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Author: WorkCompAcademy

New California Law Mandating Bereavement Leave Starts January 1

WorkCompAcademy

In the United States, workers’ access to bereavement leave in the event of the tragic loss of a family member is inconsistent or nonexistent. The state of Oregon offers up to 2 weeks of bereavement leave for employees working for employers of a certain size under its unpaid but job-protected family leave law.

There is no federal law requiring that employers provide bereavement leave. This left it up to employers and employees to make informal arrangements.

Now in California, newly passed law, AB 1949 which added 12945.7 is added to the Government Code, takes effect on January 1, and requires private employers with five or more employees and public sector employers to provide employees with at least 30 days of service up to five unpaid days of bereavement leave upon the death of a family member.

The five days of bereavement leave must be provided in addition to the 12 weeks of family and medical leave permitted under the the California Family Rights Act (CFRA). The days of bereavement leave need not be consecutive.

“Family member” means a spouse or a child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law as defined in Section 12945.2.

The bereavement leave shall be completed within three months of the date of death of the family member.

The bereavement leave shall be taken pursuant to any existing bereavement leave policy of the employer.If there is no existing bereavement leave policy, the bereavement leave may be unpaid, except that an employee may use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee.

If an existing leave policy provides for less than five days of paid bereavement leave, the employee shall be entitled to no less than a total of five days of bereavement leave, consisting of the number of days of paid leave under the existing policy, and the remainder of days of leave may be unpaid, except that an employee may use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee.

If an existing leave policy provides for less than five days of unpaid bereavement leave, the employee shall be entitled to no less than five days of unpaid bereavement leave, except that an employee may use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee.

The employee, if requested by the employer, within 30 days of the first day of the leave, shall provide documentation of the death of the family member. As used in this subdivision, “documentation” includes, but is not limited to, a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or governmental agency.

The employer shall maintain the confidentiality of any employee requesting leave under this . Any documentation provided to the employer pursuant to this new law shall be maintained as confidential and shall not be disclosed except to internal personnel or counsel, as necessary, or as required by law.

The new law does not apply to an employee who is covered by a valid collective bargaining agreement if the agreement expressly provides for bereavement leave equivalent to that required by this section and for the wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked, where applicable, and a regular hourly rate of pay for those employees of not less than 30 percent above the state minimum wage.

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NCCI Surveys Top WC Industry Concerns Heading Into 2023

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The National Council on Compensation Insurance (NCCI) just published the results of its annual survey of top insurance executives. The summary of responses is intended to provide a general sense of the most frequently mentioned items in our survey and the underlying questions that these executives have regarding the future. The 100 respondents provided clear insight into the concerns that are front-of-mind for them as we head into 2023.

Rate adequacy – Rate adequacy is always a concern. Although premium rates and loss costs have been declining for years in most states, the workers comp line has retained an historically low combined ratio.Carriers expressed uncertainty about what the next five years will look like, including whether this downward trend will change and whether a change will result in loss cost/rate level increases.

Many factors are in play that affect a carrier’s ability to maintain underwriting profitability, such as medical cost concerns, labor market dynamics, emerging risks, reserving practices, and general inflation. Executives expressed concerns that when trends – which have driven rates down for many years – eventually turn, the industry may not be able to react quickly.

A related consideration was also raised: will the collective unfamiliarity of what an environment with rate level increases looks like affect the industry’s ability to adequately address rate level needs?

Medical inflation – Carriers noted concerns about the rising cost of medical treatments, especially continuous advancement in medical technology and treatments.

When carriers do not see an associated rise in premium rates it can be disconcerting, in the sense that rates and costs could get too far out of sync.

Trends in WC medical costs reflect changes in the mix of injuries and the types of services used to treat them, as well as changes in the prices of those services. And while medical prices contribute to general inflation, they do not grow at the same rate.

The economy – Uncertainty surrounding things like the labor market, an economic slowdown or recession, interest rates, and investment returns, all point to a challenging economic landscape for carriers. The possibility of a recession weighs on some respondents considering the impact that unemployment and stagnant job growth could have on industries they serve.

Shifting workforce/workplace – This topic can be characterized by two major trends that carriers are watching:

– – Worker shortages and inexperienced workers. The labor market continues to be tight, forcing some employers to hire inexperienced workers with less focus on safety training and pushing seasoned workers to work additional hours. Carriers are concerned with how this could affect the frequency and severity of on-the-job injuries.

– – Remote and hybrid workers. Changes in work patterns following the pandemic are creating work environments with which the industry has little experience. How much lower is injury frequency for employees who are working from home? What new WC risks are there when working from home? How might payroll and premiums be impacted, as well as classifications of workers? Carriers are waiting for new data to gain insight.

NCCI Chief Actuary Donna Glenn and NCCI Chief Customer Operations Officer Mark Mileusnic will take a deeper dive into the top concerns in an upcoming Virtual Carrier Education Series webinar Thursday, January 26, 2023, at 2:00 p.m. ET. You don’t need to be an insurance carrier to attend – the webinar is free and open to all. Registration details are coming soon to ncci.com.

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WCIRB Studies Medical Characteristics of Cumulative Trauma Claims

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The Workers’ Compensation Insurance Rating Bureau of California has released a new report, Medical Characteristics of Cumulative Trauma Claims.

In the California workers’ compensation system, CT claims have always been a key cost driver mostly because of the complexity of having injury exposure spanning multiple years, litigation and frictional costs from liens and medical-legal services that are incurred on CT claims.

Prior WCIRB research has suggested that as much as 40% of all CT claims are filed on a post-employment or post-termination basis. Post-termination CT claims are filed after the termination of employment, and they tend to be more litigious and involve more frictional costs than regular CT claims.

This study analyzes both CT and post-termination CT claims, focusing on the characteristics of medical treatment, primary medical diagnoses and underlying drivers for frictional costs.

Some of the key findings include:

– – Indemnity claims are the key driver of CT claim costs. Average medical severity on CT indemnity claims starts off lower than non-CT indemnity claims, but eventually grows larger as the claims mature.
– – CT indemnity claims have a higher payment share for medical-legal and medical liens services than non-CT claims, mostly driven by significantly higher levels of utilization.
– – The share of medical payments for medical liens and medical-legal services on CT claims is on average three times the payment shares of these services on non-CT claims.
– – The average paid per medical-legal evaluation is more than 20% higher on CT claims than on non-CT claims. In addition, there areover60% more evaluations on CT claims, which leads to a significantly higher overall medical-legalpaid per claim.
– – CT claims are more likely to involve soft tissue injuries and mental/psychiatric conditions. About a third of closed CT claims had a medical diagnosis shift, mostly to soft tissue injuries, by the end of their claim life.
– – It takes significantly longer for CT indemnity claims to receive the first medical treatment, mostly due to late reporting and a relatively high share of CT claims starting with liens or medical-legal services as the initial service.
– – Post-termination CT claims filed following large layoffs tend to concentrate in the manufacturing and service sectors and in the LA region. Not surprisingly, these claims also are more likely to be reported late.
– – Compared to regular CT claims, post-termination CT claims incur lower medical severity through 66 months of development but have a higher share of payments for medical liens, medical-legal and interpreter services.
– – CT indemnity claims close consistently more slowly than non-CT indemnity claims, with the largest difference at the first report level (18 months from policy inception) when only 1 in 5 CT indemnity claims are closed compared to almost half of non-CT indemnity claims.

The claim population in the analysis is derived from linking WCIRB unit statistical data and WCIRB medical transaction data for accident years 2013 through 2019.

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Neurosurgeon to Serve 5 Years for $3.3 Million Kickback Scheme

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A no longer California licensed neurosurgeon was sentenced to 60 months in federal prison for accepting approximately $3.3 million in bribes for performing spinal surgeries at a now-defunct Long Beach hospital whose owner, Michael Drobot, later was imprisoned for committing a massive workers’ compensation system scam.

55 year old Lokesh S. Tantuwaya, who lived in San Diego, was sentenced by United States District Judge Josephine L. Staton, who also ordered him to forfeit his ill-gotten gains of $3.3 million.

Tantuwaya pleaded guilty last September to one count of conspiracy to commit honest services mail and wire fraud and to receive illegal payments for health care referrals. He has been in federal custody since May 2021 after he was found to have violated the terms of his pretrial release.

Tantuwaya accepted money from Michael Drobot from 2010 to 2013, who owned Pacific Hospital in Long Beach, in exchange for Tantuwaya performing spinal surgeries at that hospital. The bribe amount varied depending on the type of spinal surgery.

Pacific Hospital specialized in surgeries, especially spinal and orthopedic procedures. Drobot, who in 2018 was sentenced to 63 months in prison for his crimes in this scheme, conspired with doctors, chiropractors and marketers to pay kickbacks and bribes in return for the referral of thousands of patients to Pacific Hospital for spinal surgeries and other medical services paid for primarily through the California workers’ compensation system. During its final five years, the scheme resulted in the submission of more than $500 million in medical bills for spine surgeries involving kickbacks.

In total, Tantuwaya received approximately $3.3 million in illegal payments.

“Despite his privileges at San Diego-area hospitals, [Tantuwaya] caused several patients to travel from Imperial County and San Diego County up to Pacific Hospital for spine surgery so that [Tantuwaya] could get his bribes,” prosecutors argued in a sentencing memorandum.

“This resulted in numerous patient-victims enduring the physical anguish of multi-hour trips after invasive spinal surgeries, in addition [to] dealing with the mental anguish of now wondering whether they needed a surgery, whether the medical hardware drilled into their bones was legitimate hardware, and whether they should have trusted [Tantuwaya] with their lives.”

In April 2013, law enforcement searched Pacific Hospital, which was sold later that year, bringing the kickback scheme to an end.

To date, 23 defendants have been convicted for participating in the kickback scheme.

The FBI, IRS Criminal Investigation, the United States Postal Service Office of Inspector General, and the California Department of Insurance investigated this matter.

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OSIP Reports Public Self-Insured Claim Volume and Losses Soared

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OSIP’s summary of the FY 2021/22 public self-insured data, posted this week, provides an initial snapshot of the volume of claims, total loss payments and total incurred losses for the 12 months ending June 30, 2022. The state compiles the data from workers’ compensation reports submitted by hundreds of public self-insured entities, including cities and counties, local fire, school, transit, utility and special districts, and joint powers authorities. The latest summary shows that in FY 2021/22 these employers provided workers’ compensation coverage to just over 2 million California public workers whose wages and salaries totaled more than $145 billion.

California’s public self-insured workforce increased less than 1% in the 12 months ending June 30, but the total number of public self-insured work injuries and illness claims reported to the state jumped 35%, as the medical-only claim count rose 29.9% while the number of indemnity claims soared by 38.1%.

A CWCI analysis of data from the state’s Office of Self-Insurance Plans (OSIP) shows that with claim volume up steeply, total workers’ compensation paid losses for cities, counties and other public agencies in California increased by 31.5% to a record $585 million in fiscal year (FY) 2021/22, while total incurred losses (paid plus reserves) rose 19.3% to nearly $1.68 billion.

Reviewing OSIP’s initial report data for the past two years, CWCI found that after declining 4.4% in FY 2020/21, the number of public self-insured employees in the state increased 0.9 percent in FY 2021/22, but the number of reported work injury and illness claims among these workers jumped from 107,161 to 144,676 cases – a 35% increase.

With the huge surge in claims – many of which were likely COVID-19 claims according to both CWCI data and the state’s survey of occupational injuries and illnesses – public self-insureds’ total claim payments at the first report increased by $140 million to $585 million, up 31.5% from the comparable figure for FY 2020/21. That was the eighth consecutive increase in total public self-insured paid losses, but in this case it was fueled by the huge jump in claim volume and not an increase in the average amount paid per claim, as an influx of relatively low-cost claims drove first report average paid losses down from $4,152 in FY 2020/21 to $4,043 in FY 2021/22.  

A closer look at the first report payment data on public self-insured indemnity claims shows the average indemnity paid per FY 2021/22 lost-time claim was $4,165, which was down from $4,256 the prior year, but the impact of this reduction on the total amount paid was more than offset by the addition of 25,433 indemnity claims.

With the surge in lost-time cases, indemnity claims’ share of the public self-insured claims increased from 62.3% to 63.7%, while less expensive medical-only claims decreased from 37.7% to 36.3%. Calculating the public self-insured claim frequency rate to control for changes in the work force, CWCI noted that overall claim frequency increased from 5.3 claims per 100 employees (2.0 medical only + 3.3 indemnity) in FY 2020/21 to 7.2 claims per 100 employees (3.3 medical only + 4.6 indemnity) in FY 2021/22.

The incurred loss data (paid losses + reserves for future payments) followed the same pattern as the paid loss data. Comparing first report results from the last two years, CWCI found that public self-insureds’ total incurred losses increased by $271.7 million (19.3%) from $1.41 billion ($733.8 million indemnity + $673.8 million medical) in FY 2020/21 to nearly $1.68 billion ($869.9 million indemnity + $809.5 million medical) in FY 2021/22. With the addition of what appears to have been several thousand relatively low-cost COVID lost-time claims — the average incurred indemnity per indemnity claim at first report fell 14.2% to $9,987, but with 25,433 more indemnity claims in FY 2021/22 than in FY 2020/2021, public self-insured total incurred losses increased by $271.7 million (+19.3%) compared to a year earlier.

In addition to the public self-insured data, OSIP also compiles private self-insured claims data, but it is reported on a calendar year basis, so updated figures from California’s private self-insurers will be released this summer.

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Employer’s Arbitration Motion Fails for Poor Documentation

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Laura Ramos sued her former employer Smile Brands, Inc., for various causes of action pertaining to the termination of her employment. Brands is a dental business, headquartered in Irvine California, with “8,000 dedicated team members at over 650 affiliated dental offices around the United States.” Beginning in 2005, Ramos worked as an office manager for Brands at several offices in the Inland Empire.

Brands moved to compel arbitration. Brands have a software program, named “SmileU,” that they use for human resource documents and employee training. The arbitration agreement was presented as a required document, in a section of SmileU entitled “Courses I Have to Do.”

Upon opening the arbitration agreement, an employee would have needed to scroll through the entire text of the agreement before checking a box at the bottom of the agreement indicating that the employee consented to the terms of the agreement. The arbitration agreement included an opt-out provision that required an opt-out form be mailed to human resources.

In opposing the motion, Ramos asserted, “[T]he Agreement attached to [Brands’ motion] is completely blank, having no date, no timestamp, no signature, no initials, or any other indication it was executed. [Brands] have also attached an excel-type printout [, i.e., the Training Record,] which lists the Agreement as one of several dozen ‘lessons’ that Ms. Ramos supposedly completed. This printout is not credible as there is no signature, date, timestamp or anything establishing its accuracy.”

In a declaration, Ramos declared that she did not sign the arbitration agreement in 2017, and she would not have signed it had she seen it. Ramos declared that she regularly checked the completed documents and courses list in SmileU, and she never saw an arbitration agreement listed there. Ramos declared that the Training Record, filed by Brands, included other errors. For example, the Training Record reflected Ramos completed courses on days she was not at work.

The trial court denied the motion. In its ruling the trial court explained that Phillips’s “declaration does not establish that [Ramos] accessed, reviewed and electronically signed the Arbitration Agreement. [¶] The ‘Mutual Arbitration Agreement’ produced by Brands does not contain an actual ‘electronic signature’ of [Ramos]. [¶] Nowhere in the Arbitration Agreement is [Ramos] identified by name. [¶] Nor does the document contain an electronic signature bearing her name, or any date to show that it is the precise Arbitration Agreement reviewed or signed by [Ramos].”

The Court of Appeal affirmed the trial court in the unpublished case of Ramos v. Smile Brands – E077394 (December 2022).

Brands provided an arbitration agreement without a signature and without a checkmark, but Brands also provided a Training Record reflecting that Ramos’s arbitration agreement was “[c]omplete.” For the sake of argument, the Court of Appeal presumed, without deciding, that such evidence satisfied Brands’ prima facie burden of proof that there was an arbitration agreement between the two parites. At that point, the burden shifted to Ramos.

“In the declaration, Ramos explained that she typically reviews legal documents with her husband and one of her sons, who works in the legal field. In 2012, Brands gave Ramos an arbitration agreement, and she discussed the 2012 arbitration agreement with her husband and son prior to rejecting it. Ramos explained that she would have remembered if she saw the arbitration agreement in 2017 because she had rejected it in 2012 and therefore would have discussed it again with her husband and son. Ramos declared that the first time she saw the 2017 arbitration agreement was when her attorneys showed it to her as part of the instant litigation.“

“The testimony of a single credible witness may constitute substantial evidence.” (Spencer v. Marshall (2008) 168 Cal.App.4th 783, 793.)

“Ramos’s declaration is not a conclusory, self-serving statement. Rather, the declaration includes an explanation as to why Ramos is able to credibly assert that she did not see nor sign the 2017 agreement. In sum, we are not persuaded that Ramos’s evidence is insufficient. To the contrary, it is substantial evidence on which the trial court could reasonably rely.”

“The burden shifted back to Brands to authenticate their evidence of Ramos’s alleged consent.” … “Brands failed to present evidence of who or what created the Training Record and how the Training Record was created or generated.”

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Twice Convicted SoCal Insurance Agent Sentenced for Theft

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70 year old Francis Okyere, a previously licensed insurance agent in Westlake Village California, was sentenced after pleading no contest to 17 felony counts of identity theft and grand theft by false pretenses.

Okyere was sentenced to two years in county jail and to pay restitution in full.

The Department began an investigation after receiving a complaint from one of Okyere’s ex-relatives that he had stolen the identities of several people in order to open a new insurance agency. The Department’s investigation confirmed that Okyere stole the identities of four victims, in order to open Cyber Access Insurance Agency. The victims’ identities were also used on small business loan applications to fund the fraudulent agency.

The Department’s investigation discovered Okyere had also applied for a series of Small Business Administration and Paycheck Protection Program loans, the federal program to help businesses during the COVID-19 pandemic. The documents related to those loans revealed two of the same stolen victims’ identities had been used to fraudulently secure loan funds in the amount of $38,963. Okyere used the same stolen identities when he applied for forgiveness of one of the loans. Okyere was arrested August 18, 2022.

Okyere’s alleged accomplice, Holly Freeman, 40, was also arrested and charged with four counts of felony identity theft for her alleged involvement in the same scheme.

This is the second time accusations have been brought against Okyere, who has previously been convicted of grand theft following another Department of Insurance investigation which found he stole $65,456 in insurance premiums from small business owners.

The charges in the earlier case arose from an investigation by the Department of Insurance’s Investigation Division, Valencia Regional Office, into multiple complaints filed by clients of Okyere alleging that their insurance policies were canceled despite paying Okyere for the coverage.

The investigation revealed that, between July 2015 and September 2016, Okyere misappropriated at least $65,456 in insurance premiums payments from four small business owners and used those funds for his personal benefit.

Okyere’s actions left the business owners uninsured against potential liability and workers compensation claims.

The Department ordered Okyere to surrender his license in 2019.

The second case was prosecuted by the Healthcare Fraud Division of the Los Angeles County District Attorney’s Office.

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Court Rules on “Contentious” Med-Legal Associates Litigation With QME

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In 1983, while he was a medical resident, Dr. Bruce E. Fishman was named in a Michigan federal indictment; and he later pled guilty to a single count of conspiracy to distribute a controlled substance. His medical license was revoked in both California and Michigan. After he applied for California reinstatement in 1989, his license was reinstated.

In 2003, Dr. Fishman applied to the Division of Workers’ Compensation to become a QME, and was appointed to be a QME and then reappointed several times thereafter.

In 2008, Dr. Fishman entered into a relationship with Green Lien Collections, Inc., a company owned by Patrick Nazemi. In 2011, Nazemi formed Med-Legal Associates Inc., with the intent to provide management services to med-legal providers. Dr. Fishman entered into a management services agreement with them in November 2012. Thereafter the relationship between them “deteriorated.” At this point, three relevant separate and independent procedural timelines begin: 1) an arbitration between Fishman and Med-Legal; 2) a Qui Tam action against Fishman filed by Nazemi organizations; and 3) the suspension of his QME status by the DWC presumably prompted by a letter send on behalf of Nazemi organizations.

With regard to the first arbitration timeline, after a five-day hearing, in February 2017, the arbitrator issued a final award in favor of Fishman. Med-Legal’s petition to vacate the arbitration award was denied, and judgment was entered in favor of Fishman. Med-Legal appealed, and on March 8, 2019, the Court of Appeal affirmed the judgment.

With regard to the third timeline involving the suspension of Dr. Fishman’s QME status by the DWC, Dr. Fishman filed a petition for writ of mandate, asking the trial court to set aside the adverse decision. In August 2021, the trial court granted his petition for writ of mandate and set aside the DIR’s suspension order. In so ruling, the trial court found that the DIR “prejudicially abused its discretion by failing to consider all relevant facts in connection with its determination of [Dr. Fishman’s] crime is substantially related to the qualification, functions and duties of a provider of services in the workers’ compensation system. By failing to consider all relevant facts – not just the crime – [the DIR] failed to proceed as required by law.”

The instant appeal concerns the second timeline on the Insurance Fraud Prevention Act (IFPA) Qui Tam action against Dr. Fishman. On June 16, 2020, Fishman filed a motion for judgment on the pleadings, seeking dismissal of the sole remaining cause of action for violation of the IFPA, which was ultimately granted by the trial court, finding that the sole remaining cause of action was barred by the doctrine collateral estoppel because of the arbitration decision. Attorney fees were awarded to Dr. Fishman in the amount of $197,500.

The trial court concluded its IFPA dismissal ruling with the following observations: “Ultimately, one lesson emerges from a review of the history of this case and the many other cases in which the Relator sought damages from Dr. Fishman: persistence is one thing; persecution is another. Unfortunately, this case goes well beyond persistence into the realm of persecution.” And further added that “It is time to put this sad and pathetic litigation to an end.”

The Court of Appeal reversed the unpublished case of State of California v. Fishman – B307407 (December 2022).

The Opinion commenced by noting “This appeal is just one slice of contentious litigation….” between Nazemi and his entities and Dr. Fishman.

The appeal concerns three issues resulting from the judgment in the underlying qui tam action: (1) The propriety of the trial court’s order granting Fishman’s motion for judgment on the pleadings; (2) Whether the trial court abused its discretion in awarding Fishman attorney fees; and (3) The correctness of the trial court’s order adding Nazemi and GLC Operations as judgment debtors.

“Regarding the arbitration decision, there are at least two elements of collateral estoppel not satisfied. First, it is unclear whether the issue in the qui tam proceeding is the same as the one at issue in the arbitration case.” Thus for this an other reasons, it was concluded that the trial court erroneously granted Fishman’s motion for judgment on the pleadings.

The Court of Appeal concluded the Opinion with this remark, “the appellate record of this appeal and the prior one have the earmarks of malice; it does seem that (1) Nazemi has a personal vendetta against Dr. Fishman, (2) Nazemi is controlling the corporate entities and directing the litigation, and (3) several judicial or quasi-judicial entities that have weighed in on the question of Dr. Fishman’s honesty have determined that, in that particular case, he did not commit fraud. Unfortunately, given the procedural posture of this case and based upon what is presented in this appellate record, we cannot conclude that judgment can be entered at this time.”

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Dignity Health and Tenet Healthcare Agree to Pay $22.5M for False Claims

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Several Central Coast health care providers have agreed to pay a total of $22.5 million to resolve allegations that they violated federal and California law by causing the submission of false claims to Medi-Cal related to Medicaid Adult Expansion under the Patient Protection and Affordable Care Act (ACA).

Dignity Health, a not-for-profit health system that owns and operates three hospitals and one clinic in Santa Barbara and San Luis Obispo counties, entered into one agreement with the United States and the California. The second settlement agreement resolves allegations against Twin Cities Community Hospital and Sierra Vista Regional Medical Center, two acute healthcare facility subsidiaries of Tenet Healthcare Corporation operating in San Luis Obispo County.

Pursuant to the ACA, beginning in January 2014, Medi-Cal was expanded to cover the previously uninsured “Adult Expansion” population – adults between the ages of 19 and 64 without dependent children with annual incomes up to 133% of the federal poverty level. The federal government fully funded the expansion coverage for the first three years of the program. Under contracts with California’s Department of Health Care Services (DHCS), if a California county organized health system (COHS) did not spend at least 85% of the funds it received for the Adult Expansion population on “allowed medical expenses,” the COHS was required to pay back to the state the difference between 85% and what it actually spent. California, in turn, was required to return that amount to the federal government.

The two settlements resolve allegations that Dignity, Twin Cities and Sierra Vista knowingly caused the submission of false claims to Medi-Cal for “Enhanced Services” that Dignity purportedly provided to the Adult Expansion patients of a COHS between February 1, 2015 and June 30, 2016, and that Twin Cities and Sierra Vista purportedly provided to such patients between January 1, 2014 and April 30, 2015.

The United States and California alleged that the payments were not “allowed medical expenses” permissible under the contract between DHCS and the COHS; were pre-determined amounts that did not reflect the fair market value of any Enhanced Services provided; and/or the Enhanced Services were duplicative of services already required to be rendered. The United States and California further alleged that the payments were unlawful gifts of public funds in violation of the California Constitution.

As a result of its settlement, Dignity will pay $13.5 million to the United States and $1.5 million to the State of California. Twin Cities and Sierra Vista have agreed to pay $6.75 million to the United States and $750,000 to the State of California.

The civil settlements include the resolution of claims brought under the qui tam, or whistleblower, provisions of the federal False Claims Act by Julio Bordas, the former medical director of the COHS that contracted with Dignity, Twin Cities and Sierra Vista for the provision of health care services under Medi-Cal. Under the act, a private party can file an action on behalf of the United States and receive a portion of any recovery. Mr. Bordas will receive $3.9 million as his share of the federal recovery.

The resolution obtained in this matter was the result of a coordinated effort between the United States Attorney’s Office; the Justice Department’s Civil Division, Commercial Litigation Branch, Fraud Section; and the California Department of Justice. HHS-OIG and DHCS provided substantial assistance.

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Six Major Pharmacies Settle WC Prescription Overcharge Claims for $16M

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Massachusetts Attorney General Maura Healey announced that retail pharmacy provider Walmart, Inc. has agreed to pay $500,000 after allegedly failing to follow prescription pricing procedures that are in place to keep costs down and prevent overcharges in the workers’ compensation insurance system.

This case is part of an ongoing review by the Attorney General’s Office into prescription pricing procedures in the workers’ compensation system. AG Healey has now reached settlements with Walmart, Express Scripts, Optum Rx, Walgreens, Stop & Shop, and United Pharmacy for workers’ compensation drug pricing violations totaling over $16 million.

The pricing procedures, required by Massachusetts regulations, ensure that prescription costs will be reviewed against certain regulatory benchmarks. According to the assurance of discontinuance, filed this week in Suffolk Superior Court, Walmart allegedly failed to follow those regulations when applying prices for various injured worker prescriptions from 2016 to the present, at Walmart pharmacy locations in Massachusetts.

Under Massachusetts’ Workers’ Compensation system, when employees are hurt on the job, they are entitled to lost wages, compensation for injuries, and payments for certain injury-related expenses. The system sets limits for the cost of prescriptions for injured workers and requires companies to validate prices against certain regulatory benchmarks before processing their charges, such as the Federal Upper Limit for Medicare and the Massachusetts Maximum Allowable Cost.

On November 7 the Attorney General announced that Pharmacy Benefits Manager, Express Scripts, Inc., has agreed to pay $3.2 million after allegedly failing to follow prescription pricing procedures. The terms of the AG’s settlement require Express Scripts to implement procedures to prevent overcharges in the workers’ compensation insurance system. The settlement also ensures that Express Scripts will cooperate with the AG’s Office’s monitoring of the company’s future regulatory compliance.  

Last February the AG announced that Pharmacy benefits manager, Optum Rx, Inc., has agreed to pay $5.8 million after allegedly failing to follow workers’ compensation prescription pricing procedures. The settlement, filed in Suffolk Superior Court, resolves allegations that Optum Rx, in some circumstances, failed to apply various regulatory benchmarks – like the Federal Upper Limit for Medicare and the Massachusetts Maximum Allowable Cost – to its pricing determinations for certain workers’ compensation insurance prescription drug charges. These failures, according to the settlement, allegedly occurred on various injured worker prescriptions filled in Springfield, New Bedford, Boston and Worcester at Walgreens, CVS, and RiteAid locations.

In February 2019 the AG announced that Walgreens has entered into two separate settlement agreements to resolve allegations that it overcharged MassHealth for prescriptions. These settlements both arise from qui tam (whistleblower) actions originally filed in the United States District Court for the Southern District of New York under the federal False Claims Act. Walgreens is a national pharmacy chain with over 260 locations in Massachusetts. .

These cases were handled by staff from Attorney General Healey’s Insurance and Financial Services Division, including Glenn Kaplan, Dr. Burt Feinberg, and Gia Kim.

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