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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.

Chris Lazarini Discusses Burden-Shifting Analysis in Discrimination Case

Securities Litigation Commentator


June 12, 2017

Bass, Berry & Sims attorney Chris Lazarini discussed a case in which the plaintiff, a former stockbroker, sued his employer after he was terminated claiming discrimination under the ADA and ADEA. Under these statutes and absent direct evidence of discrimination, claims are subject to a burden-shifting analysis, with a plaintiff bearing the initial burden of showing a prime facie case of discrimination. If a plaintiff meets this burden, the defendant must articulate a non-discriminatory rationale for its actions, and if the defendant does so, the plaintiff must show that defendant's explanation is a pre-text. Because plaintiff could not make a prima facie showing, the court upheld the district court's summary judgment for defendants.

Chris provided the analysis for Securities Litigation Commentator (SLC). The full text of the analysis is below and used with permission from the publication. If you would like to receive additional content from the SLC, please visit the SLC website to sign up for the newsletter.

Gamble vs. JP Morgan Chase & Co. & JP Morgan Securities, LLC, No. 16-6488 (6th Cir., 5/9/17) 

*Absent direct evidence of discrimination, claims under the ADA and ADEA are subject to a burden-shifting analysis, with Plaintiff bearing the initial burden of showing a prima facie case of discrimination. If Plaintiff meets his burden, Defendant must articulate a non-discriminatory rationale for its actions, and if Defendant does so, Plaintiff must show that Defendant's explanation is a pre-text.
**A person who is totally disabled and will not return to work is not "otherwise qualified" for his position and cannot maintain a federal employment discrimination claim under either the ADA or ADEA. 

**A person who is totally disabled and will not return to work is not "otherwise qualified" for his position and cannot maintain a federal employment discrimination claim under either the ADA or ADEA. 

Plaintiff stockbroker sued Defendants after he was terminated, alleging multiple violations of the Americans with Disabilities Act ("ADA") and Age Discrimination in Employment Act ("ADEA"). The district court awarded summary judgment for Defendants, finding that, under both Acts, Plaintiff failed to establish a prima facie discrimination case because he could not establish that he was "qualified" to perform the essential functions of his job (SLA 2016-37).

Conducting a de novo review, the Sixth Circuit affirms. Absent direct evidence of discrimination, the claims under both Acts are subject to a burden-shifting analysis, with the initial burden on Plaintiff to show a prima facie case. If Plaintiff establishes his prima facie case, Defendants must articulate a non-discriminatory explanation for Plaintiff's termination. If Defendants do so, the burden shifts to Plaintiff to prove Defendants' explanation was pre-textual.

Agreeing with the district court, the Court declines to shift the burden to Defendants on the ADA claims, finding the record "replete with evidence" that Plaintiff, who had suffered a third heart attack before taking long-term leave, was no longer qualified for his position. Among other facts, Plaintiff had not been released to return to work by his doctor, had testified in other proceedings that he was completely disabled, and showed no intention of returning to work when his long-term disability leave ended.

The Court likewise rejects Plaintiff's argument that Defendants also violated the ADA by failing to engage in the "interactive process" of identifying reasonable accommodations. Plaintiff failed to show he requested an accommodation, failed to identify a specific job for which he was qualified, and waived any appellate challenge to the district court's evidentiary ruling excluding letters his attorney purportedly sent to Defendants seeking to discuss accommodations as being unauthenticated and unverified.

The Court similarly finds that Plaintiff waived any challenge to the district court's ADEA decision because he failed to address the district court's conclusion he was not qualified for his position. For good measure, the Court concludes that even if Plaintiff had not waived his challenge, the district court was correct in its dismissal of the ADEA claims for the same reasons it dismissed the ADA claims.

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