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Primary Care Providers Win Challenge of CMS Interpretation of Enhanced Payment Law

With the help and support of the Tennessee Medical Association, 21 Tennessee physicians of underserved communities joined together and retained Bass, Berry & Sims to file suit against the Centers for Medicare & Medicaid Services to stop improper collection efforts. Our team, led by David King, was successful in halting efforts to recoup TennCare payments that were used legitimately to expand services in communities that needed them. Read more

Tennessee Medical Association & Bass, Berry & Sims

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Download the Healthcare Fraud & Abuse Review 2017, authored by Bass, Berry & Sims

The Healthcare Fraud & Abuse Review 2017 details all healthcare-related False Claims Act settlements from last year, organized by particular sectors of the healthcare industry. In addition to reviewing all healthcare fraud-related settlements, the Review includes updates on enforcement-related litigation involving the Stark Law and Anti-Kickback Statute, and looks at the continued implications from the government's focus on enforcement efforts involving individual actors in connection with civil and criminal healthcare fraud investigations.

Click here to download the Review.

Labor Talk Blog: Rigid Application of Light-Duty Policy May Discriminate Against Pregnant Employees


January 30, 2014

A federal court recently ruled that an employer's rigid application of its light-duty policy could be used as evidence of pregnancy discrimination. The employer had a policy of providing light-duty jobs only to employees with on-the-job injuries, which the Court here, and the EEOC (Equal Employment Opportunity Commission) in general, have blessed as not showing disability bias against those with impairments caused off-the-job. Here, however, a pregnant certified nursing assistant who had a temporary lifting restriction was denied a light-duty job. Since her job required lifting in assisting nursing home residents, the employer considered her to have "resigned" when the employee gave notice of the doctor's restrictions. The employee sued.

After a lower court granted summary judgment, the Sixth Circuit Court of Appeals reversed and explained that a trial was necessary. The Sixth Circuit explained that restricting a light-duty program to only employees who are injured on the job is not a problem. However, the Court believed that a jury could conclude that this type of policy may be a pretext for pregnancy discrimination, especially given the comments made to her after her termination. Under the PDA (Pregnancy Discrimination Act), an employee only has to show that their ability to work is similar to other employees' abilities. Given this analysis, a pregnant employee need only show that her employer treated the non-pregnant employees more favorably by allowing them to work light-duty jobs, while instead terminating her.

Why is this important?

  • As we have often advised, employers considering a doctor's restrictions should look to the facts and circumstances of each situation. Here, what seemed to be a relatively easy accommodation to assist a pregnant employee (very sympathetic) on a temporary basis and that had been provided for others, was denied. This denial was then used as evidence of pregnancy discrimination.
  • The rigid application of the policy – a policy that was not discriminatory on its face – was considered by the Court along with evidence of "comments" to find a jury issue.
  • It is not clear whether the employer "engaged" the employee in a discussion about other possibilities, which could have been a further problem. Rigid application of any accommodation policy invites increased scrutiny and, as evidenced here, can lead to having to tell the story to a jury.
  • Employers who have light-duty policies that are restricted to work-related-injuries need to carefully consider all options before denying the light-duty accommodations to pregnant employees in light of this decision. Otherwise, a once helpful policy may produce unintended discriminatory consequences.
  • Employers in the Sixth Circuit (Tennessee, Kentucky, Ohio, Michigan) are advised to keep tabs on the ultimate outcome of this case, Latowski v. Northwoods Nursing Center.

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