Author: WorkCompAcademy

Federal OSHA recently enacted a vaccine mandate for much of the Nation’s work force. The mandate, which employers must enforce, applies to roughly 84 million workers, covering virtually all employers with at least 100 employees. Many States, businesses, and nonprofit organizations challenged OSHA’s rule in Courts of Appeals across the country. The litigation efforts to stop the mandate ultimately ended up in the US Supreme court which heard oral arguments on the issues, and published a ruling in the case of National Federation of Independent Businesses v OSHA.

The 6-3 majority of Justices ruled against the OSHA imposed vaccine mandate finding that “Applicants are likely to succeed on the merits of their claim that the Secretary lacked authority to impose the mandate. Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided. The Secretary has ordered 84 million Americans to either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense. This is no ‘everyday exercise of federal power.’ “

The dissenting opinion said that OSHA’s mandate is comparable to a fire or sanitation regulation imposed by the agency. But the majority responded that “a vaccine mandate is strikingly unlike the workplace regulations that OSHA has typically imposed. A vaccination, after all, ‘cannot be undone at the end of the workday.’ “

“We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”  And the opinion added that “Although Congress has indisputably given OSHA the power to regulate occupational dangers, it has not given that agency the power to regulate public health more broadly,” Requiring the vaccination of 84 million Americans, selected simply because they work for employers with more than 100 employees, certainly falls in the latter category.”

President Biden responded to the ruling by saying “I am disappointed that the Supreme Court has chosen to block common-sense life-saving requirements for employees at large businesses that were grounded squarely in both science and the law,” And he concluded by saying that “The Court has ruled that my administration cannot use the authority granted to it by Congress to require this measure, but that does not stop me from using my voice as President to advocate for employers to do the right thing to protect Americans’ health and economy,”

However in the companion case of Biden v Missouri, the 5-4 majority approved the HHS/CMS omnibus rule mandating that medical facilities nationwide order their employees, volunteers, contractors, and other workers to receive a COVID-19 vaccine.

The majority reasoned that “COVID-19 is a highly contagious,dangerous, and – especially for Medicare and Medicaid patients – deadly disease. The Secretary of Health and Human Services determined that a COVID-19 vaccine mandate will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients.”

They concluded that the HHS/CMS rule “thus fits neatly within the language of the statute. After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm.”

In June 2014, while Atkinson Construction LP’s employees were erecting “falsework” near the I-405/I-605 interchange in Seal Beach for a new freeway bridge, an accident occurred, which seriously injured one of it’s employees.

Specifically, a forklift attempting to position a long steel beam atop two vertical falsework structures, known as “bents,” accidentally hit another beam, causing that beam and another to overturn and fall off the bents. Each of the steel beams weighed approximately 60,000 pounds.

As the beams collapsed Ramon Torres, an employee standing on one of the bents fell nearly 30 feet to the ground. Torres suffered serious physical injuries from the fall.

After an investigation, the Division cited Atkinson for violating a construction safety order – section 1709, subdivision (b)(1) – that requires beams to be “braced laterally and progressively” to prevent overturning.

Atkinson appealed the citation, but the Occupational Safety and Health Appeals Board denied the appeal. It then filed a petition for a writ of administrative mandate in the superior court which also was denied.

Atkinson appealed the denial of its writ petition, arguing that (1) the cited safety order does not apply because another, more specific, safety order governs falsework operations; and that (2) it complied with the more specific safety order. The Court of Appeal was not persuaded by these arguments, and affirmed the citation in the unpublished case of Atkinson Construction LP v. DIR Division of Occupational Safety and Health.

Atkinson requested the court of appeal to review the regulatory history of section 1709, subdivision (b)(1). However the court found no basis for doing so. The language clearly states that “[t]russes and beams shall be braced laterally and progressively during construction to prevent buckling or overturning.” (§ 1709, subd. (b)(1).) There is no ambiguity in the text to justify an inquiry into its regulatory history.

Despite the safety order’s plain language, Atkinson argues that section 1709 does not apply to falsework operations. It contends that falsework is a “separate and distinct” type of construction, with its own specific safety order (section 1717), and therefore the absence of any reference to falsework in section 1709 necessarily implies that it applies only to nonfalsework construction.

Prior Board decisions establish that more than one safety order may apply to a particular set of facts, even when the construction involves falsework. Here, section 1709 is part of the specific industry safety orders promulgated for the construction industry. Such construction safety orders establish minimum safety standards that apply to any employment “in connection with the construction, alteration, painting, repairing, construction maintenance, renovation, removal, or wrecking of any fixed structure or its parts.”

Thus, Atkinson’s falsework operations were covered by the construction safety orders, including section 1709.

UC San Diego Health, the academic health system of the University of California, San Diego, has paid $2.98 million to resolve allegations that it violated the False Claims Act by ordering medically unnecessary genetic testing reimbursed by Medicare, the Justice Department announced today.

The settlement resolves allegations that, from December 2015 to October 2019, UC San Diego Health ordered and submitted referrals for medically unnecessary genetic testing performed by CQuentia Arkansas Labs, CQuentia NGS, and Total Diagnostic II (collectively “the CQuentia labs”). The government alleged that this conduct led to the submission of false claims for payment to Medicare for unnecessary genetic testing.

UC San Diego Health did not admit any liability as part of the settlement, which allowed the provider to continue to focus on patient care, said UC San Diego Health spokesperson Jacqueline Carr.

“Working at the forefront of patient care sometimes involves the use of new technologies from emerging companies. When UC San Diego Health learned that the Department of Justice had concerns about one of our technology providers, we fully cooperated and promptly resolved the matter,” Carr said in a statement. “The DOJ’s settlement announcement alleges that our doctors ordered tests from a company that then allegedly made false claims about those orders.”

“UC San Diego Health remains committed to integrating the leading best practices and technology into our research, teaching and patient care missions, in accordance with the highest standards of ethical conduct and all applicable laws and regulations,” Carr added.

Tennessee-based C Quentia has since apparently gone out of business.as it’s Website simply states “C Quentia has been closed” and tells previous customers how to obtain medical records.

The resolution obtained in this matter was the result of a coordinated effort between the Civil Division’s Commercial Litigation Branch, Fraud Section, and the U.S. Attorney’s Office for the Southern District of California, with assistance from the U.S. Department of Health & Human Services Office of Inspector General and the FBI.

“Ordering unnecessary genetic tests creates a drain on vital government-funded health care programs like Medicare,” said U.S. Attorney Randy Grossman. “This settlement is another example of this office’s commitment to work with our law enforcement partners to hold medical providers accountable when their conduct leads to taxpayers bearing the cost of improper billing practices.” Grossman thanked the prosecution team and investigators for their excellent work on this case.

“Hospitals are the gatekeepers for medical care and are expected to ensure that all services performed at their direction, including genetic tests, are medically appropriate,” said Acting Assistant Attorney General Brian M. Boynton for the Justice Department’s Civil Division. “The department will continue to pursue those who undermine the integrity of federal health care programs and waste taxpayer dollars.”

This matter was handled by Nicholas C. Perros of the Civil Division’s Commercial Litigation Branch, Fraud Section, and Assistant U.S. Attorneys Joseph Price and Joseph Purcell of the U.S. Attorney’s Office for the Southern District of California.

The claims resolved by the settlement are allegations only, and there has been no determination of liability.

California’s courts would see a sizable funding boost as part of Governor Gavin Newsom’s $4.9 billion judicial branch budget package that reflects a commitment to cybersecurity and other tech investments.

According to the report by Courthouse News, the proposal includes $34.7 million for electronic filing, digitizing records and updating case management software in fiscal year 2022-23, with plans to increase that amount to $40.3 million in fiscal year 2025-26.

It also devotes $33.2 million for better access to remote proceedings each year for two years, with $1.6 million in ongoing funding thereafter. “These resources will be used to provide a publicly accessible audio stream for every courthouse in the state,” Newsom said.

Cybersecurity and remote technology have taken center stage as courts moved proceedings online during the Covid-19 pandemic, a change made all the more permanent with the passage of Assembly Bill 716 last year. AB 716 requires courts to provide streaming audio or a public call-in line when courthouses close for public health reasons.

Discussing budget priorities with reporters in December, Judicial Council administrative director Martin Hoshino said “There’s a big year coming up for the trial courts. In this window in time we see the courts are still dealing with pandemic impacts, trying to safety operate and having some limited operational capacities. At the same time they have to groove and balance two modes of operation, which are in-person and remote stuff that people have pivoted to during the pandemic. We’re pushing hard for funds to be able to support so we can find our way through that in this particular year,”

The budget proposal also provides funding for other online services, like $2.6 million in 2022-23 and $1.7 million ongoing for electronic filing systems for domestic and gun violence restraining orders.

Newsom also assigned $15 million in general fund dollars to “timely and accurate data collection” from trial and appellate courts, saying, “This investment will enhance the ability of all three branches of government to assess court programs and resource needs.”

Criminal fines and accompanying administrative fees have historically been a leading source of court funding for the courts – adding $1 billion in revenue in 2020-21. But with the support of Chief Justice Tani Cantil-Sakauye, Newsom and his predecessor Jerry Brown have sought to eliminate what they see as undue burdens on the poor.

Other funds include $42.6 million in 2022-23 and $42.3 million ongoing to hire 23 state court judges, funding for new courthouses in Fresno, Santa Clarita, Fairfield, Quincy, and San Luis Obispo, as well as three projects already approved by the council — a new courthouse in Mendocino County and renovations to juvenile facilities in San Bernardino and Butte counties.

Newsom’s proposal drew an initial positive reaction from the chief justice on Monday. “I welcome the governor’s continuing commitment to sustainable funding in his budget proposal for the judicial branch. He clearly recognizes how important equal access to justice is for all Californians,” she said in a statement. “We look forward to working on this landmark budget proposal with his administration and the Legislature in the next few months as the budget becomes finalized.”

The California Department of Public Health issued guidance that allows health care networks to enable COVID-19-positive employees to keep working if they don’t show any symptoms.

“The department is providing temporary flexibility to help hospitals and emergency services providers respond to an unprecedented surge and staffing shortages. Hospitals have to exhaust all other options before resorting to this temporary tool. Facilities and providers using this tool, should have asymptomatic COVID-19 positive workers interact only with COVID-19 positive patients to the extent possible,” the Department of Public Health said in a statement to news outlets over the weekend.

The Epoch Times contacted the agency for comment.

Health care workers in the state now don’t have to isolate or show a negative COVID-19 test, the guidance said, before coming back to work if they are asymptomatic. The guidance, which remains in effect until Feb. 1, stipulates that staff wear N95 respirator masks while on the job.

After the guidance was handed down, several unions that represent nurses and other hospital staff expressed alarm.

“Healthcare workers and patients need the protection of clear rules guided by strong science. Allowing employers to bring back workers who may still be infectious is one of the worst ideas I have heard during this pandemic, and that’s really saying something,” Bob Schoonover, the head of union SEIU California, told CBS Sacramento.

Schoonover added that while his union supports “supplemental paid sick leave,” the latest guidance imperils a “critical piece of the protection that workers and the public need.”

The president of the California Nurses Association, Sandy Reding, told local media that the California health department’s guidance will put patients at risk.

“We are very concerned,” she told KNTV news. “If you have health care workers who are COVID positive care for vulnerable populations, we can spread the COVID virus inside the hospital as well.”

Union officials did not mention the rampant staffing issues that have plagued hospitals across the United States and California in recent days.

Health giant Kaiser Permanente suspended more than 2,000 employees who were not vaccinated in October. Other California systems such as Santa Clara Valley Medical Center and Sutter Health also terminated or suspended their employees who weren’t vaccinated in the fall of 2021.

Meanwhile, Dr. George Rutherford, professor of Epidemiology at the University of California San Francisco, told KNTV that the guidance revision isn’t anything new.  “This is about having infected people taking care of infected people. We did this with Ebola in South Africa. We’ve done it before. It’s not the first play option in our playbook. I think staffing issues are such that it led the state to put this guidance out,” he told the outlet.

It comes days after the Newsom administration mandated that booster shots be given to certain health care staffers by Feb.