In an issue of first impression among the federal circuits, the 11th Circuit articulated new standards for determining when claims for Medicare reimbursement for hospice violate the False Claims Act (FCA). Per this opinion, any challenge to such hospice claims for Medicare reimbursement must now meet a new objective falsehood standard. This new objective falsehood standard necessitates that potential plaintiffs point to specific facts and circumstances surrounding the time the physician certified the patient as terminally ill. Absent a showing of falsity regarding these circumstances, physicians’ clinical judgments will be upheld as long as they exercised their best judgment and provided the appropriate documentation under the statutory and regulatory requirements. The objective falsehood standard bars plaintiffs from relying on a mere difference of opinion between physician reviews of the claims to show a violation of the FCA.
In Knick v. Township of Scott, the Supreme Court overruled Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, which had created a de-facto state-litigation requirement for plaintiffs bringing federal takings claims. Specifically, the Court in Knick held that a property owner may proceed directly to federal court as soon as his property is taken without compensation, even if there are state remedies to provide compensation after the taking occurs.
In K.T. v. Royal Caribbean Cruises, LTD., the Eleventh Circuit Court of Appeals reversed the decision of the district court and held that the plaintiff, K.T., stated plausible negligence claims against the cruise ship. First, the crew members’ alleged failure to prevent K.T.’s rape and sexual assault constituted a plausible negligence claim. This negligence included allowing adult male passengers to purchase alcoholic beverages for K.T. Second, Royal Caribbean’s failure to warn K.T. and other passengers about the possibility of sexual assault on the cruise ship constituted a plausible negligence claim.
On October 22, 2019, the Alabama Supreme Court will hear oral arguments on four consolidated cases that may determine the fate of cameras used to enforce traffic laws in the State of Alabama. Oral arguments will take place at the Leslie S. Wright Center on the campus of Samford University beginning at 9:30 a.m. and lasting until 11:45 a.m. The event, hosted by Cumberland School of Law, the Birmingham Bar Foundation, and Appellate Courts of Alabama, is free and open to the public.
In an employment intentional discrimination case, “[j]ust how ‘similarly situated’ must a plaintiff and her comparator(s) be?” The United States Court of Appeals for the Eleventh Circuit clarified the proper standard for comparator evidence in Lewis v. City of Union City. Specifically, the court endorsed a test asking whether comparators are “similarly situated in all material respects,” thereby abandoning the previously accepted “nearly identical” and “same or similar” tests.
In Williamson v. Brevard County, the Eleventh Circuit held that the commissioners of Brevard County unconstitutionally exercised their unfettered discretion to select opening invocation speakers based on religion. In addition, the court clarified requirements for cities that wish to open city council meetings or legislative sessions with sectarian prayer.
For many years, the Cumberland Law Review has published 11th Circuit Surveys and Alabama Supreme Court Surveys in its Spring publication. The surveys highlight recent and significant cases decided by the 11th Circuit Court of Appeals and the Alabama Supreme Court. The Law Review intends for readers to find the publication useful in practice.
In an effort to provide readers with content that is even more relevant and timely, the Volume 50 Editorial Board has refashioned the publication process for surveys. Surveys will still be written by 2L Junior Editors on Law Review. However, beginning this year, the Law Review will generate bimonthly publications that highlight recent cases. These surveys will be available on the Cumberland Law Review Online site, http://www.cumberlandlawreview.com. We hope our readers find this new venue for surveys more timely, accessible, and relevant to daily practice.
During its recent term, the Supreme Court decided Tennessee Wine & Spirit Retailers Ass’n v. Thomas, a case pitting the Commerce Clause, or rather the Dormant Commerce Clause Doctrine (“DCCD”), against Section 2 of the Twenty-first Amendment. In a 7-2 decision, the Court held that the DCCD’s prohibition of state-level protectionist legislation trumped the Twenty-first Amendment’s grant of seemingly plenary authority over alcohol sales. The Court’s opinion indicates, much to the chagrin of law students and bar examinees, that the DCCD remains an enduring part of the United States Constitution’s structure.
Supervised injection facilities (SIFs) allow addicts to use illicit drugs in a “safe place” while being monitored closely for overdose symptoms by medical professionals. While SIFs operate in multiple countries throughout the world, currently no supervised injection facility is legally open in the United States. However, injection facilities have found traction in cities such as San Francisco, Seattle, Philadelphia, and New York. Advocates of SIFs believe that operating this type of facility will prevent overdose related deaths by getting drug users “immediate help in the event of an overdose or adverse reaction.” Advocates also claim that supervised facilities will help reduce the spread of blood borne infections, such as HIV. On the other hand, those that oppose the United States allowing the operation of these facilities argue that opening this type of facility would violate the Controlled Substances Act (CSA), and would change the existing stigma regarding drug use to become more accepting and thus would eventually lead to an increased use of drugs in the country.
On January 22, 2019, the United States Supreme Court granted certiorari to hear its first Second Amendment case in nearly a decade. Prior to this decision to grant cert, the Supreme Court last heard cases relating to an individual’s right to own a firearm in 2010 and 2008, choosing to leave many firearm issues to the states. In the 2008 decision, District of Columbia v. Heller, the Court held the District of Columbia’s prohibition on the possession of handguns in the home violated the Second Amendment because the Amendment guarantees the right to possess and carry firearms for the purpose of self-defense. In the 2010 decision, McDonald v. City of Chicago, the Court incorporated the Second Amendment right to bear arms for the purpose of self-defense into the Due Process Clause of the Fourteenth Amendment, making the Second Amendment applicable to the states.
The case set for the Court’s review, New York State Rifle & Pistol Association v. City of New York, concerns Title 38, Chapter Five, Section 23 of the Rules of the City of New York. This New York statutory provision prohibits handgun owners from removing their weapon from the address specified on their license except for a purpose allowed under the statute, such as transporting the gun to an approved shooting range.