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San Jose Cop Faces $18M Payroll Fraud Charges

The Santa Clara County District Attorney’s Office has charged a San Jose police officer with using his private security company to commit insurance fraud, tax evasion, wage theft, and about $18 million in money laundering.

Robert Foster, 47, the Morgan Hill owner of Atlas Private Security, self-surrendered and will be arraigned on November 30th, at the Hall of Justice in San Jose on felony charges. Foster’s wife and eight other company employees are being charged with four counts of felony conspiracy to commit insurance fraud, unemployment insurance fraud, money laundering, and wage theft, and 39 additional felonies, including extortion and a white-collar crime enhancement. They face prison time, if convicted.

The officer and his co-defendants allegedly reduced insurance premiums and taxes by reporting false and inaccurate payroll, underreporting headcount, paying employees off-the-books, and underreporting employee injuries. In one case, an employee was allegedly threatened with deportation if she continued to speak attorneys about her rights under worker’s compensation laws after suffering a workplace injury.

The six-month investigation was spearheaded by the Santa Clara County District Attorney’s Office Bureau of Investigation in close collaboration with the California Department of Insurance, Employment Development Department, California Department of Justice Bureau of Medical Fraud and Elder Abuse and United States Department of Labor.

The probe showed that Foster allegedly hid approximately $8.09 million in payroll over three years, avoided approximately $578,716.56 in tax liability and $560,293.15 in insurance premiums.

To carry on their fraud scheme, the Atlas officials allegedly laundered approximately $18.20 million. The co-conspirators used and traded on Foster’s position as an active-duty San Jose Police Officer and self-described expert in lie detection to further their business interests. Yet, Foster allegedly failed to disclose to SJPD that he owned and operated Atlas or that such ownership could result in ethical conflicts.

The arrest comes just days after District Attorney Jeff Rosen announced a series of social justice reforms that included creating a Workers Exploitation Task Force that will investigate cases such as this one.

“This Office will root out and prosecute anyone – whether they wear a badge or not – taking criminal advantage of workers,” District Attorney Rosen said. “Our new task force will protect and heal the victims of labor trafficking, wage theft and illegal exploitation and raise awareness about how these insidious crimes are attacks on our communities of color.”

Claimant Convicted for Forging Medical Reports

Marlene Cavalcanti, 40, pleaded guilty to two felony counts of insurance fraud and identity theft after falsifying documents to receive an additional $10,590 on her workers’ compensation claim.

Cavalcanti, employed as an executive assistant, reportedly fell at work and sustained injuries. As a result of her subsequent workers’ compensation claim, Cavalcanti received more than $42,000 in total temporary disability payments in addition to her medical treatment.

An investigation by the Department of Insurance revealed after being placed on disability, Cavalcanti ceased medical treatment and began working for another company. During this time, she submitted multiple fictitious doctors reports in an attempt to continue to receive disability payments from the workers’ compensation insurance company.

When confronted by detectives, Cavalcanti ultimately admitted to the fraudulent documents and forged doctors’ signatures.

During the investigation, department detectives discovered Cavalcanti attempted to file a new workers’ compensation claim at a different insurance company with her new employer.

The new workers’ compensation claim dates and injuries were similar and overlapped with her initial claim. The investigation by detectives prevented payment on this subsequent fraudulent claim and the insurance company incurred no loss.

“The Marin County District Attorney’s Office will continue to partner with the California Department of Insurance to investigate and prosecute workers’ compensation fraud in every form. Whether it is claimant fraud as in the case of Ms. Cavalcanti, which drive up premiums for employers, or businesses who seek to gain an unfair advantage by underinsuring their employees, workers’ compensation fraud remains a priority for our office,” said Deputy District Attorney Sean Kensinger.

Cavalcanti is expected back in court September 9, 2020 for sentencing. The Marin County District Attorney’s Office prosecuted this case.

California Hospitals Appear on Best Ortho Hospital List

U.S. News announced the 2020-2021 list of Best Hospitals in the country.

It analyzed data from nearly 5,000 medical centers and survey responses from more than 30,000 physicians to rank hospitals in 16 adult specialties including cancer, cardiology, diabetes, rheumatology and more. Survival rates, patient experience, specialized staff and advanced technologies were among the factors weighed.

Nationally, only 134 hospitals ranked in at least one of the specialties in 2020-2021. The Honor Roll recognizes 20 hospitals for their exceptional care for complex cases across these specialties, as well as recognizes hospitals by state, metro and regional areas for their work in ten more widely performed procedures and conditions, including hip and knee replacement, cancer surgery, heart bypass and more.

With a specialty score of 100/100, Hospital for Special Surgery (HSS) in New York topped the annual Best Hospitals for Orthopedics rankings, which included 1,683 orthopedic hospitals nationwide.

Mayo Clinic Rochester, Cedars-Sinai Medical Center, NYU Langone Orthopedic Hospital and Rush University Medical Center rounded out the top five Best Hospitals for Orthopedics.

However, overall, California hospitals had a respectable showing on the Orthopedic Hospital list, with seven hospitals ranking in the top 30.

#3 – Cedars-Sinai Medical Center,Los Angeles,
#7 – Santa Monica UCLA Medical Center and Orthopedic Hospital
#10 – Scripps La Jolla Hospitals
#12 – Stanford Health Care – Stanford Hospital
#15 – UCSF Medical Center
#26 – John Muir Health – Walnut Creek
#30 – Keck Medical Center of USC

CMS Announces Webinar on New NGHP Reporting User Guide

Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 added mandatory reporting requirements with respect to Medicare beneficiaries who have coverage under group health plan arrangements as well as for Medicare beneficiaries who receive settlements, judgments, awards or other payment from workers’ compensation, which is referred to as Non-Group Health Plan or NGHP insurance.

The purpose of Section 111 reporting is to enable CMS to pay appropriately for Medicare-covered items and services furnished to Medicare beneficiaries. Workers’ compensation claim information helps CMS determine when other insurance coverage is primary to Medicare, meaning that it should pay for the items and services first before Medicare considers its payment responsibilities.

Reporting is accomplished by either the submission of an electronic file of liability, no-fault, and workers’ compensation claim information, where the injured party is a Medicare beneficiary, or by entry of this claim information directly into a secure Web portal, depending on the volume of data to be submitted.

Upon receipt of this information, CMS checks whether the injured party associated with the claim report is a Medicare beneficiary, and determines if the other insurance is primary to Medicare. CMS then uses this information in the Medicare claims payment process and, if Medicare paid first when it should not have, uses it to seek repayment from the other insurer or the Medicare beneficiary.

The Centers for Medicare and Medicaid Services (CMS) has released a notice announcing it will be holding a webinar for Section 111 non-group health plan (NGHP) reporting on August 13, 2020, at 1:00 p.m. ET.

The agency released a new Section 111 NGHP User Guide in June, which contained a reminder regarding the $750 low dollar reporting threshold, incorporated its recent alert addressing no-fault and med-pay reporting, and provided several other technical update changes. This User Guide is the primary source for Section 111 reporting requirements.

Those interested in attending CMS’s webinar, please see CMS’s notice for further details and webinar registration information.

Please note that for this webinar you will need to access the webinar link and dial in using the information above to access the visual and audio portion of the presentation. Due to the number of participants please dial in at least 15 minutes prior to the start of the presentation

July 27, 2020 – News Podcast

Rene Thomas Folse, JD, Ph.D. is the host for this edition which reports on the following news stories: California Class Action Claims TeamHealth Inflates ER Charges. MSP Reimbursement Not Time Barred 6 Years Post Settlement. Mandated COVID-19 Vaccinations Clash with Employee Rights. DWC Announces New Ethics Committee Appointment. At Least 13 States Considering COVID-19 Liability Limits. Congress Begins Permanent Medicare Transition To Telehealth. AG Approves Sale Of St. Francis Medical Center to Prime Healthcare. Study Says Household Exposure Most Likely Source of Covid-19. Researchers Report on Effectiveness of COVID-19 Masks. Independent Physicians Face Financial Pressure from COVID-19.

Ergonomics a Big Problem for Workers at Home

Millions of workers have been uprooted by COVID-19 and been thrown into a “new normal” of working from home offices. To further complicate things, many individuals were provided with only a laptop and little, if any, education on setting up an ergonomically correct workstation.

As a result, many home office – based workers potentially face suboptimal working conditions. Workers across the nation have converted their basements, spare rooms, dining room tables or bedrooms into makeshift offices.

Kermit Davis, PhD, an expert in office ergonomics at the University of Cincinnati College of Medicine, conducted an ergonomic assessment of employees at the University of Cincinnati sending out an email survey to 4,500 faculty and staff after the coronavirus pandemic prompted the university to join many other employers across the nation in sending workers home to continue operations.

The survey had 843 people complete it. As part of the study, 41 employees sent Davis photos of workers at home workstations for ergonomic review. This subset showed some trends and offered a glimpse into what many who work from home are encountering. The survey’s findings were recently published in the scholarly journal Ergonomics in Design.

Davis says the ergonomic evaluations of the home workstations identified many issues that could be adversely affecting the workers. Many chairs were the wrong height with about 41% too low and 2% too high. Fifty-three percent of workers had armrests on their chairs, but 32% did not use them and for 18% of workers the armrests were improperly adjusted, the study found.

Davis says not using the armrests causes contact stress on forearms when rested on the hard front edge of work surfaces and strain across the upper back as the arms need support. Also, support of the back of the chair was not used by 69% and often without any lumbar support for 73% of survey participants. That meant many individuals did not have proper support of their lower back, maintaining the lumbar curvature.

The position of a computer monitor was often too low or off to the side. Three quarters of monitors were laptops, which were too low relative to the workers’ eye height, the study found. External monitors were also routinely set up too low in 52% of participants or too high in 4%. Another common issue with the monitors was the lack of the primary screens centered in front of the workers occurring in 31% of workers and resulting in twisting of the neck and/or back to view the monitor, according to the study.

Here are a few tips that might be helpful for the homebound office worker:

— Place a pillow on your seat to elevate the seat height.
— Place a pillow or rolled up towel behind your back to provide lumbar and back support.
— Wrap armrests when they are low and not adjustable.
— Move your chair closer to the desk or table to encourage having the back against the back of the seat.
— If a laptop is too low, place a lap desk or large pillow under the laptop to raise the monitor when using it on the lap.
— Use an external keyboard and mouse, along with raising the laptop monitor by placing a stack of books or a box under the laptop when using a laptop on a desk.
— An appropriate standing workstation should have the top of the monitor at eye height and directly in front, keyboard at a height so that forearms are parallel to the ground (approximately 90° elbow angle), and a soft or rounded front edge to the working surface.
— If obtaining a new chair or identifying an appropriate sitting workstation at home is not possible, rotating between a poor sitting workstation and a standing workstation would be the next best practice. There are many simple, makeshift standing workstations available in the home, including implementing the use of an ironing board, a kitchen counter, the top of a piano, a clothes basket placed upside down on a table or desk or a large box under the laptop.

DEA Closes and Fines Yreka Pharmacy for Multiple Violations

KJL Consultants Inc., doing business as Luke’s Yreka Drug, and owner Lucas Walsh have agreed to pay $200,000 to resolve allegations that the pharmacy committed multiple violations of the Controlled Substances Act’s strict recordkeeping requirements.

The pharmacy permanently ceased operations in December 2018, and a key term of the settlement agreement included the pharmacy’s surrender of its DEA registration for cause.

The settlement relates to a DEA administrative audit and inspection of Luke’s Yreka Drug in September 2016 during which the DEA identified more than 150 Controlled Substances Act violations including failing to maintain the archived DEA-E-222 form for orders of controlled substances from a distributor, to properly document the quantity and/or date of controlled substances received from a distributor, and to conduct a complete and accurate biennial inventory.

To prevent diversion of opioids and other dangerous drugs and avoid harm to the public from abuse of these powerful substances, it is critical that all pharmacies, whether they be large national chains or small local stores like Luke’s, ensure that their drug transactions are properly documented, tracked and inventoried,” U.S. Attorney Scott said.

“This settlement emphasizes the importance of proper and diligent recordkeeping and the significant penalties to pharmacies that fail to do so.”

This settlement resulted from joint efforts of the U.S. Attorney’s Office for the Eastern District of California and the DEA. It was handled by Assistant U.S. Attorney Lynn Trinka Ernce.

Contra Costa Contractor Convicted for $2M Payroll Fraud

Maurosan Milhomem pleaded no contest to six felonies related to his complex fraud schemes of insurance premium fraud and payroll tax fraud. He also admitted a white collar crime enhancement that he caused the loss of more than $500,000.

Milhomem is the owner of Viking Pavers, Inc., a construction company based out of Point Richmond, California. The successful resolution to this criminal case was a result of a joint investigation by the Fraud Division of the California Department of Insurance, Criminal Investigation Division of the Employment Development Department, and the Contra Costa County District Attorney’s Office.

The Contractors’ State Licensing Board and Department of Industrial Relations previously issued Viking Pavers, Inc. civil citations in 2017. Investigators from the Board and Marin County District Attorney’s Office discovered a subcontractor work crew operating for the company without a license and without worker compensation insurance under the name FF Services during a random job site inspection.

The Business and Professions Code does not permit construction companies to subcontract construction work unless the crews have their own license. This is because licensed subcontractors are required to have their own bond and workers compensation insurance to protect homeowners and employees.

The District Attorney’s Office learned of the fraud after employees of Viking Pavers were involved in a vehicle accident. The employees were never reported during premium audits as employees or subcontractors. These audits help confirm if an employer is following the law and ensure the appropriate classifications for their employees and subcontractors.

The investigation by the Contra Costa County District Attorney’s Office revealed that Viking Pavers continued to use FF Services as an unlicensed subcontractor after the civil citations and throughout 2018. The company re-routed the payments off the books to avoid detection during required audits. Forensic accountants traced payments to FF Services and other unlicensed and uninsured work crews, initially through a check cashing service in Richmond, California, and then through the bank accounts of a newly created a shell company. A subsequent search warrant at the business resulted in the seizure of over $80,000 in cash.

Milhomem will serve 364 days in county jail and is eligible to serve the sentence through electronic home detention. In addition, he will serve five years of formal probation. He is ordered to pay $1,109,603 to Markel Corporation for the underpayment of workers’ compensation insurance premium, $808,455.34 to the Employment Development Department for the underpayment of tax liability and $312,000 to Berkshire Hathaway for the underpayment of workers’ compensation insurance premium.

The Court ordered the seized cash forfeited as criminal restitution pursuant to the plea agreement.

4000 Federal COVID-19 Comp Claims Strain Resources

About 4,000 federal employees have filed workers’ compensation claims with the Labor Department due to COVID-19. 60 people have filed death claims. Labor projects COVID-19 claims among federal employees may reach 6,000 in the coming weeks.

As part of Phase 1 of the Office of Inspector General’s Pandemic Oversight Response Plan, a new report published this month presents the results of its audit of the Office of Workers’ Compensation Programs’ (OWCP) initial response to the pandemic.

It conducted a performance audit to answer the following question: To what extent has COVID-19 affected OWCP’s ability to process and adjudicate claims, and what has OWCP done to address challenges encountered?

The department’s inspector general says the division that handles federal employee claims is anticipating a strain in resources due to demand and social distancing mandates. It has alternative staffing plans if COVID-19 compensation claims continue to surge. Labor says it’s accepted over 1,600 federal employees claims so far. Over 2,300 are unadjudicated.

It found that most OWCP programs are experiencing or expecting delays and resource management issues as a result of increasing claims or social distancing mandates brought on by the pandemic. In response, the programs are tracking delays, providing guidance, extending deadlines, and taking additional actions as needed.

Specifically:The Division of Federal Employees’ Compensation (DFEC) is expecting a potential strain on resources and claims processing delays. To address these potential challenges, DFEC developed a contingency plan, issued new procedures for handling COVID-19 claims, and created a COVID-19 Task Force to oversee claims development and adjudication.

The Division of Coal Mine Workers’ Compensation (DCMWC) is experiencing challenges in its ability to process claims timely because a significant number of approved physicians have temporarily suspended pulmonary examinations, which are required for a coal miner’s claim to be processed. These delays are creating a backlog that could strain resources when physicians resume claimant examinations. DCMWC is tracking the delays and has taken steps to assist claimants, including publishing guidance on its website and extending deadlines.

The Division of Energy Employees Occupational Illness Compensation (DEEOIC) is experiencing delays in obtaining required information from certain Department of Energy facilities and physicians who have closed or limited operations during the pandemic. DEEOIC is tracking a small number of impacted claims and allowing for extensions in these cases.

The Division of Longshore and Harbor Workers’ Compensation (DLHWC) has not experienced, nor is it expecting, any significant impact from the COVID-19 pandemic.

Failure to Warn Teacher Supports Serious and Willful Award

On September 30, 2008, Patrick Sauceda was injured while working as a teacher for the Fresno Unified School District. He injured his head, left eye, and left knee following a physical attack by a student. The case was resolved by a Stipulations with Request for Award on December 13, 2010.

He then filed a Petition for Increased Benefits for Serious and Willful Misconduct of Employer. He alleges thad his industrial injury was the result of being assaulted by a special education student who had been previously identified and known to the School District to be a person with propensities for causing serious injury to others and who had stated on more than one occasion that he intended to kill or cause serious injury to Mr. Sauceda.

He claimed that the special education program manager, Nancy Miser, “was advised that a specific student in applicant’s classroom had a prior history of physically attacking two different teachers on separate occasions at a previous school [and] that this student had made specific threats that he intended to kill or seriously injury applicant,” but Ms. Miser refused a request to move the student to “another emotionally disturbed program on another campus,” stating that “applicant would have to find a way to deal with the student.”

The classroom had no radio or telephone for use in case of emergency.

The WCJ awarded Serious and Willful Misconduct benefits. Reconsideration was denied in the split panel decision of Sauceda v Fresno Unified School District.

Labor Code section 4553, a finding of liability is appropriate where the employer 1) knew of the dangerous condition; 2) knew that the probable consequences of the continuance of that condition would involve serious injury to an employee; and 3) deliberately failed to take corrective action.

Here, it is undisputed that defendant knew of the dangerous condition. Defendant has admitted to knowing that the student assailant had a prior history of physically attacking two different teachers on separate occasions at a previous school and that this student had made specific threats that he intended to kill or seriously injury applicant.”

Applicant has amply shown that defendant deliberately failed to take corrective action. Defendant has made no attempt to deny that, when presented with the evidence from the student assailant’s file, the administrative team at applicant’s place of work declined to take any action to remove the student assailant from applicant’s classroom.