Author: WorkCompAcademy

National Emphasis Programs (NEPs) are temporary programs that focus OSHA’s resources on particular hazards and high-hazard industries.

Existing and potential new emphasis programs are evaluated using inspection data, injury and illness data, National Institute for Occupational Safety and Health (NIOSH) reports, peer-reviewed literature, analysis of inspection findings, and other available information sources.

On March 12, 2021, OSHA announced policies and procedures for implementing a National Emphasis Program to ensure that employees in high-hazard industries or work tasks are protected from the hazard of contracting COVID-19.

The newest NEP augments OSHA’s efforts addressing unprogrammed COVID-19-related activities, e.g., complaints, referrals, and severe incident reports, by adding a component to target specific high-hazard industries or activities where this hazard is prevalent.

The NEP targets establishments that have workers with increased potential exposure to this hazard, and that puts the largest number of workers at serious risk.

In addition, this NEP includes an added focus to ensure that workers are protected from retaliation, and are accomplishing this by preventing retaliation where possible, distributing anti-retaliation information during inspections, and outreach opportunities, as well as promptly referring allegations of retaliation to the Whistleblower Protection Program.

Also on March 12, 2021, OSHA issued an “Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19)” (ERP).

The ERP “provides new instructions and guidance to Area Offices and Compliance Safety and Health Officers (CSHOs) for handling COVID-19 related complaints, referrals, and severe illness reports.” It summarizes the NEP and details how CSHOs are to conduct inspections, and it makes on-site inspections the default method, with remote-only inspections to be conducted only with approval of the area director for CSHO safety reasons.

NCCI is tracking legislation to establish or extend workers compensation presumptions for COVID-19 for certain workers.

In 2020, nine states enacted COVID-19 presumption legislation (Alaska, California, Illinois, Minnesota, New Jersey, Utah, Vermont, Wisconsin, and Wyoming.) Many of the COVID-19 workers compensation presumptions are temporary in nature.

This year several of the states that enacted COVID-19 presumption legislation in 2020 are taking additional action to extend and/or expand those presumptions. For example:

– – Vermont enacted legislation (S 9) extending the workers compensation COVID-19 presumption provisions for an employee receiving a positive diagnosis or test between April 2020 and “30 days following the termination of the state of emergency.”
– – Illinois recently enacted legislation (HB 4276) extending the COVID-19 presumption provisions through June 30, 2021
– – Alaska, Minnesota, and Wisconsin are considering legislation to extend their presumptions, expand the types of workers covered under their presumptions, and/or apply their presumptions retroactively

In 2021, additional states, including Connecticut, Iowa, Maryland, Massachusetts, Montana, Nebraska, New Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, Texas, and Virginia, are considering establishing new workers compensation presumptions for COVID-19 for certain workers.

And new trends are emerging. While many of the bills monitored in 2020 focused on establishing presumptions that were applicable primarily to first responders and/or healthcare workers, several of the current legislative proposals establish presumptions for additional categories of workers. For example:

– – Legislation in Maryland, Minnesota, and Texas would establish presumptions for teachers/school employees
– – Legislation in Montana and Texas would establish presumptions for nurses (as a separate category from healthcare workers)
– – Legislation in Connecticut and Iowa would establish presumptions applicable to all employees in the state In 2021, several states have proposed legislation to create workers compensation presumptions of compensability that could be applicable beyond the current COVID-19 pandemic.
– – To date, at least 12 states (Alaska, California, Connecticut, Florida, Iowa, Michigan, Missouri, New Mexico, New York, Rhode Island, Texas, and Washington) have introduced legislation that would establish workers compensation presumptions for infectious diseases and pandemics.
– – While several of these bills specifically mention COVID-19, these proposals also contain terms such as “contagious disease,” “COVID-19 or similar disease,” or “other future qualifying pandemic.” This could mean that the presumption would still be applicable even after the current COVID-19 pandemic ends.
– – Many of these proposals do not include sunset provisions or expiration dates, so they may not be temporary in nature.

Some states have introduced legislation addressing the impact of COVID-19 on the workers compensation exclusive remedy:

– – Hawaii introduced legislation (HB 1224/SB 1415) that proposed an exception to the workers compensation exclusive remedy when an employee, whose employer failed to maintain adequate workplace protections against exposure to COVID-19, contracts the virus
– – The Hawaii legislation also created a presumption that COVID-19 is proximately caused by an employer’s failure to maintain adequate workplace protections. (The Hawaii bills did not make a procedural legislative deadline and are unlikely to advance this legislative session.)
– – Other states, including Arkansas and West Virginia, have also introduced legislation addressing COVID-19 and the exclusive remedy, providing that workers compensation is the exclusive remedy for COVID-19 claims.

A Hawthorne man was sentenced to 212 years in federal prison for intentionally driving his ex-wife and two disabled sons off a wharf at the Port of Los Angeles into the ocean – drowning the boys who were trapped in the car – to collect on accidental death insurance policies he had taken out on their lives.

Ali F. Elmezayen, 45, was sentenced by United States District Judge John F. Walter, who, in imposing the maximum sentence allowed by law, noted Elmezayen’s “evil and diabolical scheme” as well as the “vicious and callous nature of his crimes.”

“He is the ultimate phony and a skillful liar – and is nothing more than a greedy and brutal killer,” Judge Walter said. “The only regret that the defendant has is that he got caught.”

Judge Walter also ordered Elmezayen to pay $261,751 in restitution to the insurance companies that he defrauded.

After a nine-day trial in October 2019, a federal jury found Elmezayen guilty of four counts of mail fraud, four counts of wire fraud, one count of aggravated identity theft, and five counts of money laundering.

Elmezayen obtained more than $3 million of life and accidental death insurance policies on himself and his family bought from eight different insurance companies . He paid premiums in excess of $6,000 per year for these policies – even though he reported income of less than $30,000 per year on his tax returns. Elmezayen began purchasing the insurance policies the same year he exited a Chapter 11 bankruptcy proceeding.

After purchasing the policies, Elmezayen repeatedly called the insurance companies – sometimes pretending to be his ex-wife in whose name he had obtained some of the policies – to verify that the policies were active and that they would pay benefits if his ex-wife died in an accident. Elmezayen also called at least two of the insurance companies to confirm they would not investigate claims made two years after the policies were purchased. These telephone calls were recorded and were played for the jury.

On April 9, 2015, 12 days after the two-year contestability period on the last of his insurance policies expired, Elmezayen drove a car with his ex-wife and two youngest children off a wharf at the Port of Los Angeles. The site of the crash was a loading dock and worksite for commercial fishermen.

Elmezayen swam out the open driver’s side window of the car. Elmezayen’s ex-wife, who did not know how to swim, escaped the vehicle and survived when a nearby fisherman threw her a flotation device. Two of the couple’s three sons, who were 8 and 13 and who were both severely autistic, were strapped into the car and drowned. The couple’s third son was away at camp at the time and was not in the car at the time his father drove it into the water.

Elmezayen then collected more than $260,000 in insurance proceeds from Mutual of Omaha Life Insurance and American General Life Insurance on the accidental death insurance policies he had taken out on the children’s lives. He used part of the insurance proceeds to purchase real estate in Egypt as well as a boat.

Following the crash, Elmezayen repeatedly lied to law enforcement officers and insurance companies. He also lied in subsequent civil litigation he filed concerning the crash – about the extent of the insurance he had purchased on his family, and specifically about whether he had insured his disabled children’s lives. He also attempted to persuade witnesses to lie to law enforcement and say he had given the insurance proceeds to charity.

He now also faces murder charges in a Los Angeles Superior Court.

Last November, the Department of Health and Human Services (HHS) extended compliance dates for a complex federal regulation aimed at ending information-blocking practices that impede the secure exchange and use of electronic health information by patients, doctors and health care organizations.

The HHS Office of the National Coordinator for Health Information Technology extended the final rule, implemented under the 21st Century Cures Act (Cures Act), extended the “applicability date” from November 2, 2020 to April 5, 2021. On and after that date, all “actors” – “which includes health information networks and exchanges, EHR vendors and health care providers – “will be subject to information blocking.”

The compliance deadline delay comes in response to the AMA’s advocacy efforts. A Sept. 29, 2020 letter from the AMA, the American College of Physicians, the American Hospital Association and others told the ONC that “the COVID-19 pandemic continues to monopolize our members’ time and attention, and has strained resources, drastically limiting our members’ ability to prepare” for the Nov. 2, 2020 deadline that had been in place.

In general, information blocking is a practice by a health IT developer of certified health IT, health information network, health information exchange, or health care provider that, except as required by law or specified by the Secretary of Health and Human Services (HHS) as a reasonable and necessary activity, is likely to interfere with access, exchange, or use of electronic health information (EHI).

Some general examples of Information Blocking include:

– Hospital policies or procedures that require personnel to obtain an individual’s written consent before sharing the individual’s EHI with unaffiliated providers for treatment purposes even if obtaining such consent is not required by state or federal law.
– Contractual arrangements that prevent sharing or limit how EHI is shared with patients, their healthcare providers, or other third parties.
– Patients or healthcare providers become “locked in” to a particular technology or healthcare network because their electronic health information is not portable.
– A healthcare provider has the capability to provide same-day access to EHI in a form and format requested by a patient or a patient’s healthcare provider, but takes several days to respond.

The American Psychological Association published examples that apply to psychologists:

– EHR systems that put or allow an automatic hold on certain psychological records/mental health progress notes while psychologists determine what EHI is appropriate to include in the system (e.g., minor proxies and multiple patients).
– EHR systems that allow psychologists to simply classify that EHI is “sensitive” (without further justification) to limit access within the system.
– Practices that restrict access more than is legally justified (e.g., restricting patient access more than permitted under the HIPAA Privacy Rule and state law).
– Limiting the interoperability of health IT (e.g., disabling a capability that would allow sharing EHI with patients).

Enforcement is by the Office of the Inspector General (OIG) of HHS. OIG would have to show that the provider had knowledge and intent to interfere with access. However, it would not have to show that the provider understood that they were violating the information blocking rules; therefore, ignorance of the rules would not be an excuse. Nor would OIG have to show that the information blocking caused actual damage. OIG has, however, indicated that it does not plan to take enforcement action regarding innocent mistakes.

In the final rule, HHS identified eight categories of reasonable and necessary activities that do not constitute information blocking, provided certain conditions are met.