Author: JGL Law

The False Claims Act (FCA), originally conceived by Abraham Lincoln during the Civil War, has been an effective tool for the Government to recover funds fraudulently taken from all types of government programs from national security to Medicare for over a century and a half.  But like all statutes, the FCA has its limitations, including time.  Until recently, it was believed that with little exception fraudulently taken taxpayer funds could be recovered only for a period of six years prior to the filing of a complaint.  31 U.S.C. § 3731(b).

Enter into the FCA arena a little used or known law from the 1940s, the Wartime Suspension of Limitations Act (the “WSLA”). The WSLA tolls the statute of limitations in cases of fraud committed during wartime against the Government “until five years after the termination of hostilities as proclaimed by the President or by a concurrent resolution of Congress.” 18 U.S.C. § 3287.  Several courts, including the United States Court of Appeals for the Fourth Circuit, have held that the wars in Iraq and Afghanistan triggered the WSLA such that FCA claims have been tolled since 2001.[i]  Additionally, there does not appear to be limitations to the type of FCA fraud at issue.  As one Court held in June, the WSLA is not limited to “war frauds”, i.e. “frauds related to the administration of the war” but applies to all types of FCA cases, including fraud against medical programs like Medicare and Medicaid.[ii]

The application of the WSLA to FCA cases is undergoing an evolutionary process, and courts have much more work to do on the proper application of the WSLA to the FCA’s statute of limitations as litigants test its limits.  At the very least, these recent decisions demonstrate that claims long thought to have been extinct can be potentially resurrected and that existing FCA claims can reach fraud that occurred twelve years ago in some cases.

 

Many employers and certainly many employees may be shocked to learn that “Paruresis,” commonly known as “shy bladder syndrome” or the inability to urinate with others present, qualifies as a disability under the Americans with Disabilities Act Amendments Act of 2008 (“ADAAA”).  Although the subject is somewhat comical at first blush, it is crucial that employers and employees know that the protections afforded employees are broader than ever.  This was not always so; especially for shy bladder syndrome.

Last year, the United States District Court for the Western District of Virginia granted summary judgment (i.e., ending the case) for the employer in Linkous v. CraftMaster Mfg., Inc.,[1] a shy bladder disability discrimination case.  There, the plaintiff was terminated after he failed two drug tests.  The first test appeared to the testing company to have been suspiciously altered.  Plaintiff was asked to submit to a second test, in which he would be observed.  Plaintiff then failed to provide an observed urine sample, and was thereafter terminated.  Plaintiff alleged that he was unable to urinate because he suffered from paruresis, thus preventing him from urinating if someone was watching.  The Court held that Plaintiff was not disabled under the version of the Americans with Disabilities Act (“ADA”) prior to its 2008 amendments because the Plaintiff failed to establish that his impairment substantially limited his ability to urinate at work or in the community.  In addition, the impairment appeared to be “sporadic,” which by definition cannot qualify as a substantial limitation under the ADA.

Now under the more expansive ADAAA, however, even some temporary ailments or those having a small effect on a person’s daily life are valid grounds for claiming employment discrimination. On this topic, the Equal Employment Opportunity Commission (“EEOC”) recently issued an opinion letter commenting that shy bladder syndrome can form the basis for an ADA claim.  In the letter, the EEOC says that under the ADAAA and its implementing regulations Paruresis now qualifies as a disability by including bladder and brain functions as major life activities, by lowering the standard for establishing that an impairment “substantially limits” a major life activity, and by focusing the determination of whether an individual is “regarded as” having a disability on how the individual has been treated because of an impairment, instead of on what the employer may have believed about impairment.

What does this mean going forward?

The Definition of Disability Has Not Changed

Now, as always, the ADAAA defines a disability as 1) a physical or mental impairment that substantially limits one or more major life activities; or 2) a record of a physical or mental impairment that substantially limited a major life activity; or 3) when a covered entity takes an action prohibited by the ADAAA because of an actual or perceived impairment that is not both transitory and minor.[2]

Major Life Activities Now Include Major Bodily Functions

Under the ADAAA and the EEOC’s regulations, an individual with paruresis, for example, has a disability under the first or second definition if his or her condition substantially limits one or more major life activities.[3]  As a result of the expansion of coverage provided by the ADAAA, major life activities include major bodily functions, such as bladder and brain functions, and functions of the neurological and genitourinary systems.[4]

“Substantially Limits” is No Longer as Demanding a Standard

Both the statute and the amended regulations explicitly state that “substantially limits” shall be construed broadly in favor of expansive coverage.[5]  Thus, the term now requires a lower degree of limitation than ever before – indeed, an impairment does not need to prevent or severely or significantly restrict a major life activity to be considered “substantially limiting.”[6]

Moreover, whether an impairment substantially limits a major life activity must now be made without regard to the ameliorative effects of mitigating measures.[7]  So, an individual’s paruresis substantially limits a major life activity if it would do so in the absence of treatment, including cognitive-behavioral therapy and/or medication.

The statute and regulations also state that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.[8]  Therefore, whether an individual’s shy bladder substantially limits a major life activity is based on the limitations imposed by the condition when its symptoms are present.

It is Easier for Individuals to Establish Coverage Under the “Regarded As” Definition of “Disability”

Under the ADAAA and the EEOC’s regulations, an employer “regards” an individual as having a disability if it takes an action prohibited by the ADA based on an individual’s impairment, or on an impairment that the covered entity believes the individual has, unless the impairment is both transitory and minor.[9]  Under the ADAAA, the focus for establishing coverage is on how a person has been treated because of an impairment, rather than on what an employer may have believed about the nature of the impairment.[10]  Paruresis is not a transitory impairment, so if an employer takes an adverse action against an individual because of paruresis, whether the condition is real or perceived, the individual probably will be “regarded as” having a disability.

At bottom, these are huge changes for employers and employees.  With change comes uncertainty.  It is imperative that both employers and employees understand that because the law is evolving they should seek legal advice if they are unsure about where they stand in relation to the ADAAA.

[1] 2012 WL 2905598 (W.D. Va. July 16, 2012)

[2] 42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(g)(1)

[3] 42 U.S.C. § 12102(1)(A), (B); 29 C.F.R. § 1630.2(g)(1)(i), (ii).

[4] 42 U.S.C. § 12102(2)(B); 29 C.F.R. § 1630.2(i)(1)(ii).

[5] 42 U.S.C. § 12102(4)(A); 29 C.F.R. § 1630.2(j)(1)(i).

[6] ADA Amendments Act of 2008, Pub. L. No. 110-325, § 2(b)(4), (6), 122 Stat. 3553 (2008); 29 C.F.R. § 1630.2(j)(1)(ii), (iv)–(v).

[7] 42 U.S.C. § 12102(4)(E); 29 C.F.R. § 1630.2(j)(1)(vi).

[8] 42 U.S.C. § 12102(4)(D); 29 C.F.R. § 1630.2(j)(1)(vii).

[9] 42 U.S.C. § 12102(3); 29 C.F.R. § 1630.2(l).

[10] 29 C.F.R. § 1630.2(j)(1)(iii).

Stuck down a local ordinance that regulated the packing, sale, and distribution of cigars. Altadis U.S.A., Inc. v. Prince George’s County (Md. 2013)

Upheld verdict against a mortgage broker whose agent perpetrated a fraudulent foreclosure rescue scam. Fidelity First Home Mortgage Co. v. Williams (Md. Ct. Spec. App. 2012)