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OSHA Ordered Reinstatement and Awarded Damages to a Former Employee of Signature Condominiums, LLC

On September 5, 2013, the United States Department of Labor, Office of Public Affairs issued a press release announcing that one of its enforcement arms, the Occupational Safety and Health Administration (OSHA), ordered reinstatement and awarded damages to a former employee of Signature Condominiums, LLC.  Signature Condominiums, LLC, does business as The Signature at MGM Grand, which is a subsidiary of MGM Resorts International.  The Signature at MGM Grand is a condominium-hotel, specializing in high-end condominium units that can be rented as hotel suites when not occupied by the owner.  The Signature at MGM Grand is located in Las Vegas.

The employee, whose identity is not provided in the press release, disclosed that employees were engaging in actions that violated the Sarbanes-Oxley Act.  The Sarbanes-Oxley Act was passed in 2002 and established and enhanced requirements for publicly-traded companies boards of directors and management, as well as public accounting firms providing services for such companies.  The Act requires, among other things, that individuals must certify the accuracy of financial information.  It was passed in response to corporate collapses and scandals, including Enron, Tyco International, Adelphia, and WorldCom.  The Act has whistleblower protections built into it.

Specifically, the individual disclosed that employees of The Signature at MGM Grand were engaging in forecasting.  Forecasting involved the employees providing expected revenue and occupancy rates for the condominiums to potential buyers.  This type of activity is restricted to security brokers, and the employees in question were not duly-licensed as security brokers.  The individual reported the activities to OSHA, which investigated the charges.  After the individual reported the activities, The Signature at MGM Grand terminated the employment relationship.

OSHA ordered The Signature at MGM Grand to reinstate the individual’s employment.  It also awarded the individual monetary compensation in the amount of $325,000, ordered The Signature at MGM Grand to delete negative information from the individual’s personnel record, and ordered it to post notices regarding employees’ whistleblower rights under the Sarbanes-Oxley Act.  News releases have indicated that The Signature at MGM Grand is expected to appeal the ruling.  The appeal, however, will not stay the enforcement of OSHA’s order.

OSHA’s order highlights the breadth of remedial and other actions that are afforded to prosecuting agencies under whistleblower protection laws.  While a wide variety of whistleblower protection laws exist, including provisions in Sarbanes-Oxley Act; Occupational Safety & Health Act; Clean Air Act, Safe Drinking Water Act; and Comprehensive Environmental Response, Compensation & Liability Act, they all have several features in common.  The provisions protect employees who report violations, who initiate proceedings under any of the Acts in question, who testify at proceedings, or who assist in investigations.

The provisions generally also provide that any individual who believes he or she has been retaliated against for any of the aforementioned actions can report the violation to OSHA.  Depending upon the Act under which the violation occurred, the employee has thirty, sixty, ninety or one hundred eighty days to report the retaliation action.   Upon receipt of a complaint, OSHA notifies the employer.  If conciliation efforts are unsuccessful, OSHA will then move to an investigation phase.  If OSHA determines that there has been a violation, it can order reinstatement, payment of back wages, and reimbursement to the employee for attorneys’ fees.  It can also order additional actions it finds necessary to provide relief.  More detailed information about the various Acts and whistleblower protections they afford, as well as OSHA’s role in whistleblower investigations, can be found at http://www.dol.gov/compliance/laws/comp-whistleblower.htm.

If you are in a retaliatory situation due to your raising of concerns about practices by your employer and live in Mississippi, Barrett Law, PLLC can help you understand your rights and the protections to which you may be entitled.  Our firm has extensive helping individuals obtain the protections to which they are entitled.  Contact us today at (601) 790-1505 to schedule an initial consultation.

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Shocking Allegations Against Vanderbilt University About Rampant Medicare Fraud

In September 2013, a qui tam lawsuit involving Vanderbilt University was unsealed by the presiding judge in the United States District Court for the District of New Jersey.  (A qui tam lawsuit is one in which a private individual asserts allegations on behalf of a governmental unit against individuals or companies that have violated the law in the performance of a contract with that governmental unit.  The private individuals are entitled to a percentage of the damages awarded.)  The lawsuit was originally filed on January 6, 2011, and had remained under seal since the original filing date.  The lawsuit was brought by three former Vanderbilt University Medical Center physicians against Vanderbilt University, Vanderbilt University Medical Center, and The Vanderbilt Medical Group and Clinic.  The lawsuit alleges a stunning and lengthy conspiracy to defraud the United States of America through a systematic practice of overbilling spanning over a decade.

The lawsuit seeks treble (triple) damages and civil penalties on behalf of the United States of America and double, treble, and civil penalties on behalf of twenty-two states.  Mississippi is not an affected state.  According to the Complaint, the teaching hospital at Vanderbilt University Medical Center receives payments from the United States Government under Medicare Part A for its residents’ training expenses and salaries.  It also receives payments under Medicare Part B for services performed by its attending, teaching physicians.  Under Medicare Part B, an attending, teaching physician is not permitted to bill for his or her services unless he or she is present during the key portion of any service and during surgery or delivery of anesthesia, during all critical portions of the delivery of services.

The Complaint alleges that since 2003, attending physicians have not been present during key portions of services and have not been present during critical portions of surgery or the delivery of anesthesia.  The scheduling practices of Vanderbilt are blamed for the inability of the teaching physicians to be present.  Specifically, the Complaint alleges that surgeons often schedule multiple surgeries at the same time and that Vanderbilt is aware of these practices and of the fact that the practices prohibit surgeons from fulfilling their responsibilities under Medicare Part B.  The Complaint goes on to allege that attending physicians in various intensive care units are charged with administrative tasks during afternoons, nights, and weekends.  This work prevents the attending physicians from being present as required.  The Complaint further alleges that attending physicians are not able to be present during all critical portions of the delivery of anesthesia.

Despite the lack of presence of attending physicians, Vanderbilt routinely, and falsely, bills as if the attending physician was present in order to comply with the requirements of Medicare Part B.  The Complaint goes on to allege that the plaintiffs, called relators in a qui tam suit, have brought these management and false billing issues to the attention of Vanderbilt.  In 2008, Vanderbilt performed an internal audit, which verified many of the relators’ allegations but rather than implementing ways to correct the problems, Vanderbilt covered them up and continued the false practices.   The Complaint includes detailed, specific examples of various attending physicians scheduling and billing for separate services on simultaneous dates and times.

One of the relators, Dr. Alexander Fisher, is also seeking damages for retaliation in response to his whistleblowing actions.  He was employed by Vanderbilt from 2003 to 2008, but two days after voicing his concerns about the staffing and billing practices at Vanderbilt, was told he would need to find another job because his contract would not be renewed.  He was denied the opportunity to appeal the decision, despite the fact that he provided a list of seventeen other physicians that left Vanderbilt due to the false billing issues.  Six months after his initial reported concerns, he was required to leave his employment with Vanderbilt as his contract expired.

Last year, news that Vanderbilt was being investigated for its billing practices surfaced and Vanderbilt issued a statement indicating that it was committed to addressing any concerns that were uncovered.  Vanderbilt has denied the allegations of wrongdoing contained in the Complaint.   The lawsuit will be back in court in October 2013.

Barrett Law, PLLC has significant experience representing individuals in Medicare whistleblower cases.  We have been helping individuals through these matters for 75 years, and will be there to help you, too. Contact us today at (601) 790-1505 to schedule an initial consultation.

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