Author: JGL Law

Do you know about illegal billing or fraud at (1) your work, (2) by one of your family’s medical providers, or (3) through any other interactions that you have where someone or some company receives government funding?

Then, you might have a False Claims Act, 31 U.S.C. §§ 3729 – 3733 (“FCA”) case (also known as a qui tam) if the billing involves federal money, a state False Claims Act case if the case involves state funds, or both if there is joint funding like Medicaid. You should certainly investigate whether you should report it to the proper authorities. Fraud and illegal billing are wrong, costs taxpayers a lot of money each year, and if it is happening at your work, you could be on the wrong side of a government investigation. Plus, if you report the fraud, you can receive a finders’ fee or share of whatever the government recovers.

Here are five tips to remember when you know about illegal billing or fraud:

1) Get an Experienced Attorney

You will need an attorney who practices in the False Claims Act (FCA) or whistleblower law. In fact, depending on what you are reporting, you must have an attorney. As the United States Court of Appeals for the Second Circuit explains when filing an FCA case, “we conclude that they [individuals] are not entitled to proceed pro se [a fancy way of saying without an attorney].”[1]

Do your research on who to meet with and possibly hire. Properly filing and prosecuting FCA matters, or other whistleblower programs, is complicated work that is full of pitfalls. As Mark Twain said, “It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.” An attorney who has not worked on an FCA matter before is likely to be unclear about the process and will inevitably fall into the FCA’s pitfalls. Getting an experienced lawyer should alleviate this concern.

2) The Seal and Your Secret Agent Status

All FCA matters are filed under seal until the court unseals them, often at the Government’s request. Do not go to the press or try to negotiate with a defendant prior to or at any time while the case is sealed. Violating the seal can tip off the defendant and greatly undermine the Government’s ability to investigate the case. “The mere possibility that the Government might be harmed by disclosure is, in fact, the point of the [the seal] requirement.”[2] A guaranteed way to demonstrate to law enforcement officials that you cannot be trusted is to violate the seal by talking to anyone. This puts those officials at a disadvantage and in an adverse position to you.

3) File Your Non-FCA Claims with the FCA Complaint

If you have any other claims against the defendant, such as you are an employee who was fired wrongfully, file your personal claims in the underlying FCA matter so they stay under seal. You want to avoid having a concurrent proceeding where the defendant has the opportunity to ask you questions, whether in a deposition or otherwise, that could reveal your FCA case while it is under seal. Simple questions from a defendant’s attorney, such as “list all court filings you have participated in,” can lead to huge complications because you have to answer the question but not reveal that an FCA matter has been filed under seal. In sum, if you have weak, personal claims but strong whistleblower claims, you may want to forget the personal claims altogether.

4) Gather Appropriate Documentation

The Government will want evidence of the fraud and will not just take your word for it. If you have normal access, especially within your normal duties if you are an employee, make copies or take pictures of documents that support that the fraud is occurring. Do not, however, go through and copy a server or documents outside of your normal work duties. Also, you should never give your attorney something that the company attorney wrote as that information could be attorney-client privileged information.

If possible, get documents that show detailed and specific examples of false submissions to the government such as billing statements or patient records. This will make the government interested in your case and stop it from getting dismissed.

5) The Dr. Evil One Million Dollar Rule

In Mike Myers’ 1997 comedy, Austin Powers: International Man of Mystery, the villain, Dr. Evil, states that “we hold the world ransom for . . . ONE MILLION DOLLARS!” To which his henchman states, “Don’t you think we should ask for more than a million dollars? A million dollars isn’t exactly a lot of money these days”[3] ― completely true. But one million dollars should generally be the rule of thumb for going forward on whistleblower cases. Practically speaking, these cases take significant time and effort, and while there is no written U.S. Justice Department policy, it has been our experience that the Government is generally not interested in using its limited resources to pursue FCA matters worth less than one million dollars.

Now, you should be well prepared to get a meeting with an attorney to see if you have a case. Good luck.

---

[1] United States ex rel. Mergent Servs. v. Flaherty, 540 F.3d 89, 93 (2nd Cir. 2008).

[2] United States ex rel. Summers v. LHC Group, Inc., 623 F.3d 287, 297-298 (6th Cir. 2010) (emphasis in original)

[3] See Memorable quotes for Austin Powers: International Man of Mystery, http://www.imdb.com/title/tt0118655/quotes (visited Nov. 5, 2024).

It is illegal for your employer to fire or take any other adverse action against you because you requested FMLA leave or took FMLA leave. It is similarly illegal for an employer to do this to interfere with your FMLA rights, such as firing you because you are about to take FMLA leave.

However, your employer can fire you while you are on FMLA leave (or about to take FMLA leave for reasons that are not because you are exercising your rights under the FMLA). Your FMLA leave may also be protected under other laws such as the Americans with Disabilities Act (ADA), the Pregnancy Discrimination Act (PDA), the Pregnant Workers Fairness Act (PWFA), and/or other state and local laws that may provide some broader protections in relation to medical leave.

What Is the FMLA?

The Family Medical Leave Act (FMLA) was created to protect employees while on leave due to medical reasons. The FMLA is a federal, nationwide law that provides employees with twelve weeks of unpaid leave per year. Employers cannot retaliate against an employee for applying or taking medical leave covered by the FMLA, nor can an employer interfere with an employee’s rights to take FMLA leave.

Types of FMLA Leave

FMLA allows employees to take leave for a personal medical issue; take care of an immediate family member; take care of a newborn child, a newly adopted or a new foster child; take care of pregnancy complications; and for other serious medical necessities. FMLA can be used for issues related to pregnancy and/or disability; however, it can also be used for other medical matters such as routine illness from the flu, or medical appointments such as an annual physical or urgent care visit. FMLA leave can be a stretch of consecutive time, or it can be used for part days. Your FMLA leave can be a fixed schedule request, such as going to a medical appointment every Wednesday morning. It can also be for intermittent leave, such as for a condition that may cause you to be out of work and/or seek medical care when you are experiencing symptoms.

FMLA Coverage Requirements

Requirements for FMLA coverage are:

• The employee must have worked for a total of 12 months for the employer.
• A minimum of 1,250 hours must be worked by the employee during the 12 months immediately preceding the leave.
• FMLA only applies to companies with 50 or more employees within 75 miles.

The FMLA is a federal law that sets minimum requirements across the country. In addition to the FMLA, policies regarding unpaid medical leave may vary from state to state. Some states offer greater options and benefits. Special rules apply to education agencies such as schools that may give more flexibility than other employers. Additionally, there are different requirements for military caregiver FMLA. State and/or local laws can add to the protections of the FMLA but cannot reduce them.

If you qualify for FMLA medical leave, it provides job-protected leave benefits. This means when you take FMLA leave your job (or an equivalent) must be available to you upon your return.

Can Your Employer Fire You When You Are on FMLA?

An employee cannot be fired for retaliatory reasons for taking or requesting FMLA medical leave or for the purposes of interfering with an employee’s FMLA leave. Retaliation could include termination, as well as other actions such as a demotion, denial of a promotion, reduced pay and/or bonus, unfavorable reassignment and more. It’s important to meet with an experienced labor and employment attorney if you feel you have been wrongfully terminated due to FMLA.

There is the possibility of being terminated while on or returning from FMLA. An employer with any legitimate, non-discriminatory, and non-retaliatory reason can terminate an employee regardless of their FMLA leave status. However, employers cannot do so because of the employee’s FMLA. Examples of legitimate reasons for terminating an employee on FMLA leave are primarily:

• Poor performance or misconduct from the employee before taking FMLA.
• Evidence that the employee would have been terminated even if FMLA leave had not been taken. For example, a reduction in the workforce that had been documented before taking leave.

Remember that just because an employer states a legitimate, non-discriminatory reason does not mean that this is the real reason for the actions. These stated legitimate, non-discriminatory reasons may be pretext for employment discrimination. For example, the employer may say that the employee had poor performance, but the allegations made about poor performance are not in fact true. Or, even if the stated allegations of the poor performance are true, they can still be pretext for discrimination. For example, if the employer’s legitimate, non-discriminatory reason is that the employee came into work late, this could in theory be a legitimate, non-discriminatory reason to fire someone, but could be pretext for discrimination if the employer doesn’t fire other people who come in 10 minutes late, or the employer’s policies are to take other, less harsh steps against employees who are 10 minutes late.

If you believe the reasons stated for terminating you or otherwise mistreating you while on FMLA are pretext for discrimination, you should contact an experienced labor and employment attorney.

Intersection Between the FMLA and Other Laws

There is an overlap between the FMLA and the Americans with Disabilities Act (ADA), the Pregnancy Discrimination Act (PDA), the Pregnant Workers Fairness Act (PWFA), and other state and local laws regarding disability discrimination and/or pregnancy discrimination. Your requests for leave and/or schedule accommodations may be protected under these laws as well. In addition, these laws prohibit discrimination because of your pregnancy and/or disability, and require employers to provide reasonable accommodations, which can include leave and/or modified schedules. These laws also prohibit retaliation for requesting accommodations, including leave and/or modified schedules.

Just because your request was framed as an FMLA request does not mean that the underlying reason for the request wasn’t due to pregnancy and/or disability. In fact, the FMLA request can provide employers notice of the same.

In addition, these laws protect you in the hiring process and from day one on the job, unlike the FMLA, which begins after one year. The ADA, PDA, and PWFA, cover employers with 15 or more employees in any location, unlike the FMLA which only covers employers with 50 or more employees within 75 miles. Your state and or local laws may cover even smaller employers, as they do in both DC and Maryland.

The ADA also prohibits discrimination against employees due to their association with someone with a disability, such as having a family member with a disability. This means that if your employer is mistreating you because of your association with someone with a disability, this can violate the ADA. One common example is an employer that stereotypes an employee as unreliable or less hard working due to their need to care for a family member with a disability, or even a perception that they will be a worse employee because of their obligations towards this individual with a disability. An employee in this situation may have a claim under the FMLA for taking and/or requesting leave, as well as a claim under the ADA.

The ADA does not require employers to provide reasonable accommodations related to the disability of anyone other the employee, so requesting leave to care for a sick family member would not be an accommodation under the ADA but would be covered by the FMLA.

What To Do

If you think your FMLA rights have been violated, the best way to handle the situation is to consult with a labor and employment attorney. Call or e-mail us at Joseph, Greenwald & Laake, P.A. to schedule a consultation with an experienced attorney regarding your labor and employment issue or wrongful termination claim. We offer reliable counsel on how best to proceed and what your rights and responsibilities are.

The False Claims Act – What Cybersecurity Contractors Need to Know and Do

In an article published on October 30, 2024, by Cybersecurity Law Report, Veronica Nannis states that the Department of Justice (DOJ) has its sights set on cybersecurity fraud and is pursuing alleged offenders under the False Claims Act (FCA).

The article provides an FCA primer, including the four elements of a violation, the associated penalties, and whistleblowers and their incentives.

Nannis also details the DOJ’s Civil Cyber-Fraud Initiative, which was announced in 2021, and reviews recent cybersecurity fraud settlements and two closely watched litigation matters. The article concludes with tips that cybersecurity contractors can use to mitigate risk and avoid investigations.

Read the article “What to Know (and Do) About DOJ’s Efforts to Identify and Prosecute Cybersecurity Fraud Under the False Claims Act” (PDF) from the Cybersecurity Law Report.

In this episode of JGL LAW FOR YOU, JGL attorneys Lindsay Parvis and David Bulitt discuss Qualified Domestic Relations Orders, where pensions and retirement funds are divided as part of a divorce.

In an article published in University Business on October 24, 2024, Veronica Nannis notes that fraud investigations are on the rise in higher education institutions.

She details a number of fraud cases against universities that were brought under the False Claims Act, a unique fraud-fighting statute that lets ordinary citizens step into the shoes of the government to recover fraudulent gains. These whistleblowers are called “relators” and use insider information to file fraud cases on the government’s behalf. Many of the cases Veronica highlights settled for millions of dollars, and the relators received a portion of the settlement.

Experienced in bringing and litigating False Claims Act cases, Veronica provides insight that higher education institutions can use to avoid similar fates, including developing real, transparent and robust compliance programs; requiring mandatory, yearly training on the polices and the real cost of violations; and establishing effective protections and anti-retaliation measures for whistleblowers, who almost always try to address suspected fraud internally before reporting to the government.

Read the full article to learn more (PDF).

In this episode of JGL LAW FOR YOU, JGL attorneys Chris Castellano and David Bulitt discuss the impact of social media on family law litigation.

JGL Senior Counsel, The Baltimore Sun recently asked Michal Shinnar to comment on recent developments in the Internal Affairs Division:

The Maryland State Police is moving the unit’s sworn investigators to barracks across the state and bringing in new commanders, the agency confirmed Monday. Police spokeswoman Elena Russo said in a Monday statement that the moves are a part of “plans to rebuild and strengthen our IAD to provide quality and timely services to our personnel and to the communities we serve.” She cast the move as part of a broader effort by the superintendent to improve the statewide law enforcement agency alongside his “commitment to ensuring excellence.”

While sworn investigators are being rotated back out to the Field Operations Bureau, the Internal Affairs Division’s civilian personnel will “remain consistent,” Russo’s statement said. The steps by the superintendent, Colonel Roland L. Butler Jr., follow recent news of a settlement with the U.S. Department of Justice to remedy what the proposed consent decree calls “unintentional discrimination against African American and female applicants” through the state police testing process. It also comes amid ongoing litigation alleging racial discrimination against troopers of color, which a federal judge allowed to move forward last month.

The department did not directly answer questions about what spurred the moves but said Monday it was unrelated to the DOJ consent decree and the lawsuit. An agency-wide personnel order sent Friday listed the following transfers out of the Internal Affairs Division: two corporals, one detective sergeant, six sergeants, one lieutenant and one captain. The only sworn members being transferred into Internal Affairs on that personnel order were a captain and a lieutenant. The moves go into effect Wednesday, according to the order. The agency said Monday evening that administrative investigations would be conducted by state police personnel, and that “serious cases” would be “temporarily assigned to our seasoned investigators.”

Russo said administrative investigations will continue to be overseen by the Internal Affairs Division command staff. A website for the Internal Affairs Division lists nine full-time investigators who “are geographically assigned to local barracks statewide.” If that holds true, it’s possible those nine were the two corporals and seven detective sergeants transferred out. The website does not list civilian roles in the division. In a Friday email to the agency’s staff, Butler addressed the changes with similar wording to Russo’s statement. He said the agency was “currently implementing plans to rebuild and strengthen our IAD to provide quality and timely services to all,” calling it “another step taken in our commitment to ensuring excellence.

“Best practices, along with the feedback we receive, will remain instrumental in improving our processes moving forward,” Butler wrote. “Thank you for your trust and patience as we preserve our legacy as ‘Maryland’s Finest.’ “A state government website shows Internal Affairs falling under Butler’s purview, in the Office of Secretary, or the Office of the Superintendent, as itis referred to in budget documents. That part of the budget, which also include diversity initiatives, legal counsel, the media team and others, made up roughly 7.6% of the agency’s overall $615.3 million budget in the current fiscal year, according to a state analysis of the agency’s budget. The department’s recently announced proposal to resolve the Justice Department investigation includes $2.75 million being set aside for prospective troopers who were discriminated against, as well as improvements to physical and written hiring tests.

The consent decree, which lays out those terms, is subject to approval in federal court. According to that document, filed in U.S. District Court, 19 Black applicants and 29 female applicants would have been hired if not for the discrimination tests. At the time the Justice Department announced the investigation, the U.S. Attorney for Maryland, Erek L. Barron, told The Baltimore Sun that the probe would examine how the agency hires, promotes, trains, disciplines, and makes special opportunities available to employees.

Micha Shinnar, an attorney representing troopers of color in the lawsuit seeking class-action status, noted that their complaint alleges “the numerous and serious ways that Internal Affairs was engaged in discrimination against officers of color at Maryland State Police.” Her clients, three current and former troopers, alleged a longstanding pattern of discrimination through discipline, retaliation, and the denial of promotions. They are seeking policy changes, a monitor to oversee the agency and individual relief.

Among other things, the complaint argued troopers of color were disciplined for minor or nonexistent policy violations, with punishments that exceeded recommendations and investigations that took long periods of time. One plaintiff in the complaint, for example, was suspended for 301 days during an investigation into an alleged one-hour error in his timecard, according to the complaint. “We hope Maryland State Police will take all steps to ensure this discrimination stops,” Shinnar said.

Artificial Intelligence (AI) has become a household phrase and is only growing in ubiquity. The tools implementing “AI” are increasingly being used to assist with various tasks, such as writing music, creating images, and even answering legal questions.

There is no question that AI has and will continue to usher in a new age of convenience and the sense that one can tackle any issue they are faced with. However, the sense of confidence provided by AI carries with it significant risk and for individuals seeking to represent themselves whilst using AI tools, doing so can be to their detriment. Let’s explore the potential dangers of AI in the context of handling your divorce case.

1. AI Lacks Personal Knowledge of Your Unique Situation

No two divorces are the same. While technology is advancing, AI lacks the ability to understand subtle facts and laws in order to employ unique strategy decisions. Meaning, a computer can’t think like a human. This is because the result of any AI prompt is derivative of prior circumstances known to the AI database. Therefore, using AI tools may prevent you from developing a strategy specific to your set of facts. For example:

• Child Custody Issues: Determining the best interests of the child in a custody dispute is not a simple task. Maryland courts consider a variety of legal factors. Assuming AI tools are able to accurately determine the legal factors, applying your unique facts to those legal factors weighed in the context of your case and your opposing party’s position is a task that AI is unable to perform at a level necessary for your case.
• Property Division: Maryland is an “equitable distribution” state, meaning property acquired during the marriage is divided fairly, but not necessarily equally. Like with custody cases, Maryland courts consider several legal factors and again, AI may not accurately balance the equities of parties in order to deal with assets like retirement accounts, family businesses, or real estate holdings.

2. AI Cannot Navigate Court Procedures and Legal Nuances

The divorce process in Maryland involves an understanding of specific legal procedures, statutes, rules, and decades of case law. While AI can help you generate forms or define legal concepts, it is oftentimes a flawed process that leads to obvious inaccuracies.

• Filing and Documentation: Mistakes in filing forms or drafting motions can lead to significant adverse outcomes, including the risk of a court ordering that you pay attorneys fees due to your submission of documents to the court that contain inaccuracies.
• Courtroom Representation: If your divorce proceeds to court, AI cannot represent you. While the concept may make for an interesting movie premise, the reality is that you are “on your own” in front of the Court and AI as a crutch is unavailable to you.

3. AI is Likely to be “Out of Date” on Maryland-Specific Family Law Concepts

While AI can pull from vast amounts of legal data, it is likely to be out of date when it comes to recent changes or updates in Maryland family law. Laws and court rulings change over time, and even a small change in legislation or case law can impact the outcome of your divorce.

For example, Maryland has recently seen a change to the grounds for divorce and AI systems are unlikely to be updated to incorporate these changes, which will have a significant impact on any prompt you submit.

4. AI is Incapable of Drafting a Long-Term Successful Agreement

Divorce settlements can have long-lasting effects on your finances, property, and parenting arrangements. Mistakes made during the negotiation and drafting process due to a reliance on AI can be difficult and expensive to correct after the fact. For instance:

• Child Support and Alimony: Calculating child support or alimony involves multiple factors, and AI may not consider all the nuances required by Maryland law. A miscalculation in these areas could leave you financially vulnerable or locked into an unfair agreement.
• Enforceability of Agreements: If you use AI to draft a separation agreement, they may not meet the legal standards required by Maryland courts, a concern that may only be apparent months or years after the fact and lead to significant and costly litigation in the future.

Conclusion: The Value of Legal Expertise in Maryland Divorce Cases

While AI can be a helpful supplement in some areas of life, it is not a substitute for professional legal advice, particularly in the arena of your domestic legal case. Maryland’s family law system is complex, and the stakes are too high to rely solely on AI-generated information or documents. A skilled family law attorney can provide personalized advice, an understanding of the legal system, and the ability to advocate for your rights in a way that AI simply cannot. If you’re considering representing yourself in a Maryland divorce with the help of AI, caution is warranted. The potential pitfalls are numerous, and the long-term consequences can be severe. By working with an experienced family law attorney, you can ensure that your rights are protected, your case is handled properly, and you can move forward with your life on solid legal footing.

If you have questions about your divorce or need assistance with your case, feel free to contact our office. We’re here to help you through this challenging time with the expertise and care you deserve.

JGL Principal Lindsay Parvis has just been named to the 2025 Lawdragon Leading Family Lawyers guide. Lawdragon has published guides to the most elite U.S. lawyers since 2005. The 500 Family Law honorees are selected through submissions, journalistic research and editorial vetting from a board of peers. The recognition is published online at lawdragon.com

The Maryland Supreme Court has ruled that the future of Harborplace, a revitalization project of five new buildings — a mix of retail, office and residential space — along a completely reimagined waterfront promenade in Baltimore, will be decided by voters. A lower court judge previously ruled the ballot question was unconstitutional.

Tim Maloney and Alyse Prawde represented the Harborplace developer, MCB HP Baltimore LLC, before the Supreme Court, arguing that ballot Question F is constitutional and should appear on the ballot. Now, voters will be able to decide whether the developer will be able to execute plans to rebuild the Baltimore Inner Harbor.

Click here to read the complete article in The Baltimore Banner.

What’s a QDRO?

It’s a Qualified Domestic Relations Order, used to transfer retirement from one spouse to another in a divorce (or for child support or alimony). It can go by different names (Court Order Acceptable for Processing/COAP or Domestic Relations Order/DRO), based upon the type of retirement plan involved.

For this blog, I’ll use QDRO for all types of orders just to keep things simple. Please know, though, that QDROs and retirement transfers are not at all simple.

Why is a QDRO needed?

A QDRO transfers retirement from one spouse (the spouse who holds the account or participates in the pension plan) to the ex-spouse.

Not all retirement assets require a QDRO. IRAs are an example of a retirement plan that (usually) allows a transfer using the plan’s form instead of a court order. This is where doing your homework about what kind of plan it is and what type of order is needed can pay off.

What type of retirement plans need a QDRO?

Pensions and 401k-type plans are the most common.

What does a QDRO transfer?

Pensions (defined benefit plans): A QDRO is used to transfer some of the monthly pension payment to the ex-spouse, as well as the right to survivor benefits (so, benefits paid after the death of the employee) after divorce.

Other types of retirement (defined contribution plans): A QDRO is used to transfer a lump sum to the ex-spouse, and may keep them entitled to survivor benefits until the transfer is complete.

Why not just cash out retirement to pay my ex?

Because this can have big – and unnecessary – tax consequences and early withdrawal penalties. Your ex may have the option to cash out some of the retirement when the QDRO is processed by the retirement plan, but that’s their decision, and the tax consequences are theirs.

When should I get a QDRO prepared?

If settling your divorce with an agreement, ideally the QDRO is prepared and signed at the same time. If not then, then as soon as possible after. Again, ideally, before the divorce is granted.

If settlement is not an option and you will have a trial, then ideally give the Judge a QDRO during your divorce trial. Or, have it prepared right after the appeal period has passed.

Delay is not a QDROs friend. Ex’s move and lose track of addresses (which are needed). If the retirement plan doesn’t calculate gains and losses, documents may no longer be available to do the calculation. Worse yet, exes pass away or retire, without orders in place, so retirement may not go where it’s supposed to, leaving exes to fight with an estate or having to collect money from their ex.

Who prepares the QDRO?

Sometimes your divorce attorney will.

Sometimes they will hire an attorney to draft the QDRO, while the divorce attorney handles communications with your ex or ex’s attorney and files the QDRO with the Court.

What’s not a good idea: preparing a QDRO yourself. Many plans have form QDROs. Filling in and using the form may get the desired outcome or it may lead to unintended consequences. When retirement is one of the biggest assets many people have, it’s not worth gambling with “fill in the blank”.

What steps are involved in preparing a QDRO?

Usually:

1. A settlement agreement or Judgment of Absolute Divorce that spells out what’s to be transferred.
2. Preparing the QDRO. This may also involve having the draft QDRO reviewed & approved by the retirement plan (which may require a fee for review).
3. Trying to get your ex to sign off on the QDRO. If unsuccessful, skip to #4.
4. Submitting the QDRO to the Court.
5. Getting the QDRO back from the Court & getting certified copies.
6. Submitting certified copies of the QDRO (and usually other documents, like settlement agreement and Judgment of Absolute Divorce) to the retirement plan.
7. Awaiting the plan to review, process and accept the QDRO. If rejected, then starting back at #2 with a revised QDRO that meets the plan’s requirements.

Conclusion

It’s not worth gambling with retirement. Working with an experienced family attorney and QDRO attorney can help you protect your retirement interests, which are often one of the most valuable assets in a divorce.

It’s September, back to school time, and are we ready? Will we be able to protect our teachers from harm?

The workers’ compensation system is central to supporting victims of school violence.

There are new ways that workers’ compensation statutes will have to adapt to the wave of violence in the workforce.

Today, we focus on the harm to teachers in classrooms from lack of support and the traumatic scars of post-traumatic stress disorders and concussions. We already face problems finding enough teachers, and yet we lose many due to injuries that could be prevented.

For almost 40 years, and continuing, it has been an honor to represent our educators. However, not until recently, have I had to guide as many teachers to file claims and protect themselves. For you see, beyond being dedicated people who take the future of our children seriously, they actually love the kids they teach. So, when a teacher is head-butted by a special needs child, when there was no backup in the classroom, and sustains a concussion that leaves him or her without the ability to return to his or her career, it’s complicated. He or she is angry, and in pain, but healing is difficult because he or she does not assign blame to the child that was in his or her care. In psychotherapy, the teacher is conflicted.

According to the MDedge article published by Sejal Parekh, April 8, 2024, similar violence is also on the rise against health care workers, especially in the emergency rooms. There is not enough support for persons with autism, according to Beth Burt, executive director of the Autism Society Inland Empire. ” The smells, lights, textures …can sometimes overstimulate a person with autism, and they can struggle to articulate their feelings which can result in a violent outburst.”

Some children are simply aggressive and commit assault with items and with force. For example, a teacher is afraid to turn her back on the class to write on the board because last week a student threw a stapler at her head.

Rarely is a criminal complaint made against the children. The child remains in the system, the teacher is the one who leaves. Teachers report that when it comes to physical violence, 56 percent of teachers have had incidents. According to the American Psychological Association, Journal, May 30, 2024, violence, aggression against educators grew post pandemic, and caused an increase of teachers sending in their resignations and filing for retirement.

In workers’ compensation, the teacher has limited options, but at least there is some support. Some jurisdictions, such as Prince George’s County have “assault leave” that can be provided in certain circumstances, in addition to workers’ compensation. But there is no remedy to go against the school system in liability after filing for benefits. The case being watched is out of the Commonwealth of Virginia right now, set to go to trial in 2025 filed by a teacher shot by a 6-year-old child in school. She filed for workers’ compensation, but she also won a summary judgement to go forward with her liability claim against the school. Will workers’ compensation remain the exclusive remedy if chosen in Maryland? Last year I suggested we pass legislation that would make the employer liable if 1- it was aware of the danger and 2 – its failure to act on it caused harm.

For now, we try our best to make sure that the teacher gets immediate care, whether it is with a concussion clinic, or counseling, or surgery and rehabilitation. However, many insurance carriers in workers’ compensation are not eager to immediately provide the care and want their own IME, independent medical evaluation, and a hearing. This is very detrimental in an assault case, as it does not allow for the time sensitive care and often makes matters worse. I have seen delay, even in neurodiagnostic testing in evaluating the head claims.

A fractured leg will usually heal. A psychological trauma might not. Workers’ compensation can offer vocational rehabilitation, but it is often not the answer for these teachers who are highly educated. Many have left to pursue different career paths. A workers’ compensation permanent partial award for their residuals, may just not be enough. And it certainly doesn’t help our schools to lose another teacher when these injuries could be avoided.