Legal Updates

Newly Constituted Administrative Review Board Allows Equitable Considerations to Extend 90-Day Statute of Limitations for Whistleblower Claims

By: Allen B. Roberts, Victoria M. Sloan

Employers who thought they were free of exposure if no complaint was filed within the statute of limitations applicable in Sarbanes-Oxley (“SOX”) and other whistleblower claims administered by the Secretary of Labor need to recalibrate their risk based on a recent decision allowing equitable estoppel.

In Hyman v. KD Resources, an employee missed the 90-day SOX statute of limitations by filing his complaint 160 days after he was discharged. Two newly appointed members of the Administrative Review Board (“ARB”) allowed the complaint to survive and remanded it to the Administrative Law Judge who had dismissed it as untimely.

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COBRA SUBSIDY EXTENDED THROUGH MAY 31, 2010

Congress has extended the subsidy for COBRA benefits through May 31, 2010.  The previous extension of the COBRA subsidy had expired on March 31, 2010.  The COBRA subsidy provides a 65% health insurance premium subsidy for up to 15 months to qualified employees who are involuntarily terminated from their employment between September 1, 2008 and […]

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UPDATE – COBRA Subsidy: Extension Through May 31, 2010

Background

As we reported in our Client Alert of December 24, 2009 (“UPDATE: Cobra Subsidy: What it Means for Employers Now“), President Obama signed into law the Department of Defense Appropriations Act, 2010 (the “Defense Appropriations Act”), which, among other things, extended and expanded certain provisions of the American Recovery and Reinvestment Act of 2009 (“ARRA”) pertaining to premium assistance for benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”). The Defense Appropriations Act extended the COBRA premium subsidy for assistance-eligible individuals who became eligible for COBRA from the period that began September 1, 2008, and ended on December 31, 2009, to the period that ended on February 28, 2010.

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Medicare Providers and Suppliers Take Note: PPACA Reduces the Timely Filing Deadline for Medicare Fee-For-Service Claims to One Year

In March 2010, President Obama signed into law the Patient Protection and Affordable Care Act (“PPACA”) and related legislation which provide significant changes in the delivery of health care. One provision that impacts Medicare operations immediately is Section 6404 of PPACA. Section 6404 reduces the statutory timely filing deadline for Medicare fee-for-services claims under Medicare Parts A and B to one (1) year, effective for all Part A and B services furnished on or after January 1, 2010. This provision is self-executing. 

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Site C – Adding Capacity to BC’s Storage Advantage

Today, the Province of BC announced plans to build a 900 MW hydro-electric dam on the Peace River in northern BC, the project known as Site C. It will be a public project and its development is subject to permitting, and first nations and community consultation. Here is a link to the Vancouver Sun’s story

This is a bold but necessary move by a government looking to build more clean renewable power in the Province. Hydro-electric power is a reliable and preferred form of electricity generation in British Columbia with a great history. Premier W.A.C Bennett’s hydro-electric vision in the 1960’s helped the Province develop to what it is today. The incredible legacy dam system he provided now allows British Columbians to enjoy the fruits – inexpensive, domestically generated, clean electricity.

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County and State Reports Trigger the Federal False Claims Act Public Disclosure Bar

By Stuart M. Gerson

Suits in the name of the United States under the Federal False Claims Act (“FCA”) brought by private individuals known as qui tam relators are among the most common forms of whistleblower actions in the federal system. The Supreme Court rendered its much-anticipated decision in Graham County Soil and Water Conservation District, et al. v. United States ex rel. Wilson (pdf), imposing a significant limitation on the ability of these relators to satisfy an important jurisdictional bar.

The FCA authorizes both the Attorney General and private qui tam relators to bring actions against persons who make or facilitate fraudulent claims for payment from the United States. However, in the absence of the government, a relator will be barred from proceeding on his own if the action is based upon the public disclosure of allegations or transactions in, inter alia, “a congressional, administrative, or Government Accounting Office (“GAO”) report, hearing, audit, or investigation.” 31 U. S. C. §3730(e)(4)(A). The Graham County case involved federal contracts and funding for the repair of flood damage. The relator, Wilson, a local government employee, alerted both federal and county and state officials to irregularities in performance. Both the county and the state issued reports making findings about these potential irregularities and Wilson thereupon filed a qui tam action against the county conservation districts administering the contracts. The District Court dismissed for lack of jurisdiction because it held that the allegations publicly disclosed in the county and state reports constituted “administrative” reports under the FCA’s public disclosure bar. The Fourth Circuit reversed, holding that only federal administrative reports may trigger the public disclosure bar.

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FDA Accepting Comments On A Proposed Rule For Direct-To-Consumer ("DTC") Advertisements

On March 29, 2010, the U.S. Food and Drug Administration (“FDA“) published a proposed rule titled Direct-to-Consumer Prescription Drug Advertisements; Presentation of the Major Statement in Television and Radio Advertisements in a Clear, Conspicuous, and Neutral Manner (“Proposed Rule“).[i] The Proposed Rule would require direct-to-consumer (“DTC“) television and radio advertisements to present the mandated “Major Statement” for major side effects and contraindications “in a clear, conspicuous, and neutral manner.” The FDA is accepting written comments on the Proposed Rule until June 28, 2010.

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Welcome to the Whistleblowing & Compliance Law Blog

This blog is dedicated to the many facets of whistleblowing and the tensions and contradictions that inhere in defining compliance objectives and the permissible means by which they will be attained and preserved. At its core, whistleblowing should be about corporate compliance and the common institutional and individual purpose of assuring that internal and external standards of conduct are respected. Reality may draw a another picture, perceived differently from the perspective of the individual and the institution – and by public opinion, media comment, markets, administrative, regulatory, enforcement or legislative bodies or by courts and juries.

Is the whistleblower a selfless altruist properly advancing compliance objectives or an individual bent on undeserved personal advantage by way of protection or windfall gain?

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HEALTH REFORM: Changes to the Federal Physician Self-Referral Law Included in the Patient Protection and Affordable Care Act

Narrowing the Ability of Physicians to Own an Interest in a Hospital

In 2003, Congress modified the federal physician self-referral law (commonly referred to as the “Stark Law”) and adopted an 18-month moratorium on the ability of physicians to own an interest in a specialty hospital.[1] Although the moratorium officially lapsed in June 2005, over the last several years, Congress has continued to monitor and debate the issue of whether this exception to the Stark Law should be modified.

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HEALTH REFORM: Health Care Reform: What Employers Need to Know

On March 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act (“Act”), which provides for significant changes in the delivery of health care. The Health Care and Education Reconciliation Act of 2010 (“Reconciliation Bill”), which reconciles and amends certain provisions of the Act, was signed into law by President Obama on March 30, 2010. The following is a high-level summary that identifies some of the key provisions of the Act, as amended by the Reconciliation Bill. 

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