24 outside of business hours from my home? That's not an25 accurate statement; is it?

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1 A. Maybe not for each visit. 2 Q. And then you give an example saying, "An 3 admission visit, also known as a start-of-care visit, 4 typically took between 1.5 and two hours to complete in 5 a patient's home and required me to complete a packet of 6 medical forms, approximately, 27 pages long and 7 sometimes longer," right? 8 A. Correct. 9 Q. And I think we agreed, today, those were the10 longest periods of time you'd spend on a visit, right?11 A. An admission visit --12 Q. Yes.13 A. -- is one of the longer visits.14 Q. It is the longest visit, didn't you testify15 earlier today?16 A. It is a long visit, longest visit.17 Q. All right. And there are other visits that18 are much shorter?19 A. There are some that are shorter.20 Q. All right. We looked at one that was only a21 half hour today, right?22 A. But that time stamp -- I don't know if that23 time stamp is 30 minutes in the home documentation done24 or if it's 30 minutes in front of the patient and25 another hour at home.

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1 Q. All right. You say, "Completing all of this 2 documentation in a patient's home in impossible." In 3 saying that, are you referring to the start-of-care 4 visit or any other visits? 5 A. There were a variety of visit types that, at 6 times, could not be completed in the patient's home. 7 Q. All right. And we've agreed that there were 8 certain visits that could be completed in the patient's 9 home, right?10 A. There are visit types that could possibly be11 completed in the patient's home.12 Q. All right. And when you say "it usually13 requires a minimum of two hours of time per visit14 completing the visit paperwork from home," you're15 referring to the longer visits, such as the16 start-of-care visit, right?17 A. A start of care.18 Q. And then, at the end, it says, "No matter how19 long the visit and these visit-related activities took,20 I only received $30 per visit fee." That's not an21 accurate statement; is it?22 A. Correct.23 Q. Then the next paragraph, 11, explains the24 attached Exhibit A, which is a time sheet, right?25 A. Correct.


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1 Q. And this time sheet appears to be from a pay 2 date of -- well, check date from December 11, 2015 3 payroll? 4 A. Correct. 5 Q. And turning to the exhibit, there's several 6 entries on the second page of the exhibit. Do you see 7 that? 8 A. Correct. 9 Q. There's 2.25, and do you -- what do you10 believe that represents?11 A. That column is not indicated, at the top, what12 it's representing. That column was used for varying13 types of things. It could be used for hours. It could14 be used for one unit, which was to indicate a certain15 number of hours.16 Q. Okay.17 A. So it could mean different things.18 Q. All right. And you're not sure what it means,19 you're saying, today?20 A. Knowing what the description is next to it and21 where it's written out saying "regular," that would be22 hours on this particular one.23 Q. Do you know what you did during those hours,24 if those are hours?25 A. It would have been documented in my charting.

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1 My documentation would have reflected this number of 2 hours. 3 Q. Yeah. Do you know what reflected those 2.25 4 hours, if they're hours? 5 A. I don't know. 6 Q. Okay. The next one says "34." It looks like 7 at a rate of "30." Would those be 34 visits at $30 an 8 hour? 9 MR. GARRISON: Object to the form.10 Q. Do you know?11 A. I don't know.12 Q. The next -- well, the next says "12," and then13 the rate is "50." Would those be OASIS visits, if you14 know?15 A. I don't know whether that's indicating 1216 visits or 12 hours. I don't know by looking at the17 this.18 Q. All right.19 A. It's not designated.20 Q. In your declaration, you indicate, on page 4,21 that the "12," in the hours column, on the third row,22 reflects the number of days I spent working on-call.23 You're saying, now, you don't know if that is what it24 represents or not; is that correct?25 A. I don't know.

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1 Q. Okay. It goes on to say, "In contrast, 34, in 2 the hours column of the second row, reflects the number 3 of visits I performed at a per-visit fee of $30 per 4 visit." 5 And, again, sitting here today, looking at 6 this exhibit, you're saying you really don't know what? 7 A. I don't know. It's not indicated for me. 8 Q. Okay. All right. So in signing this 9 declaration, were you just guessing at those, what the10 meaning was of those various columns?11 A. No. I was using knowledge on how things would12 have been done on a pay stub prior.13 Q. All right. But you're not really sure?14 A. There is nothing here indicating what it was15 for, if that's what you're asking.16 Q. Yes. Let's go to paragraph 13 of your17 declaration. You say, "Based on Exhibit A and my18 estimates above of how long I spent on patient visits,19 1.5 hours per visit and visit-related charting two hours20 per visit above, this pay record reflects,21 approximately, 121.25 hours worked."22 Do you see that sentence?23 A. Yes.24 Q. Now, that's not an accurate sentence; is it?25 A. "Estimates above," meaning estimates in

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1 paragraph 11, or my estimates earlier in here? 2 Q. Well, it's your declaration. You tell me. 3 A. I would say I still feel this is an accurate 4 representation of the amount of time that I worked. 5 Q. All right. But we've established that not 6 every visit was an hour-and-a-half and not every 7 visit-related charting outside of the visit was two 8 hours, right? 9 MR. GARRISON: Object to the form.10 A. I guess it depends on what your definition of11 a "visit" is, if it's when I'm in front of a patient or12 if it's a visit, period, from the time it started until13 the time it's completed and done, including all14 documentation.15 Q. Well, this is breaking it apart between the16 patient visit and an hour-and-a-half and visit-related17 charting at two hours. So you're breaking them apart as18 two entries, and I'm focused on the visits. We've19 established today that you had visits as short as a half20 an hour, right?21 MR. GARRISON: Object to the form.22 A. No. I would not say that the time stamp on23 here is accurate for the entire amount of time I spent24 on that patient's chart.25 Q. I'm not talking about charting. I'm talking


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1 about the visit. As I understand the sentence, you're 2 saying that your patient visits took an hour-and-a-half 3 per visit? 4 A. Some of them very well did. 5 Q. All right. And some of them, for example, 6 Exhibit 11, took 30 minutes? 7 MR. GARRISON: Object to the form. 8 A. There is a time stamp. That doesn't mean 9 that's the only amount of time that I spent on that10 chart, because I don't know if that time stamp only11 indicates the time I was physically in front of the12 patient or if it also indicates the amount of time I13 used to document in that chart.14 Q. All right. So you don't know?15 A. Because there is nothing here to tell me.16 Q. All right. So you're saying it could include17 all of the documentation time, in which case the visit18 and the documentation time took a half an hour?19 MR. GARRISON: Object to the form.20 Q. Is that what you're saying?21 A. No. I would not say that.22 Q. All right. And what do you mean then when you23 say "visit-related charting of two hours per visit"?24 A. Finishing the charting on that patient.25 Q. Okay.

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1 A. Reviewing the charting in that entire chart, 2 from start to finish, before I submit the note. 3 Q. And we also established today there were, in 4 fact, visits you were paid for where you didn't even 5 visit the patient, right? 6 A. Correct. 7 Q. And you'd spend 30 minutes doing the chart, 8 and that was the visit? 9 A. Because there was no assessment involved.10 Q. Okay.11 A. I was not in front of a patient. There was an12 entire realm of the visit that wasn't done, because I13 wasn't with a patient.14 Q. Okay. So we're not sure -- you're not sure15 what Exhibit A means, and you're not sure what is16 included in the time stamps for hours per visit for17 visiting and hours per visit for documenting or18 charting. You're just guessing here, in this paragraph,19 13; aren't you?20 MR. GARRISON: Object to the form.21 A. No. I used knowledge from prior pay stubs to22 try to help me figure out what these figures might23 represent.24 Q. Out of your head, right? Right?25 A. In my head.

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1 Q. And you testified this morning you didn't have 2 any prior pay stubs. Are you now saying you do have 3 prior pay stubs? 4 A. No. I would have known. This is a pay stub 5 from 12/1 of '15. I would have known how my pay was on 6 previous paychecks, but I don't have those documents. 7 Q. You said, "I used knowledge from prior pay 8 stubs to try to help me figure out what these figures 9 might represent"?10 A. Or how the columns might have been set up.11 Q. Right. But you told me you don't have any12 prior pay stubs; is that correct?13 A. I don't have them in my possession. I would14 have known how I was paid. I would have known what was15 on my pay stub.16 Q. You couldn't have looked at them in coming up17 with this sentence here in paragraph 13, right?18 A. I'm not understanding what you're meaning.19 Q. Okay. You go on, at paragraph 13, in the20 second sentence, and say, "The 34 visits" -- and you've21 testified today you're not sure if they're all visits or22 something else -- "required at least 51 hours in patient23 homes."24 And you're estimating 1.5 hours per visit25 times 34, right? And you're saying six to eight hours

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1 of charting from home. That's two hours charting per 2 visit, times 34 visits? 3 MR. GARRISON: Object to the form. 4 Q. And you're guessing, because, one, you don't 5 know what Exhibit A represents, and, two, you don't have 6 any documentation of how long your visits were or how 7 long your charting was; is that correct? 8 MR. GARRISON: Object to the form. That's not a 9 question. You're now arguing with the witness as you10 have been for a while.11 Q. I'll take an answer.12 A. Can you restate your question --13 Q. Yeah.14 A. -- or give me a question?15 Q. Are you guessing at these hours here in16 paragraph 13?17 MR. GARRISON: Object to the form.18 A. No. I'm not guessing.19 Q. You're just pulling them out of your head?20 MR. GARRISON: Object to the form. That's been21 asked and answered. What does "guessing" mean? Now22 you're characterizing it as pulling it out of her head?23 These questions -- you're not asking24 questions. You're making statements, which you've been25 doing all day. And I've been objecting, because this


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1 isn't about her responses to statements. And I've tried 2 to not make a speaking objection, but I would ask that 3 you ask a question. So, again, object to the form of 4 that statement. 5 Q. You said this morning that you might have 6 seven or eight visits in a day, correct? 7 A. At times, yes. 8 Q. And if you spent an hour-and-a-half at the 9 visit and two hours documenting, you would have longer10 than a 24-hour day; wouldn't you?11 A. On those particular days.12 Q. Have you ever -- have you endeavored to13 determine how much pay you think Great Lakes Caring or14 First Care Home Care owes you?15 MR. GARRISON: Object to the form.16 A. Have I ever come up with a figure?17 Q. Yeah.18 A. Of what I think they owe me?19 Q. Yes.20 A. No.21 (Hicks Exhibit 14, Collective Action22 Complaint, was marked for23 identification.)24 Q. All right. Are you familiar with Exhibit 14?25 A. Yes.

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1 Q. This is a complaint filed, on your behalf, by 2 your attorneys; is that right? 3 A. Yes. 4 Q. Did you review this complaint before it was 5 filed? 6 A. Yes. I received a copy of this prior to it 7 being filed. 8 Q. And did you authorize it being filed on your 9 behalf?10 A. Yes.11 Q. In the complaint, you purport to represent12 potential opt-in litigants who are current or former13 home health workers of defendant's. Have you talked to14 any of those persons that you purport to represent15 concerning your lawsuit?16 MR. GARRISON: Object to the form.17 A. Have I spoken to anyone who still works for18 Great Lakes Caring; is that what you're asking?19 Q. Or former employees of Great Lakes Caring20 about your lawsuit?21 A. Not that I'm aware of.22 Q. Have you asked anyone, in particular, to join23 you in your lawsuit?24 A. No.25 Q. Do you have any knowledge of the pay practices

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1 outside of First Care Home Care in Springfield? 2 MR. GARRISON: Object to the form. 3 A. I'm not aware of pay practices in any other 4 entity. 5 MR. PELTON: Let's take a real quick break and 6 finish up. 7 (A short recess was had.) 8 MR. PELTON: We're all set with our questions. 9 Thanks, Ms. Hicks.10 MR. GARRISON: I've got a few questions on11 redirect.12 CROSS-EXAMINATION OF LAURA BETH HICKS13 BY MR. GARRISON: 14 Q. Ms. Hicks, I want to ask you to walk through15 your typical day working for Great Lakes Caring and16 First Care Healthcare. Okay? When would your day17 typically start for work purposes?18 A. I would usually get up between 5:30 and 6:0019 in the morning. I would usually be on my tablet20 somewhere between 6:30 and 7:00 to check my e-mail to21 help determine whether there were additional referrals22 that needed to be seen, whether I received e-mails from23 other support staff regarding patients that I needed to24 either anticipate adding those patients to my schedule25 for that day, accompanying them to visits, answering

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1 questions regarding those clients. 2 I would then log off my computer. I would get 3 ready for work. I would be either at my office by 4 8:00 a.m. or I would be in touch with my coworkers by 5 8:00 a.m., usually meeting the LPNs that I worked with 6 to discuss our cases for the day, my cases for the day, 7 who I would be seeing. 8 Q. Okay. So you checked your tablet, at some 9 point, before 8:00 a.m.?10 A. Correct.11 Q. Is that right?12 Okay. And then, if you went into the office,13 you were there by 8:00 a.m.?14 A. Correct.15 Q. Is that right?16 A. Yes, unless I had a patient visit that was17 scheduled.18 Q. Okay. And if you didn't -- if you had a19 patient visit that was scheduled, when would that visit20 typically begin?21 A. Somewhere between 8:00 and 9:00.22 Q. In the morning?23 A. In the morning.24 Q. And when would your visits typically end for25 the day during your time at First Care --


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1 A. My -- 2 Q. -- Healthcare and Great Lakes Health Care -- 3 Great Lakes Home Care? Let me finish my question just 4 like we asked you to do for Mr. Pelton. 5 Do you want me to repeat my question? 6 A. Yes. 7 Q. Okay. How late in the day would your visits 8 with patients or clients typically go? 9 A. They could run as late as 7:00 or 8:00 p.m.10 On a typical day, I was probably home from my last visit11 somewhere between 6:00 and 7:30 p.m.12 Q. Okay. And did you drive from patient to13 patient?14 A. Yes.15 Q. Or from visit to visit?16 A. Yes, I did.17 Q. Okay. And why don't you turn towards the18 court reporter a little bit so she can hear you.19 A. I'm sorry. Yes.20 Q. And when you would drive from visit to visit,21 did you have time to stop and do personal activities,22 such as shopping, or eating, or things like that?23 A. No.24 Q. Okay.25 A. Not unless I needed to stop and put gas in my

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1 car to continue on. 2 Q. Okay. 3 A. That would have been the only stop I would 4 have made. 5 Q. Now, you said you would get home around what 6 time, did you say? What time did you say you would 7 typically get home from your visits? 8 A. Somewhere between 6:30 and 8:00 p.m. 9 Q. Okay. And then what time would you begin10 working on the charts for your visits?11 MR. PELTON: Objection. Leading.12 Q. Can you answer the question? Did you13 understand it?14 A. Yes. I understand the question. I would get15 home. I would take, approximately, 30 minutes off of my16 tablet to eat dinner and have a conversation with my17 spouse, and then I would log back onto my tablet and18 continue my work --19 Q. Okay.20 A. -- until I either was so tired I had to stop21 or until I finished my work for that evening.22 Q. Now, we went through a number of types of23 visits that you would conduct when Mr. Pelton asked you;24 is that right?25 A. Correct.

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1 Q. Now, with respect to the paperwork or charting 2 that you did for each of those visits, I want you to 3 give your best estimate, based on your experience 4 working for the company, about how long it would take 5 you to do that type of charting or paperwork in the 6 evening. Okay? 7 A. Outside of the visit time? 8 Q. Yes. Yes. And I'll walk through each one of 9 those. Okay?10 A. Sure.11 Q. So for an admission visit, how long did it12 take you to do the paperwork, typically, outside of that13 visit?14 MR. PELTON: Objection. Calls for speculation.15 A. I would estimate between an hour-and-a-half16 and two hours.17 Q. Okay. And for a 60-day recertification visit,18 how long would it take you to do that paperwork or19 charting outside of a visit?20 A. At least, 60 minutes, maybe as much as two21 hours.22 MR. PELTON: Same objection.23 Q. And for a discharge-type visit, how long did24 it take you to do the paperwork or charting outside of25 the visit?

Page 200

1 MR. PELTON: Same objection. 2 A. At least, 60 minutes. 3 THE REPORTER: I'm sorry. 4 MR. PELTON: Same objection. Speculation. 5 A. At least, 60 minutes. 6 Q. And for the transfer-of-care-type visit -- 7 excuse me. Let's start over the question. 8 For the transfer-of-care-type visit, how much 9 time did it take you to do charting or paperwork for10 that visit outside of the visit with the patient or the11 client?12 MR. PELTON: Same objection.13 A. 30 minutes to an hour-and-a-half.14 Q. Okay. Now, you've testified that you don't15 have any paperwork in your possession to go by to16 recreate this time; is that right?17 A. Correct.18 Q. So are these estimates based upon your memory19 and your experience having worked for the company?20 A. Yes.21 Q. And do these time estimates apply to the time22 period between October and December of 2015?23 A. Yes.24 MR. PELTON: Objection. Leading.25 Q. Now, Mr. Pelton has asked you about a number


(50) Pages 197 - 200




Page 201

1 of -- questioned you about a number of charts today, 2 such as Exhibit 2, correct? 3 A. Correct. 4 Q. Exhibit 12, correct? 5 A. Correct. 6 Q. Exhibit 10? 7 A. Correct. 8 Q. Exhibit 9? 9 A. Correct.10 Q. Exhibit 8?11 A. Correct.12 Q. Exhibit 7?13 A. Correct.14 Q. Exhibit 6?15 A. Correct.16 Q. Now, Mr. Pelton -- do you recall being asked17 about those?18 A. Yes.19 Q. Okay. Now, defense counsel also pointed or20 directed your attention and asked you questions about21 certain time stamps on those documents; is that right?22 A. Correct.23 Q. Now, when you were doing charting or what24 we've been calling paperwork for these visits, you were25 actually doing them on a tablet and not paper; is that

Page 202

1 right? 2 A. Correct. 3 Q. And the time stamps that you've seen on the 4 charts that Mr. Pelton has shown you, do you have any 5 reason to believe those are accurate or inaccurate with 6 respect to the time you worked? 7 A. I don't know if those time stamps are accurate 8 due to I don't know what the time out indicates, whether 9 it indicates when I left a patient's home or whether it10 indicates when the documentation was submitted.11 Q. You just don't know; is that right?12 A. I don't know.13 Q. Okay. And, in fact, did you ever use those14 time stamps for pay purposes, or anything like that,15 while you were working for the company?16 A. I did not.17 Q. Now, Mr. Pelton asked you about a declaration18 that you signed for a previous case that's been marked19 as Exhibit 13; is that right?20 A. Yes.21 Q. Now, did you work with somebody over the phone22 to compile and draft that declaration?23 A. I did.24 Q. And do you know about how long you spent on25 the phone to draft that declaration?

Page 203

1 A. My best estimate would be an hour. 2 Q. And did you have -- was it one conversation or 3 multiple conversations? 4 A. Multiple conversations. 5 Q. Was it with one person or multiple people? 6 A. Multiple people. 7 Q. And were those people attorneys or legal staff 8 at the law firms representing you? 9 A. Yes.10 Q. And when you put -- when you gave that11 declaration and signed it, were you giving it truthfully12 and to the best of your best recollection at the time?13 A. Yes.14 Q. When you worked on charting for a client or a15 patient, was it typically completed at the visit, or was16 it typically completed later, after the visit?17 A. More than not, it was completed out of the18 visit.19 Q. And why was that?20 A. Because of the caseload that I had, because of21 the acuity of the patients that I had and the drive time22 I had, in between my patients, sometimes required that I23 leave the home before I had the documentation completed24 so that I could get to the next home in a decent time25 frame.

Page 204

1 Q. Now, counsel asked you about a Facebook post 2 that's been made an exhibit; do you recall that? 3 A. Yes. 4 Q. Was that a message that you sent to anybody, 5 or was that a message that was sent to you? 6 A. It was sent to me. 7 Q. And was that message sent to you by an 8 employee of Great Lakes Home Health Care Services? 9 A. It was.10 Q. And did you share that message with anybody11 else?12 A. No. I did not.13 Q. And did you respond to that message?14 A. I did not.15 Q. Okay. Did you click on that message and call16 the contact information for the law firms that were17 listed?18 A. I did.19 Q. Do you recall ever working less than 40 hours20 a week for the company?21 A. I do not.22 Q. And does that apply to the October to December23 2015 time frame?24 A. Yes, it does.25 MR. GARRISON: Nothing further.


(51) Pages 201 - 204




Page 205

1 REDIRECT EXAMINATION 2 BY MR. PELTON: 3 Q. You mentioned your drive time. Was your 4 distance between patients generally highways or 5 neighborhoods or city streets? 6 A. It depended on the particular day. 7 Q. Would you normally be driving 35 to 50 miles 8 an hour, or are you more in a 15- to 25-mile-an-hour 9 zone?10 A. I would have been driving the speed limit for11 the zone for which I was driving.12 Q. Okay. And is there much traffic in the areas13 around Springfield where you did your work?14 A. That would depend on the time of day of the15 visit, taking into account things like rush hour.16 Q. Sure. I'm sure we have records on this, but17 what's the longest you might travel between patients?18 A. The longest visit I can recall having was in19 excess of an hour.20 Q. What's the longest in miles?21 A. I would say 60, off the top of my head.22 Q. And what's the typical number of hours you23 might drive in a workweek?24 A. The typical number of hours?25 Q. I'm sorry. Miles.

Page 206

1 A. Miles. I'm not sure off the top of my head. 2 Q. You'd submit the miles as part of your Kinnser 3 report? 4 A. The Kinnser report? 5 Q. Yeah. 6 A. Yes. We had to fill in our miles. 7 Q. Okay. You put that information into Kinnser? 8 A. Yes, I did. 9 Q. You did so accurately?10 A. Yes.11 Q. In referring to your declaration, Exhibit 13,12 who did you speak to on the phone about that13 declaration?14 MR. GARRISON: You can answer the question. Just15 names.16 A. Joshua, Frank, Nicolle. I'm sorry. I can't17 remember her last name.18 Q. Is she a lawyer?19 A. She is.20 Q. Mr. Frank?21 A. She is a worker of Mr. Frank, a secretary,22 legal secretary.23 Q. Speak to anyone else?24 A. I spoke with Mr. Garrison.25 Q. About the declaration?

Page 207

1 A. Correct. 2 Q. When did you have -- anyone else? 3 A. Not that I can recall. 4 Q. When did you have these conversations? 5 A. Around the time the declaration was being 6 formed. 7 Q. Well, it was signed electronically on 8 June 19th, last summer? 9 A. Last summer.10 Q. Over what period of time did you have these11 conversations with Mr. Frank, Nicolle, and Mr. Garrison?12 A. When we were discussing what -- the contents13 of the declaration.14 Q. Sure. Over what period of time did you have15 those conversations?16 A. I would estimate a two- to three-week period17 of time.18 Q. Did you see any other drafts other than the19 one you executed?20 A. Did I ever receive any other copy, you're21 saying?22 Q. Did you see any other drafts?23 A. That's what you're asking, to clarify?24 Q. Yes.25 A. I don't recall.

Page 208

1 Q. Okay. And you said you made no edits to that 2 document, correct? 3 A. I did not physically edit this document. 4 Q. After receiving that and before signing 5 it, did you verbally provide any edits over the 6 phone? 7 A. After seeing it and before signing it -- 8 Q. Yes. 9 A. -- you just said? I don't recall.10 Q. Typical day you described, in Mr. Garrison's11 questioning, was that both while using Kinnser and12 Homecare Homebase?13 A. No, because I didn't have e-mail when I worked14 with Kinnser.15 Q. Other --16 A. So that would have been omitted.17 Q. Other than that, describe your day under both18 software systems?19 A. I would have started my day when I got to the20 office and continued on from there until I was done21 with the patient for the day and went home to22 document.23 Q. Right. And the "Description of Typical24 Events" --25 A. Mm-hmm. They would be accurate.


(52) Pages 205 - 208




Page 209

1 Q. -- didn't change? 2 And you only went to the office, what, once a 3 week, at most? 4 A. No. I would not say that's correct. 5 Q. How often did you go to the office? 6 A. I would estimate I was at the office at least 7 four times a week, maybe greater than that. 8 Q. Always in the morning? 9 A. Not always in the morning.10 Q. Usually in the morning?11 A. Sometimes in the morning.12 Q. Did you sign in or have any sort of log when13 you were there?14 A. Was there a sign-in sheet when I entered the15 office?16 Q. Did you sign in anywhere?17 A. I would document in my "non-visit18 activity" --19 Q. Okay.20 A. -- for office time.21 Q. In Homecare Homebase?22 A. In Homecare Homebase, or it would be23 documented if I was there for a meeting.24 Q. Sure.25 A. It would be documented for each thing I was

Page 210

1 there for. 2 Q. What was your purpose in going to the 3 office? 4 A. That would depend on why I was 5 there. 6 Q. That's what I'm asking. 7 A. If it was a meeting -- if it was a meeting, if 8 it was to meet with my other staff in the morning, if I 9 needed to go there and get equipment or supplies for a10 patient before going to their home.11 Q. And it's your testimony you would go there12 four days a week, on average?13 A. I would be in the office, at least, four times14 per week.15 Q. And this would be documented in Homecare16 Homebase?17 A. It should be documented if I was at the18 office.19 MR. PELTON: Okay. I think we're all set. Thanks.20 Anything else?21 MR. GARRISON: Nothing further.22 MR. PELTON: Okay.23 THE REPORTER: Counsel, regular delivery on the24 transcript?25 MR. GARRISON: I think so.

Page 211

1 MR. DAVIS: Rough. 2 MR. PELTON: E-trans. 3 MR. GARRISON: Ten days is fine. 4 (Off the record at 3:49 p.m.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Page 212

1 ACKNOWLEDGMENT OF DEPONENT 2 3 I, LAURA BETH HICKS, do hereby 4 acknowledge that I have read and examined the 5 foregoing testimony, and the same is a true, correct 6 and complete transcription of the testimony given by 7 me and any corrections appear on the attached Errata 8 sheet signed by me. 9 10 11 _____________________ ________________________12 DATE SIGNATURE13 14 15 16 17 18 19 20 21 22 23 24 25


(53) Pages 209 - 212




Page 213

1 CERTIFICATE OF COURT REPORTER - NOTARY PUBLIC 2 3 I, Jennifer L. Bernier, Certified Shorthand 4 Reporter No. 084-004190, RPR, CRR, the officer before 5 whom the foregoing deposition was taken, do hereby 6 certify that the foregoing transcript is a true and 7 correct record of the testimony given; that said 8 testimony was taken by me stenographically and 9 thereafter reduced to typewriting under my direction;10 that reading and signing was requested; and that I am11 neither counsel for, related to, nor employed by any of12 the parties to this case and have no interest, financial13 or otherwise, in its outcome.14 IN WITNESS WHEREOF, I have hereunto set my15 hand and affixed my notarial seal this 3rd day of16 October, 2017.17 18 My commission expires: June 24, 202019 _20 21 22 23 ____________________________24 Notary Public in and for the25 State of Illinois


(54) Page 213


Exhibit F


DocuSign Envelope ID: 7 3c6 F F 61ŸOc# 24 Filed 06/23/17 Pg 2 of 9 Pg ID 316

IN THE UNITED STATES DISTRICT COURTFOR THE EASTERN DISTRICT OF MICHIGAN

SANDRA HUTCHINS, on behalf ofherself and similarly situatedemployees,

Plaintiff, Case No. 2:17-ev-10210V.

Hon. George Caram SteehGREAT LAKES HOME HEALTHSERVICES, INC. and GREAT LAKES Magistrate Judge David R. GrandACQUISITION CORP., d/b/a GREATLAKES CARING,

Defendants.

DECLARATION OF LAURA BETH HICKS

I, Laura Beth Hicks, under penalty of perjury and pursuant to 28 U.S.C.

§ 1746, do hereby declare as follows:

1. I worked for Great Lakes Caring from approximately October 2015

until approximately February 2017 as a Registered Nurse (RN) Case Manager.

Throughout my employment with Great Lakes Caring, I worked out of its

Springfield, Illinois office providing home health care to its clients.

2. As an RN Case Manager, I was responsible for traveling to patients'

homes, providing nursing care to homebound patients, completing all necessary

medical charts and other required paperwork, communicating by phone with

patients and other health care providers, attending meetings as dictated by Great

Lakes Caring, and performing other duties necessary to perform my job.


DocuSign Envelope ID: 7 3c8-6 F F 61oc # 24 Filed 06/23/17 Pg 3 of 9 Pg ID 317

3. From approximately October 2015 until the end of December2015, I

was paid by Great Lakes Caring through a combination of (i) per-visit flat fees;

and (ii) hourly paymentsbased upon the duration of tasks.

4. As an RN Case Manager, I typically performed the following types of

visits: admission, 60-day recertification, discharge, and transfer of care. I received

$30 for each visit.

5. I also received an hourly rate of $20 per hour for time I spent working

in the office or for attending meetingsor case conferences.

6. I was also required to work "on call." Working on call entailed being

available to make and receive calls from patients and providers for 24 hours. I

received approximately $50 for 24 hours "on call."

7. From approximately October 2015 until December 2015, I typically

worked more than 40 hours each workweek. However, my pay stubs did not

reflect all of the time I spent working. For example, my paystubs did not show the

time I spent completing charting and documentation concerningpatients' visits.

8. During this period, I did not receive any overtime compensation at

one-and-a-half times my regular hourly rate. Based upon my general routine and

recollection, I estimate that from approximately October 2015 until the end of

December2015, I typically worked approximately 50 to 60 hours each week.

9. I understandfrom my attorneys that Great Lakes Caring argues that I

did not work full-time during the period of time when I was paid on a combination

2


DocuSign Envelope ID: 7 3 6 F F 61ŸOc# 24 Filed 06/23/17 Pg 4 of 9 Pg ID 318

of a fee per visit and hourly basis. This is not true. I was a full-time employee the

entire time I worked for Great Lakes Caring. In fact, as an RN Case Manager, I

exclusively performed the types of visits listed above in almost every week, and

they lasted, at a minimum, one hour in each patient's home, and usually longer.

Additionally, I spent at least as long completing the corresponding charting for

each visit outside of business hours from my home. For example, an admission

visit, also known as a start of care visit, typically took between 1.5 and 2 hours to

complete in a patient's home and required me to complete a packet of medical

forms approximately 27 pages long and sometimes longer when additional

supporting documentation was necessary. Completing all of this documentation in

a patient's home is impossible and usually requires a minimum of 2 hours of time

per visit completing the visit paperwork from home. This does not include any

time spent on calls to providers or patients which were also necessary and had to

be made from home. No matter how long the visit and these visit-related activities

took, I only received the $30 per-visit fee.

10. Attached as Exhibit A is a pay record provided to my attorneys by

Great Lakes Caring that illustrates how I was paid.

11. Exhibit A shows my pay records for one semi-monthly pay period in

December 2015. This record contains columns labeled "description," "hours,"

"rate," and "amount" from left to right. However, the amounts reflected in the

"hours" column do not always reflect the number of hours worked, and those in the

3


DocuSjgn Envelope ID: 7 3c8-6 - F F 61ŸOc# 24 Filed 06/23/17 Pg 5 of 9 Pg ID 319

"rates" column do not always reflect an hourly rate. Instead, some numbers in the

"hours" column reflect the number of hours, while others reflect the number of

visits or 24-hour periods "on call." Similarly, some numbers in the "rate" column

reflect an hourly rate, while others reflect a per-visit fee. For example, "2.25" in

the "hours" column of the first row reflects the number of hours I spent in the

office performing administrative tasks or attending meetings during the pay period

at the $20.00 per hour rate. Similarly, "12.00" in the "hours" column of the third

row reflects a number of days I spent working "on call." In contrast, "34.00" in the

"hours" column of the second row reflects the number of visits I performed at a

per-visit fee of $30.00 per visit.

12. Exhibit A does not show the amount of time I spent in each patient's

home, or working from home and driving between patient visits, as described

above.

13. Based on Exhibit A and my estimates above of how long I spent on

patient visits (1.5 hours/visit) and visit-related charting (2 hours/visit) above, this

pay record reflects approximately 121.25 hours worked. The 34 visits reflected in

Exhibit A required at least 51 hours in patients' homes (1.5 hours/visit x 34 visits)

and 68 hours charting from home (2 hours charting/visit x 34 visits), for a total of

119 hours. When this time is added to my office time, the total is 121.25 hours,

without including the time I spent every shift traveling between patients' homes,

calling patients and other health care providers, and working outside of normal

4


DocuSjgn Envelope ID: 7 38 F F 61foc# 24 Filed 06/23/17 Pg 6 of 9 Pg ID 320

business hours while "on call." In short, Exhibit A confirms that I worked well in

excess of 40 hours per week during the pay period indicated.

14. I joined this lawsuit so that I could assert my claims against Great

Lakes Caring regarding their failure to pay me overtime compensationat one-and-

one-half times my regular rate of pay as result of their combination per-visit/per-

hour compensationsystem.

15. There were other nurses and home health workers who worked out of

the Springfield, Illinois office during my employment with Great Lakes Caring

who were paid on a fee per visit and hourly basis like I was. I know this because,

as an RN Case Manager, I obtained first hand knowledge of how LPNs were paid.

Further, it is my understandingthat many nurses and home health workers continue

to be paid in this manner.

Pursuant to 42 U.S.C. §1746, I declare under penalty of perjury that theforegoing statements is true and correct and that I have personal knowledgeof the information provided above.

6/19/20178848FF3789F7456.

Date Signature

5


2 -c 10210-GCS-ORG Doo = 23 F el 06/23 17 Pg 7 of 9 Pg ID 321

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Exhibit H


VerDate mar<24>2004 18:20 Apr 22, 2004 Jkt 203001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\23APR2.SGM 23APR2

Friday,

April 23, 2004

Part II

Department of Labor Wage and Hour Division

29 CFR Part 541 Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees; Final Rule

Preamble



22122 Federal Register / Vol. 69, No. 79 / Friday, April 23, 2004 / Rules and Regulations

DEPARTMENT OF LABOR

Wage and Hour Division

29 CFR Part 541

RIN 1215–AA14

Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees

AGENCY: Wage and Hour Division, Employment Standards Administration, Labor. ACTION: Final rule.

SUMMARY: This document provides the text of final regulations under the Fair Labor Standards Act implementing the exemption from minimum wage and overtime pay for executive, administrative, professional, outside sales and computer employees. These exemptions are often referred to as the ‘‘white collar’’ exemptions. To be considered exempt, employees must meet certain minimum tests related to their primary job duties and, in most cases, must be paid on a salary basis at not less than minimum amounts as specified in pertinent sections of these regulations. EFFECTIVE DATE: These rules are effective on August 23, 2004. FOR FURTHER INFORMATION CONTACT: Richard M. Brennan, Senior Regulatory Officer, Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Room S– 3506, 200 Constitution Avenue, NW., Washington, DC 20210. Telephone: (202) 693–0745 (this is not a toll-free number). For an electronic copy of this rule, go to DOL/ESA’s Web site (http:/ /www.dol.gov/), select ‘‘Federal Register’’ under ‘‘Laws and Regulations,’’ and then ‘‘Final Rules.’’ Copies of this rule may be obtained in alternative formats (Large Print, Braille, Audio Tape or Disc), upon request, by calling (202) 693–0023 (not a toll-free number). TTY/TDD callers may dial toll-free 1–877–889–5627 to obtain information or request materials in alternative formats.

Questions of interpretation and/or enforcement of regulations issued by this agency or referenced in this notice may be directed to the nearest Wage and Hour Division District Office. Locate the nearest office by calling our toll-free help line at 1–866–4USWAGE (1–866– 487–9243) between 8 a.m. and 5 p.m., in your local time zone, or log onto the Wage and Hour Division’s Web site for a nationwide listing of Wage and Hour District and Area Offices at: http://

www.dol.gov/whd/america2.htm.

SUPPLEMENTARY INFORMATION:

I. Summary of Major Changes and Economic Impact

The minimum wage and overtime pay requirements of the Fair Labor Standards Act (FLSA) are among the nation’s most important worker protections. These protections have been severely eroded, however, because the Department of Labor has not updated the regulations defining and delimiting the exemptions for ‘‘white collar’’ executive, administrative and professional employees. By way of this rulemaking, the Department seeks to restore the overtime protections intended by the FLSA.

Under section 13(a)(1) of the FLSA and its implementing regulations, employees cannot be classified as exempt from the minimum wage and overtime requirements unless they are guaranteed a minimum weekly salary and perform certain required job duties. The minimum salary level was last updated in 1975, almost 30 years ago, and is only $155 per week. The job duty requirements in the regulations have not been changed since 1949—almost 55 years ago.

Revisions to both the salary tests and the duties tests are necessary to restore the overtime protections intended by the FLSA which have eroded over the decades. In addition, workplace changes over the decades and federal case law developments are not reflected in the current regulations. Under the existing regulations, an employee earning only $8,060 per year may be classified as an ‘‘executive’’ and denied overtime pay. By comparison, a minimum wage employee earns about $10,700 per year. The existing duties tests are so confusing, complex and outdated that often employment lawyers, and even Wage and Hour Division investigators, have difficulty determining whether employees qualify for the exemption. The existing regulations are very difficult for the average worker or small business owner to understand. The regulations discuss jobs like key punch operators, legmen, straw bosses and gang leaders that no longer exist, while providing little guidance for jobs of the 21st Century.

Confusing, complex and outdated regulations allow unscrupulous employers to avoid their overtime obligations and can serve as a trap for the unwary but well-intentioned employer. In addition, more and more, employees must resort to lengthy court battles to receive their overtime pay. In

the Department’s view, this situation cannot be allowed to continue. Allowing more time to pass without updating the regulations contravenes the Department’s statutory duty to ‘‘define and delimit’’ the section 13(a)(1) exemptions ‘‘from time to time.’’

Accordingly, on March 31, 2003, the Department published a Notice of Proposed Rulemaking (68 FR 15560) suggesting changes to the Part 541 regulations, including the largest increase of the salary levels in the 65year history of the FLSA. The proposed changes to the duties tests were designed to ensure that employees could understand their rights, employers could understand their legal obligations, and the Department could vigorously enforce the law.

During a 90-day comment period, the Department received 75,280 comments from a wide variety of employees, employers, trade and professional associations, small business owners, labor unions, government entities, law firms and others. In addition, the Department’s proposal prompted vigorous public policy debate in Congress and the media. The public commentary revealed significant misunderstandings regarding the scope of the ‘‘white collar’’ exemptions, but also provided many helpful suggestions for improving the proposed regulations.

After carefully considering all of the relevant comments, and as detailed in this preamble, the Department has made numerous changes from the proposed rule to the final rule, including the following:

Scope of the Exemptions • New section 541.3(a) states that

exemptions do not apply to manual laborers or other ‘‘blue collar’’ workers who perform work involving repetitive operations with their hands, physical skill and energy. Thus, for example, non-management production-line employees and non-management employees in maintenance, construction and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, construction workers and laborers have always been, and will continue to be, entitled to overtime pay.

• New section 541.3(b) states that the exemptions do not apply to police officers, fire fighters, paramedics, emergency medical technicians and similar public safety employees who perform work such as preventing, controlling or extinguishing fires of any type; rescuing fire, crime or accident victims; preventing or detecting crimes; conducting investigations or inspections


http://www.dol.gov/

http://www.dol.gov/whd/america2.htm

http://www.dol.gov/whd/america2.htm


22184 Federal Register / Vol. 69, No. 79 / Friday, April 23, 2004 / Rules and Regulations

‘‘roughly equivalent’’ are uncertain and will be subject to litigation. Fisher & Phillips also states that the first sentence of proposed section 541.604(a) is ambiguous because it suggests that the extra compensation must somehow be paid consistent with the salary basis requirements. The Department does not agree with the comments suggesting the elimination of the reasonable relationship requirement. If it were eliminated, an employer could establish a pay system that calculated exempt employees’ pay based directly upon the number of hours they work multiplied by a set hourly rate of pay; employees could routinely receive weekly pay of $1,500 or more and yet be guaranteed only the minimum required $455 (thus effectively allowing the employer to dock the employees for partial day absences). Such a pay system would be inconsistent with the salary basis concept and the salary guarantee would be nothing more than an illusion. We believe that the proposed regulation provided clear guidance about the reasonable relationship requirement. The Department has never suggested a particular percentage requirement in prior opinion letters, and this issue has rarely arisen in litigation over the years. The proposed rule clarified these terms by stating that an employee who is guaranteed compensation of ‘‘at least $500 for any week in which the employee performs any work, and who normally works four or five shifts each week, may be paid $150 per shift consistent with the salary basis requirement.’’ Therefore, we have not made any changes to the proposal in this regard. However, we have modified the introductory sentence to clarify that the extra compensation does not have to be paid on a salary basis.

One commenter states that the ‘‘minimum guarantee plus extras’’ concept allows too much flexibility and essentially allows an employer to circumvent the prohibition against docking for absences due to a lack of work. The commenter gives the example of registered nurses whose average pay is $30 per hour, who would earn the guaranteed minimum in two shifts. The commenter believes that the entire balance of the workweek could be compensated as ‘‘extra compensation.’’ Thus, the commenter expresses concern that a nurse could be paid for all additional shifts on a straight time basis, with no overtime, and if the hospital had a lack of work, the nurse might not receive more than the two shifts required to earn the minimum guarantee. This commenter views such a system as effectively converting a

nurse into an hourly employee not paid overtime, or a salaried employee whose pay was reduced due to variations in the quantity of work performed. However, under the final rule, if an employee is compensated on an hourly basis, or on a shift basis, there must be a reasonable relationship between the amount guaranteed per week and the amount the employee typically earns per week. Thus, if a nurse whose actual compensation is determined on a shift or hourly basis usually earns $1,200 per week, the amount guaranteed must be roughly equivalent to $1,200; the employer could not guarantee such an employee only the minimum salary required by the regulation.

Another commenter states that allowing an exempt employee to be paid based on an hourly computation is inconsistent with the general requirement that exempt employees must be paid on a salary basis. This comment does not take account of the fact that the employees affected by the reasonable relationship requirement must receive a salary guarantee that applies in any week in which they perform any work. The tolerance for computing their actual pay on an hourly, shift or daily basis is for computation purposes only; it does not negate the fact that such employees must receive a salary guarantee that will be in effect any time the employer does not provide sufficient hours or shifts for them to reach the guarantee. We believe that the reasonable relationship requirement, which has been a Wage and Hour Division policy for at least 30 years (see FOH § 22b03), ensures that the salary guarantee for such employees is a meaningful guarantee rather than a mere illusion.

Section 541.605 Fee Basis Proposed section 541.605 simplified

the fee basis provision in the current rule, but made no substantive change. Thus, the proposed rule provided that administrative and professional employees may be paid on a fee basis, rather than a salary basis: ‘‘An employee may be paid on a ‘fee basis’ within the meaning of these regulations if the employee is paid an agreed sum for a single job regardless of the time required for its completion.’’ Generally, a ‘‘fee’’ is paid for a unique job. ‘‘Payments based on the number of hours or days worked and not on the accomplishment of a given single task are not considered payments on a fee basis.’’

The final rule does not make any changes to the proposed rule. Very few comments were submitted on this provision. The Fisher & Phillips law firm notes that the Sixth Circuit in

Elwell v. University Hospitals Home Care Services, 276 F.3d 832 (6th Cir. 2002), held that a compensation plan that combines fee payments and hourly pay does not qualify as a fee basis because it ties compensation, at least in part, to the number of hours or days worked and not on the accomplishment of a given single task. It asks the Department to amend the rule to permit combining the payment of a fee with additional, non-fee-based compensation. The Department has decided not to change the long-standing fee basis rule because the only appellate decision that addresses this issue accepted the ‘‘feeonly’’ requirement, and Fisher & Phillips conceded that this is an ‘‘arcane and rarely-used’’ provision. We continue to believe that payment of a fee is best understood to preclude payment of additional sums based on the number of days or hours worked. Another commenter asks the Department to revise the rule to eliminate the necessity for ‘‘employers to track hours on a project or assignment in order to determine the exempt status of employees.’’ However, as in the current rule, the final rule reasonably prescribes that in determining the adequacy of a fee payment, reference should be made to a standard workweek of 40 hours. Thus, ‘‘[t]o determine whether the fee payment meets the minimum amount of salary required for exemption under these regulations, the amount paid to the employee will be tested by determining the time worked on the job and whether the fee payment is at a rate that would amount to at least $455 per week if the employee worked 40 hours.’’

Section 541.606 Board, Lodging or Other Facilities

Proposed section 541.606 defined the terms, ‘‘board, lodging or other facilities.’’ The Department did not receive substantive comments on this section, and has made no changes in the final rule.

Subpart H, Definitions and Miscellaneous Provisions

Section 541.700 Primary Duty

Proposed section 541.700 defined the term ‘‘primary duty’’ as ‘‘the principal, main, major or most important duty that the employee performs.’’ The proposed rule stated that a determination of an employee’s primary duty ‘‘must be based on all the facts in a particular case,’’ and set forth four nonexclusive factors to consider: ‘‘the relative importance of the exempt duties as compared with other types of duties; the amount of time spent performing exempt work; the employee’s relative freedom from direct


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Exhibit I


U.S. Department of Labor Wage and Hour Division

(Revised July 2008)

Fact Sheet #17N: Nurses and the Part 541 Exemptions Under the Fair Labor Standards Act (FLSA)

The FLSA requires that most employees in the United States be paid at least the federal minimum wage for all hour worked and overtime pay at time and one-half the regular rate of pay for all hours worked over 40 in a workweek. However, Section 13(a)(1) of the FLSA provides an exemption from both minimum wage and overtime pay for employees employed as bona fide executive, administrative, professional and outside sales employees. Section 13(a)(1) and Section 13(a)(17) also exempts certain computer employees. To qualify for exemption, employees must meet certain tests regarding their job duties and be paid on a salary basis at not less than $455 per week.

Nurses

To qualify for the learned professional employee exemption, all of the following tests must be met:

• The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate notless than $455 per week;

• The employee’s primary duty must be the performance of work requiring advanced knowledge, definedas work which is predominantly intellectual in character and which includes work requiring theconsistent exercise of discretion and judgment;

• The advanced knowledge must be in a field of science or learning; and• The advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual

instruction.

Registered nurses who are paid on an hourly basis should receive overtime pay. However, registered nurses who are registered by the appropriate State examining board generally meet the duties requirements for the learned professional exemption, and if paid on a salary basis of at least $455 per week, may be classified as exempt.

Licensed practical nurses and other similar health care employees, however, generally do not qualify as exempt learned professionals, regardless of work experience and training, because possession of a specialized advanced academic degree is not a standard prerequisite for entry into such occupations, and are entitled to overtime pay.

Where to Obtain Additional Information

For additional information, visit our Wage and Hour Division Website: http://www.wagehour.dol.gov and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866-4USWAGE (1-866-487-9243). This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations.

U.S. Department of Labor Frances Perkins Building 200 Constitution Avenue, NW Washington, DC 20210

1-866-4-USWAGE TTY: 1-866-487-9243

Contact Us

FS 17N

Important information regarding recent overtime litigation in the U.S. District Court of Eastern District of Texas.


http://www.dol.gov/whd/flsa/index.htm

http://www.dol.gov/WHD/minimumwage.htm

http://www.dol.gov/whd/overtime_pay.htm

http://www.dol.gov/WHD/minimumwage.htm


http://www.dol.gov/whd/overtime/fs17b_executive.pdf

http://www.dol.gov/whd/overtime/fs17c_administrative.pdf

http://www.dol.gov/whd/overtime/fs17d_professional.pdf

http://www.dol.gov/whd/overtime/fs17f_outsidesales.pdf

http://www.dol.gov/whd/overtime/fs17e_computer.pdf


http://www.dol.gov/whd

http://www.dol.gov/whd/contact_us.htm

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http://www.dol.gov/whd/overtime/final2016/litigation.htm

Exhibit J


Crook v. Rabbit River Enters.

United States District Court for the Western District of Michigan, Southern Division

June 10, 2015, Decided; June 10, 2015, Filed

Case No. 1:14-cv-118

Reporter2015 U.S. Dist. LEXIS 74723 *; 2015 WL 3626695

DANIEL JAMES CROOK, Plaintiff, v. RABBIT RIVER ENTERPRISES, INC., Defendant.

Counsel: [*1] For Daniel James Crook, an individual, plaintiff, counter-defendant: Bradley K. Glazier, Bos & Glazier PLC, Grand Rapids, MI.

For Rabbit River Enterprises, Inc., a Michigan corporation, defendant, counter-claimant: Peter James Bottenhorn, Timothy A. Hoesch, Hoesch & Vander Ploeg PLC, Zeeland, MI.

For Facilitative Mediator, mediator: Bruce W. Neckers, LEAD ATTORNEY, Rhoades McKee P.C., Grand Rapids, MI.

Judges: HON. JANET T. NEFF, United States District Judge.

Opinion by: JANET T. NEFF

Opinion

Plaintiff filed this case against Defendant, his former employer, alleging that Defendant failed to pay him wages and overtime compensation in accordance with the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. Pending before the Court is Plaintiff's "Motion for Partial Summary Judgment" (Dkts 37, 38). Defendant has filed a Response (Dkts 39, 40) opposing the motion on the grounds that genuine issues of material fact exist with respect to the nature of Plaintiff's employment and whether he is properly exempt from overtime compensation under the FLSA. Plaintiff has filed a Reply (Dkt 41). Having fully considered the parties' briefs, and accompanying exhibits, the Court finds that the facts and arguments are adequately presented in these [*2] materials and that oral argument is unnecessary. See W.D. Mich. LCivR 72(d). For the reasons that follow, the Court determines that Plaintiff's motion is properly denied.

I. Facts1

1. Rabbit River is a trucking company in Holland, Michigan.

2. Rabbit River is an "enterprise engaged in commerce or in the production of goods for commerce" as it has "employees engaged in commerce or in the production of goods for commerce" and "is an enterprise whose annual gross volume of sales made or business done is not less than $500,000." See 29 U.S.C. § 203(s)(1)(A).

3. Bruce Hassevoort is the sole shareholder of Rabbit River Enterprises, Inc.

4. Eric Hassevoort is the head dispatcher for Rabbit River.

5. Daniel J. Crook was an employee of Rabbit River from about June 2012 to August 23 or 24, 2013.

6. From July 8, 2012 to August 23 or 24, 2013, Daniel Crook was employed with Rabbit River in the role of dispatcher.

7. Rabbit River did not track or log the hours that dispatchers worked.

8. Daniel Crook did not log the hours he worked at Rabbit River.

9. Crook did not conduct performance reviews of any Rabbit [*3] River employees.

10. Bruce Hassevoort did not consult with the Department of Labor, an attorney, or an accountant to determine if the position of dispatcher was exempt from the FLSA overtime requirement and did not know if the position of dispatcher was exempt.

On February 3, 2014, Plaintiff filed this case claiming

1 The parties have filed a Joint Statement of Material Facts (JSMF) (Dkt 37-1), which sets forth the key underlying undisputed facts, as cited herein.


Page 2 of 6

that he was never paid overtime and was improperly classified by Defendant as an "exempt" employee. Following discovery, Plaintiff moved for partial summary judgment on the issue of liability.

II. Legal Standard

A party may move for partial summary judgment, identifying the part of each claim on which summary judgment is sought. FED. R. CIV. P. 56(a). Summary judgment is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Id. The court must consider the evidence and all reasonable inferences in favor of the nonmoving party. Burgess v. Fischer, 735 F.3d 462, 471 (6th Cir. 2013); U.S. S.E.C. v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 327 (6th Cir. 2013) (citation omitted).

The moving party has the initial burden of showing the absence of a genuine issue of material fact. Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 200 (6th Cir. 2010). The burden then "shifts to the nonmoving party, who must present some 'specific facts showing that there is a genuine issue for trial.'" Id. (quoting [*4] Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). "There is no genuine issue for trial where the record 'taken as a whole could not lead a rational trier of fact to find for the non-moving party.'" Burgess, 735 F.3d at 471 (quoting Matsushita Elec. Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)). "The ultimate inquiry is 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Sierra Brokerage Servs., 712 F.3d at 327 (quoting Anderson, 477 U.S. at 251-52).

III. Analysis

Plaintiff seeks summary judgment on the issue of Defendant's liability for violations of the FLSA. Defendant argues that summary judgment is improper because there are genuine issues of material fact regarding the actions of the parties, Plaintiff's duties and responsibilities, and his autonomy and exercise of discretion as a dispatcher for Defendant, which are instrumental in determining whether Plaintiff, a salaried employee, was properly exempted from overtime compensation. The Court agrees that genuine issues of material fact exist with regard to Defendant's liability

under the FLSA.

The parties do not dispute the governing legal principles. The FLSA requires that an employee covered under the Act receive overtime pay "at a rate not less than one and one-half times the regular rate at which he is employed" [*5] if he works a workweek longer than forty hours. 29 U.S.C. § 207(a)(1); see also Alvarez v. Key Trans. Serv. Corp., 541 F. Supp. 2d 1308, 1311 (S.D. Fla. 2008). However, the FLSA overtime wage requirement does not apply to "any employee employed in a bona fide executive, administrative, or professional capacity." 29 U.S.C. § 213(a)(1); see Alvarez, 541 F. Supp. 2d at 1311.

The question is whether Plaintiff was exempt from the overtime provisions of the FLSA as an "administrative," employee, which is the only FLSA exemption applicable in this case. "To determine whether a genuine issue exists about whether Plaintiff qualified as an "administrative" [] employee within the meaning of section 213(a)(1), the Court looks to applicable case law and to the Code of Federal Regulations." Alvarez, 541 F. Supp. 2d at 1312.

"'The employer bears the burden of proving that an employee is exempt from overtime payments." Allemani v. Pratt (Corrugated Logistics) LLC, 1:12-CV-00100-RWS, 2014 U.S. Dist. LEXIS 77715, 2014 WL 2574536, at *7 (N.D. Ga. June 6, 2014) (citations omitted). However, "FLSA provisions are to be interpreted liberally in the employee's favor and its exemptions construed narrowly against the employer." Rock v. Ray Anthony Int'l, LLC, 380 F. App'x 875, 877 (11th Cir. 2010)

"An employee is considered an 'administrative' employee if he meets the following three requirements: (1) the employee is compensated on a salary or fee basis of at least $455 per week; (2) whose primary duty is 'the performance of office or non-manual work directly [*6] related to the management or general business operations of the employer or the employer's customers'; and (3) whose primary duty includes the 'exercise of discretion and independent judgment with respect to matters of significance."' Alvarez, 541 F. Supp. 2d at 1312 (quoting 29 C.F.R. § 541.200). The parties agree that the first prong of the administrative exemption is met: Plaintiff was paid more than $455 per week. They dispute the second and third prongs: whether Plaintiff performed duties directly related to Defendant's management or business operations, and whether he exercised discretion and independent

2015 U.S. Dist. LEXIS 74723, *3


Page 3 of 6

judgment regarding matters of significance.

A. Management or General Business Operations

"The phrase 'directly related to the management and business operations' requires the employee to 'perform work directly related to assisting with the running or servicing of the business, as distinguished, for example, from working on a manufacturing production line or selling a product in a retail or service establishment.'" Alvarez, 541 F. Supp. 2d at 1312-13 (quoting 29 C.F.R. § 541.201(a)). Under the Code of Federal Regulations, work directly related to management or general business operations includes work in the following "functional areas": "tax; finance; accounting; budgeting; auditing; [*7] insurance; quality control; purchasing; procurement; advertising; marketing; research; safety and health; personnel management; human resources; employee benefits; labor relations; public relations, government relations; computer network, internet and database administration; legal and regulatory compliance; and similar activities." Id. (quoting 29 C.F.R. § 541.201(b)).

Plaintiff observes that recent guidance from the Department of Labor clarifies the "difference between business operations and a company's business":

[T]he administrative exemption is "limited to those employees whose primary duty relates 'to the administrative as distinguished from the production operations of a business.'" 69 Fed. Reg. 22122, 22141 (April 23, 2004), quoting the 1949 Weiss Report. In other words, "it relates to employees whose work involves servicing the business itself — employees who 'can be described as staff rather than line employees.'" Id., quoting the 1940 Stein Report.

This "production versus administrative" dichotomy is intended to distinguish "between work related to the goods and services which constitute the business' marketplace offerings and work which contributes to 'running the business itself.'" Bothell v. Phase Metrics, Inc., 299 F.3d 1120, 1127 (9th Cir. 2002), quoting Bratt v. County of Los Angeles, 912 F.2d 1066, 1070 (9th Cir. 1990); see Davis v. J.P. Morgan Chase & Co., 587 F.3d 529, 535 (2nd Cir. 2009) ("[W]e have drawn an important distinction between [*8] employees directly producing the good or service that is the primary output of a business and employees performing general administrative work applicable to the

running of any business."); Dalheim v. KDFW-TV, 918 F.2d 1220, 1230 (5th Cir. 1990) (the dichotomy distinguishes between "those employees whose primary duty is administering the business affairs of the enterprise from those whose primary duty is producing the commodity or commodities, whether goods or services, that the enterprise exists to produce and market"); Wage and Hour Opinion Letter FLSA2005-21 (Aug. 19, 2005) (same).

(Pl. Br., Dkt 38 at 10, quoting Ex. 6, Wage and Hour Div., U.S. Dept. of Labor, Administrator Interpretation No. 2010-1 (Mar. 24 2010); see also Allemani, 2014 U.S. Dist. LEXIS 77715, 2014 WL 2574536, at * 8; Rock, 380 F. App'x at 878.

Plaintiff argues that all of his duties fall squarely into activities that are part of the output of the business, not the running of the company's operations. He asserts that all of his duties were related to the "product" that Defendant produced: "moving freight" (Pl. Br. at 11). Further, he did not handle any work in the "functional areas" identified by the Regulations, such as tax, finance, accounting, etc. Plaintiff asserts that he did not perform any duties related to personnel or the internal functions of [*9] the company; instead, his role dealt with the service Defendant provided to its customers (id. at 12). Plaintiff contends that his duties are not in dispute and that his case is very similar to other cases in which the courts have held that dispatchers for a trucking company were not exempt administrative employees, e.g., Allemani, 2014 U.S. Dist. LEXIS 77715, 2014 WL 2574536 (trucking dispatcher's primary duties were not management-type activities and he made no personnel decisions, and thus he was not exempt under the administrative exemption); and Alvarez, 541 F. Supp. 2d 1308 ("night dispatch manager" for a chauffeur service in south Florida who dispatched drivers to their assigned jobs transporting customers was not an exempt administrative employee).

Defendant argues that there are facts in dispute concerning this element of the administrative exemption. Defendant asserts that dispatchers at some companies have very limited roles, whereas in others, the duties and responsibilities assigned to the dispatcher position are more expansive. Defendant cites a case in which the court held that a dispatcher was an administrative employee who met the administrative exemption, Rock, 380 F. App'x 875 (dispatcher for a crane rental company qualified as an exempt administrative employee).

Plaintiff acknowledges [*10] that while he may have had

2015 U.S. Dist. LEXIS 74723, *6


Page 4 of 6

a few marginal duties related to business operations, his primary duty was the scheduling of freight and the responsibilities that accompany that task (Pl. Reply, Dkt 41 at 3). Plaintiff contends that the important factor in the administrative analysis is that the employee's primary duty must be directly related to the "general business operations of the employer" (id., quoting 29 C.F.R. § 541.200(a)(2)).

The parties' positions and the case law make it clear that there are genuine issues of material fact on this prong of the administrative exemption. Plaintiff asserts that his duties included "scheduling trucks, communicating with drivers regarding issues encountered with deliveries, and documenting fuel and expense accounts" (Pl. Br. at 6, citing Ex. 1, B. Hassevoort Dep. at 73; Ex. 2, E. Hassevoort Dep. at 17, 18, 26; Ex. 3, Pl. Dep. at 19). And in addition to working his dispatcher duties, he loaded and unloaded trucks in Defendant's warehouse, primarily on weekends (id. at 7, citing Ex. 5, Pl. Aff. ¶ 10).

Defendant asserts that Plaintiff's dispatcher duties never included loading and unloading trucks in the warehouse after hours or on weekends (Def. Br., Dkt 40 at 6, citing Ex. A, B. Hassevoort [*11] Aff.; Ex. E., E. Hassevoort Aff.). Defendant states that Plaintiff had experience with warehouse work based on his previous employment with Boar's Head Brand Meats, and it is possible that occasionally, due to his autonomy as a dispatcher, he assisted his coworkers and friends in the warehouse with loading his customer's freight, instead of merely supervising the loading process, but he was not paid for such duties (Def. Br. at 6). Plaintiff was paid $1050 a week as a dispatcher and received quarterly bonuses based on a profit sharing program; Plaintiff was one of only two non-Hassevoort family members included in the profit sharing program (Def. Br. at 6, citing Ex. B., B. Hassevoort Dep. at 44:13-16).

Defendant asserts that the role of its dispatchers, i.e., Plaintiff, included communications with customers in an account management role, scheduling loads and trucks, route planning, communicating with drivers, resolving issues with regard to fuel and expense accounts, coordinating drivers and trucks with other dispatchers, consolidating truckloads to maximize the use of drivers and trucks and minimize costs, and advising Eric Hassevoort and/or Bruce Hassevoort on discipline issues [*12] with drivers (Def. Br. at 12-13). In particular, Plaintiff managed two furniture accounts for Defendant: Nucraft and Acadia, managing truck drivers operating on a nationwide basis (id. at 7; Def. Ex. E., E.

Hassevoort Aff. ¶ 5). The Nucraft account is one of Defendant's largest and most important accounts, and a loss of its business would represent a significant financial loss to Defendant; however, furniture accounts did not usually require after hours or weekend truck service (Def. Br. at 7-8, citing Ex. C., E. Hassevoort Dep. at 16:1-19; Ex. E., E. Hassevoort Aff. ¶ 19). Plaintiff was responsible for communicating directly with Defendant's customers about "loads, trailer requirements, scheduling, problems with drivers, breakdowns or delays, and any other concerns or problems which a customer may have" (Def. Br., Ex. E., E. Hassevoort Aff. ¶ 12).

Defendant also submits Plaintiff's résumé, posted on Indeed Resume, which states that his duties for Defendant included:

• Dispatch inbound and outbound freight carriers/drivers• Coordinate LTL freight pick up, consolidation and re-loads consisting of perishable and non-perishable goods• Customer delivery appointments and follow up communication

• [*13] Broker inbound and outbound excess freight• Daily utilization of Dr. Dispatch software for invoicing and PC Miler• Monitor Carrier GPS website• Uphold and enforce all DOT/Safety/Transportation policies• Data entry for all areas of the business.

(Def. Ex. J, Plaintiff's Resume). It is clear on this record that Plaintiff's assigned duties are in significant dispute, on matters material to the criteria for the administrative exemption.

But even if Plaintiff's assigned duties per se were not in dispute, the import and nature of his duties in the context of Defendant's overall business operations are disputed and preclude judgment as a matter of law. As Defendant argues, and the case law bears out, depending on the nature of the company's business, a dispatcher position may have more significant implications for some companies' overall operations than for others. For example, in Alvarez, 541 F. Supp. 2d 1308, cited by Plaintiff, the dispatcher position involved dispatching cars for customers needing chauffeur service, e.g., from the airport; whereas, in Rock, 380 F. App'x 875, cited by Defendant, the Plaintiff was a dispatcher for the defendant's crane rental division and the court found that his primary duty was management of that division. [*14] In Allemani, 2014

2015 U.S. Dist. LEXIS 74723, *10


Page 5 of 6

U.S. Dist. LEXIS 77715, 2014 WL 2574536, the dispatcher worked for an independent trucking company, Pratt (Corrugated Logistics), but the trucking company was formed by Pratt Industries to provide logistical and transportation services to Pratt Industries' corrugated box plant and paper mill to ship raw materials and/or finished product to its customers.2 2014 U.S. Dist. LEXIS 77715, [WL] at *12. The dispatchers were supervised by a logistics manager; the shipping department, not dispatchers, determined which loads went to which customers; dispatchers received a list of pre-approved backhauls; they had only limited authority with respect to drivers; they occasionally interacted with Pratt customers, but all customer complaints were handled by the customer service department or the logistics manager. 2014 U.S. Dist. LEXIS 77715, [WL] at *1-4. The court agreed with the plaintiffs-dispatchers that their primary duty—dispatching loads—was not administrative. 2014 U.S. Dist. LEXIS 77715, [WL] at *8. Other than one customer, the record did not show that the dispatchers had "any ongoing contact with customers or any responsibility for maintaining customer relationships, ensuring customer satisfaction, soliciting customers, or responding to customer complaints." 2014 U.S. Dist. LEXIS 77715, [WL] at *9.

Although Plaintiff relies heavily on Alvarez, 541 F. Supp. 2d 1308, and Allemani, 2014 U.S. Dist. LEXIS 77715, 2014 WL 2574536, in support of his non-exempt status, the circumstances of the dispatchers in those cases are not sufficiently analogous to mandate a conclusion in this case that Plaintiff's primary duty was not directly related to Defendant's management or general business operations. The evidence is not so one-sided that Plaintiff prevails as a matter of law on this element of the administrative exemption.

B. Exercise of Discretion and Independent Judgment

The record is similarly disputed with respect to Plaintiff's exercise of discretion and independent judgment as a dispatcher for Defendant. The Code of Federal Regulations points to the following factors to consider when assessing whether an "employee exercised

2 The trucking company also transported "backhauls" (loads picked up and delivered [*15] on the return from the initial delivery). Allemani, 2014 U.S. Dist. LEXIS 77715, 2014 WL 2574536, at *1.

discretion and independent judgment with respect to matters of significance":

"whether the employee has authority to formulate, affect, interpret, or implement management policies or operating practices; whether the employee carries out major assignments in conducting the operations of the business; whether the employee performs work that affects business operations to a substantial degree, even if the employee's [*16] assignments are related to operation of a particular segment of the business; whether the employee has authority to commit the employer in matters that have significant financial impact; whether the employee has authority to waive or deviate from established policies and procedures without prior approval; whether the employee has authority to negotiate and bind the company on significant matters; whether the employee provides consultation or expert advice to management; whether the employee is involved in planning long- or short-term business objectives; whether the employee investigates and resolves matters of significance on behalf of management; and whether the employee represents the company in handling complaints, arbitrating disputes or resolving grievances."

Alvarez, 541 F. Supp. 2d at 1312-13 (quoting 29 C.F.R. § 541.201(b)).

Plaintiff argues that he did not make independent judgments on any matters of significance when he was a dispatcher for Defendant. Plaintiff asserts that he "did not have the authority to interpret or implement management decisions, he did not have the ability to negotiate or bind the company on significant matters, he didn't represent the company in resolving disputes or grievances, and did not have the experience [*17] in dispatching to provide expert advice to the company" (Pl. Br. at 14, citing Ex. 5, Pl. Aff. ¶ 8).

Defendant has presented evidence to the contrary. Defendant asserts that dispatchers, including Plaintiff, had to exercise discretion and make judgment calls with regard to loading, scheduling, routes, customer inquiries and customer service, driver issues, and driver financial accounts (Def. Br. at 16). Defendant argues that as the dispatcher assigned to one of Defendant's largest accounts, Plaintiff's decisions with regard to Nucraft were "absolutely significant" in nature (id., citing Ex. E., E. Hassevoort's Aff.). Eric Hassevoort avers in his affidavit that (1) all dispatchers come to him, as the

2015 U.S. Dist. LEXIS 74723, *14


Page 6 of 6

head dispatcher, with questions regarding any issues that they were unable to handle themselves, but they were expected to exercise their own independent judgment as much as possible; (2) dispatchers, including Plaintiff, are only required to inform him of problems regarding truck accidents and timing issues that could affect the shipments of loads assigned to other dispatchers so that he could coordinate with the other dispatchers; (3) he is frequently out of the office for days at a time, [*18] driving truck, and during that time, the dispatchers make judgment calls and decisions based solely on their training and experience; and (4) a seasoned dispatcher does not have to confer with him to make important decisions that could significantly affect the profitability of Defendant, as reflected by the fact that they worked alone on Saturdays, and that he was often out of the office driving (Def. Ex. E., E. Hassevoort's Aff. ¶¶ 13-16). In his deposition testimony, Eric Hassevoort indicated that in the course of their jobs with Defendant, the dispatchers made judgment calls with regard to loads or clients that would have a significant financial impact on Defendant (Def. Br. at 16, citing Ex. C, E. Hassevoort Dep. at 27:19-23).

The exercise of discretion, as the term is meant under the FLSA, generally includes "'responsibilities dealing with matters of broad scope and significant detail that have a profound effect on the employer's business,' such as: 'matters that have significant financial impact, negotiating and binding the company on significant matters; and planning long-or short-term business objectives.'" Allemani, 2014 U.S. Dist. LEXIS 77715, 2014 WL 2574536, at *12 (quoting Alvarez, 541 F. Supp. 2d at 1313-14 (citation omitted)). There is conflicting evidence, and thus [*19] genuine issues of material fact, whether the third prong of the administrative exemption is met.

IV. Conclusion

In light of the legal standards, and case law, there are clearly issues of fact as to whether Plaintiff was an exempt administrative employee under the FLSA.3

3 Although the parties argue their positions on the number of hours Plaintiff worked, it appears unnecessary to address this issue since the Court has determined that Plaintiff is not entitled to partial summary judgment on the issue of liability. In any event, the resolution of this issue hinges on factual disputes and matters of credibility, which are determinations not properly resolved on summary judgment.

Accordingly, Plaintiff's motion for partial summary judgment on the issue of Defendant's liability is denied.

An Order will be entered consistent with this Opinion.

Dated: June 10, 2015

/s/ Janet T. Neff

JANET T. NEFF

United States District Judge

ORDER

In accordance with the Opinion entered this date:

IT IS HEREBY ORDERED that Plaintiff's "Motion for Partial Summary Judgment" (Dkt 37) is DENIED.

Dated: June 10, 2015

/s/ Janet T. Neff

JANET T. NEFF

United States District Judge

End of Document

2015 U.S. Dist. LEXIS 74723, *17
