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OSHA Announces Higher Resource Focus on COVID Safety

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.

AG and 5 Counties Sue 10 Skilled Nursing Facilities for Fraud

The California Attorney General joined a coalition of District and City Attorneys, led by Kern County District Attorney Cynthia Zimmer, in filing a lawsuit against Tennessee-based Brookdale Senior Living, Inc., the nation’s largest senior living operator.

The company has over 70,000 staff members and 100,000 residents spread across 800 facilities in 45 states.

The lawsuit, which concerns Brookdale’s ten California skilled nursing facilities, alleges that Brookdale ignored laws that protect patients’ safety when they are discharged from a facility. Senior care centers are paid substantially more by Medicare than by other sources such as Medi-Cal, leading facilities to covet those residents. California accuses Brookdale of pushing out others to make way for the highest bidder – regardless of care and treatment needs – while ignoring patients’ legal protections.

The lawsuit also alleges that Brookdale gave false information to the Centers for Medicare & Medicaid, information which CMS uses to award “star ratings” to skilled nursing facilities so that consumers can choose a quality facility.

By lying to CMS, Brookdale allegedly fraudulently increased its star rating in several categories to attract prospective patients and their families.

The lawsuit also alleges that Brookdale failed to properly notify its patients and families of transfers and discharges. Skilled nursing facilities are required to give notice of transfer or discharge at least 30 days in advance, or as soon as practicable.

Brookdale allegedly failed to timely provide this required notice to its patients, with a copy to the local ombudsmen. Brookdale also allegedly failed to properly prepare its patients for transfer or discharge. As a result of these actions, Brookdale endangered the health of its patients and also left families scrambling to find other places to care for their loved ones.

The lawsuit also alleges that Brookdale misrepresented the quality of its care to the public by reporting false information to CMS. As a means of helping the public to choose a skilled nursing facility, CMS rates facilities on several quality measures on a scale of one to five stars, which are then posted to the CMS website.

The lawsuit alleges that Brookdale over-reported its nursing staffing hours to CMS, and by doing so, Brookdale was awarded undeserved four-and five-star ratings. In the lawsuit, the coalition argues that by engaging in these unfair business practices, Brookdale violated both the Unfair Competition Law and False Advertising Law.

The Attorney General joins the district attorneys of Kern, Alameda, San Diego, and Santa Cruz Counties, as well as the Los Angeles City Attorney.

A Brookdale spokesperson denied the allegations and noted the Golden State has either filed or threatened to file similar actions against other senior facilities.

NCCI Tracking U.S. COVID Workers’ Compensation Legislation

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.

Fresno Farm Worker Faces Two Felonies for Comp Fraud

Veronica Catalina Cortes-Ambrosio, 53, of Madera, was charged on two felony counts of insurance fraud after allegedly lying about physical limitations from an injury at work, in an attempt to receive undeserved workers’ compensation benefits.

An investigation by the Department of Insurance revealed on May 6, 2017, Cortes-Ambrosio was working for a farm labor company when she was struck with a gardening tool by a co-worker resulting in injuries to her right shoulder, neck, and back.

She was evaluated and received initial treatment for the alleged injuries, but the workers’ compensation claim she filed was denied.

Cortes-Ambrosio continued to seek medical care and obtained legal counsel to pursue the claim. She claimed to experience severe and nearly constant pain related to the injury and was unable to perform everyday activities such as sitting, standing, walking, reaching, and lifting. Cortes-Ambrosio’s employer offered her modified duties due to her stated limitations, but she refused and did not return to work.

Video surveillance was obtained of Cortes-Ambrosio during the time she claimed physical limitations due to the injury. The video showed her cleaning in and around her home, doing yardwork, ascending and descending stairs, reaching overhead, and lifting – all tasks she claimed she could not perform and prevented her from returning to work.

Cortes-Ambrosio’s alleged fraudulent claims of ongoing pain and an inability to perform basic work functions, led to her employer’s insurance company paying approximately $48,140 in unnecessary medical, investigative, and legal costs.

Cortes-Ambrosio is scheduled to be arraigned on May 26, 2021. This case is being prosecuted by the Fresno County District Attorney’s Office.

212 Year Sentence for Hawthorne Man’s “Diabolical” Insurance Fraud

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.

Double Dipping Firefighter Faces Four Felonies for Comp Fraud

Daniel Clampitt, 41, of Denair, was arraigned on four felony counts including insurance fraud, grand theft and perjury for allegedly claiming to be too injured to work and simultaneously collecting $94,788 in workers’ compensation benefits while also working for another employer.

Clampitt injured his knee while on duty as a firefighter for the City of Hollister.

Due to his injury, Clampitt could not perform his firefighter duties and received wage loss benefits from June 2016 to June 2018.

Surveillance video was obtained in January 2017 of Clampitt working at another company while he was still collecting workers’ compensation benefits from the City of Hollister.

A Department of Insurance investigation further revealed that for nine months Clampitt continued to collect wage loss benefits while receiving a paycheck from a new employer. Clampitt did not report this employment and income to the City or the insurance company handling his claim.

During a deposition, Clampitt claimed he had worked as an independent contractor for the second employer before his injury and denied applying for employment after the date of his injury, but records from the second employer show that Clampitt started working for them in October 2016, four months after his June 2016 injury.

Clampitt was arraigned on February 2, 2021. The San Benito County District Attorney’s Office is prosecuting this case.

HHS Health Record Information Blocking Rules Apply April 5

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.

CWCI Study Shows 63% Decline in Opioid Filled Prescriptions

A new California Workers’ Compensation Institute study finds that nonsteroidal anti-inflammatories (NSAIDs) now account for more than a third of all drugs dispensed to injured workers in California, triple the proportion noted for opioids.

The study also reveals that although most NSAIDs that are used are inexpensive, and utilization has been flat since the state’s evidence-based prescription drug formulary took effect in 2018, NSAIDs’ share of the total drug spend has soared from 14.2% to 23.5%, largely driven by increased payments for two low-volume, high-priced drugs that are exempt from prospective utilization review (UR) and that lack price controls.

The CWCI analysis of changes in the distribution of California workers’ compensation prescriptions and prescription payments over the past decade uses data on 5.85 million prescriptions dispensed to injured workers, resulting in payments totaling $623 million.

The data show that opioids accounted for 11.6% of the prescriptions filled in the first half of 2020, down from 31.0% in 2011 – a relative decline of 62.6% during the study period.

NSAIDs, often used as non-opioid alternatives to treat pain, surpassed opioids as the number one drug group in 2015, and in both 2019 and the first half of 2020 they accounted for more than a third of all prescriptions dispensed to injured workers, twice the proportion noted a decade earlier.

Ranking behind opioids in terms of utilization are anticonvulsants, dermatologicals, and antidepressants, which round out the top 5 drug groups.

Musculoskeletal drugs (muscle relaxants), which were the third most heavily used workers’ comp drug group until the formulary took effect, saw their share of the prescriptions fall sharply beginning in 2018 as under the formulary they are subject to prospective UR, with the exception of special fill or perioperative uses, where the quantity of the drug that can be dispensed is limited.

Total payments for a drug group reflect several factors besides the volume of prescriptions, including allowable fees under the pharmacy fee schedule, average quantities and dosages, mode of delivery, and the availability of generics.

While opioids still rank second in workers’ comp prescription volume, the study found their share of the prescription payments fell from 30.7% in 2011 to 7.0% in the first half of 2020, so they now rank fourth in terms of total drug spend, behind NSAIDs (23.5%), dermatological drugs (14.1%), and anticonvulsants (13.1%).

CWCI has released its study in a Research Update report, “California Workers’ Compensation Prescription Drug Trends.

March 8, 2021 – News Podcast


Rene Thomas Folse, JD, Ph.D. is the host for this edition which reports on the following news stories: Employer Groups Lose Bid to Stop Cal/OSHA COVID Regs. Employer’s Vendor Has No Duty to Injured Worker.
Merced Claimant Faces Fraud Charges for False History. Hawthorne Physician Settles Kickback Case for $215K.
Prison Inmate and Accomplice Indicted for EDD COVID Fraud. How Medicare Rates Overpay Physicians. Cal/OSHA Cites More Employers for COVID Safety Violations. DEA Says California Leads Nation on Illegal Fentanyl Seizures. NAIC Reports Top 6 Comp Carriers Have 36% Market Share. Yale Researchers Use Stem Cells to Repair Spinal Cord Injuries.

Eli Lilly FDA Approved Drugs Cut COVID Hospitalizations and Death

A combination of two Eli Lilly antibody drugs cut the risk of COVID-19-related hospitalizations and deaths by 87%, the company announced Wednesday, further upholding dosing already authorized by the Food and Drug Administration.

New data from the randomized, double-blind, placebo-controlled BLAZE-1 Phase 3 study, demonstrates that bamlanivimab 700 mg and etesevimab 1400 mg together significantly reduced COVID-19 related hospitalizations and deaths in high-risk patients recently diagnosed with COVID-19.

These results provide additional efficacy and safety data that support the use of the dose recently granted both Emergency Use Authorization by the U.S. Food and Drug Administration and a positive scientific opinion by the European Medicines Agency’s Committee for Medicinal Products for Human Use.

This new Phase 3 cohort of BLAZE-1 included 769 high-risk patients, aged 12 and older with mild to moderate COVID-19. Bamlanivimab and etesevimab together also demonstrated statistically significant improvements on key secondary endpoints. These results are consistent with those seen in other data sets from BLAZE-1: in the previous Phase 3 cohort, bamlanivimab 2800 mg with etesevimab 2800 mg reduced the risk of hospitalizations and deaths by 70 percent and in the Phase 2 cohort, bamlanivimab alone reduced the risk of hospitalizations and ER visits by approximately 70 percent.  

In this new Phase 3 cohort, there were four deaths total, all of which were deemed related to COVID-19 and all of which occurred in patients taking placebo; no deaths occurred in patients receiving treatment with bamlanivimab and etesevimab together.

These positive results reinforce our previous findings and support the authorized dose of bamlanivimab 700 mg with etesevimab 1400 mg. These compelling data – in addition to the recent EUA from FDA, the decision from EMA and the recommendation for the therapy in the National Institutes of Health’s COVID-19 Treatment Guidelines – give healthcare providers additional information regarding the use of bamlanivimab and etesevimab together as a potentially life-saving treatment to help those most at risk for severe complications of COVID-19,” said Daniel Skovronsky, M.D., Ph.D., Lilly’s chief scientific officer and president of Lilly Research Laboratories.

“The consistent results observed in multiple cohorts of this trial over several months, even as new strains of COVID-19 have emerged, indicate bamlanivimab with etesevimab maintains its effects against a range of variants, particularly those circulating in the U.S.”

Lilly continues to engage with global regulators to make bamlanivimab alone and bamlanivimab and etesevimab together available around the world.

Bamlanivimab alone and bamlanivimab with etesevimab together are authorized under special/emergency pathways, in the context of the pandemic, in the U.S. and the European Union. In addition, bamlanivimab alone is authorized for emergency use in Canada, Panama, Kuwait, the UAE, Israel, Rwanda, Morocco and numerous other countries.

Through Lilly’s work with the Bill & Melinda Gates Foundation, Lilly is providing doses of bamlanivimab free of charge in Rwanda and Morocco.