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Our healthcare system is charged with providing care to those in need of medical assistance – but far too often we find cases of healthcare administrators and doctors participating in widespread schemes to bilk money out of the federal government and the Medicare/Medicaid system. If you have information pertaining to any such scheme involving Medicare or Medicaid fraud, contact an attorney from Altman & Altman LLP right away to help you become a whistleblower, as it could mean a significant financial reward if your information leads to the uncovering of fraudulent behavior.

Medicare fraud can occur anywhere

As long as there exists a financial incentive for doctors and healthcare administrators to fraudulently charge for services they never rendered, or falsely inflate the cost of services to receive more money from the government, Medicare and Medicaid fraud will unfortunately continue to happen.

Recently, the U.S. Department of Justice announced that Laboratory Boston Heart Diagnostics Corporation of Framingham agreed to pay a settlement of nearly $27 million in response to allegations that they improperly billed the Medicare, Medicaid and TRICARE programs for lab tests. Those overbillings were then kicked back to doctors disguised as “investment returns,” per reports.

The report goes further, documenting a comprehensive scheme in which the company provided testing services to smaller hospitals from Texas on a pay-per-test basis, and then worked with those hospitals’ marketing agents to pay doctors who referred certain lab tests to be conducted. Essentially, the company allegedly and illicitly paid doctors to recommend specific tests, which the company could then bill the federal government for. The company also allegedly was involved in submitting outpatient claims on patients who were not hospital outpatients – which is known as false billing.

Boston Heart Diagnostics is not the only Massachusetts company to get caught in such a scheme. In 2010, the Woburn-based Calloway Laboratories Inc. was indicted on 42 counts of Medicaid fraud, which included sending kickbacks and accruing over $10 million in funds from the state Medicaid program MassHealth to obtain drug screening business for itself.

Whistleblowing is an essential tool to root out this corruption

Under the False Claims Act, whistleblowers can expose persons and companies that defraud the federal government – or federal programs run by the government, such as Medicare and Medicaid. This is called a qui tam action.

Whistleblowing – the act of alerting federal authorities to schemes in which individuals or companies are actively defrauding the government – is a protected act that can result in large financial rewards if a whistleblower’s report results in a successful case or settlement against the entity that is accused. According to the National Whistleblower Center:

“Under Section 3730(h) of the False Claims Act, any employee who is discharged, demoted, harassed, or otherwise discriminated against because of lawful acts by the employee in furtherance of an action under the Act is entitled to all relief necessary to make the employee whole. Such relief may include:

  • Reinstatement
  • Double back pay
  • Compensation for any special damages including litigation costs and reasonable attorneys’ fees.”

In the case of the recent settlement with Boston Heart Diagnostics of Framingham, the whistleblowers who led to the uncovering of the illicit activity will receive approximately $4.36 million of that settlement money. Under the False Claims Act, successful whistleblowers are entitled to receive between 15 and 30 percent of the total money recovered. Continue reading

Dr. Dennis Burke recently emerged victorious in his ongoing battle with Massachusetts General Hospital (MGH) over concerns he raised regarding a startling practice involving surgeons performing multiple surgeries at the same time – concerns which got him fired from his job and resulted in him filing a wrongful termination suit against the Boston hospital.

Dr. Burke was fired in 2015 for allegedly violating patient confidentiality rules, after he released 15 months’ worth of patient records to the Boston Globe to clear his name that he was also guilty of concurrent surgeries. As part of his settlement, in addition to the $13 million, Dr. Burke has been offered his old job back at MGH and will have a safety standard named after him to prevent concurrent surgeries from occurring in the future.

Case overview

Dr. Burke had worked at MGH for 35 years at the time of his firing. He had complained internally about the practice of surgeons booking concurrent surgeries, often simultaneously, which meant that a surgeon would literally have to be performing parts of two operations, in two completely separate operating rooms, at the same exact time.

To Dr. Burke, this was an inexcusable fact because patients undergoing surgery had not consented to having their surgeon’s attention split between them and another patient, and for good reason – as there are obvious safety concerns regarding a surgeon trying to multi-task, especially during complex operations where a mistake could mean potentially life-threatening, or at the least possibly life-altering consequences.

One former MGH surgeon, Dr. Kirkham Wood, has been brought up as an example of the possible consequences of overbooking. The spinal surgeon has been named in three medical malpractice lawsuits which state double-booking as a cause of issues. One of those lawsuits was filed by former Boston Red Sox pitcher Bobby Jenks, who settled his case with MGH for $5.1 million earlier this spring.

While the hospital reportedly hired former U.S. Attorney Donald Stern to investigate Burke’s complaints in 2011, the report that resulted from that investigation has never been publicly released. However, subsequent documents unearthed found that the report may have indeed chronicled problems involving surgeons performing simultaneous surgeries, just as Dr. Burke has alleged.

The hospital has stated that they settled out of a “desire…to move beyond this lawsuit” and “defends and stands by the decisions it made along the way.”

 

What does this settlement show?

In deciding to settle this case, Massachusetts General Hospital has shown that they are willing to pay a hefty price to avoid going to trial, which could mean many things. It could mean they simply want to move on, but it could also mean they didn’t want to risk the public exposure that such a trial would subject them to, or that they weren’t as confident in their defense as they have stated publicly.

Regardless of what the actual reason may be, Dr. Burke’s tenacious whistleblowing and courage to stand up for himself when his own surgical work was called into question by releasing documents to the Globe to prove his defense of himself is admirable. He seems to have observed something he thought went against the Hippocratic Oath and fought to end it, or at least put it under public scrutiny, which he certainly achieved.

Additionally, Dr. Burke’s actions show us how vulnerable we are when checking into any hospital, even one as renowned as Massachusetts General Hospital. It shows that we place a lot of trust in doctors to do right by us, especially when we’re put under anesthesia to have a surgical operation done. Continue reading

Being a whistleblower is a noble decision that also puts you at great personal risk. There is a possibility of being fired from your job or even threatened with violence if you make your intentions to blow the whistle on a criminal act known. Further, reporting illicit activity requires strong legal evidence, otherwise you may risk penalties for your efforts. No matter the case, consulting with an experienced white-collar criminal expert at the Cambridge firm of Altman & Altman LLP is essential to success.

What protections exist for whistleblowers?

Under the Dodd-Frank Act, whistleblowers who provide otherwise unknown, valuable information to the Securities Exchange Commission (SEC) that results in monetary sanctions exceeding $1 million are not only eligible for a percentage of that sanction as a reward, they are also given ironclad protection against retaliation by their employer or organization. Whistleblowers will even be granted a private cause of action if they are discharged or unfairly discriminated against by their employer as a result.

Due to a unanimous Supreme Court ruling in February of 2018, however, these whistleblower protections under the Dodd-Frank Act – which was passed after the financial crisis of 2008 and were finally implemented in 2011 – now only apply to individuals who report financially criminal issues to the United States SEC, and not if they only try to blow the whistle within the ranks of their own company or organization.

What this means is that a whistleblower will no longer be protected under Dodd-Frank unless they go through the process with the SEC’s program. Reporting through another federal agency, such as the IRS, will not net the same protections – although the IRS has its own rules regarding protection of whistleblowers, including potential payment for successful claims, they do not share similar protections as Dodd-Frank.

However, this does not mean whistleblowers are denied protections under the federal government entirely. An older law, the 2002 Sarbanes-Oxley Act, provides certain protections but also nets significantly less money than those pursuing whistleblowing under Dodd-Frank. While Sarbanes-Oxley protects whistleblowers of publicly-traded companies, its statute of limitations following the retaliation is 90 to 180 days – significantly less than the six years allotted to Dodd-Frank whistleblowers. Continue reading

Ileana Bermudez’s termination was retaliatory, rules a Massachusetts Appeals Court. After a 2013 on-the-job injury, Bermudez collected workers’ compensation benefits from a staffing agency that placed her at Dielectrics, a Massachusetts-based manufacturer of medical devices. According to Bermudez’s claim, multiple sheets of metal fell on her foot because Kevin Ramos, a Dielectric employee, was negligently operating a forklift. The accident caused a fracture to her right foot, and she was unable to return to work for approximately eight weeks.

When Bermudez filed the workers’ comp claim, she named the staffing agency, Career Group, as her employer. As a result, the benefits came from Career Group’s insurer. After returning to work, Dielectrics hired Bermudez as a full-time employee. Less than two years later, she filed a lawsuit against Dielectrics and Ramos, the forklift operator, alleging negligence and respondeat superior. Shortly after receiving notice of the lawsuit, Dielectrics fired Bermudez with the following notice:

“It is important to Dielectrics that when we promote an employee to a supervisory position the employee has a belief in the [c]ompany and behave[s] with the [c]company’s best interests at heart. Our supervisors need to support Dielectrics in that way so that we can entrust them to spread those same values to their subordinates. When you sued Dielectrics after being compensated for your injury by workers’ compensation, we had little choice but to conclude that you don’t believe in the company and don’t have its best interests in mind. This adversely affects the department you’ve been entrusted to supervise and the company as a whole. As such, we have decided to terminate your employment effective immediately.”

Retaliatory Termination?

In response to her termination, Bermudez sued Dielectrics for retaliatory termination. Because Dielectrics was not technically her employer when the forklift incident occurred, a judge ruled that the medical device manufacturer couldn’t be sued for retaliation. The same judge did, however, give her 20 days to amend her complaint by adding a claim of public policy violation, which she did. A Boston workers’ comp lawyer can help you determine how to proceed if you’ve been injured in a work-related accident.

But Bermudez voluntarily dismissed her claim, then appealed, contending that she had a right to her third-party negligence claim. In response, Associate Justice James R. Lemire stated that a 1971 act “abolished the necessity for an election between filing a workers’ compensation claim and an action against a negligent third party.” Lemire went on to say that the act was again amended in 1991 and that, “the language in the first sentence of the 1971 statute, abolishing the need for an election between remedies, remained the same for the 1991 statute. At the time of Bermudez’s injury, an employee was entitled to pursue a third-party action against any person responsible for her injury after collecting benefits under the act.”

Dielectrics wasn’t convinced. The company argued that the act was created by common law and, thus, didn’t give Bermudez the right to sue. The Appeals Court disagreed, however, holding that state law prohibits retaliatory termination against an employee who exercises a right provided by this particular act. Since Bermudez was exercising such a right when she filed the lawsuit against Dielectrics, and because there is sufficient evidence that her termination was retaliatory in nature, Dielectrics’ move to dismiss the amended complaint was vacated. A MA workers’ comp attorney can help you protect your rights if you’ve been injured on the job. Continue reading

A wave of protests has rocked the US since the 2016 election…and, in many cases, they seem to be working. Following a massive, worldwide employee walkout at Google earlier this month, the search engine giant has announced improved policies regarding diversity and sexual harassment, company-wide. The new policies include some of the protestors’ demands but ignore “several of the core demands,” according to the walkout’s organizers.

What Policy Changes is Google Implementing?

One of the key changes involves Google’s policy on arbitration for sexual assault and harassment claims; now employees can go to court with their claims of misconduct, rather than having to settle privately.

“We recognize that we have not always gotten everything right in the past and we are sincerely sorry for that. It’s clear we need to make some changes,” wrote CEO Sundar Pichai in a  publicly-posted employee email. A Boston employment law attorney can help you determine how to proceed if you’ve been the victim of sexual assault or harassment in the workplace.

Pichai went on to say that Google will improve and expand on existing sexual harassment training, and that internal reports on harassment will be more transparent, including details about cases, any disciplinary actions taken, and what the company does and does not tolerate. He also promises to update and improve the internal system employees can use to report sexual assault and harassment.

“{We} will provide more transparency on how we handle concerns. We’ll give better support and care to the people who raise them. And we will double down on our commitment to be a representative, equitable, and respectful workplace,” wrote Pichai.

Changes to sexual assault and harassment policies will be implemented by the first quarter of 2019.

The Alcohol Factor

Google says that alcohol was involved in about 20 percent of sexual harassment complaints. As such, a spokesperson for the company says that “going forward, all leaders at the company … will be expected to create teams, events, off-sites and environments in which excessive alcohol consumption is strongly discouraged,” even though this wasn’t a specific request of protestors.

Are Organizers Satisfied?

Organizers of the unprecedented walkout say that although Google has “made progress” it has also failed to meet multiple demands, and has “troublingly erased” policy-change requests around racism and discrimination. A MA employment law attorney can help you recover damages if you’ve been the victim of sexual assault or discrimination in the workplace.

“If we want to end sexual harassment in the workplace, we must fix these structural imbalances of power,” wrote the organizers in a statement. “While we’re thrilled to see progress on sexual harassment, we will not let up on the demands most urgent for women of color: an employee representative on the board, elevating the chief diversity officer, greater transparency on and an end to opportunity inequity at Google and beyond.” Continue reading

If you encounter sexual orientation discrimination in the workplace, you may have a legal claim against your employer. Sexual orientation discrimination in the workplace can occur in subtle and overt forms and can occur if you are lesbian, gay, bisexual, pansexual, asexual, or straight. Discrimination is any adverse action you experience at your job because of your real or perceived sexual orientation. Examples include:

  • being passed over for a promotion or other opportunities because of your sexual orientation;
  • receiving unfavorable evaluations because of your sexual orientation;
  • being denied benefits because of your sexual orientation;
  • being harassed, called names, or disciplined because of your sexual orientation; and
  • receiving unwanted sexual advances or contact because of your sexual orientation.

Sexual orientation discrimination also includes unfavorable treatment you experience based on your association with people of a certain sexual orientation. If you are experiencing any of the mistreatment described above, or any other unfair treatment based on your sexual orientation, a Boston employment law attorney can help you protect your rights.

Company Policy

Many companies have policies that prohibit unfavorable treatment as a result of sexual orientation. One of the first steps, if you are being harassed, is to see if your company has such a policy. Step two is to report the treatment to your manager or Human Resources Department. Keep records (such as emails, texts voice mails, etc.) of any interaction you believe was discriminatory. If you don’t have any written records, keep a log of all the interactions you believe are discriminatory. Note the date and time of the interaction, and write down the names of others who might have witnessed it. This information can prove invaluable if you decide to file a lawsuit.

Federal  Law

Although federal law may provide some protection, laws in this area are a bit foggy. The United States Supreme Court in Obergefell v. Hodges recently held that same sex couples have the right to marry and receive all of the benefits of marriage. Outside of marriage, though, federal law currently does not provide explicit protection from discrimination based on sexual orientation the way it does for discrimination based on age, sex, religion, race, natural origin and disability. That being said, Title IX, a federal law which prohibits sex discrimination in the workplace, may also apply to discrimination based on sexual orientation. Complaints under Title IX may be enforced by filing a complaint with the Equal Employment Opportunity Commission (EEOC). Notably, if you work for the federal government, you should also be protected from sexual orientation (and gender identity) discrimination by an Executive Order that President Obama amended in 2014. The law in this area is changing frequently, so it is best to consult a MA employment law attorney about the protections federal laws may provide.

State Law

Even though federal law does not specifically prohibit discrimination on the basis of sexual orientation, more than 20 states do, including Massachusetts. California, Colorado, Connecticut, Delaware, DC, Hawaii, Illinois, Iowa, Maine, Maryland, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, Utah, Vermont, Washington, and Wisconsin have similar laws. If you work in Massachusetts, you may be able to sue your employer in state court for violating anti-discrimination laws. Doing so may result in compensation for harm you suffered. Continue reading

Pregnancy discrimination occurs when an employee or job applicant is treated unfavorably due to pregnancy, or a pregnancy-related medical condition. The Pregnancy Discrimination Act (PDA) prohibits this type of discrimination in the course of any aspect of employment.

When a woman is unable to perform certain job duties due to a pregnancy-related health condition, she must be treated in the same manner as any another temporarily disabled employee would be treated. Further, some impairments that are common during pregnancy, such as preeclampsia and gestational diabetes, are covered disabilities under the Americans with Disabilities Act (ADA). As such, employers may have to provide reasonable accommodations for an employee suffering from these temporary medical conditions. Reasonable accommodations could include temporary leave, or modifications to the office, duties, or schedule.

Hostile Work Environment

If a woman feels that she has been harassed, or in any way discriminated against, due to her pregnancy, she may wish to file a discrimination claim. Unlawful discrimination occurs when harassment is frequent and severe enough that it creates a hostile work environment. Discrimination can also occur in the absence of harassment, however. For example, if a pregnant woman is demoted or fired because of her pregnancy or pregnancy-related medical condition, these may be grounds for a discrimination claim. A MA employment law attorney can help you recover damages if you’ve been discriminated against in the workplace.

New Mothers

If temporarily disabled employees are permitted to take disability leave, the same policy must apply to pregnant women. The Family and Medical Leave Act (FMLA) provides pregnant employees with additional rights, and many of these rights extend to new mothers. In the past, along with the PDA and FMLA, Title VII of the Civil Rights Act has been used by pregnant employees, and those who have recently become mothers, to fight workplace discrimination. In fact, discrimination lawsuits filed by new mothers and pregnant women have seen a dramatic increase in the last decade, and these lawsuits have a higher success rate than many other types of discrimination lawsuits.

The Right to Express Milk

New mothers often have a need to express milk during working hours. Under the Fair Labor Standards Act, which is enforced by the U.S. Department of Labor, nursing mothers have the right to take breaks for the purpose of expressing milk. Employers must provide “reasonable break time for an employee to express breast milk for her nursing child for 1 year after the child’s birth each time such employee has need to express the milk.” In addition, employers must provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.”

These breaks must be provided as frequently as the nursing mother requires, and for a reasonable amount of time. Although the FLSA does not specifically require employers to compensate nursing mothers during breaks for the purpose of expressing milk, if other types of breaks are already compensated for, the nursing mother must be compensated in the same way. A Boston employment law attorney can help you determine how to proceed if you’ve been discriminated against at work. Continue reading

Many employees worry that filing a workers’ comp claim will cause them future problems; they fear termination, employer retaliation, or even the inability to get hired at another company. Fortunately, there are legal protections available to injured workers. Although workers’ comp laws vary from state to state, most states prohibit the termination or demotion of an employee in retaliation for filing a workers’ comp claim. Massachusetts is no exception.

Some states specifically prohibit employers from refusing to hire someone due to a past workers’ comp claim. In Alaska, for example, employers “may not discriminate in hiring, promotion, or retention policies or practices against an employee who has in good faith filed a claim for or received benefits [for workers’ compensation].” Similar provisions exist in Louisiana, Oregon, and Vermont. Although MA and many other states don’t have such specific language with regard to the hiring process, other protections are available to protect workers from being refused employment based on prior workers’ comp claims.

Americans with Disabilities Act (ADA)

The Americans with Disabilities Act (ADA) prohibits any type of discrimination as it relates to the employment process. This includes hiring. As such, if you believe you were refused employment based solely on having previously received workers’ comp benefits, you may have a legal claim against the employer. It is also illegal to discriminate against an employee or job applicant because of a past or present disability. That being said, the ADA only applies to businesses with at least 15 employees. A Boston workers’ comp attorney can help you determine how to proceed if you’ve been injured on the job.

What is Retaliation?

Retaliation can take many forms, from a hostile work environment to outright termination. Some of the most common types of retaliation following a workers’ comp claim include:

  • Negative performance review
  • Failure to promote a deserving employee
  • Demotion
  • Pay cut
  • Workplace isolation or intimidation
  • Negative transfer or reassignment
  • Reduction in benefits or employment terms
  • Disciplinary action without cause
  • Negative employment references
  • Increase or decrease in tasks

In the list above, negative employment references are the most likely concern among job applicants who have previously filed workers’ comp claims. Another concern is the question—have you ever filed a claim for workers’ compensation? Since the law prohibits employers from asking potential employees about past or present injuries or disabilities, this question is usually a no-no. However, in some cases employers may perform a background check to determine if the potential employee has ever filed a claim. Continue reading

A new study conducted by the Society of Human Resources Management (SHRM) revealed that only 17 percent of employees admit to having witnessed sexual harassment, and only 11 percent say they were targets of sexual harassment. According to researchers, these low figures are common in surveys related to sexual misconduct. Those being surveyed may fear retaliation, or they may be ashamed, or concerned about victim shaming.

But there’s even more to it than that. Just like a victim of sexual harassment may struggle with how to describe what happened to them, and whether or not they should confront their harasser, witnesses may be equally unsure of how to approach the situation. In fact, according to Evren Esen, a former workforce analytics director at SHRM, only about 25 percent of witnesses ever report workplace sexual harassment. Determining whether to “blow the whistle” can be a complicated process.

“Regardless of whether it actually happens to you or whether you observe it, there is still a sense that reporting it is taking it to the next level,” says Evren. “It impacts the organization, the morale, and so on if this kind of behavior is just occurring and people don’t feel comfortable reporting it.”

Whistleblowing aside, witnessing sexual harassment can take a toll on an employee’s mental health just as it can harm the actual target. This is especially true if the witness has previously suffered any type of sexual harassment or abuse. A MA employment law attorney can help you recover damages if you’ve been sexually harassed at work.

Betrayal Blindness and Institutional Betrayal

According to Jennifer Freyd, a professor of psychology at the University of Oregon, witnesses to workplace sexual harassment can suffer from the two types of betrayal trauma common to victims—betrayal blindness and institutional blindness. In cases of betrayal blindness, the victim or witness may “forget” or block out harassment that is conducted by a trusted and respected colleague or mentor. Institutional betrayal occurs when a victim or witness loses their sense of trust in their workplace.

Even when employees try to avoid unpleasant situations involving other workers—keeping their heads down and ‘minding their own business’—they can still be negatively affected

“You’re still in a system that is dysfunctional and it’s going to take a toll on you for that reason,” says Freyd. “So it’s like being in a dysfunctional family—it’s costly to your well-being, just swimming in that system.” Continue reading

Last week, an ex-manager of a Chipotle Mexican Grill was awarded close to $8 million in a wrongful termination lawsuit against the restaurant chain. Jeanette Ortiz was accused of stealing more than $600 from a Fresno, California Chipotle in 2015. The alleged theft, which Ortiz’s supervisors claimed was videotaped, was never shown to Ortiz. Her supervisors said the video had been destroyed.

Following her termination, Ortiz filed a lawsuit. Last week, a California jury ruled that the former manager’s termination was in retaliation for a workers’ comp claim she had filed for a work-related injury. Ortiz claims to have suffered carpal tunnel syndrome while working at Chipotle. The Mexican fast-food restaurant was ordered to pay $7.97 million in damages, which includes $1.97 million in lost wages, and $6 million for emotional distress.

How Do You Know if Your Termination Was Legal?

If you’ve recently been fired from a job, and you think your termination was illegal, you may be entitled to compensation. But how do you know if the termination was legal or wrongful? The reality is, most employment is considered to be “at will,” which basically means that any employee can be fired at any time for any reason. That sounds like a blanket statement, but there is one major exception. If the reason itself is illegal, the termination is likely wrongful. An example of an illegal reason for termination would be if an individual is fired because of his race or religion. Such a discriminatory act is prohibited, and thus, would constitute a wrongful termination.

To win a wrongful termination case, however, one must be able to prove that the reason for termination was illegal, or that the termination itself was illegal because it goes against a written or implied promise of employment. For example, if you have a written contract promising job security for one year, and you are fired after six months, you can argue that your employment was not “at-will.” Even an implied promise can suffice, but these are much more difficult to prove. A Boston employment law attorney can help you protect your rights if you’ve been wrongfully terminated. Continue reading

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