Author: WorkCompAcademy

According to survey data collected by the American Physical Therapy Association (APTA), the job vacancy rate for physical therapists in outpatient settings last year was 17%.

The “Hiring Challenges in Outpatient Physical Therapy Practice” report is based on analysis of survey responses from 133 outpatient physical therapy practices across the U.S. representing 2,615 clinics and nearly 11,000 full-time equivalent employee positions that included PTs, PTAs, and support staff. In terms of practice size, 62% of respondents were practices with between one and four sites; 4.7% reported owning more than 50 sites. The survey was conducted between May 25 and June 16 in collaboration with Vault Consulting.

In broad terms, the report reveals that the coronavirus pandemic ramped up an already-existing shortage of personnel in outpatient clinics, but that relocation and pay – rather than concerns about the pandemic – are the main factors driving employees’ decisions to leave a clinic. The result: vacancy rates that have reached “significant” levels, according to the report.

Among the findings:

– – The total vacancy rate reported by practices averaged 16%. Vacancy rates were highest for PTs, at 17%, followed by 14% for support personnel, and 13% for PTAs. Nearly 80% of respondents reported at least a 5% vacancy rate across all positions.
– – When asked to compare the number of job openings they had before the pandemic with current openings, 60% of respondents said vacancies had increased, with 40% of those estimating that vacancies had grown by 50% or more since 2019.
– – Nearly 41% of practices reported more turnover in the first part of 2022 compared with the same time period in 2019, with 18.5% reporting less turnover in 2022 compared with 2019.
– – When asked to rank why they think employees left their clinics, 37.3% of the business owners cited relocation as the primary reason, with 67.8% placing it in the top three reasons they lost employees. Pay was also a frequently cited reason for leaving, with 25.4% of respondents saying it was the primary reason for employee loss and 63.5% placing it among the top three.
– – Work-life balance figured heavily into the owners’ perceptions of why they lost employees, with 77.1% of respondents placing the issue in the top three reasons, and 22.9% saying it was the primary reason for employee loss.
– – Respondents believe that concerns about COVID-19 did not play a big factor in employee loss, with only 1.7% of owners saying it was the primary reason and 11.9% placing those concerns among the top three reasons for leaving.

Wait times are generally long across the nation, as patients tell of waiting weeks or even months for appoint-ents while dealing with ongoing pain or post-surgical rehab. But the crunch is particularly acute in rural areas and places with a high cost of living, like California, which has a lower ratio of therapists to residents – just 57 per 100,000, compared with the national ratio of 72 per 100,000, according to the association.

A follow up report by California Healthline said that the reasons are multifold. The industry hasn’t recovered from the mass defection of physical therapists who fled as practices closed during the pandemic. In 2021 alone, more than 22,000 PTs – almost a tenth of the workforce – left their jobs, according to a report by the health data analytics firm Definitive Healthcare.

And just as baby boomers age into a period of heavy use of physical therapy, and covid-delayed procedures like knee and hip replacements are finally scheduled, the economics of physical therapy are shifting. Medicare, whose members make up a significant percentage of many PT practices’ clients, has cut reimbursement rates for four years straight, and the encroachment of private equity firms – with their bottom-line orientation – means many practices aren’t staffing adequately.

There’s a shortage of physical therapists in all settings, including hospitals, clinics, and nursing homes, and it’s likely to continue for the foreseeable future, said Justin Moore, chief executive of the physical therapy association. “Not only do we have to catch up on those shortages, but there are great indicators of increasing demand for physical therapy,” he said.

Employers’ arbitration rights in California have been eroding. In recent years, there have been a number of legal challenges to the use of mandatory arbitration agreements in employment disputes, and some of these challenges have been successful. For example, in 2019, California Governor Gavin Newsom signed Assembly Bill 51 (AB 51) into law, which prohibited employers from requiring employees to sign arbitration agreements as a condition of employment.

However, this law was preempted by the Federal Arbitration Act (FAA) in the case of Chamber of Commerce v. Bonta. The Ninth Circuit Court of Appeals ruled in February 2023 that AB 51, which prohibited employers from requiring employees to sign arbitration agreements as a condition of employment, was preempted by the FAA. The court held that AB 51’s deterrent effect on arbitration agreements conflicted with the FAA’s policy of favoring arbitration.

And yet another highly controversial new law has just been been passed in California that again seeks to limit employers rights to appeal disputes about a trial court decision to mandate arbitration of employer-employee disputes. Governor Newsom has singed SB 365 into law.

Under existing law, Code of Civil Procedure Section 1294 identifies various orders or judgements which may be appealed by an aggrieved party, including an order dismissing or denying a petition to compel arbitration.

Code of Civil Procedure Section 916 further provides that, subject to exceptions, the perfecting of such an appeal stays proceedings in trial court. That is to say, when a party is denied in their effort to compel arbitration, upon their appeal, the court proceedings to adjudicate the underlying conflict are postponed until the appeal is decided.

SB 365 adds the sentence ” Notwithstanding Section 916, the perfecting of such an appeal shall not automatically stay any proceedings in the trial court during the pendency of the appeal” to CCP Section 1294. Thus, as of January 1, 2024, in the event a trial court declines to compel an employer’s motion to arbitrate a dispute with employees, and the employer appeals that denial, a stay of the proceeding in the trial court will no longer be an automatic protection of the employer’s rights.

The author of this law claimed that “SB 365 gives courts the discretion to prevent corporations from using a common delay tactic against workers and consumers – in both private and public enforcement actions – when a court has determined that a particular case cannot not be sent to arbitration. Current law allows corporate defendants to pause a consumer, government, or worker’s case by simply filing an appeal of a trial court’s denial of a motion to compel arbitration. Through this process, powerful corporations delay cases filed against them for typically one to three years.”

Earlier in this year, the California Chamber of Commerce added SB 365 to its 2023 Job Killer List and urged the legislature and the Governor to not allow it to become law. The Chamber’s efforts were not successful.

Nonetheless, this new law will likely be challenged for the same reasons as were successful in the Chamber of Commerce v Bonta litigation against AB 51 in February 2023.

At the federal level, California is under the jurisdiction of the 9th Circuit Court of Appeals which followed its 1990 precedent, under which an appeal from the denial of a motion to compel arbitration does not automatically stay district court proceedings. See Britton v. Co-op Banking Group, 916By contrast, however, most other Courts of Appeals to address the question have held that a district court must stay its proceedings while the interlocutory appeal on the question of arbitrability is ongoing. E.g., Bradford-Scott Data Corp. v. Physician Computer Network, Inc., 128 F. 3d 504, 506 (CA7 1997). F. 2d 1405, 1412 (1990).

To resolve that disagreement among the Courts of Appeals,last June the Supreme Court of the United States held that a district court must stay its proceedings while an interlocutory appeal on the question of arbitrability is ongoing in the case of Coinbase Inc., v Bielski – 22-105_5536 (June 2023). It concluded that “An appeal, including an interlocutory appeal, ‘divests the district court of its control over those aspects of the case involved in the appeal.”  This conclusion was supported by the Supreme Court’s interpretation of the Congressional intent in creating the Federal Arbitration Act which preempts state law. This conclusion was supported by a 1982 Supreme Court case, Griggs v. Provident Consumer Discount Co., in which the justices explained that an appeal “divests” a federal trial court of control “over those aspects of the case involved in the appeal.”

SB 365 is therefore at odds with Section 16(a) of the Federal Arbitration Act which sets up a “one-way” right to an immediate (“interlocutory”) appeal: The party seeking arbitration can appeal immediately if the trial court refuses to order arbitration, but the party opposing arbitration has no similar right if the trial court does order arbitration. And under the Coinbase decision, a stay of the trial court is automatic. It would seem that it is more likely than not that a challenge to SB 365 would be successful.

Prema Thekkek, her Vacaville-based management company, Paksn Inc., and six skilled nursing facilities (SNFs) owned by Thekkek and/or operated by Paksn have agreed to enter into a $45.6 million consent judgment to resolve allegations that they submitted or caused the submission of false claims to Medicare by paying kickbacks to physicians to induce patient referrals.

The six settling SNFs are Kayal Inc. (doing business as Bay Point Healthcare Center), Nadhi Inc. (doing business as Gateway Care & Rehabilitation Center), Oakrheem Inc. (doing business as Hayward Convalescent Hospital), Bayview Care Inc. (doing business as Hilltop Care and Rehabilitation Center), Aakash Inc. (doing business as Park Central Care & Rehabilitation Center) and Nasaky Inc. (doing business as Yuba Skilled Nursing Center) (collectively the SNF Defendants).

The Anti-Kickback Statute prohibits offering or paying remuneration to induce the referral of items or services covered by Medicare, Medicaid and other federally funded health care programs. It is intended to ensure that medical decision-making is based on the best interests of patients and not compromised by improper financial incentives to providers.

From 2009 to 2021, the SNF Defendants, under the direction and control of Thekkek and Paksn, systematically entered into medical directorship agreements with physicians that purported to provide compensation for administrative services, but in reality were vehicles for the payment of kickbacks to induce the physicians to refer patients to the six SNFs. Specifically, the defendants hired physicians who promised in advance to refer a large number of patients to the SNFs, paid physicians in proportion to the number of their expected referrals and terminated physicians who did not refer enough patients.

On one occasion, a Paksn employee told Thekkek that two physicians were being hired because “they are promising at least 10 patients for $2000 per month,” to which Thekkek responded, “good job. Make sure they give you patients everyday. [W]e can also expand to other buildings with them, if possible.”

On another occasion, an employee informed Thekkek that the defendants previously had paid a certain doctor “$1500 each month and he only send [sic] us 2 patients[,] so we didn’t pay him anything from Jan[uary] onwards.”

On a third occasion, Thekkek rejected a proposed stipend for a new medical director, explaining that the defendants had paid the previous medical director that amount because “we were getting admission[s] from him,” whereas she did not expect the new medical director to refer many patients. More generally, Thekkek complained that if her employees did not pay medical directors promptly every month, “[t]hese doctors will not give us patients.”

Under the settlement, n addition to entering into a $45,645,327.25 consent judgment, the defendants will make scheduled payments to the United States of at least $385,000 over the next five years. That payment schedule was negotiated based on the defendants’ lack of ability to pay.

The settlement stems from a whistleblower complaint filed in 2015 by Paksn’s former Vice President of Operations and Chief Operating Officer, Trilochan Singh, pursuant to the qui tam provisions of the False Claims Act, which permit private persons to bring a lawsuit on behalf of the government and to share in the proceeds of the suit. The Act also permits the government to intervene and take over the lawsuit, as it did in this case as to some of Singh’s allegations.

In addition to resolving their False Claims Act liability, the defendants have entered into a five-year corporate integrity agreement with the HHS-OIG which requires, among other compliance obligations, an Independent Review Organization’s review of their physician relationships.

KFF Health News reports that the Biden administration’s first major step toward imposing limits on the pharmacy benefit managers who act as the drug industry’s price negotiators is backfiring. Instead, it’s adding to the woes of the independent drugstores it was partly designed to help.

PBMs have long clawed back a fee from pharmacies weeks or months after they dispense a drug. A new rule, which governs Medicare’s drug program, is set to take effect Jan. 1 and requires PBMs to take most of their “performance fees” at the time prescriptions are filled.

The clawbacks have ballooned from about $9 million in 2010 to $12.6 billion in 2021, according to the Medicare Payment Advisory Commission, an agency created to advise Congress on the program for people who are 65 and older or have disabilities. Performance fees have also boosted Medicare patients’ prescription costs at the pharmacy counter by hundreds of millions of dollars, although insurers assert that the fees enable them to charge lower premiums.

Pharmacist groups supported the Medicare rule change, but they didn’t anticipate the PBMs’ response, which has been to demand they accept new contracts with draconian cuts to their payments for dispensing medicines, said Ronna Hauser, vice president of the National Community Pharmacists Association, which represents independent drugstores. If pharmacies refuse the contracts, they risk losing Medicare customers – likely to the same giant PBM conglomerates, which have absorbed a growing share of the pharmacy business in recent years.

PBMs sit at the center of the U.S. supply chain for drugs, where they say they negotiate lower prices for insurers – including Medicare – and for employers and their workers. But the organizations are loathed by independent drugstores, drugmakers, and patients alike, who accuse them of siphoning money from what is already the world’s most expensive health care system without providing additional value.

PBM practices even put the squeeze on national chains like Rite Aid, Kroger, and Walgreens, which aren’t part of the conglomerates. Even CVS Health, which owns one of the three leading PBMs, has closed stores or trimmed staff as it pushes consumers to mail-order pharmacy services.

In the early fall, PBM giant Express Scripts sent out confidential contracts announcing that in 2024 it will pay pharmacies roughly 10% below what they typically pay to buy wholesale brand-name drugs – meaning they could lose money on every prescription they fill, according to two independent pharmacists who received the documents. They declined to share the contracts because they are subject to nondisclosure agreements with Express Scripts.

For the first months of 2024, pharmacies will face a double whammy. PBMs will pay them less for the drugs they dispense, while the pharmacies also face clawbacks on drugs dispensed in the last quarter of 2023.

Some pharmacies are setting aside savings or taking out short-term loans to cover losses in the early months of next year. “I’m hoping we’ve made the right calculations and will get through this,” said Marc Ost, co-owner of Eric’s Rx Shoppe in Horsham, Pennsylvania.

Express Scripts has said it wants to help independent pharmacies survive, Doug Hoey, CEO of the National Community Pharmacists Association. said, but hasn’t responded to a June letter in which he asked the company to provide breathing space by imposing the 2023 clawbacks gradually over 12 months. CMS this month said it “strongly recommends” but does not require PBMs to come up with payment plans for pharmacies.

In its statement, Express Scripts said it was “committed to reimbursing pharmacies fairly, ensuring Medicare beneficiaries have safe, quality pharmacies in their network, and giving beneficiaries all available discounts at the pharmacy counter.”

Scott Shaw, a former San Jose State University (SJSU) Director of Sports Medicine, was sentenced to serve 24 months in prison for unlawfully touching female student-athletes under the guise of providing medical treatment. The sentence was handed down by the Honorable Beth Labson Freeman, United States District Judge for the Northern District of California.

Shaw pleaded guilty to the charges on August 15, 2023. As part of the plea agreement, Shaw admitted that, between 2017 and 2020, he violated the civil rights of four students who played on women’s athletics teams by touching their breasts and buttocks without their consent and without a legitimate medical purpose.

According to court documents, from 2008 until August 2020, Shaw served as the Director of Sports Medicine and head athletic trainer at SJSU, a public university that is part of the California State University system, and was an employee of the State of California. His duties included treating injuries sustained by student-athletes at SJSU.

Shaw admitted that he engaged in all the conduct described above on SJSU’s campus, and in his capacity as an SJSU athletic trainer. Shaw admitted that female student-athletes allowed him to have physical contact with them only because of his status as an SJSU athletic trainer.

Shaw further acknowledged that female student-athletes sought treatment from him because they were in pain, seeking relief, and wanted to continue participating in SJSU Athletics. Further, the student-athletes trusted him because he was an experienced athletic trainer. Shaw also admitted that he inappropriately touched each of the student-athletes as described above without any legitimate diagnostic or treatment purpose and without seeking or securing their consent in advance. Shaw further admitted that his conduct was not the result of mistake, carelessness, or accident.

In sum, Shaw pleaded guilty to two counts of deprivation of rights under color of law, in violation of 18 U.S.C. 242. In addition to the prison term, Judge Freeman ordered Shaw to serve one year of supervised release, to begin after he has served his prison term, and to pay a $15,000 fine. Judge Freeman also scheduled a hearing to take place on February 6, 2024, to determine issues related to restitution.

Judge Freeman ordered Shaw to surrender on or before March 6, 2024, to begin serving his prison term.

“Today’s sentence sends a clear message that public school officials who exploit their positions of authority to sexually abuse and harass students will face serious consequences for their actions,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division. “The Justice Department will not tolerate violations of civil rights committed under the guise of legitimate medical treatment by those in positions of power and trust.”

“Scott Shaw was entrusted to care for athletes in the California State University system. Instead, he used his power over female athletes to violate their civil rights by sexually groping them without their consent and without any medical justification,” said First Assistant U.S. Attorney Patrick Robbins for the Northern District of California. “Such criminal assaults on college athletes will be investigated and prosecuted; anyone abusing their power over student athletes in this way should expect to spend time in prison for doing so.”

“A patient necessarily places enormous trust in a healthcare provider; that relationship is privileged and inviolable for good reason,” said FBI Special Agent In Charge Robert Tripp. “Shaw’s violation of that relationship is reprehensible, as was reflected in his sentence. I commend the student athletes for their moral courage in coming forward to challenge Shaw. Their bravery prevented Shaw from committing further harm to others, and civil rights violations will continue to be a top priority for the FBI.”

Assistant U.S. Attorney Michael Pitman for the Northern District of California and Trial Attorney MarLa Duncan and Attorney Advisor Sarah Howard of the Civil Rights Division’s Criminal Section are prosecuting the case. This case was investigated by the FBI.