Michael C. Harrington860-656-1939 | michael.harrington@leclairryan.com

Elizabeth M. Smith860-656-1932 | elizabeth.smith@leclairryan.com

ACHLA

MASSACHUSETTSLABOR AND EMPLOYMENT UPDATE

Reminders . . .

Pregnant Workers Fairness Act

• Sign into law on July 27, 2017

• Effective April 1, 2018

Who is Protected?

Applicants and Employees:

(1) Who are pregnant;

(2) Who are lactating or need to express breast milk; or

(3) Who have pregnancy-related conditions (pre- and

post-birth).

• Must provide reasonable accommodations for pregnancy and pregnancy-related conditions (e.g., lactation)-unless undue hardship.

• Interactive Process!

Accommodations May Include…

• More frequent/longer paid/unpaid breaks

• Time off for pregnancy complication or recovery from childbirth

• Acquisition/modification of equipment/seating

• Job restructuring

• Light duty

• Assistance with manual labor

• Modified work schedule

• Temporary transfer to less hazardous/strenuous position

Employer may request medical note for many accommodations, but not for:

1. More frequent breaks;

2. Seating;

3. Limits on lifting more than 20 lbs.; or

4. Private (not bathroom) space for expressing breast milk.

Undue Hardship Depends On…

• Employer’s overall financial resources.

• Overall size of business.

• Effect of accommodation on the employer’s business.

• Nature/cost of accommodation.

Notice Requirements

• Provide written notice of law to all employees.

• To new employees at/before start of employment.

• To employee who notifies employer of pregnancy/pregnancy-related condition within 10 days.

Pay Equity Law Amendment

•Signed into law: August 1, 2016.

•Effective July 1, 2018.

Pay Equity Law Amendment

• May not discriminate on basis of gender in wages (includes benefits too) for comparable work.

• Cannot reduce wages to comply.

• “Comparable work” requires substantially similar skill, effort and responsibility and it is performed under similar working conditions.

Pay Equity Law Amendment(1) Cannot seek wage/salary history from prospective

employees

• May be voluntary offered

• May seek/confirm wage/salary history after an offer of employment (with compensation) has been made

(2) Cannot prohibit employees from discussing compensation (exception for HR and Supervisors)(already the law under the NLRA)

Defenses

1. Seniority System

• Maternity leave cannot reduce seniority

2. Merit System

3. Earnings based upon quantity/quality of production/sales/revenue

4. Geographic location

5. Education, Training and Experience

6. Travel is a regular and necessary condition of the job

New Affirmative Defense

• Employers who voluntarily audit their pay practices and demonstrate that reasonable progress has been made toward eliminating any unlawful compensation differential.

• Three years.

Transgender Rights Law

• Effective: October 1, 2016

• “Gender Identity” added as a protected class under state law

NEW

PAID FAMILY & MEDICAL LEAVE

Other States:

1. California

2. New Jersey

3. New York

4. Rhode Island

5. Washington D.C.

• Benefits not provided until July 1st, 2021

• But . . . July 1st, 2019

(1)Posting

(2)Tax Begins

Covered Employers:

Nearly everyone . . . Must meet the financial eligibility requirements for receiving unemployment compensation (have earned 30 times the week unemployment benefit . . .)

Except . . .

–Municipalities

–Districts

–Political Subdivision

Covered Individual

• Employee employed in Massachusetts

(regardless of length of service)

• Former employees who have not been separated from employment for more than 26 weeks at the start of the leave.

Qualifying Leave

1. Own serious health condition.

2. Care for family member with serious health

condition.

3. Bond with child during first 12 months.

4. For any Qualifying Exigency due to military service.

5. Care for a family member who is in military service

with serious health condition.

Family Member

• Spouse/ Domestic Partner

• Children/Grandchildren

• Parents/ Grandparents/ In-Laws

• Siblings

Benefits per Year

• Up to 12 weeks of Family Leave

• Up to 20 weeks of Medical Leave

• Up to 26 weeks for covered Service Member

• Max of 26 weeks for all leave.

During Leave . . .

• Employee continues to accrue vacation, sick, bonus, advancement, seniority, etc.

• Employer must continue to contribute to health insurance.

The Benefit . . .

• 7- day waiting period

• Paid from Family and Employment Security Trust Fund

• Capped at $850/week (80% of individual’s weekly wage).

Employers with 25 or more employees in Massachusetts

• Employer must remit full contribution to Trust Fund.

• For Medical Leave . . . Employer may deduct up to 40% of required contribution from employee’s wages.

• For Family Leave, employer may deduct up to 100 percent of contribution from employee’s wages.

Employers with less than 25 employees in Massachusetts

• Not required to pay employer portion of FML Premiums

Private Plan Option

July 1, 2019

• Post Notice of Benefits

• Within 30 days of employee’s start date, provide info to employees in their primary language . . .

Employer Contribution

• To begin July 1, 2019

• .63% of taxable earnings up to $128,400

• Employer responsible for remitting, but may deduct from employee’s wages.

• Waiting for Final Regulations to determine breakdown between Medical Leave and Family Leave contributions.

Me Too & The Modern Workplace

Sexual Harassment in the News

• Harvey Weinstein

• Matt Lauer

• Bill O’Reilly/FOX News - $32 million settlement

• National Park Service

• Silicon Valley Tech Industry

• USA Gymnastics/Larry Nassar

An Era of Social Change

EEOC Data – FY 2017

• Charges filed with EEOC by employees working for

private employers or state or legal government:– 33% alleged harassment on the basis of race

– 28% alleged harassment on the basis of sex

– 20% alleged harassment on the basis of disability

– 12% alleged harassment on the basis of national origin

– 5% alleged harassment on the basis of religion

What is Harassment?

• Unwelcome

• Can be physical, verbal, or nonverbal

• Severe or pervasive

• Unreasonably interferes with work performance

• Creates a hostile work environment

• Focuses on impact, not intent

Employer May Be Liable Without A Complaint

• MacCluskey v. UCONN Health Center, (2017).

• Failed to exercise reasonable care by:

– Making insufficient inquiry

– Failing to continue monitoring offending employee

• Takeaway: Employers have an obligation to

maintain a harassment-free workplace.

Supervisor’s Responsibility

• Be a Role Model/ Set the tone

• Create and preserve a workplace free from unlawful harassment

• Report any allegation to HR

• Take every allegation seriously

Creating A Harassment-Free workplace

• Maintain anti-harassment policy and provide

training

• Provide training

• Promote civil workplace culture

• Encourage Bystander assistance and reporting.

Steps to Consider

• Be proactive - Don’t wait for a complaint.

• Provide Training/Remind Employees of Anti-Harassment

Policy

• Engage and observe interactions.

• Make clear that employees can see you about anything, it

doesn’t to rise to the level of a complaint.

In 2016, EEOC Task Force on Study of Harassment in Workplace Final Report:

– Harassment continues to be a problem in the workplace.

– Recommend new training approaches.

• Empowering bystanders to intervene when witnessing harassing conduct.

• Promote general respect and civility.

Bystander Intervention Training

• Identify unwelcome and offensive behavior

• Refrain from harassment

• Set positive, supportive tone

• Responsibility to “do something” i.e. report any

incidents

Civility In The Workplace

Workplace Civility Training

• Promote a workplace where everyone feels respected

• Skill-based training on conflict resolution, effective supervision, interpersonal skills training

• Be inclusive

• Humor is okay unless it is inappropriate

• Examples of unacceptable conduct – verbal and physical

George Washington

“Every action done in company ought to be with some

sign of respect to those that are present.”

Benjamin Franklin

“Be civil to all, sociable to many, familiar with a few,

friend to one, enemy to none.”

Civility

• Behaviors that help maintain a culture of mutual

respect in the workplace.

• Behaviors that reflect concerns for others.

Civility usually is demonstrated through manners,

courtesy, politeness, and a general awareness of the

rights, concerns, and feelings of others.

Steps to Create a Civil Environment

1. Adopt a Company Policy. Address civility in your corporate

mission statement, personnel policies, and everyday

interactions.

2. Buy-in from the CEO to temporary workers.

3. Management should exemplify the behavior expected from

staff.

4. Provide training/teach civility.

5. Ongoing support and accountability.

– Reward good behavior.

– Address bad behavior.

Sample PolicyDisrespectful, unprofessional, and/or uncivil behavior is unacceptable and may result in

corrective action, up to and including discharge. Unacceptable behavior includes, but is not

limited to, behaviors that a reasonable person would find embarrassing, offensive, or humiliating,

such as:

– Use of profanity or otherwise offensive language or jokes

– Obscene or indecent gestures

– Shouting, yelling or other aggressive behavior

– Degrading, demeaning, humiliating, sarcastic or insulting comments

– Discriminatory remarks

– Racist, sexist or other slurs or symbols

– Name-calling

– Horseplay

– Harassment

– Retaliatory actions

– Personal attacks

– Acts of insubordination

Popularity of Marijuana

In 2011 - Marijuana was the most commonly used

illicit drug with 18.1 million users (80.5% of drug

users).

52

Controlled Substances Act

Marijuana is illegal under federal law.

10 States with Recreational Marijuana:

(1) Colorado (2012)

(2) Washington (2012)

(3) Alaska (2014)

(4) Oregon (2014)

(5) Maine (2016)

(6) Massachusetts (2016)

(7) Nevada (2016)

(8) California (2016)

(9) Michigan (2018)

(10) Vermont (2018)

Also:

– Washington, D.C. (2014)

Massachusetts

Effective December 15, 2016

Legal:

1. 21 years old

2. Outside Home: Can possess up to 1 ounce

Inside Home: Can possess up to 10 ounces and grow up to 6 plants

What Is Illegal

• Growing marijuana in a place that is visible from a public area.

• Operating a vehicle while under the influence of marijuana.

• Selling or giving marijuana to people under 21 years of age.

• Manufacturing marijuana without the proper licensing.

• Preventing people or government agencies from regulating marijuana consumption, manufacturing, and possession.

• Selling marijuana on public school grounds or the grounds of a correctional facility.

• Barring any person from needed medical treatment or procedure due to use of marijuana.

Massachusetts’ Marijuana Act

“This chapter shall not require an employer to permit or accommodate conduct otherwise allowed by this chapter in the workplace and shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employers.”

What Did Not Change

• Employers are not required to permit or accommodate marijuana use in the workplace.

• The medical marijuana program in Massachusetts was unaffected.

• Marijuana was not exempted from following laws relating to adulteration and misbranding of food and drugs.

Under the Influence of Marijuana?

• Panic/Anxiety/Hallucinations

• Poor muscle and limb coordination/slight muscular tremor (eye lids, fingers, possible legs)

• Delayed reaction times and abilities

• Initial liveliness/sudden mood swing

• Increased heart rate

• Distorted sense perception

• Red eyes

• Silver coated tongue

• Distinctive Smell

• Increased appetite59

Methods of Drug TestingUrine

• Most widely used method

• Only method allowed for DOT

• Tests for widest range of drugs

Hair

• Longer detection period

• Takes longer to be detectable

• 3x more expensive

• Limited number of drugs detected

• Doesn’t require bathroom for collection

Oral Fluid

• Doesn’t require bathroom for collection

• Typically collected by employer

• Difficult to adulterate

• Limited number of drugs detected

Blood

• Considered most invasive

• 5x more expensive

• Limited number of drugs detected

• Uncommon in workplace testing

Barbuto v. Advantage Sales and Marketing (2017)

• Mass. Supreme Judicial Court

• New hire disclose medical marijuana use for Crohn’s Disease

• Tested positive . . . Terminated

• Court, however, permitted the employees’ reasonable accommodation claim

• Recreational use should be seen different

1. Review/Update existing policies.

2. Educate employees and supervisors.

3. Make sure a person who is suspected of being under

the influence does not drive, operate power equipment,

or engage in unsafe activity.

What To Do?

Fair Labor Standard Act

TURNS 80 YEARS OLD!

Common FLSA Violations

1. Improperly Classifying an Employee

A) Employee v. Independent Contractor

B) Exempt v. Non-Exempt

To Be Exempt . . .

(1) Salary

(2) Duties

March 7, 2019 –DOL’s New Proposed Overtime Rule

• Effective January 2020

• Salary for white collar exemptions:

$35,308/year or $679/ week

(now: $23,660; Obama DOL: $47,000)

• Salary Level for Highly Compensated Employees: $147,414

(now: $100,000; Obama DOL: $134,000).

• Certain nondiscretionary bonuses and incentive payments (e.g. commissions) may count up to 10% of worker’s salary level.

• No changes to Duties Test

• Rule proposes updating the salary levels every 4 years after notices comment periods (not automatic)

Other Points

2. Docking Hours of Exempt Employee.

Common FLSA Violations cont’d . . .

3. Failing to Pay for All Time Spent Working.

Common FLSA Violations cont’d . . .

4. Incomplete/Inaccurate Time Records

Common FLSA Violations cont’d . . .

6. Unpaid Interns

Common FLSA Violations cont’d . . .

7. Child Labor Restrictions

Common FLSA Violations cont’d . . .

EEO-I Report

• Annual filing with EEOC.

• Required of employers with 100+ employees.

• Submit information on gender, race and ethnicity of workforce by job category.

2016 Revised Reporting Requirement

• W-2 wage data and hours worked for employees within a 12 specified pay bands.

EEOC’s Pay Data Rule

• Required Employers with 100 or more employees to report compensation data on their EEO-I Report, which must be filed by May 31, 2019 (usually March 31).

• EEOC had sought to require certain pay info to identify possible discrimination.

• Had been stay by Office of Management and Budget in August 2017.

• On March 4, 2019, a District Court awarded summary judgment to National Women’s Law Center and found that the Government did not adequately show why rule needed to be stayed.

EEOC’s Pay Data Rule

• DOJ may appeal?

• EEOC currently lacks a quartum with only two commissioners.

Thank you!

HIPAA BASICS

Prepared by

Patrick J. Hurd, Esq., LeClairRyanPatrick.Hurd@LeClairRyan.com

Health Insurance Portability & Accountability Act

Title I– Since 1997, limits pre-existing condition exclusion & forbids

discrimination in eligibility based on health status.

Title II– Administrative simplification and privacy.

HIPAA

• Uniform standards for electronic data transmission, coding & identifiers

• Privacy protection

• Security requirements

HIPAA applies to a “Covered Entity”…

(1) A healthcare provider that conducts certain transactions in electronic form;

(2) A health care clearinghouse; or

(3) A health plan.

Health Plan is . . .

– Employee Health Benefit Plan • With 50 or more participants or

• Administered by a TPA

– Employer as Plan Sponsor

“Healthcare Provider” is a person that provides care, services or supplies related to the health of an individual:

– Preventive, diagnostic, rehab, maintenance or palliative care and counseling, service, assessment, or procedure with respect to the physical or mental condition or functional status of an individual or that affects the structure or function of the body.

– Sale or dispensing of a drug, device, equipment or other item in accordance with a prescription.

“Certain transactions” are…

– A request for payment

• If no direct claim, transmission of encounter information for purpose of reporting health care

– An inquiry to a health plan regarding:

• Eligibility

• Coverage

• Benefits

• Referral certification

• Authorization

– Payment

“In electronic form”…

– Broadly defined and includes both (1) electronic storage and (2) electronic transmission media.

– Certain transmissions, including of paper, via facsimile, and of voice, via telephone, are not considered to be transmissions via electronic media if the information being exchanged did not exist in electronic form immediately before the transmission.

THE GOLDEN RULE Of HIPAA:

Disclose only the minimum necessary for payment or healthcare operations

Covered Entity must:

Maintain the Privacy and Security of Protected Health Information (“PHI”) and use or disclose PHI only for:

• Payment

• Treatment, or

• Healthcare Operations

Identifiers(1) Name

(2) Address (all geographic subdivisions smaller than state, including street address, city county, and zip code)

(3) All elements (except years) of dates related to an individual (including birthdate, admission date, discharge date, date of death, and exact age if over 89)

(4) Telephone Numbers

(5) Fax Number

(6) Email address

(7) Web URL

(8) Internet Protocol (IP) Address

(9) Social Security Number

(10) Medical Record Number

(11) Health Plan Beneficiary No.

(12) Account Number

(13) Certificate or License Number

(14) Any vehicle number

(15) Finger or Voice Print

(16) Photographic Image - not limited to images of the face.

(17) Device Identifier & Serial Nos.

(18) Any other characteristic that could identify the individual

Covered Entity Must:

– Notify the patient of

• The patient’s privacy rights

• Covered Entity’s privacy policies & practices

– Obtain written confirmation by the patient of receiving the above information or why not

Covered Entity must:

Obtain the patient’s written authorization for uses of PHI other than:

• Payment

• Treatment

• Healthcare operations

• Authorized by patient

Covered Entity must give the patient:

(1) Access to the patient’s PHI

(2) Opportunity to change incorrect PHI

(3) An accounting of all disclosures of PHI that were not for payment, treatment or healthcare operations or not authorized by the patient

HIPAA BASICS

Covered Entity must:

– Appoint a Privacy Officer

– Appoint a Contact Person

– Adopt policies and procedures for managing protected health information

– If health plan, must amend plan documents

– Provide training to all employees with respect to its privacy policies and procedures

Incidental Use & Disclosure

• Reasonable and appropriate safeguards

• Minimum necessary standard

• Example– Overheard conversations

Examples of Minimum Necessary Disclosure

• Eliminating identifiers from Email Subject Lines and Body; Attach pass word protected files.

• When performing initial curating of PDF data files from the Provider, Data Examiners have limited access to certain data elements and access is granted only for a brief time period.

• When exchanging information about data being available for upload, a secure link is sent via email rather than attach the entire flat file.

Authorization

– Needed in advance for each type of non-routine use or disclosure

– In writing

Breach

The unauthorized acquisition, access, use, or disclosure of protected health information which compromises the security or privacy of such information, except where an unauthorized person to whom such information is disclosed would not reasonably have been able to retain such information.

HIPAA BREACH RISK ASSESSMENT

• Assess the nature and extent of the protected health information involved, including types of identifiers, and the likelihood of re-identification;

• Determine the unauthorized party who used the PHI or to whom the disclosure was made;

• Establish whether PHI was actually acquired or viewed; and,

• Assess the extent to which the risk to the PHI has been mitigated

HIPAA BREACH

• Entities must report a breach unless the assessment of the four factors establishes a low probability that protected health information that was breached will be compromised as a result of that breach.

• Entities should document the assessment of each factor that led to the reporting/non-reporting of the breach

“Breach” does not include:

– Any unintentional acquisition, access, or use of PHI by an employee or individual acting under the authority of a covered entity or business associate if:• made in good faith and within the course and scope of the employment

or other professional relationship of such employee or individual, respectively, with the covered entity or business associate; and

• such information is not further acquired, accessed, used, or disclosed by any person

– Any inadvertent disclosure from an individual who is otherwise authorized to access PHI at a facility operated by a covered entity or business associate to another similarly situated individual at same facility; and

– Any such information received as a result of such disclosure is not further acquired, accessed, used, or disclosed without authorization by any person.

Business Associate

(1) Entities that transmit and need routine access to PHI (e.g., Health Information Organizations, E-Prescribing Gateways); vendors of personal health records who serve covered entities;

(2) Subcontractors who create, receive, maintain or transmit PHI on behalf of business associates; and

(3) Entities that, on behalf of a covered entity, handle PHI for patient safety activities carried out by or on behalf of a Patient Safety Organization or a health care provider.

Examples of Possible Business Associate Services

• Medical record copying services

• Collection agencies

• Transcription services

• Third party billing services

• Computer consultants with access to PHI

• Legal services

• Accounting and auditing services

• Actuarial services

• Financial services

Business Associate Agreement (“BAA”)

• Not use or disclose protected health information other than as permitted or required by the Agreement or as required by law;

• Use appropriate safeguards, and comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information, to prevent use or disclosure of protected health information other than as provided for by the Agreement;

Business Associate Agreement (“BAA”)

• Report to covered entity any use or disclosure of protected health information not provided for by the Agreement of which it becomes aware, including breaches of unsecured protected health information as required at 45 CFR 164.410, and any security incident of which it becomes aware;

• In accordance with 45 CFR 164.502(e)(1)(ii) and 164.308(b)(2), if applicable, ensure that any subcontractors that create, receive, maintain, or transmit protected health information on behalf of the business associate agree to the same restrictions, conditions, and requirements that apply to the business associate with respect to such information;

Business Associate Agreement (“BAA”)

• Make its internal practices, books, and records available to the Secretary for purposes of determining compliance with the HIPAA Rules;

• Maintain and make available the information required to provide an accounting of disclosures as necessary to satisfy covered entity’s obligations under 45 CFR 164.528;

HIPPA Security Rule

– Establishes a national set of security standards for ePHI

– Protects certain health information held or transmitted in electronic form by a HIPAA Covered Entity

– Requires the administrative, physical, and technical safeguards that covered entities must put in place to secure individuals’ ePHI

– Does not apply to PHI transmitted orally or on paper

– Supports the Privacy Rule requirement to reasonably safeguard PHI in all forms

HIPPA Security Rule

(1) Confidentiality – means that ePHI is not made available or disclosed to unauthorized persons or processes

(2) Integrity – means that ePHI has not been altered or destroyed in an unauthorized manner

(3) Availability – means that ePHI is accessible and usable upon demand by an authorized person

Reference: 45 CFR § 164.304

HIPPA Security Rule

Covered entities must:

– Evaluate risks and vulnerabilities in their environments.

– Implement standards to protect against threats or vulnerabilities to ensure the confidentiality and integrity of ePHI.

– Select safeguards that are “reasonable and appropriate” given the covered entity’s analysis of risks

HIPPA Security Rule

• All standards in the Security Rule are required. Many standards contain implementation specifications, that are:

– Detailed descriptions of methods or approaches for implementing security safeguards to meet a standard

– Either “required” or “addressable”

Reference: 45 CFR § 164.306(d)

HIPPA Security Rule

• “Required” implementation specifications:– Must be implemented by all covered entities

• “Addressable” implementation specifications:– Are NOT optional

– May not be practical or achievable in all covered entity environments

– May be replaced with a “reasonable and appropriate” alternative that is equivalent, if necessary

Reference: 45 CFR §164.306

HIPPA Security Rule

For example, the Access Control standard has four implementation specifications:

– Required

• Unique User Identification (R)

• Emergency Access Procedure (R)

– Addressable

• Automatic Logoff (A)

• Encryption and Decryption (A)

HIPPA Security Rule

• Administrative safeguards:

– Are administrative policies and procedures for protecting ePHI

– Include risk analysis and management, access management, workforce training, and evaluation of security measures

Reference: 45 CFR §§ 164.304, 164.308

HIPPA Security Rule

Risk analysis should be conducted as an ongoing process to:

• Aid in anticipating potential risks in a changing environment

• Track access to ePHI

• Identify new threats and vulnerabilities

• Detect security incidents

Reference: 45 CFR §164.308(a)(1)(ii)(A)

HIPPA Security Rule

Risk ManagementOnce the covered entity has completed the risk analysis, it must take any additional “reasonable and appropriate” steps required to:

• Implement security measures sufficient to reduce identified risks and vulnerabilities to a reasonable and appropriate level

• Ensure the confidentiality, integrity, and availability of all ePHI that the covered entity creates, receives, maintains, or transmits

References: 45 CFR §§ 164.306(a), 164.308(a)(1)(ii)(A), 164.308(a)(1)(ii)(B)

HIPPA Security Rule

Physical Safeguards:

– Are physical measures, policies, and procedures to safeguard a covered entity’s electronic information systems.

– Safeguard buildings and equipment against natural and environmental hazards, and unauthorized intrusion.

HIPPA Security Rule

Technical Safeguards: There are no specific requirements for what types of technology must be implemented to comply with the Security Rule’s technical safeguards, but a covered entity must consider and address each of the following:

– Access control

– Audit controls

– Integrity controls

– Person or entity authentication

– Transmission security

HIPPA Security Rule

Encryption

– Encryption is a technical mechanism that converts plain text into encoded text to prevent unauthorized access to ePHI.

– The Security Rule includes two implementation specifications related to encryption. Both are addressable, but adopting encryption technologies will be reasonable and appropriate for many entities.

False Claims Act

31 USC §§3729-33; Post-Civil War Era to Prevent Fraud

Knowingly presents false claim for payment to U.S. government

▪ Scienter – actual, deliberate ignorance, reckless disregard

Qui Tam – Whistleblower suits

Remedies

Statute of Limitations: 3 to 10 years

❑ Treble Damages

❑ Attorneys’ fees and costs

❑ Civil Penalties: $10,781-$21,563 per claim

❑ Debarment; suspend payments; program exclusion

Universal Health Services, Inc. v. Escobar

In 2016 - U.S. Supreme Court changed the rules.

False Certification Theory:

– Liability attaches when claim for payment makes specific representation about the goods or services

– Claimant knowingly fails to disclose noncompliance with statutory, regulatory or contractual requirement

• Requirement is material to government’s payment decision

How Does This Apply To Employment?

Unqualified or underqualified employees

▪ What do the statutes, regulations or contracts require?

Escobar – Psychological services not provided by psychiatrist

U.S. v. Universal Health Services, Inc. – Filed 4/10/17

▪ Medicaid Reimbursements in mental health services

▪ Psych services provided by unlicensed employees

THANK YOU