A number of federal and state laws protect you from discrimination based on your pregnancy, your intent to become pregnant, or pregnancy-related medical conditions.  These laws require employers to provide reasonable accommodations to pregnant employees.  They also prohibit employers from forcing you to take a leave of absence if you can perform your job.  

Here are some of the laws that protect you.

The Pregnancy Discrimination Act (PDA) prohibits discrimination based on pregnancy, childbirth, or related medical conditions in any aspect of employment, including hiring, firing, pay, promotion, and benefits.  Employers with 15 or more employees must provide the same accommodations to pregnant employees as they do for other temporarily disabled workers.  The PDA also protects you from retaliation for asserting your rights under the Act.

Under the Pregnant Workers Fairness Act (PWFA), employers with 15 or more employees are required to provide reasonable accommodations to workers for pregnancy, childbirth, and related medical conditions.  Accommodations must be provided for known limitations related to pregnancy, childbirth, or related medical conditions, unless it poses an undue hardship on the employer.

Under the Americans with Disabilities Act (ADA), pregnancy itself is not considered a disability.  However, pregnancy-related conditions that substantially limit major life activities may be considered disabilities, requiring reasonable accommodations by employers.

Under New York State laws, pregnant women have the right to reasonable accommodations for pregnancy-related conditions.  This includes breaks to rest or drink water, modified work schedules, leave for medical needs, light duty assignments, and transfers from hazardous duties.  This law applies to all public and private employers in New York State, regardless of size or industry.

The New York City Human Rights Law (NYCHRL) provides even greater protections.  Pregnant women have the right to reasonable accommodations for pregnancy, childbirth, or related medical conditions without needing to demonstrate a disability.  This includes accommodations for fertility treatments, miscarriages, or abortions.  These protections apply to employers with four or more employees.

The types of accommodations available will depend on your needs, your job responsibilities, and what is feasible without imposing an undue burden on the employer.  Employers must engage in an interactive process with you, and they must act in good faith, to determine what is an appropriate accommodation.

Some of the most common accommodations include:

• Schedule adjustments for prenatal appointments
• Breaks for increased restroom use, eating, or drinking
• Providing a stool or chair to sit on
• Temporary transfer to light duty
• Lifting restrictions
• Allowing a water bottle in work areas
• Modifying uniforms or dress codes
• Time off for recovery after childbirth

While employers do not have to provide the exact accommodation you requested, they must provide an effective alternative if available.

Under the Fair Labor Standards Act (FLSA), as amended by the PUMP Act, pregnant women have the right to reasonable break time and a private space, other than a bathroom, to express breast milk for one year after the child’s birth.  

New York laws also provide that pregnant employees have the right to express breast milk at work, with reasonable accommodations provided.  Pregnant women are entitled to 30-minute paid breaks to express breast milk for up to three years following childbirth, and employers must provide a private, non-bathroom space for this purpose.  This law applies to all public and private employers in New York State, regardless of size or industry.

​To request a pregnancy accommodation from your employer, you must first determine the type of accommodation you need.  Consider your specific limitations and what adjustments would help you perform your job safely and effectively.

When you prepare your request, be clear that you are requesting an accommodation related to pregnancy or a related condition.  Explain the limitation you are experiencing and how it affects your work.  Suggest specific accommodations that would help, if you have ideas.  Express willingness to work with your employer to find an effective solution.

Submit your request to the appropriate person and ask to speak with them about it.  If your company has a Human Resources department, submit your request there.  If not, talk to your direct supervisor or manager.  Submit your request in writing and keep a copy for your files.  This may become important if your request is denied.

Be prepared to engage in an interactive process with your employer to determine an appropriate accommodation.  Provide medical documentation if requested by your employer, though this is not always required.  Follow up if you don’t receive a timely response.

You do not have to use any specific legal terms or mention laws by name when making your request.  Just be clear that you are requesting a pregnancy-related accommodation.  Once you do that, your employer is legally required to work with you in an effort to find a reasonable solution.

​If your employer claims that providing an accommodation would cause an undue hardship, you should ask for a detailed explanation.  Ask your employer to explain specifically why they believe the accommodation would cause undue hardship.  They should provide concrete reasons related to cost, resources, or business operations.  The burden is on the employer to prove that an accommodation would cause undue hardship.  They must demonstrate significant difficulty or expense based on the specific circumstances of the business.

Continue discussing alternative accommodations with your employer that may be less burdensome but still meet your needs.  The law requires employers to participate in this good faith dialogue.  If it would be helpful, offer more details about your needs or suggestions for how the accommodation could be implemented with minimal disruption.

Research similar accommodations.  Look for examples of how other employers have successfully implemented similar accommodations to counter undue hardship arguments.  In this regard, it may be helpful to consult external resources.  Organizations such as the Job Accommodation Network can provide free expert guidance on workplace accommodations.  An occupational health professional or vocational expert may be able to assess the situation and provide impartial recommendations.

You might also propose a trial period.  Suggest implementing the accommodation on a temporary basis to evaluate its actual impact on the business.

Make sure that you document everything.  Keep detailed notes of all conversations, emails, and interactions regarding your accommodation request and any claim of undue hardship, including dates, people involved, and what was discussed.

If your employer refuses to accommodate you or retaliates against you for making a request, you should consult with an employment lawyer.

An experienced employment lawyer can help you understand your rights and options.  They can help you negotiate a resolution with your employer.  If necessary, they can file a claim with the U.S. Equal Employment Opportunity Commission (EEOC) or in court.

To schedule a free and completely confidential consultation with an experienced employment attorney, call John Howley, Esq. at (212) 601-2728.  He will listen to you, help you understand your rights, and explain your options.

​Doctors who sexually assault, sexually harass, or engage in other sexual misconduct with patients violate their ethical and legal obligations.  Unfortunately, this type of conduct occurs all too frequently.  

The most common forms of physician sexual misconduct include inappropriate sexual comments and text messages, unwanted touching of a patient’s private parts, sodomy, rape, and child molestation.  Sexual misconduct by doctors also includes sex with patients that a doctor claims was “consensual.”  True consent to sex is not really possible when the doctor takes advantage of the doctor-patient relationship.

Some studies have shown that between 3% and 5% of doctors have had sexual contact with their patients, and that percentage increases to as much as 5% to 10% for psychiatrists.  This type of unethical and illegal conduct by trusted healthcare professionals can cause serious physical, emotional and psychological harm to patients – especially when the patient has sought treatment from a healthcare provider for emotional or psychological issues.  Patients therefore have the right to sue for compensatory and punitive damages when their doctor abuses their position of trust and confidence.

Most cases are resolved with a financial settlement before they ever get to trial.  Many cases are settled before the case is even filed in court.  This is especially true with doctors who have engaged in sexual assault, sexual harassment, and other forms of sexual misconduct.

Whether your case goes to trial or results in a financial settlement, the key to success is developing and organizing strong evidence to prove your claims.

The starting point is your own recollection of exactly what happened, when it happened, and where it happened.  All the other evidence can help corroborate your claims, but your firsthand account is usually the most powerful evidence against the doctor.  And in cases with no physical evidence, recounting the details of what happened will be very important.

Do not be afraid that no one will believe you.  An experienced lawyer can help you prepare in ways that will give you credibility.  Here are some of the ways a lawyer can help you present a winning case.

A powerful case against a doctor for sexual assault, sexual harassment, or other sexual misconduct begins with details that clearly identify the doctor, exactly what he did to you, where it happened, and when.  Seemingly unimportant details such as what the doctor was wearing, what time it was, what type of furniture was in the room, or what he smelled like can add credibility to your recounting of the events.  This is why it is critically important to begin working with a lawyer as soon as possible after the doctor’s improper conduct, when the details will still be fresh in your mind.

How the doctor’s sexual assault or harassment affected you is an important part of the story.  You should seek care and treatment from healthcare professionals for any physical or emotional injuries caused by the doctor’s improper sexual conduct.  If you were raped or otherwise physically violated, go to the hospital.  For emotional distress, seek help from a counselor or psychologist.  Getting the help you need to deal with the physical and emotional harm is the right thing to do in and of itself.  The medical records of that care and treatment will also provide powerful evidence to corroborate what happened to you and the harms it caused.

Evidence that the doctor has engaged in sexual misconduct with other patients can also be very powerful evidence to support your case.  Your lawyer will conduct an investigation to find out if other patients have made similar complaints against the doctor or the facility where he works.  If you have heard of any such complaints, tell your lawyer everything you know to aid in the investigation.

Your lawyer can also retain expert witnesses to analyze the evidence and express opinions on the psychological impact of the doctor’s sexual assault, harassment, or other misconduct.  In addition to proving the extent of your injuries and damages, expert testimony that you suffered severe emotional and physical distress also tends to prove that something terrible really did happen to you.

Sexual assault, harassment and other misconduct by doctors and other healthcare professionals cause serious harm to patients.  The harm often includes severe and long-lasting psychological and physiological effects.  Some of the most common harms include:

• Intimacy and sexual problems
• Depression, anxiety, anger, loss of self-esteem
• Post-traumatic stress disorder (PTSD)
• Substance abuse and eating disorders
• Trust issues in relationships
• Chronic pelvic pain and inflammatory disease
• Menstrual disorders
• Recurrent yeast infections
• Fibromyalgia and chronic pain
• Gastrointestinal disorders
• Headaches and difficulty sleeping

These are serious, life-altering conditions that often require years of medical and psychological treatment.  You are entitled to compensation for the cost of that medical and psychological care as well as for the pain, suffering, and emotional distress you have already suffered and continue to suffer.

Your own testimony, and the testimony of friends and relatives who know what you are going through, can provide some evidence of emotional distress, pain and suffering.  The best evidence, however, will be in your medical and counseling records.  That is why it is critical for you to seek care and treatment from healthcare professionals for all of the injuries caused by the doctor’s sexual assault, harassment and other misconduct.

Go to the emergency room right away if you have been raped or otherwise sexually assaulted.  Consult with your primary care physician or OB-GYN about what happened to you.  Tell them what happened, how you were injured, and how you are having any long-lasting effects.

Seek out help from a social worker, counselor, or psychologist for the emotional distress you are feeling.  Describe in detail for them what happened to you, how that has hurt you, and how you are trying to cope.

Talk to an experienced lawyer who can help you gather, organize, and present your evidence in a compelling manner.

For more than 30 years, we have helped people just like you get justice and compensation.  When you call us, you will speak with a lawyer who is both experienced and compassionate.  To schedule a free and confidential consultation, call us today at (212) 601-2728.

Medicare Investigates and Prosecutes False Claims for Physician Supervision of Hyperbaric Oxygen Therapy

The federal government has targeted Hyperbaric Oxygen Therapy companies that submit false and fraudulent claims for reimbursement to Medicare.

In a recent case under the False Claims Act, the owners of HBOT companies were sentenced to five years in prison and ordered to pay restitution of more than $1.5 million for submitting false claims to Medicare for physician supervision of HBOT sessions or dives. 

Hyperbaric Oxygen Therapy (also known as HBOT or HBO2) involves giving a patient high concentrations of oxygen within a pressurized chamber.  Originally developed for treatment of decompression sickness, HBOT is primarily an adjunctive treatment for the management of select non-healing wounds.   Some studies suggest that HBOT may also relieve symptoms associated with traumatic brain injury, but other studies suggest that the evidence is inconclusive.

An HBOT session is called a “dive.”  Each dive begins when the patient enters the chamber and concludes when the patient exits the chamber.  Physician supervision of the dive usually involves ensuring that the patient’s condition is medically appropriate for the dive and to treat any medical emergency that might arise during the dive, such as a stroke or heart attack. 

Medicare reimburses for HBOT dives only if the patient suffers from specific conditions, most of which are related to decompression illness, acute carbon monoxide intoxication, crush injuries, severed limbs, and diabetic-related wounds or other wounds that are not healing.

If the HBOT dive takes place in a hospital, then Medicare reimburses for both hospital charges and physician supervision of the dives. 

Two of the most common types of false claims involving HBOT are billing for medically unnecessary treatments and improperly billing for physician supervision.

For purposes of Medicare reimbursement, medical necessity means that the patient suffers from one or more of the conditions for which Medicare will reimburse the service.  HBOT companies can get into trouble by billing for HBOT dives ordered by a physician that do not fall within the Medicare reimbursement guidelines, by billing for HBOT dives without proper documentation of the medical necessity, and by creating false or fraudulent documentation. 

Physician supervision of HBOT dives is usually billed using Current Procedural Terminology (CPT) code 99183.  This CPT code applies only when the physician provided “direct supervision” of the HBOT session.  “Direct supervision” usually does not require that the physician be physically present in the same room as the chamber.  The physician, however, must be physically present at the site and immediately available to furnish assistance and direction throughout the performance of the procedure.

Under some circumstances, Medicare regulations require that the physician be physically present in the treatment room continuously for the duration of the HBOT session.  The supervising physician must be continuously present next to the chamber when the patient has been diagnosed with acute peripheral arterial insufficiency; acute carbon monoxide intoxication; decompression illness; gas embolism; gas gangrene; crush injuries and suturing of severed limbs; progressive necrotizing infections; and cyanide poisoning. 

Billing Medicare for HBOT dives that are not medically necessary or for physician supervision that does not comply with the direct supervision requirements is a serious matter.  You can be sued civilly for three times the amount Medicare paid plus a penalty of up to $11,000 per false claim.  You can also face criminal charges and long prison sentences.

If you have evidence that a hospital or other healthcare provider is improperly billing Medicare for HBOT sessions, then you should consult with an experienced Medicare fraud attorney immediately to protect yourself. 

By getting legal advice early, you may be able to avoid criminal investigations and charges.  If you help the government uncover the fraud, you may also be entitled to a substantial whistleblower reward and legal protections.

To arrange a free and confidential consultation with an experienced Medicare fraud lawyer, call John Howley, Esq. at (212) 601-2728, or click here to reach our law offices via email.

Company Used Pathology Code to Bill Medicare and Medicaid for Unnecessary Services

Calloway Laboratories, Inc. has agreed to pay $4.7 million to settle allegations that it submitted false claims to Medicare and Medicaid.

The company provides clinical laboratory services, including urine drug testing, to physicians and other healthcare providers.  According to the government, the company routinely billed Medicare and Medicaid using a code for pathology services in addition to the code for urine drug testing.  As a result, the company was paid for both urine tests and pathology services.

Government investigators concluded, however, that the healthcare providers who ordered the urine tests did not knowingly order the pathology services and did not consider the pathology services to be medically necessary. 

The investigators also concluded that the diagnostic labs did not actually provide pathology services when they used the code seeking reimbursement for such services.  Instead, the testing labs merely conducted a type of medical review that did not qualify for reimbursement as pathology services.

This case presents a classic example of why the government relies on whistleblowers to stop Medicare and Medicaid fraud.  People who work inside the diagnostic lab are often the only ones who actually know which tests are actually ordered and performed.  Diagnostic lab billing staff are usually the only ones who know how claims to Medicare and Medicaid are being coded.  As a result, this type of fraud can often go undetected unless an honest employee is willing to blow the whistle.

In return, the government pays very substantial rewards and provides legal protection for those who report healthcare fraud.  Under the False Claims Act, a whistleblower is entitled to a reward of between 15% and 30% of the amount the government recovers.  In a case such as this one – where the government recovered $4.7 million – the whistleblower reward could be as high as $1.4 million.

If you have evidence that a diagnostic lab or other healthcare provider is submitting false claims to Medicare or Medicaid, then you should consult with an experienced whistleblower attorney immediately to protect your rights.  You could be entitled to a substantial reward and legal protections.

To arrange a free and confidential consultation with an experienced whistleblower lawyer, call John Howley, Esq. at (212) 601-2728, or click here to reach our law offices via email.

John Howley, Esq.