Health Care Lawyer Blog

Employers who fear that they may violate the Americans with Disabilities Act (ADA) by offering incentive-based wellness programs can now breathe a bit easier.

A federal district court recently ruled that an employer may offer incentives, including charging a surcharge for not participating in a health risk assessment (“HRA”), as long as its plan falls within the ADA’s safe harbor for bona fide benefit plans.

In Seff v. Broward County (S.D. Fl.), the employer offered a wellness program that required employees to pay $20 more per pay period if they chose not to participate in a wellness program that included a HRA and a biometric screenings for cholesterol and glucose. The issue was that for a wellness program to be permissible under the ADA it must be voluntary, and the plaintiff’s argument was that if employees are required to participate or pay a penalty, then the plan was not truly “voluntary.”

Part of the ADA's prohibition against discriminating against employees includes a specific provision that forbids medical exams or inquiries unless they are necessary to determine whether the employee is fit to work. In the past, the EEOC has allowed employers to give medical examinations as long as they were part of a “voluntary wellness program,” but it has not said whether the ADA should apply to those programs.

Continue reading " Court Rules Employee Wellness Program Does Not Violate ADA " »

Since the False Claims Act (FCA) is regularly used in cases involving health care fraud, the Health Care Lawyer Blog covers significant FCA activity.

The Supreme Court held this morning that a federal agency’s written response to a request for records under the Freedom of Information Act (FOIA) constitutes a “report” within the meaning of the FCA's public disclosure bar. The 5-3 decision (Kagan, J. recused herself) resolved a longtime split amongst the circuits and will have significant impact on FCA plaintiffs and their counsel going forward.

Background

Generally, the federal FCA prohibits a private plaintiff (often referred to as a relator or whistleblower) from filing an action that is “based upon the public disclosure of allegations or transaction in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit or investigation, or from the news media.” See 31 U.S.C. 3730(e)(4)(A), amended by the 2010 Patient Protection and Affordable Care Act, this amendment will be discussed in detail below. Frequently referred to as the “public disclosure bar”, this provision was included in the legislation to prevent “parasitic” lawsuits and ensure that cases were only filed by insiders with personal knowledge of fraud against the government.

In Schindler Elevator Corp. v. United States ex rel. Kirk, a private plaintiff filed an FCA lawsuit against defendant Schindler Elevator Corp. Kirk alleged that defendant, a contractor with the Department of Defense, failed to comply with certain regulations and thus all claims submitted to the government for payment were fraudulent. In support of his allegations that the defendant falsely complied with the regulations, Kirk relied on information that his wife had obtained from the Department of Labor in response to three FOIA requests.

Schindler moved to dismiss Kirk’s suit, claiming in pertinent part that the information in the FOIA reports constituted a “public disclosure” and Kirk’s suit was thus barred. The District Court granted the motion, and Kirk appealed to the Second Circuit Court of Appeals.

On appeal, the Second Circuit vacated and remanded, holding that an agency’s response to a FOIA request is neigh a report nor an investigation within the meaning of the public disclosure bar. Schindler appealed.

After the jump - analysis of the Court's opinion and what the case means to FCA cases

Continue reading " Supreme Court: FCA Actions Cannot Be Based Upon Information Obtained Via FOIA Requests " »

David Haron, a Frank Haron Weiner principal, hosted a group of students from Cesar Chavez Academy High School for a tour of the Theodore Levin U.S. Courthouse in Detroit on Thursday, May 12. The tour was sponsored by the Federal Bar Association, of which Haron is a member.

Tours of this kind are given on Tuesdays and Thursdays from January to May, and they are open to students in grades 5 through 12. While each tour is different, they are generally led by Federal Bar Association member attorneys, and they include a speaker from a law enforcement agency, observance of a court proceeding, and a tour of the Eastern District of Michigan historical courtroom – affectionately dubbed “the Million Dollar Courtroom.” The program can accommodate up to 60 students at a time and tours may be scheduled by contacting Barb Radke in the Chambers of Honorable Mark A. Randon at (313) 234-5541.

Haron's tour consisted of about twenty 11th grade students from Cesar Chavez Academy High School. The students were able to see a portion of a civil trial about the validity of a fire insurance claim, as well as the guilty plea of a 19-year-old male on criminal charges for selling seven grams of heroin and two guns. The students also toured the lock-up, and one student even modeled a set of hand cuffs and chains.

The two-hour program proved to be rewarding for the students as well as for Haron, who enjoyed the opportunity to volunteer his time and to hopefully spark some interest in the federal judicial system.