The closure of the Studebaker-Packard Corporation car manufacturing plant in 1963 was a major catalyst leading into the enactment of the Employee Retirement Income Savings Act of 1974 (“ERISA.”) This pension plan had promised generous benefits for the participants, but the plan was severely underfunded and was not able to cover the benefits for many of the employees vested in the plan. The failure of the Studebaker pension plan, along with a high profile conviction of infamous Teamsters boss James Hoffa on pension fraud, drew the attention to pension plan corruption and mismanagement and spurred talk of reform and regulation in Washington, DC. Ryles, Eric (December 3, 2018). “The History of the Employee Retirement Income Savings Act (ERISA)”. Judy Diamond Associates, Inc. Retrieved May 3, 2022.
Just over a decade later, ERISA was codified in the United States Code.[1] This article is not intended to suggest that ERISA has been a complete failure. Like other laws, ERISA has limitations and lacks flexibility in achieving its intended goals. The decline of the number of American workers covered by defined benefit plans illustrates how this legislation that was intended to protect participants of defined benefit plans has instead reduced the continued availability and utilization of those plans in the industrial and manufacturing sector. Specifically, airline, steel, and trade & craft workers, among others, have faced significant challenges in the funding and perpetuation of benefits provided by these plans.
Defined benefit plans have become associated with being expensive and inflexible. The funding requirements on an annual basis are not predictable due to volatility experienced in market returns and changes in employee censuses of the plan sponsor. The funding requirements have increased in many employment sectors due to declining employment levels. That is, more participants have been transitioning to pay status as compared to the number of new entrants being hired. Read More
Pietragallo Gordon Alfano Bosick & Raspanti, LLP is pleased to be recognized by Chambers USA in its 2022 guide in the area of Litigation: White-Collar Crime & Government Investigations in Pennsylvania. Chambers ranks leading law firms and attorneys across the U.S. based on the opinion of their clients and peers, and by the quality of their work.
Chambers USA acknowledges that the Pietragallo team “is extremely knowledgeable about every facet of the work they are performing. In addition, they are very reliable, responsive and provide an excellent work product.” Clients and peers are quoted as saying, “They are reliable and straightforward. They certainly pay attention to me and keep me informed on matters referred to them.”
Additionally, the following partners are ranked:
William Pietragallo— Litigation: General Commercial— Pennsylvania: Pittsburgh & Surrounds
Marc S. Raspanti— Litigation: White Collar Crime & Government Investigations— Pennsylvania
Kevin E. Raphael— Litigation: White Collar Crime & Government Investigations— Pennsylvania
About Pietragallo
Pietragallo Gordon Alfano Bosick & Raspanti, LLP is a multi-disciplined business and litigation law firm headquartered in Pittsburgh and Philadelphia with six offices throughout Pennsylvania, Florida, Ohio, and West Virginia from which we are able to serve our clients in all 50 states and the District of Columbia. Read More
The Medicare and Medicaid programs are exceedingly complex, and navigating the myriad statutes, regulations, rules, and guidance presents significant challenges for all healthcare providers and compliance professionals—even the United States Supreme Court has recognized that the Medicare program is a “complex and highly technical regulatory program.”[1] This job is sometimes made even more difficult because program regulations can be ambiguous, and government officials are often unable or unwilling to provide further clarification. Add to the mix that failure to comply with Medicare and Medicaid regulations can result in False Claims Act (FCA) liability, and many healthcare providers can’t help but express frustration. A new battle emerging in the courts may afford healthcare providers some relief when confronted with ambiguous Medicare and Medicaid regulations.
In United States ex rel. Schutte v. SuperValu Inc., decided on August 12, 2021, the Seventh Circuit Court of Appeals held that a defendant does not knowingly submit a false claim “if (a) it has an objectively reasonable reading of the statute or regulation and (b) there was no authoritative guidance warning against its erroneous view.”[2] In it, the Seventh Circuit joined the Third, Eighth, Ninth, and D.C. Circuits in endorsing an objective reasonableness standard under the FCA. However, the Seventh Circuit, over a vigorous dissent, went further than the other courts, which have recognized an objective reasonableness standard, setting up a battle that could significantly affect future FCA cases.
Read more here,
Copyright 2022 Compliance Today, a publication of the Health Care Compliance Association (HCCA). Read More
Pietragallo is pleased to announce that 16 lawyers have been named as 2022 Super Lawyers and Rising Stars, including partner Marc Raspanti who was recognized in the Top 100 in Pennsylvania and Philadelphia.
Super Lawyers is a service of Thomson Reuters legal division which compiles a list of outstanding lawyers from more than 74 practice areas. Each year, a research team at Super Lawyers conducts a multi-phase selection process reviewing independent research, peer nominations, and peer evaluations. With the objective being to provide a reliable, wide-ranging list of attorneys that can be used as a source for finding exceptional legal counsel.
The following were chosen as Pennsylvania Super Lawyers:
Gaetan J. Alfano
Joseph J. Bosick
Mark Gordon
P. Brennan Hart
Christopher A. Iacono
Michael A. Morse
William Pietragallo, II
Francis E. Pipak, Jr.
Marc S. Raspanti (Top 100 in Pennsylvania and Top 100 in Philadelphia)
Douglas K. Rosenblum
Clem C. Trischler
Paul K. Vey
The following were chosen as Pennsylvania Rising Stars:
Ashley J. Kenny
John W. Kettering
Alexander Owens
Peter St. Tienne Wolff
About Pietragallo
Pietragallo Gordon Alfano Bosick & Raspanti, LLP is a multi-disciplined business and commercial litigation firm headquartered in Pittsburgh with six offices throughout Pennsylvania, Florida, Ohio, and West Virginia from which we are able to serve our clients in all 50 states and the District of Columbia. Read More
Volumes have been written about the False Claims Act as a tool to pursue fraud against the government in circumstances where the defendant has allegedly made false statements to receive money from the government. For purposes of our discussion here, we refer to this aspect of the False Claims Act as “affirmative false claims.” Westlaw and Lexis are replete with cases addressing the government’s and relators’ claims seeking recovery for affirmative false claims allegedly perpetrated by defendants. While there are still cases exploring the parameters of materiality and “objective falsity,” much about the False Claims Act’s affirmative false claims provisions is settled law.
Not so the reverse false claims provision of the False Claims Act. The reverse false claims provision permits the government or relators to pursue defendants who are alleged to have hidden or reduced an obligation to pay the government through false statements, or who have violated the 60-day payment rule’s obligation to return “identified overpayments.” These claims typically have been raised in the context of cost reporting, Medicare Part C, or related to alleged failures to fulfill obligations under the 60-day payment rule. The government and relators have increasingly relied on the reverse false claims provision to support stand-alone claims or have used it in conjunction with affirmative false claims. However, because the reverse false claims provision is very lightly used compared to affirmative false claims provisions, there is a dearth of case law defining it or exploring its parameters. The case law that does exist is primarily from district courts and, as the survey of case law contained herein illustrates, there is little guidance from the Circuit Courts or the U.S. Supreme Court.[1]
In this chapter, we cover the legislative history of the reverse false claims provision, the impact of the 2009 Fraud Enforcement and Recovery Act’s significant amendments to the reverse false claims provision, a survey of relevant reverse false claims cases, and finally, a discussion of the practical implications of the reverse false claims provision of the False Claims Act for members of the healthcare industry and legal practitioners that represent them. Read More
Takeaway: In the wake of a data breach, a class of Plaintiffs whose personal and/or financial information is disseminated to third parties all share the same concern – the risk of future harm. But in order for these Plaintiffs to have standing to sue over the wrongful dissemination of their information resulting from the breach, the mere threat of future harm may not be enough. As more courts across the country have had the opportunity to address this issue, the emerging trend seems to be that the mere threat of future harm, by itself, is insufficient to confer standing; the threat of future harm must pose a substantial likelihood of materializing into actual harm for Plaintiffs to recover damages resulting from a data breach.
Pursuant to Article III of the United States Constitution, a plaintiff must meet the “irreducible constitutional minimum” requirements to show that he or she has standing to bring a cybersecurity class action lawsuit.[1] A plaintiff must adequately establish:
(1) an injury in fact (i.e., a “concrete and particularized” invasion of a “legally protected interest”);
(2) causation (i.e., a “ ‘fairly … trace[able]’ ” connection between the alleged injury in fact and the alleged conduct of the defendant); and
(3) redressability (i.e., it is “ ‘likely’ ” and not “merely ‘speculative’ ” that the plaintiff’s injury will be remedied by the relief plaintiff seeks in bringing suit).[2]
The question of whether a plaintiff, or group thereof, has sufficient standing to bring class action lawsuits in the cybersecurity realm has unsurprisingly drawn a split amongst the Circuit Courts. In the wake of a data breach, one particular concern remains the same amongst all plaintiffs who wish to bring these suits – the risk of future harm. But is the mere risk of future harm, without anything else, enough to satisfy the “irreducible constitutional minimum” requirements to confer standing? Read More
TUESDAY, APRIL 12, 2022 – The United States Attorney’s Office for the Middle District of Florida and the Department of Justice announced today the settlement of four qui tam cases filed in Tampa. One of these whistleblower cases was filed by Dr. Sheldon Cho, a pain management physician and former employee of Florida Pain Relief Group, PLLC, and Dawn Baker, a national recruiter who had placed physicians with Physician Partners of America, LLC. Two individuals associated with these corporate defendants are also parties to the settlement.[1]
Ms. Baker and Dr. Cho alleged in their Qui Tam Complaint that Physician Partners of America, LLC, a multi-state pain management and surgical provider, Florida Pain Relief Group, PLLC, Texas Pain Relief Group, PLLC, Physician Partners of America CRNA Holdings, LLC, Medical Tox Labs, LLC, Medical DNA Labs, LLC (“Physician Partners of America, LLC and its affiliated entities”), and two of the company’s executives, namely, founder, Rodolfo Gari, and the company’s Chief Medical Officer, Abraham Rivera (collectively “PPOA”), knowingly submitted or caused the submission of false claims to Government healthcare programs, including Medicare, Medicaid, the Federal Employees’ Health Benefits Program (FEHBP), and Tricare, for unnecessary quantitative urine drug testing (UDT), pharmacogenetic tests, and psychological tests while also systematically upcoding anesthesia services. The matter has been pending before the Honorable Mary S. Scriven of the United States District Court for the Middle District of Florida.
The whistleblowers alleged in their Qui Tam Complaint that PPOA pressured their physicians and other healthcare providers to subject patients to quantitative urine drug tests, pharmacogenetic tests, and psychological tests regardless of medical need. Relators alleged PPOA violated the Stark Law by financially incentivizing their physicians to order quantitative UDT. Relators also asserted that PPOA systematically charged government payors for general anesthesia when lower-level anesthesia services were provided (i.e., upcoding). The United States did not file its own False Claims Act complaint but intervened in the four qui tam complaints. Read More
Kenneth Horoho will be the moderator and one of the presenters on for the program entitled, “The Surveillance of a Spouse: The Do’s and Don’ts in Family Law Matters” sponsored by the Pennsylvania Bar Institute. He will be joined by Judge Anthony Mariani of the Court of Common Pleas of Allegheny County Criminal Division, Phil DiLucente a criminal law lawyer from Pittsburgh, and Larry Forletta a private investigator.
For more information on the Program click on the link:
https://www.pbi.org/Meetings/Meeting.aspx?ID=41811 Read More
Takeaway: With increasing numbers of cybersecurity attacks, foreign and domestic, organizations are even more likely to experience some kind of data breach threat this year. Knowing what that threat looks like, allows organizations to arm themselves against these eminent attacks and to implement policy regulations in time to prevent absolute exposure.
A recent study conducted by PwC demonstrated that due to increasing cybersecurity attacks, 69% of organizations will increase their cybersecurity investments in 2022. But what are the top cybersecurity attacks types organizations should be looking out for? Industry experts weighed in and here is what they said:
Ransomware Cyberattacks: According to previous studies, 71% of cyberattacks in 2020 were financially motivated. Ransomware attacks usually involve hackers holding a company’s database hostage in exchange for ransom, usually cryptocurrency. These types of cyberattacks are increasing in number. Downloading a single malicious file can severely expose a company’s finances and reputation. Companies must establish policies and controls that train employees on how to handle emails and files from unknown or untrusted sources.
5G Vulnerabilities: Transferring data via cloud is now an absolute business necessity. With 5G being implemented by organizations, transfer speeds are expected to hit 10 GB per second. More transfer speed means increasing the pace of business. In turn, hackers are provided more opportunities to infect more data packages without companies noticing. Organizations should implement higher levels of security and stringent policies before relying on 5G for transfers.
Remote Work Vulnerabilities: As organizations increasingly enable employees to work from home, IT departments are becoming more decentralized and attack surfaces more expansive. In fact, 85% of cyberattacks involve some form of human element and 36% come from phishing. To mitigate these errors, organizations should invest in employee cybersecurity training and establish best practices like multi factor authentication and remote device monitoring. Using a zero-trust security framework to continuously validate users that access company data is also a highly recommended practice. Read More
