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Archive for February, 2014

Blowing The Whistle: Georgia’s Whistleblower Act Waives A County’s Entitlement To Sovereign Immunity

Posted on: February 6th, 2014

By: Ali Sabzevari

The doctrine of sovereign immunity set forth in the Georgia Constitution is often asserted as a defense to state law claims against counties.  But in certain circumstances, an Act of the General Assembly can operate to waive a county’s entitlement to sovereign immunity.  Thus far, the circumstances in which a county waives its sovereign immunity is extremely limited.  The Georgia Supreme Court, however, has recently expanded these circumstances, and therefore county liability, in its interpretation of the Georgia Whistleblower Act, O.C.G.A. § 45-1-4.

The Georgia Supreme Court held in  Colon v. Fulton Cnty., 751 S.E.2d 307 (2013) that the Georgia Whistleblower Act sets forth a specific waiver of the County’s entitlement to sovereign immunity.  Colon is a case where Fulton County employees brought an action against the County, asserting that it retaliated against them after they reported to their supervisors that various county personnel were violating law, rules, and regulations, and were fraudulently wasting and abusing county funds and public money.

Although the Georgia Supreme Court’s holding enhances the protections afforded to county employees, it also increases liability to counties by creating another circumstance in which counties are not protected by sovereign immunity.

For more information, contact Ali Sabzevari at 770.303.8633 or [email protected].

Tips To Avoid Medicare Fraud Investigation

Posted on: February 6th, 2014

By: Scott Rees

Good intentions will not necessarily save a healthcare provider from an investigation and charge of healthcare fraud.  Indeed, often times a provider will be charged with healthcare fraud even if he or she believed a legitimate service was provided and billed.  Mismanagement of claims, sloppy paperwork, and unintentional errors can all lead to a costly investigation.   The following identifies six ways to help prevent against unintentional healthcare fraud:

1) Billing with an expired license.  No license means no treatment, which makes the claim fraudulent.  This is true even if the license was expired for only a short period of time.
2) Not supervising closely enough.  Failure to properly supervise means the service was not provided.  Supervision requirements vary.  Obviously, it is important to know those requirements.
3) Patient did not pick up medications.  Prescribed medicine that is not picked up can be fraud if it is not credited back.
4) Billing clerk assumes certain services provided.  Improper billing due to sloppy billing processes or communication can result in fraud.
5) Helping poor patients with food or coupons.  This can be seen as an illegal kickback – an incentive to get patients to come back.  Safe harbor guidelines generally provide a single gift of $10, or $50 in one year, will not be viewed as a kickback.
6) Working too quickly.  Certain billing codes estimate certain amounts of time.  If a provider is billing too many of these in one day, it may be seen as improbable, and result in an investigation.

In sum, the physician and his or her office need to be involved in what is going on, and make sure they have systems in place to safeguard against these types of unintentional but potentially costly mistakes.

See Something? Say Something! Just Make Sure It’s Not Materially False.

Posted on: February 5th, 2014

By: William Ezzell

Last Tuesday, in Air Wisconsin v. Hoeper, No. 12-315, 2014 WL 27329,  at *1 (U.S. Jan. 27, 2014), the U.S. Supreme Court issued an important ruling concerning the scope of immunity granted to airlines.  That immunity is found in the Aviation and Transportation Security Act (ATSA), which tasks airlines with assessing and reporting threats to TSA. In doing so, it affords airlines immunity from suit so long as the statements were made without actual knowledge or reckless disregard of falsity. If you are thinking that this reminds you of New York Times v. Sullivan, you are correct. Congress modeled the statute after this precedent, establishing an actual malice standard which requires “material falsity.” Statements made with actual knowledge that the disclosure was false, inaccurate, or misleading, or made with reckless disregard for the truth of the disclosure do not enjoy immunity from civil liability.

This case involved a pilot who was fired by Air Wisconsin for failing four aircraft certification exams.  After the pilot failed the last exam, he knew his termination was all but certain and delivered a profanity-filled tirade against his superiors before boarding his return flight home. However, this situation was different than other terminations – the pilot was certified by TSA to carry a firearm on the flight deck. The officials promptly reported their concerns to TSA and TSA agents removed him from the aircraft, even though the firearm was safely secured at the pilot’s house and the pilot posed no threat. The pilot sued Air Wisconsin under Colorado law for defamation, infliction of emotional distress and false imprisonment.  Despite the genuineness of Air Wisconsin’s concerns, the disclosures nevertheless far overstated the actual danger the pilot presented.  At trial, the jury was never instructed to determine whether the disclosure was materially false, the pilot prevailed, and the verdict was upheld by the Colorado Supreme Court.

On appeal, the United States Supreme Court held airlines are immune from civil liability for reporting suspicious behavior but withheld immunity for “materially false” disclosures pursuant to the holding in Sullivan. The Court further held that immunity under the ATSA may not be denied without a determination that a disclosure was materially false, and in determining materiality for the purpose of ATSA immunity, the analysis is whether a falsehood affects the authorities perception of and response to a given threat – not whether a falsehood affects the subject’s reputation in the community. Because the jury was never instructed to find any material falsity, Air Wisconsin was entitled to immunity.

For all us passengers out there, this should assuage any fears that an airline would wait to call the TSA until running the language through managers or attorneys.  The holding undoubtedly advances the purpose of ATSA: to encourage those in the best position to say something in the quickest and most efficient means possible. But once again, in our post 9/11 society, these decisions come with costs.  There will inevitably be situations when the actual malice standard shields blatantly defamatory statements, perhaps statements that greatly damage a person’s reputation.  One can imagine how difficult it was for the pilot to find another position in the aviation industry altogether – if he was even able.  While this case is narrowly tailored to the confines of federal transportation security laws, the implications in corporate liability and employment law across other industries are worthy of consideration.  What are the consequences for employers and corporations when they fear someone poses a threat to others? As this case illustrates, society is leaning towards protection of the masses over the harm that occurs to a suspect when the threat is unfounded.

The Catastrophic Snow Flurries of 2014: Lessons Learned

Posted on: February 5th, 2014

By: Kamy Molavi

On January 28, 2014, Atlanta came to a screeching halt after receiving about 2.5 inches of snow.  What lessons can be gleaned from this excellent adventure?  Aside from the obvious takeaways, such as the need for politicians and public employees who are not asleep at the switch, here are some thoughts.

1. It is shocking, but Hotlanta gets cold in the winter.  Usually temperatures don’t dip to lows experienced by the hardy Minnesotans, but on one day this month it was colder here than it was in Alaska.  We need to accept this fact and prepare accordingly.

2. The entire metropolitan Atlanta area needs a mature public transportation system.  Yes, Cobb County, I am especially speaking to you.  The only thing dumber than a major metro county that resists integrated and penetrating public transport is one that resists it after learning it will get an MLB stadium.   And the only thing dumber than a metro county that resists integrated and penetrating public transport after it gets an MLB stadium is one who resists it after this week’s events.

3. Another shocker:  A politician cannot get away with acting blithely when the public is struggling.  Not even in Georgia.  This is the second Snowmageddon in three years under Governor Deal and Mayor Reed.  It is facile to blame weather forecasters, but when did lame forecasting become unexpected news?  In any case, the correct forecast was available hours before the first flake fell on Tuesday.  Passing the buck neither is good form nor evinces substantive leadership.  Someone in each of your respective administrations should have been responsible for receiving and then acting upon updated forecasts long before the roads became impassable.  Deal’s apology was a day late and a re-election short.

4. If your goal is to look smart to reasonably smart people, stop citing the recent cold weather as proof that there is no global climate change.  You are just embarrassing yourself.  The causes of climate change (or, in some instances, regional warming) may be scientifically debatable, but the fact that it already has happened, is not.  Such “opinions” are advanced only by aspirants for membership in the resurgent Flat Earth Society.

5. Atlanta is full of nice people who poured out of their warm homes into the chilly outdoors in order to push cars and otherwise help, not only their neighbors, but total strangers.  I am proud of you gals and guys!

6. Atlanta is full of idiots who turn or change lanes without using turn signals, do not let others change lanes even if the latter need to make turns, block roads because they think they are better drivers/smarter/more important/drive BMW’s, or do not believe you when you tell them the road onto which they have turned is impassable due to ice and a wall of stranded BMW’s.

7. Your next vehicle should be a four-wheel-drive.  If your current vehicle is so equipped, learn to use the feature.  Trudging through the snow, I saw more than one driver flipping through the car manual while sitting in a vehicle oriented at 90 degrees to the curb.  The urban cowboy driving an older pick-up truck (that gets 8.2 Miles per Gallon on a good day) did not know he had to lock his front wheels.

8. It is a good idea to keep good walking shoes or even boots and a blanket in the car during the winter months, even in Georgia.

Federal Contractors to See Increase in Minimum Wage

Posted on: February 4th, 2014

By: Frank Hupfl

For those that tuned in to President Obama’s State of the Union Address Tuesday night, you likely heard the President’s promise for a “year of action.”  Looking to circumvent the congressional deadlock that has come to define the current administration, the President articulated his plan to utilize executive orders to pursue policies that don’t rely on congressional approval.  Among the policies highlighted during Mr. Obama’s speech: an increase in the minimum wage for workers under new federal contracts.

The new policy increases the minimum wage for workers under new federal contracts to $10.10 an hour.  The federal minimum wage is currently $7.25 per hour, a figure that hasn’t changed since 2009.  The wage increase may affect hundreds of thousands of workers whose jobs are supported by federal dollars.

The wage increase could be seen by some as part of a broader movement to increase the minimum wage across the country.  2014 has already seen thirteen states, as well as numerous counties and cities, increase their minimum wages.