Deborah Green’s LEGAL Q&A

Q One of my employees has just enlisted. I commend her patriotic spirit, but I need to make sure that my practice is covered. She has no idea how long she is going to be gone. What are my legal obligations?

A The Uniformed Services Employment and Re-employment Rights Act of 1994 provides that people who are members of, who apply to become members of, who perform services in, or who apply to perform services in the uniformed services, may not be denied initial employment, re-employment, retention in employment, promotion, or any benefit of employment by an employer on the basis of their membership, application for membership, service in the uniformed services, or application for service.

If such membership or attempted membership prompts a negative employment decision, the employer will be deemed to have violated the Act. Employers must be able to prove that they would have taken the same action regardless of whether the employee had joined the service.

If an employee misses work as a result of being in the service, he or she must be treated as though he or she is on furlough or leave of absence while performing such service. These employees are entitled to all rights and benefits that are generally provided by the employer to employees having similar seniority, status, and pay who are on furlough or leave of absence for reasons unrelated to military service. They are not entitled to benefits to which they would not otherwise be entitled if they had remained continuously employed.

Employees who have been absent from employment due to service in the uniformed services are entitled to re-employment upon their discharge from service if:

• they give their employer advance notice of such service;
• the cumulative length of service does not exceed five years;
• they report to, or submit an application to, their employer upon discharge from the uniformed services.

Employers bear the burden of proving that any of the following four exceptions to re-employment apply: impossibility, unreasonableness, undue hardship, or the non-recurrent nature of the prior employment.

If the period of military service is for 90 days or less, then the employer must re-employ employees promptly as follows:

• in the position they would have been employed in if their employment had not been interrupted by military service; or

• in the position they were employed in on the date their absence for military service began; only if, after reasonable efforts by the employer to qualify them, they are not qualified to perform the duties of the position they would have been employed in if their employment had not been interrupted.

If the period of military service exceeds 90 days, then the employer must re-employ employees promptly as follows:

• in the position they would have held had their employment not been interrupted by military service (if they are qualified); or

• in the position they held at the time their military service began or in a position of like seniority, status, pay for which they are qualified; only if, after reasonable efforts by the employer to qualify them, they are not qualified to perform the duties of the position they would have been employed in if their employment had not been interrupted.

Employees re-employed after military service are entitled to accrued benefits that are contingent on the making of, or derived from, employee contributions or elective deferrals to the extent that they make such contributions or deferrals. They may make such contributions or deferrals during the period beginning with the date of re-employment and continuing for a period equal to three times the length of their absence for military service, up to a maximum of five years.

Re-employed employees may not be discharged from employment except for good cause, within one year after the date of re-employment if their period of service was more than 180 days; or within six months if the period of their service was more than 30 days but less than 181 days.

You may, of course, treat members of the uniformed services and their families more favorably than the law requires. State and local laws should be checked because they may provide additional employment rights for current and former members of the uniformed services in addition to the rights guaranteed under federal law.

Q In order to secure better coverage for my patients from their HMOs, I have occasionally changed the official billing diagnosis or reported symptoms that the patient did not have, in order to improve the amount of services I could provide to the patient. What is the down side of doing this?

A Deceptive practices that result in false or inaccurate bills violate the False Claims Act. Such a violation may result in both civil and criminal penalties, including three times the actual damages and up to $10,000 per false claim submitted.

Even if you are not dealing with Medicare or Medicaid or another federal entitlement plan, private payors may sue you under the Health Insurance Portability and Accountability Act of 1996, which makes fraud committed against private payors a federal crime in addition to any state law remedies they may have. Such claims may make you liable for a number of civil and/or criminal penalties.

Furthermore, if you falsify a chart, and then do not follow up with the appropriate treatment for that patient as reflected in that chart, you could be liable for malpractice.

Ms. Green has been a practicing attorney since 1977. She is admitted to the practice of law in New York and Florida.

LEGAL DISCLAIMER
Because this column is being presented to you by an attorney, it would not be complete without a legal disclaimer. This column is provided subject to and governed expressly by the terms of this disclaimer. This column is provided for educational purposes only. The accuracy or timeliness of the information presented herein is not warranted. The information presented herein is not intended to be advice as to a specific fact pattern with which you may be presented. Accordingly, please note that the information contained herein is not being presented as legal advice with respect to any matter and that no attorney-client relationship is hereby established.