Michael A. Morse will participate on the whistleblower panel at ABA Internal Corporate Investigations 2013 Program on April 24-26, 2013 in Washington, DC.
Related Information:
Program Information Read More
The U.S. Supreme Court recently struck down a North Carolina law that allowed state officials to seize one-third of a medical malpractice settlement paid to a Medicaid recipient.
In the case, Wos v. EMA, North Carolina claimed over $900,000 of a legal settlement won by the parents of a 13-year-old girl born with serious injuries that left her unable to live or work independently. The case settled for $2.8 million; however, the settlement did not indicate what part of the $2.8 million was meant to cover EMA’s medical expenses, which were paid, in part, by Medicaid. North Carolina claimed over $900,000 of that amount under a state law that allows it to recover one-third of any legal verdict or settlement as a reimbursement for the state’s Medicaid costs. EMA’s family sued North Carolina, arguing that the amount was disproportionately large and violated the federal Medicaid law, which limits a state’s recovery to medical expenses.
The federal Medicaid Act requires states to recoup their medical expenses from beneficiaries’ tort winnings. It does not specify what percentage of tort winnings should be allocated as medical expenses if the verdict or settlement is silent on that point.
The U.S. District Court for the Western District of North Carolina found the state’s method for determining its reimbursement was reasonable, but in 2012 the Fourth U.S. Circuit Court of Appeal in Richmond, Virginia disagreed. The Supreme Court upheld the Fourth Circuit’s ruling in a 6-3 opinion, holding that North Carolina’s law conflicted with the federal law’s requirement that a state not claim more than what it paid for medical expenses, known as the anti-lien provision.
Eleven states supported North Carolina in an amicus brief, arguing that the federal Medicaid law was an agreement between the federal government and the states, and did not provide Medicaid beneficiaries with a legal claim. Read More
In Young v. United Parcel Service, Inc., — F.3d –, 2013 WL 93132 (4th Cir. Jan. 9, 2013), the United States Court of Appeals for the Fourth Circuit held that employers do not need to provide preferential treatment to pregnant employees simply because the employee is pregnant. More specifically, the Fourth Circuit held that: (1) the employer did not violate the Americans with Disabilities Act (“ADA”) because it did not “regard” her as disabled; (2) the employer’s policy of not providing light duty work to pregnant employees while providing temporary, light duty work to employees injured-on-the job did not violate the Pregnancy Discrimination Act (“PDA”); and (3) the employer’s denial of an accommodation to pregnant employees did not give rise to an inference of unlawful discrimination under the PDA.
Background
In Young, the plaintiff worked part-time as a delivery truck driver for United Parcel Service, Inc. (“UPS”). In 2006, the plaintiff took a leave of absence from UPS to undergo fertility treatments. After the plaintiff became pregnant, and while she was still on a leave of absence, she submitted two notes from two different medical providers stating that she should not lift more than 20 pounds. The plaintiff’s supervisor informed her that she would not be permitted to continue working as long as she had a 20 pound lifting restriction because it was an essential function of the job for drivers to lift packages weighing up to 70 pounds. Moreover, pursuant to a collective bargaining agreement (“CBA”), UPS only provided temporary, alternate work to employees unable to perform their normal work assignments due to on-the-job injuries. Pregnant employees, however, were ineligible for the temporary, light duty work to accommodate any limitations arising solely from the pregnancy. The plaintiff remained on leave, and returned to work after she gave birth. The plaintiff brought an action against UPS for discrimination on the basis of her pregnancy and for discrimination under the ADA because UPS “regarded” her as disabled. Read More
If securing the dismissal of an indictment is a monumental task, and it is, then successful pursuit of Hyde Amendment petition is surely a Rushmorian achievement. The daunting burden of Hyde Amendment claims was on full display in Monday’s decision by the Third Circuit, affirming the U.S. District Court for the District of New Jersey’s denial of the Hyde Amendment petition by former Jersey City Mayoral candidate Louis Manzo. United States v. Manzo, No. 12-2294 (3d Cir. March 25, 2013).
The case arose out of the indictment of Manzo relating to an alleged bribery scheme while Manzo was a candidate for Mayor of Jersey City. Manzo eventually lost his bid for Mayor, but while a candidate he was alleged to have agreed to accept cash payments from a real estate developer, Solomen Dwek, in exchange for help with Jersey City government matters if he was elected. Dwek, it turned out, was actually an undercover government operative carrying out a government sting operation. The indictment alleged four counts of conspiring and attempting to commit extortion under the Hobbs Act, and two counts of traveling in interstate commerce to promote and facilitate bribery, under the Travel Act.
According to the indictment, Manzo and his brother, Ronald Manzo, accepted as bribes three cash payments prior to the election, totaling $27,500. The indictment also alleged that Dwek had agreed to pay additional money after the election, assuming Manzo won. Ronald Manzo was eventually convicted in a related matter, as reported on www.white-collared.com previously.
Manzo filed a motion to dismiss, which the district court granted with respect to the Hobbs Act counts, finding that there could not have been a violation because Manzo was not a public official at the time. The district court refused, however, to deny the two Travel Act counts, based on the fact that the Travel Act also applied to any violation of state law, and the court’s determination that the New Jersey bribery statute did not preclude prosecution of an individual who hadn’t yet assumed office. Read More
In addition to providing for employer liability for discrimination claims, the Pennsylvania Human Relations Act (“PHRA”) and similar local laws, including Allegheny County’s Human Relations Ordinance, Philadelphia’s Fair Practices Ordinance and Pittsburgh’s Fair Practices Ordinance, contain provisions giving employees or applicants an additional claim of aiding and abetting liability against individual defendants. Notably, however, if the underlying discrimination claim against the employer is dismissed, any aiding and abetting claim should also be dismissed.
Section 955(a) of the PHRA makes it unlawful for an employer with four or more employees to engage in employment discrimination on the basis of race, color, religious creed, ancestry, age, sex, national origin, non-job related handicap or disability, the use of a guide or support animal because of blindness, deafness or physical handicap or having a GED rather than a high school diploma. 43 P.S. § 955(a). Allegheny County’s ordinance similarly applies to employers with four or more employees and also contains additional classes protected from discrimination, including gender identity or expression, familial status, marital status and sexual orientation. Allegheny Cnty. Code § 215-32. Philadelphia’s ordinance applies to all employers and contains additional classes of domestic/sexual violence, ethnicity, gender identity, genetic information, familial status, marital status and sexual orientation. Phila. Code § 9-1103. Pittsburgh’s law applies to employers with five or more employees and similarly contains additional classes of familial status, place of birth and sexual orientation. Pittsburgh City Code § 659.02.
The PHRA also provides for aiding and abetting liability at Section 955(e), which states that it is an unlawful discriminatory practice:
(e) For any person, employer, employment agency, labor organization or employee, to aid, abet, incite, compel or coerce the doing of any action declared by this section to be an unlawful discriminatory practice, or to obstruct or prevent any person from complying with the provisions of this act or any order issued there under, or to attempt, directly or indirectly, to commit any act declared by this section to be an unlawful discriminatory practice. Read More
Articles contained in this issue of the CLE:
New “OSHA Counsel Assist” Coverage Offered by AIG
OSHA Penalties/The “Other” Overhead
Exposing the “Green” Myth
The Faulty Workmanship/Occurrence Debate Takes On Constitutional Dimensions: Statutory Changes to Existing Policies Declared Unconstitutional in Two States
Voluntary Layoff-Retirement: Can Unemployment Be Awarded?
Pennsylvania’s Small Business Procurement Initiative: What You Need To Know Now
Home Builders in Pennsylvania Are Now at Risk for Latent Construction Defect Claims Asserted by Subsequent Purchasers
Related Information:
Construction Legal Edge Spring Newsletter 2013 Read More
As the Marcellus Shale boom continues to proliferate across the Mid-Atlantic, those involved with operations and wastewater disposal must remain committed to maintaining and improving compliance efforts. While the specific environmental regulations and enforcement priorities relating to that industry may not be quite settled, there continues to be signs that DOJ remains willing to take on environmental protection as a law enforcement matter. The most recent examples came this week with the guilty plea on Tuesday by the owner of a Colorado painting company for illegally treating hazardous waste, and yesterday’s announcement by DOJ that Teva Pharmaceuticals USA Inc. agreed to pay a $2.25 million civil penalty to settle alleged violations of numerous federal and state environmental statutes at Teva’s Missouri manufacturing facility.
…both cases demonstrate the factors that will turn simple regulatory matters into large civil penalties or criminal charges.
Both cases are instructive on the complex web of environmental laws and regulations with which industrial companies must comply. Perhaps more importantly, however, both cases demonstrate the factors that will turn simple regulatory matters into large civil penalties or criminal charges. The take home point is that environmental enforcement actions that involve evidence of repeated violations, deception of regulators or risk of injury to people, are far more likely to raise the stakes for a company and it’s officers.
On Tuesday, Norman Teltow, owner of Gold Metal Paint Co. LLC (GMP), pleaded guilty to a criminal information charging him, under the Resource Recovery and Conservation Act (RCRA), with illegally treating hazardous waste at the company’s facility. According to the government, GMP was primarily in the business of painting small aircrafts. During the course of its business, GMP created hazardous waste in the form of spent methylene chloride-based solvents mixed with paint waste. Methylene chloride, a listed hazardous waste, is both ignitable and toxic. Read More
Principal Deputy Attorney General Stuart F. Delery, who heads DOJ’s Civil Division, used last Friday’s speech to the Second Annual Consumer Protection Summit at Georgetown University School of Law to review the 2012 accomplishments of the Consumer Protection Working Group. In his remarks, he highlighted the efforts of the Consumer Protection Branch in securing of over $1.95 billion in criminal fines, forfeiture, restitution and civil disgorgement, as well as 23 criminal convictions during 2012. He also indicated that there is more to come.
The Consumer Protection Working Group is part of the Financial Fraud Enforcement Task Force, a grouping of federal agencies, working in partnership with state governments, formed in the wake of the financial crisis to pursue those thought to be responsible for numerous abuses in the financial industry. As we reported previously, DOJ plans to make increased cooperation with the states on financial fraud a top priority, seeing opportunity for shared resources to create, as Acting Associate Attorney General Tony West put it, “a formidable force-multiplier when it comes to accountability and deterrence.”
His comments are yet another reminder of DOJ’s dedication to maintaining the trend of increased government enforcement in the name of consumer protection, including criminal prosecutions if necessary, against companies and those who run them.
Delery ticked off a laundry list of priorities for the Civil Division generally and the Consumer Protection Branch specifically, including “dietary supplement safety, debt relief scams, phantom debt scams, payday lending, lottery scams, and even romance scams.” He added, however, that their work is even broader than that diverse grouping.
He went on to indicate that cases brought during 2012 included cases against food manufacturers that produce food under insanitary conditions; drug makers who mislead consumers about the safety and efficacy of the drugs they produce and market; and those who commit fraud in the mortgage industry. Read More
Marc S. Raspanti and Pamela C. Brecht will present, “What Should You Know About the Medicare Part D Program But Were Afraid to Ask,” at PBI’s 19th Annual Health Law Institute at the Philadelphia Convention Center in Philadelphia, PA on March 12-13, 2013.
Related Information:
Program Information Read More
Michael A. Morse will present, “Reporting and Returning Medicare Overpayments: The 60-day Rule and False Claims Act Liability,” at PBI’s 19th Annual Health Law Institute at the Philadelphia Convention Center in Philadelphia, PA on March 12-13, 2013.
Related Information:
Program Information Read More
