Law360 (May 2, 2023, 7:32 PM EDT) — The U.S. Supreme Court’s decision to hear the case of a former UBS employee who claims he was fired for alerting his boss to potential illegal activity could reverberate beyond the financial industry to determine the future success of whistleblower retaliation claims pressed by employees in the transportation, nuclear energy and food safety sectors.

The Supreme Court on Monday agreed to hear an appeal brought by former UBS employee Trevor Murray, who says he was fired after telling higher-ups about being pressured to alter research he conducted on UBS’ commercial mortgage-backed securities business.

A Manhattan federal jury who heard the case in 2017 awarded Murray $903,300 but the Second Circuit overturned that verdict in August, saying that the judge failed to instruct the jury that they needed to find that UBS acted with “retaliatory intent” in firing the analyst.

UBS says that Murray’s position was cut as part of a round of layoffs the company undertook due to its poor financial performance in 2011.

It’s now up to the Supreme Court to decide if the Second Circuit improperly contradicted four other circuit courts that have imposed lesser standards of proof on alleged whistleblowers, as Murray and his supporters contend.

[…]

A Supreme Court ruling in Murray v. UBS could have spillover effects for workers in the nuclear, aviation and railway industries, said R. Scott Oswald, a managing partner and whistleblower attorney at The Employment Law Group.

“These are areas where there is real danger to the public of these employers not operating at the highest level,” Oswald said. “So we want whistleblowers to come forward.”

A Lafayette rehabilitation facility, its parent company and a Lafayette doctor have agreed to pay a $1.7 million settlement to resolve claims they made false Medicare claims for patients that did not qualify for and did not require inpatient rehabilitation.

Lafayette Physical Rehabilitation Hospital and its management company, Acadiana Management Group LLC, have agreed to pay $1.2 million and Dr. Carolyn Smith has agreed to pay $575,000 to settle the claims, U.S. Attorney for the Western District of Louisiana Brandon Brown said in a statement.

…

In connection with the settlement, Smith agreed to be excluded from participation in federal health care programs for 10 years, according to the U.S. Department of Health and Human Service’s Office of the Inspector General.

Smith’s medical license was suspended in November 2016, per the Louisiana State Board of Medical Examiners.

» View full story on the Acadiana Advocate

 

[OFFICIAL ANNOUNCEMENT]

United States Settles Claims for Improper Inpatient Rehabilitation Admissions for over $1.7 Million

From the U.S. Department of Justice (Apr. 24, 2023)

LAFAYETTE, La. — United States Attorney Brandon B. Brown announced that Lafayette Physical Rehabilitation Hospital and its management company, Acadiana Management Group, LLC have agreed to pay $1.2 million, and Dr. Carolyn Smith agreed to pay $575,000 to resolve allegations that they violated the False Claims Act by submitting claims to Medicare for medically unnecessary inpatient rehabilitation services.

“This settlement demonstrates our commitment to ensuring that those who participate in federal healthcare programs follow the rules,” said U.S. Attorney Brandon B. Brown. “Billing for non-covered rehabilitation hospital stays results in a misuse of federal dollars. The financial viability of our Medicare program must be protected for current and future generations.”

The United States alleged that from January 1, 2010 through December 31, 2016, Dr. Smith admitted certain patients to Lafayette Physical Rehabilitation Hospital for whom inpatient rehabilitation treatment was not medically reasonable or necessary. Dr. Smith repeatedly admitted these patients, often by putting improper pressure on the patients, and falsely certified that the patients met the applicable criteria for inpatient admission. However, the patients did not satisfy the criteria and did not need impatient rehabilitation services.

» View press release on Justice.gov

 

[ADDITIONAL COVERAGE]

Lafayette rehab hospital paying out $1.2 million settlement for false claim allegations

From Lafayette Daily Advertiser (Apr. 25, 2023)

A Lafayette rehabilitation hospital and its management company agreed to pay more than $1 million to settle allegations they submitted claims to Medicare for medically unnecessary inpatient rehabilitation services, the U.S. Attorney’s Office for the Western District of Louisiana announced.

The Lafayette Physical Rehabilitation Hospital and Acadiana Management Group, LLC are paying out $1.2 million in the settlement, while Dr. Carolyn Smith agreed to pay around $575,000.

…

“The Department of Health and Human Services, Office of Inspector General (HHS-OIG) will continue to aggressively investigate health care providers who submit Medicare claims for medically unnecessary services,” HHS-OIG Special Agent in Charge Jason Meadows said in a release. “Inpatient rehabilitation services are expensive, and Medicare dollars should be reserved for patients who need those services – not hospitals and physicians seeking to make easy money through improper billing.”

» View full story on Lafayette Daily Advertiser

 

Lafayette rehab hospital, management company and physician agree to settlement

From KATC (Apr. 24, 2023)

A Lafayette rehab hospital, it’s management company and a physician have agreed to pay more than $1.7 million to Medicare under the False Claims Act, federal officials say. The settlement stems from a whistle-blower complaint filed by two former employees, who will take home 20 percent of the money.

» View full story on KATC

For employees with a medical condition that makes it difficult to perform aspects of their job, it may be time to talk with their employer about whether their role can be modified in some way — what’s known as a reasonable accommodation for a disability.

There’s no time limit on requesting such accommodations, Kevin Abbott, a lawyer at Fennemore Law in California who defends employers in employment and labor-related disputes, told BioSpace.

And for private sector employers with 15 or more workers, the Americans with Disabilities Act of 1990 (ADA) prohibits retaliating against employees who request accommodations for a disability by, for example, firing or demoting them. Federal employees have similar protections, but under a separate law, the Rehabilitation Act.

What Qualifies as a Disability?

Under the ADA, there is “’an expansive view as to what is a disability,” including not only physical but also mental conditions such as anxiety, depression and PTSD, Anita Mazumdar Chambers, a principal at The Employment Law Group in Washington, D.C., told BioSpace.

Symptoms such as back pain may also qualify, particularly if a medical provider can tie it to a pre-existing condition, injury, surgery or diagnosis, she said.

Prior to requesting accommodation, Chambers recommended touching base with the human resources department to learn about the company’s process for doing so.

Law360 (April 19, 2023, 12:20 AM EDT) — After months of anticipation that the U.S. Supreme Court might strengthen corporate America’s hand in False Claims Act litigation, the high court on Tuesday abruptly deflated defense bar buoyancy by foreshadowing an outcome that’s not only narrow but also largely favorable to whistleblowers and the U.S. Department of Justice.

The sudden shattering of hopes occurred at oral arguments over the need for FCA cases to prove scienter, or “knowingly” fraudulent billing of Uncle Sam. The justices were specifically examining whether it matters if someone suspected they were flouting compliance obligations — and really was noncompliant — while technically adhering to reasonable views of those obligations.

Ever since the high court in January agreed to examine the Seventh Circuit’s conclusion that “subjective intent” isn’t relevant in such situations, many defense lawyers had voiced cautious optimism and had even begun touting the conclusion to discourage the DOJ from joining whistleblower-led FCA cases premised on compliance lapses. But on Tuesday, the outlook quickly went from cheery to dreary as one justice after another recoiled at the idea of ignoring someone’s intentions.

“I don’t think the court is going to come out with a decision that’s going to make the defense bar do cartwheels and back-handsprings,” Nichols Liu LLP partner Bob Rhoad told Law360 in a Tuesday afternoon interview.

Scott Oswald, managing principal of The Employment Law Group PC, echoed that prediction and also channeled the relief felt by many of his fellow whistleblower attorneys on Tuesday.

“I thought this was going to be a much closer call for the justices than it ultimately came out to be,” Oswald said in an interview.