Author: WorkCompAcademy

The U.S. Department of Health and Human Services (HHS), through the Office of the National Coordinator for Health Information Technology (ONC), announced that nationwide health data exchange governed by the Trusted Exchange Framework and Common AgreementSM (TEFCA) is now operational.

ONC has led a multi-year, public-private process alongside its Recognized Coordinating Entity®, The Sequoia Project, Inc., to implement TEFCA, which was envisioned by the 21st Century Cures Act. As a result, patients will have increased access to their records, and health care providers and plans can improve their secure exchange of electronic health information.

The interoperability framework, called TEFCA, was mandated by the 21st Century Cures Act back in 2016 and was designed to create an infrastructure to enable data sharing between health information networks. The framework provides the policies, procedures and technical standards necessary to exchange patient records and health information between providers, state and regional health information exchanges and federal agencies.

“In many ways, I feel like we’re watching the Big Bang occur in 2023,” said Health and Human Services (HHS) Secretary Xavier Becerra said during an event held at HHS headquarters in Washington, D.C. on Tuesday.

Five organizations were officially designated as Qualified Health Information Networks (QHINs) during the HHS event on Tuesday – eHealth Exchange, Epic Nexus, Health Gorilla, KONZA and MedAllies. Those five organizations have gone live with TEFCA exchange, and two others are completing their implementations

These designated QHINs can immediately begin supporting the exchange of data under the Common Agreement’s policies and technical requirements. QHINs are the pillars of TEFCA network-to-network exchange, providing shared services and governance to securely route queries, responses, and messages across networks for eligible participants including patients, providers, hospitals, health systems, payers, and public health agencies.

QHINs are the pillars of TEFCA network-to-network exchange, providing shared services and governance to securely route queries, responses, and messages across networks for eligible participants including patients, providers, hospitals, health systems, payers and public health agencies.

Epic customers, including 498 hospitals, have already pledged to join TEFCA.”As of this week, over 200 hospitals and around 3,000 clinics that use Epic plan to be early adopters of this framework,” Rob Klootwyk, director of interoperability for Epic Nexus, a subsidiary of Epic,said during the event. “At full rollout, we do expect to help around 2,700 hospitals and 70,000 clinics go live on TEFCA.”

In a Health Affairs Forefront blog, Micky Tripathi, Ph.D., national coordinator for health information technology and Mariann Yeager, CEO of The Sequoia Project, said TEFCA, going live marks “one of the most important milestones in our nation’s digital health history.”

“In February 2023 we announced that TEFCA would be operational by the end of the calendar year, and we are delighted to achieve this goal” said Micky Tripathi, Ph.D., national coordinator for health information technology. “This would not have happened without tremendous stakeholder support, considerable investment of resources and expertise by the QHINs, and the hard work of the RCE and ONC staffs.”

“Designating these first QHINs is just the beginning,” said Mariann Yeager, CEO of The Sequoia Project and RCE lead. “Now, we hope to see the rapid expansion of TEFCA exchange as these pioneering networks roll-out the benefits of TEFCA to their customers and members, while additional QHINs continue to onboard.“

“Collectively, these QHINs have networks that cover most U.S. hospitals and tens of thousands of providers; they process billions of annual transactions across all fifty states. With these QHINs working together under TEFCA, their users will now be able to connect with each other, regardless of which network they’re in,” Tripathi and Yeager wrote.

Common Agreement Version 2.0, which is anticipated to include enhancements and updates to require support for Health Level Seven (HL7®) Fast Healthcare Interoperability Resources (FHIR®) based transactions, is actively under development and scheduled to be adopted by the QHINs within the first quarter of 2024.

Attendees at the 2023 ONC Annual Meeting in Washington, DC on December 14, 2023, will have the chance to hear two plenary sessions providing TEFCA updates. Learn more at oncannualmeeting.com

Matthew Vann, a firefighter with the San Francisco Fire Department (SFFD), responded to an emergency on Spear Street between Market Street and Mission Street in the City and County of San Francisco.

Louis Yu, a bus driver with the San Francisco Municipal Transportation Agency (SFMTA), then drove a bus through the location of the active emergency. The bus went over a firehose, which became entangled with the bus’s wheels and stretched until it broke off the fire engine it was attached to.

When the firehose broke away, it hit Vann’s legs, sweeping him off his feet and causing him to slam backwards onto the ground. His helmet flew off, and the back of his head struck the street surface. As a result, he sustained catastrophic injuries, including a traumatic brain injury, a fractured left clavicle, an internal hemorrhage in his right eye, and damage to his throat and vocal chords.

On November 4, the City sent Vann a “Notice Regarding Disability Pay/Labor Code section 4850 benefits.” The notice stated that the “City and County of San Francisco is handling Van’s workers’ compensation claim on behalf of SF Fire Dept.,” and that he was receiving workers’ compensation benefits for the injuries he sustained in the November 2, 2020 incident.

On November 8, Van filed a form complaint against the City and Yu, alleging causes of action for motor vehicle negligence, general negligence, and negligence per se. The complaint is sparse on detail: it alleges “Defendants negligently operated an SF Muni Coach 8800,” before briefly describing how the incident caused appellant’s injuries, and also alleges “Defendants violated [Vehicle Code sections 21707 and 21708].”

Defendants filed a demurrer on various grounds, including that the Workers’ Compensation Act (§ 3200 et seq.) provides the exclusive remedy for Vann’s claims against the City as his employer (§§ 3600, subd. (a), 3602, subd. (a)), and against Yu as his co-employee (§ 3601, subd. (a)). The the trial court issued an order sustaining the demurrer to the complaint without leave to amend.

The Court of Appeal affirmed the trial court in the published case of Vann v. City and County of S.F. -A165231 (December 2023).

Section 3600, subdivision (a) provides that, with exceptions not relevant here, an employer’s liability to pay compensation under the Workers’ Compensation Act is “in lieu of any other liability whatsoever” if specified “conditions of compensation concur . . . .” (§ 3600, subd. (a); Kuciemba v. Victory Woodworks, Inc. (2023) 14 Cal.5th 993, 1006.) So, when the statutory conditions for recovery are met, the employer is immune from civil damages liability for on-the-job injuries because workers’ compensation is the injured employee’s “exclusive remedy.” (§§ 3600, 3601, 3602, subd. (a).)

A parallel exclusive remedy provision is section 3601, subdivision (a), which “prohibits actions against coemployees for injuries they cause when [acting within the scope of their employment.]” (Hendy v. Losse (1991) 54 Cal.3d 723, 730.)

As to Yu, Vann asserted he and Yu were not coemployees because (1) Vann was employed by San Francisco Fire Department (SFFD), while Yu was employed by San Francisco Municipal Transportation Agency,(SFMTA), and (2) SFFD and SFMTA are separate legal entities akin to separate businesses within a multiunit corporate enterprise. As to the City, Vann argued there were no facts at that procedural juncture to support the conclusion that the City, as opposed to SFFD, was his employer as a matter of law. His arguments treat the City, SFMTA, and SFFD as three separate legal entities.

Bauer v. County of Ventura (1955) 45 Cal.2d 276, 288-289 (Bauer), which both parties cite, is instructive on whether a public entity is independent or a subsidiary of another entity. The Supreme Court rejected the “assumption that the district is a governmental agency separate and distinct from the county,”

Factors that may be considered in determining if an entity is independent include whether there is “[a]n express statutory declaration that the entity is a body corporate and politic”; whether the entity has “[a] governing body separate from that of the city, county, or district”; or whether it has “[s]tatutory power to own property, levy taxes, or incur indebtedness in its own name.” (California Governmental Tort Liability Practice (Cont.Ed.Bar 4th ed. Cal. 2023) § 3.5, citing Bauer, supra, 45 Cal.2d at pp. 288-289; Johnson v. Fontana County Fire Protection Dist. (1940) 15 Cal.2d 380, 385’387; Elliott v. County of Los Angeles (1920) 183 Cal. 472, 474-475; Anaheim Sugar Co., supra, 181 Cal. at pp. 217−220.)

The Court of Appeal concluded that additional case authorities and arguments “compels the conclusion that because SFFD and SFMTA are merely parts of the same entity, the City, it is the City that effectively employs both appellant and Yu. It follows that workers’ compensation provides the exclusive remedy for appellant’s claims against the City as his employer (§§ 3600, subd. (a), 3602, subd. (a)), and against Yu as his coemployee (§ 3601, subd. (a)). To the extent appellant attempts to draw an analogy between SFMTA and SFFD and two separate business entities within a multiunit corporate enterprise, such an analogy was rejected in Walker and Colombo. (See Walker, supra, 97 Cal.App.2d at pp. 903-904; Colombo, supra, 3 Cal.App.4th at p. 598.) And we reject it here.”

Dr. Gary Martinovsky graduated from the University of California, Berkeley, as a bachelor of science and from Stanford University as a medical doctor. He completed a residency in anesthesiology and acute care at Stanford School of Medicine, and a postgraduate fellowship in Pain Medicine at the University of California, Davis. He holds board certification in Pain Medicine from the American Board of Anesthesiology.

NBC Bay Area reports that Dr. Gary Martinovsky was first arrested on Thursday, March 20, 2014 and charged with insurance fraud and unlawful dispensing of medicine. About half of his patients at the time were injured workers, and investigators claimed he was bilking the California workers’ compensation system.

Inspectors for the Alameda County District Attorney’s Office, the agency behind an undercover investigation into Martinovsky, accused him of running a medical mill and using injured workers for his own financial gain. They would claim in court documents that his office billed an insurance company for services he never performed and that Martinovsky had a “cavalier attitude” toward dispensing drugs.

But the case against Martinovsky was dismissed in Alameda because it had been filed in the wrong county.

Prosecutors then filed a a single felony count for violating Cal. Penal Code § 550(a)(7) (knowingly submitting a claim for a health care benefit not used by, or on behalf of, the claimant) was filed in Contra Costa County Superior Court. During the preliminary hearing, which was not completed, the charge was reduced to a misdemeanor. That case was dismissed after Martinovsky completed a one-year diversion program. He never entered a guilty plea or admitted guilt of any kind.

In 2016 Dr. Martinovsky filed a civil rights lawsuit in federal court against the Alameda County District Attorney’s Office and an investigators for the Department of Insurance. He alleged that because “of the search of the clinic, and the defamatory statements made by Defendants, word spread quickly through the regional medical community, legal professionals and insurance industry that Dr. Martinovsky had been arrested and charged with felony drug and insurance fraud charges. The effect was immediate and devastating for Plaintiffs’ otherwise spotless reputation and growing medical practice, and caused severe emotional distress”.

The federal civil rights case was resolved and dismissed with prejudice based upon a stipulation and a settlement between the parties in May 2018 for undisclosed terms.

Now, on December 7, 2023, the San Francisco District Attorney Brooke Jenkins announced that a 51 year old Doctor Gary Martinovsky, who lives in San Francisco; and his 68 year old office assistant and mother-in-law, Raisa Rikoshinsky, who lives in San Bruno; and one of the businesses he owns, Integrated Pain Care (IPC), have been criminally charged with 40 violations of insurance fraud under (PC 550(a)(5), PC 550(a)(7), and PC 550(a)(8)), for fraudulent billing, double billing, and billing for services not rendered.

Gary Martinovsky MD is listed as a QME in Anesthesiology, and also in Pain Managment. DWC Medical Unit records reflect 10 Northern California Offices for each specialty, or a total of 20 addresses. According to the California Department of Industrial Relations, Dr. Martinovksy has 3,005 liens worth $29,443,467 outstanding as of October 2023.

As alleged in court documents in this newest case, Dr. Martinovsky, IPC, and Raisa Rikoshinsky allegedly filed liens with the State of California Division of Workers Compensation asking for payment of bills which had already been paid in full or in part.

California’s Workers Compensation law allows a doctor to file a lien against an insurance provider for payment for services rendered to an injured worker, where the bill has not been paid.

In support of the filed liens, prosecutors allege the defendants submitted fraudulent documents and/or failed to disclose that they had already received payments for the billed services. In addition, Dr. Martinovsky and IPC billed three insurers for services not rendered, by claiming $625 numerous times for services not provided to injured workers.

In terms of number of liens filed from 2022 to the present,  prosecutors claim Integrated Pain Care was second in the State of California only to the Employment Development Department, the state agency that administers California’s Unemployment Insurance, Disability Insurance, and Paid Family Leave programs and maintains records for more than 19 million workers.

Dr. Martinovsky and Ms. Rikoshinksy are scheduled to be arraigned on January 12, 2024, at 9A in Department 10 at the Hall of Justice. If convicted of all charges, Dr. Martinovsky and Ms. Rikoshinsky each face over five years in State Prison.

This case was developed through an investigation conducted by the San Francisco District Attorney’s Office Economic Crimes Unit, with the California Department of Insurance assisting in the arrests.

Although charges have been filed, this remains an active investigation. Anyone with information is asked to call the San Francisco District Attorney’s Investigations Tip Line at 1-628-652-4362. You may remain anonymous.

A South Bay woman has been sentenced to 180 months in federal prison for billing Medicare more than $24 million by submitting fraudulent claims for medically unnecessary durable medical equipment – mostly power wheelchairs (PWC) – and PWC repairs, many of which were never performed, the Justice Department announced today.

Tamara Yvonne Motley, 55, a.k.a. “Tamara Ogembe,” of Redondo Beach, was sentenced Tuesday by United States District Judge Stanley Blumenfeld Jr., who also ordered her to pay $13,107,422 in restitution as well as an additional $2,300 in special assessments.

At the conclusion of a five-day trial, a jury on June 27 found Motley guilty of 20 counts of health care fraud, two counts of aggravated identity theft, and one count of conspiracy to commit money laundering. Judge Blumenfeld ordered her remanded into federal custody that same day after the verdict was read.

From July 2006 to August 2014, Motley was the de facto owner of the Hawthorne-based Action Medical Equipment and Supplies. From January 2013 to November 2016, Motley was the de facto owner of the Ventura-based Kaja Medical Equipment & Supply. Both companies were enrolled with Medicare in the names of Motley’s out-of-state relatives.

Motley orchestrated a scheme in which she paid marketers for patient referrals and then directed them to take patients to corrupt physicians, who prescribed medically unnecessary durable medical equipment, such as PWCs, that Motley’s companies used to submit fraudulent bills to Medicare.

In January 2011, when Medicare changed the reimbursement rules for PWCs to make the upfront payments less lucrative to suppliers, Action switched to billing Medicare for PWC repairs, and continued that scheme at Kaja once Action was shut down. These repairs were not medically necessary not only because the patients did not need the PWCs to begin with, but also because those repairs were not needed to make the PWCs serviceable in any event and often were never performed. These repairs were expensive – often billed for $3,000 to $4,000 each – and accounted for nearly half of Action’s billings and almost all of Kaja’s.

Over an eight-year period, Action billed Medicare more than $18.2 million for DME – most for PWCs, but also for PWC accessories, knee braces and back braces – and the repair or replacement of PWCs. Medicare paid Action nearly $10.3 million.

Between July 2013 and November 2016, Kaja billed Medicare $6.3 million, primarily for PWC repairs. Medicare paid Kaja approximately $2.8 million for those claims.

“[Motley] manipulated those around her to serve her criminal ends,” prosecutors argued in a sentencing memorandum. “She used relatives and employees to conceal her role in the scheme, and even used her infant’s caretaker to carry out the illegal activities of her scheme. She took advantage of vulnerable Medicare beneficiaries in far-flung places like Calexico who were elderly and often non-English speaking. She deceived inspectors to preserve her companies’ accreditation with Medicare.”

Two other defendants were convicted in this case:

– – Cynthia Karina Marquez, 48, of Paramount, who worked as an office manager at both Action nd Kaja, pleaded guilty in December 2019 to two counts of making false statements affecting a health care program. She received a time-served sentence, was placed on supervised release for three years, and was ordered to pay $9,886,646 in restitution.
– – Juan Roberto Murillo, 47, of Montebello, who worked at both medical supply companies as a repair technician, pleaded guilty in November 2019 to one count of conspiracy to commit money laundering. He was sentenced to three years’ probation and was ordered to pay $2,504,119 in restitution.

The United States Department of Health and Human Services, Office of Inspector General; the FBI; and the California Department of Justice investigated this matter.Assistant United States Attorneys Kristen A. Williams of the Major Frauds Section and David H. Chao of the General Crimes Section prosecuted this case.

Eunices Argueta began working at Menzies Aviation, a freight operations company in El Segundo, California, in 2008 when she was 18 years old. From about 2008 to 2014, Argueta and Dzung Nguyen worked for Menzies at a location near Los Angeles International Airport.

In October 2014, Worldwide acquired Menzies; Argueta and Nguyen continued to work for Worldwide. Argueta was a lead agent in the import department; her supervisor was Sonia Flores. Nguyen worked as their manager. When Flores was not present, Argueta worked as the acting supervisor and oversaw the work of other agents.

In November 2016, Worldwide hired Maria Diaz as its Director of Human Resources for its western region. Before Diaz, there was no human resources director at Worldwide’s Los Angeles Airport location.

In November 2016 and January 2017, several employees whom Argueta supervised submitted written complaints to Worldwide about Argueta, accusing her of bullying, harassment, retaliation, yelling, making threats and other bad behavior, including discriminating against a pregnant subordinate. Although Argueta moved in limine to preclude admission of the substance of the complaints, the trial court not only allowed their admission but ruled that the entire text of the complaints could be admitted. So Argueta’s attorneys preemptively asked Worldwide’s Diaz to read the written complaints aloud to the jury.

In January 2017, Diaz met with Argueta to discuss these complaints. Diaz testified she told Argueta that if her behavior did not improve, she would be terminated. Argueta gave a different account of the meeting, testifying she was not expressly threatened with termination.

In early May 2017, Urania Chavarria, one of the authors of a complaint that has been admitted into evidence, became upset because she believed that Argueta picked up and ate almost all of the chocolate bar Chavarria had left on her desk, leaving only a tiny piece. Argueta claimed she broke off only a small piece. When her supervisor Flores questioned her about the chocolate, Argueta said she only took a little piece. Flores reviewed a surveillance video and accused Argueta of lying.

In her complaint, Argueta alleged Nguyen began sexually harassing her in 2016. On May 11, 2017, Nguyen placed Argueta “out of service” while the matter was investigated; this essentially meant she was placed on paid leave. Argueta subsequently claimed many more acts of harassment. Worldwide conducted an investigation of Argueta’s complaint, although Argueta contends it was not thorough.

Diaz, facility assistant general manager Javier Trujillo, and facility general manager John Oh then met with Nguyen. Nguyen admitted some but not all the acts Argueta alleged.As a result of the investigation, Worldwide issued a “Letter of Concern” to Nguyen stating that Nguyen had admitted to some actions “that can easily be construed as sexual harassment” and “[t]his is a violation of our policy.” Worldwide imposed a number of conditions on Nguyen’s continued employment: undergo additional sexual harassment training; cease sending emojis to subordinates; use “appropriate language”; keep a minimum of three feet from employees; and not make any physical contact with an employee without their express permission.

When Argueta returned from leave in June 2017, she was transferred to a different floor and assigned to a different client; she worked for the client’s manager and was supervised only by Trujillo. Her pay remained the same. In February 2018, Argueta resigned from Worldwide. She stated she resigned because her new schedule was not compatible with her family responsibilities and her new position offered diminished potential to advance.

In 2019, three female Worldwide employees made written complaints that Nguyen was sexually harassing them. Some of the actions occurred as far back as 2017. Worldwide’s (new) local human resources manager for the Los Angeles Airport facility investigated the complaints and found Nguyen had violated Worldwide’s sexual harassment policy and the conditions in the Letter of Concern. Worldwide terminated Nguyen in March 2019.

Argueta filed this action against Worldwide, alleging sexual harassment and retaliation in violation of the Fair Employment and Housing Act (FEHA), and failure to prevent both. After the jury returned a defense verdict she filed a motion for a new trial and a motion for judgment notwithstanding the verdict. The trial court denied both motions. Argueta appealed, contending the trial court’s admission of evidence of the substance of other employees’ complaints about her to Worldwide was erroneous and warrants a new trial. The Court of Appeal agreed in the published case of Argueta v. Worldwide Flight Services, Inc -B306910 (November 2023). It agreed that admission of the substance of the complaints against Argueta was prejudicial error and reverse the trial court’s denial of her motion for a new trial. The judgment was reversed and the matter is remanded for a new trial.

A party is entitled to a new trial when an irregularity in the proceedings, or any order of the court or abuse of discretion, “materially affect[s] the substantial rights of such party” and prevents them from having a fair trial. (Code Civ. Proc., § 657(1).)

As a general matter, the denial of a motion for new trial is reviewed for abuse of discretion, with the appellate court making an independent determination as to whether any error was prejudicial. The most fundamental rule of appellate review is that the judgment or order challenged on appeal is presumed to be correct, and it is the appellant’s burden to affirmatively demonstrate error.

“Here, the employee complaints about appellant fit the quintessential definition of prejudice. The trial court failed to recognize that the evidence had a high potential for undue prejudice. It is, as Argueta contends, character evidence. The complaints show her as mean, rude, lazy, and dishonest. “

“The trial court gave a limiting instruction on this evidence, and such instructions can ameliorate section 352 prejudice. Indeed, they are generally considered effective. Limiting instructions are less effective, however, when there is little or no probative value to the evidence and it has a high potential for prejudice.” … “It simply and vaguely told the jury that “the complaints of other employees about Ms. Argueta are not being received for the truth of those complaints; rather, they are being received for the effect on Ms. Argueta when she was told about those complaints.”

“We find her arguments on appeal sufficient. We agree with Argueta that the high potential for undue prejudice from admission of the substance of the complaints far outweighed the very minimal probative value of that evidence, and a limiting instruction would not be effective under the circumstances of this case.”