An Illinois jury hit a skilled nursing facility (SNF) with a $29 million verdict after agreeing with allegations by former employees that the SNF knowingly provided worthless services to its residents and submitted over 1700 false claims to the government for their care.  The jury found that the government suffered losses of over $3 million in connection with the false claims, which are trebled—or multiplied by three— under the False Claims Act.  For each of the 1700-plus false claims, the jury awarded the maximum civil penalty of $11,000.  The jury also awarded the two former employee whistleblowers a total of over $400,000 in damages. 

The case was filed by two nurses who had worked at the SNF and alleged that they had repeatedly complained to management about the poor care provided to residents and of violations of the False Claims Act.  Among other allegations, the two whistleblowers said in their complaint that residents routinely went without medical care and food as well as the prescribed medications needed for their mental and physical well-being and to alleviate pain.  In addition, the whistleblowers alleged that the SNF destroyed and forged records in order to make it appear that residents received appropriate care, instructed staff to either not enter negative information or alter entries regarding negative aspects of patient care, and forged staffing sheets to conceal inadequate staffing at the facility.

While this case presents an extreme example, it also highlights the importance of responding promptly to employee complaints of potential False Claims Act violations.  As we wrote last month, federal law requires nursing facilities and skilled nursing facilities to have in place robust compliance programs by March 23, 2013.  A compliance program containing the elements required by this law would include mechanisms for responding to internal complaints like those made by the whistleblowers in this case.

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Photo of Michael R. Bertoncini Michael R. Bertoncini

Michael R. Bertoncini is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He practices labor and employment law, with a particular emphasis on labor relations, employment law counseling and litigation, and data privacy and security law.

In labor relations matters…

Michael R. Bertoncini is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He practices labor and employment law, with a particular emphasis on labor relations, employment law counseling and litigation, and data privacy and security law.

In labor relations matters, he regularly counsels clients on the practice of positive employee relations, negotiates collective bargaining agreements on behalf of organized clients, represents clients in labor arbitrations and National Labor Relations Board proceedings, and counsels clients with respect to rights and obligations under collective bargaining agreements and applicable labor and employment laws. He also has extensive experience in advising organizations responding to corporate campaigns and negotiating neutrality agreements.

Mr. Bertoncini’s privacy and data security practice focuses on advising clients on complying with HIPAA and other state and federal privacy and data security laws. He regularly reviews and develops policies and procedures, written information security plans and integrated compliance programs to assist clients in meeting their obligations under privacy and data security laws. Mr. Bertoncini has represented clients in investigations of alleged data breaches and advises them on their reporting obligations in the event of a data breach. He also conducts workplace training programs on HIPAA compliance and related privacy and data security topics.

Before joining Jackson Lewis, Mr. Bertoncini was Deputy General Counsel for a hospital system that is the largest fully integrated community care organization in New England. He was responsible for all of the system’s labor and employment law matters, and was involved in its acquisition by a private equity firm as well as its growth from six to ten hospitals in a twelve-month period. His three years as in-house counsel for this large health care system give Mr. Bertoncini a keen understanding of the impact of labor and employment law issues on clients’ business operations.

In addition to his labor relations and privacy experience, Mr. Bertoncini has extensive experience in conducting internal investigations and counseling clients on whistleblower and retaliation matters, as well as negotiating executive agreements, both employment and separation agreements. Mr. Bertoncini also represents clients in the litigation of employment matters. His litigation experience includes matters before federal and state courts and administrative agencies. He has appeared before United States Courts of Appeals and District Courts, Massachusetts and New York state courts, the Equal Employment Opportunity Commission, and the Massachusetts Commission Against Discrimination.

Mr. Bertoncini is a frequent speaker and trainer on labor and employment law topics for various organizations including Massachusetts Continuing Legal Education, Council on Education in Management, Lorman Education Services, the Boston Bar Association, and several chambers of commerce.

While attending Boston College, he received the John A. McCarthy, SJ Award for the most distinguished Scholar of the College thesis.