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Category: Daily News

Fake Doctor Charged for 2nd Offense of Illegal Botox Injections

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A Saratoga, California man has been charged with posing as a doctor to perform an unlicensed Botox injection on a woman, which comes on the heels of him avoiding a jail sentence after he was prosecuted for similar acts in Miami, according to authorities and court records.

The Mercury News reports that 37 year old Brody Amir Moazzeni faces one felony count of practicing medicine without certification. The case was filed in Santa Clara County, and he was arraigned December 14, and faces a maximum sentence of a year in county jail if convicted on the charge.

Deputy District Attorney Ann Huntley said the charge is based on an allegation by a 26-year-old Stockton woman who met Moazzeni – who in the South Bay criminal complaint has listed aliases of Amir Moazzeni and Gianni Muzzati – through the Bumble dating app.

According to the investigation, the woman said she knew the defendant as Gianni Muzzati, and that he told her he was a doctor opening his own cosmetic clinic. The two began a romantic relationship, and on Sept. 25, 2021, they met at a Sunnyvale hotel where Moazzeni allegedly offered to give her free Botox injections in her face and other injections in her torso.

Huntley said that a few weeks later, the woman noticed her right eyelid was drooping and saw an ophthalmologist who told her her procedure was not done properly. After she got her eyelid treated, Moazzeni continued to pressure her into letting him do more cosmetic work, leading her to question his qualifications.

He was implicated in a similar case in March 2021 when he was charged with practicing unlicensed medicine and sexual battery involving a woman in Miami Beach, Florida, according to court records there.

Court records show that Miami-Dade prosecutors initially filed at least seven felony and misdemeanor charges against Moazzeni, but ultimately pursued two felony counts and one misdemeanor count, all involving the unlicensed medicine accusations. Those same records show that Moazzeni was allowed to participate in a pretrial diversion program to avoid a potential conviction and jail time, and that his charges were dropped Sept. 23 after he completed the program.

That was two days before the reported Botox encounter in Sunnyvale that led to his criminal charge in Santa Clara County. The new alleged offense has no consequence for his case in Florida since it was dismissed, according to the Miami-Dade State Attorney’s Office.

Still, that overlap has Huntley and investigators concerned there could be other women who received unlicensed cosmetic work from Moazenni and suffered health problems as a result.

“Given the sensitive nature of how he manipulates women,” Huntley said, “these women might feel used and bamboozled because of the way they were taken advantage of.”

To this point, Huntley said, there is no evidence that the defendant ever asked for payment for the procedures.

Moazzeni is currently out of jail custody and is scheduled to return to court Feb. 28. Anyone with information about the case, or other people who might have received unlicensed medial procedures from the defendant, can contact Santa Clara County DA Investigator Krissi Durant at 408-792-2567.

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WCAB Orders Attorney to Identify Name of Employer per Rule 10390(a)

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Thomas David Williams suffered an industrial injury while employed by Mac Kenzie Electric Inc., who was insured by the State Compensation Insurance Fund. In addition to insured benefits paid by SCIF, Williams pursued a Serious and Willful Misconduct claim against the employer.

On August 2, 2021, the WCJ found in relevant part that defendant “MACKENZIE ELECTRICAL INC.” is guilty of Serious and willful Misconduct thereby entitling Williams to an increase in compensation and attorneys’ fees of 15% thereon..

On reconsideration, Williams contends that the award should have specified the dollar amount of $537,449.36 pursuant to the parties’ previous stipulations. Subsequently, Williams filed an amended Petition, requesting that the award be issued against “Mac Kenzie Electric Inc.” rather than “MacKenzie Electric Inc.”

The employer contends that the WCJ failed to apply the appropriate legal standard for serious and willful misconduct; that applicant did not meet his burden to prove serious and willful misconduct by defendant; that the WCJ did not address all of the evidence in her decision.

The employer’s Petition for Reconsideration was denied, but the applicant’s was granted in the panel decision of Williams v Mac Kenzie Electric Inc – ADJ2167155 (December 2022).

This case involved the often overlooked requirement that litigants must set forth “the party’s full legal name” on the pleadings they file in cases before the WCAB.

In deciding this case, the panel pointed out that WCAB Rule 10390(a) (Cal. Code Regs., tit. 8, §10390(a)) requires that any party that appears or files a pleading before the WCAB shall set forth “the party’s full legal name on the record of proceedings, pleading, [or] document.”

Pursuant to AD Rule 10205.5 (Cal. Code Regs., tit. 8, § 10205.5), the Division of Workers’ Compensation (DWC) maintains the “official participant record” or official address record (OAR) for all cases, and all parties must ensure at all times that they are correctly identified on the OAR.

Here, based on the panel;s review of the record, it was not clear from the record whether defendant is “MacKenzie Electric, Inc.” or “Mac Kenzie Electric, Inc.”

The panel further stated that “This conflict is particularly underscored by the circumstances here where the individuals appear to use both last names interchangeably, and there is no doubt that this information is within defendant’s knowledge. Instead, as noted previously, defendant failed to respond to the WCJ’s recommendation to change its name, thereby causing further delays. Moreover, as explained above, it is defendant’s responsibility to communicate with DWC as required by AD Rule 10205.5 to correct any discrepancies in its name.“

The employer’s Petition for Reconsideration is by “MacKenzie Electric, Inc.,” “insured by State Compensation Insurance Fund” and is filed by an attorney for defendant State Compensation Fund, Marjorie A. Marenus. Throughout the Petition, defendant consistently refers to itself as “MacKenzie Electric,” and attached to the Petition is a declaration signed under penalty of perjury by “Patrick MacKenzie” and a declaration signed under penalty of perjury by “Denis MacKenzie.”3

In Exhibit R, titled as “Bill of Sale of John Deere 310D Backhoe Loader to Ed Ernst,” the bill of sale is on letterhead titled “MacKenzie Electric, Inc.” with license # 664395, the seller is listed as “Patrick MacKenzie, President” and the transferor is listed as “Patrick MacKenzie.” Yet, the California State License Board lists “Mac Kenzie Electric Inc” for license # 664395 and “Denis Anthony Mac Kenzie” and “Patrick Christopher Mac Kenzie” as personnel associated with the license. (See Evid. Code, § 452(c) [allowing judicial notice of official acts by an executive department].)

“We strongly emphasize that defendant must comply with its obligations under WCAB Rule 10390(a) and AD Rule 10205.5. More significantly, failure to provide the correct information may impede applicant’s ability to proceed against defendant under section 5806. Again, if defendant is uncooperative, the WCJ should consider whether sanctions are appropriate.”

We direct defendant’s attorney Marjorie A. Marenus and State Compensation Insurance Fund to immediately review the OAR and make any necessary changes, and to promptly notify the WCJ thereafter.

In the meantime, we will leave the award intact, but we will also defer the issue to the WCJ to determine whether the name of the defendant should be changed, and upon return, the WCJ can consider whether to hold an evidentiary hearing.

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Labor Commissioner Collects $1.3M for Bakersfield Contractor Violations

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The Labor Commissioner’s Office collected $1,331,682 in wages and penalties, resulting from a prevailing wage assessment against Bakersfield-based subcontractor Grant Construction, Inc.

The wages collected will compensate 27 workers for unpaid prevailing wages while working on a farmworker housing construction project in the City of Wasco in Kern County.

The public works investigation determined that wage theft had occurred in the form of kickbacks and non-reporting of all hours worked. It found that a Grant Construction crew leader would collect the paychecks of the 27 workers, sign and cash them, and then pay the workers significantly less than the amount listed on their checks.

“The law requires that workers on construction projects with $1,000 or more public funds must be paid no less than the prevailing wage,” said Labor Commissioner Lilia García-Brower. “These workers held Grant Construction accountable for cheating them out of their legal wages.”

The City of Wasco hired Wallace & Smith Contractors as the prime contractor to build a $42 million farmworker housing complex with 66 apartments. Wallace & Smith Contractors hired subcontractor Grant Construction, Inc., to bring in carpenters and siding workers for the job.

The Labor Commissioner’s Office opened its investigation in February 2019 after a complaint of public works violation was filed by a worker claiming underpayment of wages and non-payment of travel and subsistence. The worker stated he was paid in cash for work performed on the project.

The investigation also confirmed that Grant Construction, Inc. failed to report all the workers and hours worked on the Certified Payroll Reports (CPR) and falsified the CPRs, paychecks, and paystubs.

The Labor Commissioner’s Office cited Grant Construction, Inc., in June 2020, for underpayment of prevailing wages to 27 workers, civil penalties, and training funds. The company was not required to pay liquidated damages because it timely deposited the full assessment amount in August 2020. However, the company requested a review of the assessment, and the hearing was held in May 2021.

The Department of Industrial Relations Director issued a decision upholding the assessment in May 2022. A judgment was entered on the decision of the Director in August of 2022 for a total of $1,389,395, including interest.

The Department of Industrial Relations’ Division of Labor Standards Enforcement, also known as the California Labor Commissioner’s Office, combats wage theft and unfair competition by investigating allegations of illegal and unfair business practices.

All workers employed on public works projects must be paid the prevailing wage determined by the Director of the Department of Industrial Relations (DIR), according to the project’s type of work and location. Failure to comply with public works requirements can result in civil penalties, criminal prosecution, or both. Employees with questions about their rights may call the Labor Commissioner’s Office at 833-LCO-INFO (833-526-4636).

The Labor Commissioner’s Office launched the Reaching Every Californian interdisciplinary outreach campaign in 2020. The campaign amplifies basic protections and builds pathways to affected populations, so workers and employers understand legal protections, obligations, and the Labor Commissioner’s enforcement procedures. Californians can follow the Labor Commissioner on Facebook and Twitter.

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San Diego Pain Management Doctor and Office Manager Indicted

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Dr. David J. Smith, a pain management physician, and his office manager, Julia Ann Oertle, are charged in a federal grand-jury indictment with perpetuating a long-running scheme to commit healthcare fraud and to manufacture and distribute adulterated fentanyl.

After his initial appearance in federal court, Smith’s bond was set at $1 million, secured by real property, with a limitation on his ability to practice medicine. Oertle was still at large.

According to allegations in the indictment, Smith purports to specialize in the installation and maintenance of intrathecal pain pumps which are surgically placed in a patient’s stomach with two catheters implanted on the spine; pain medicine is then infused into a reservoir in the pump periodically, and meted out directly into the spine.

Beginning in December 2017, Smith and Oertle began compounding fentanyl citrate into vials, in a room at Smith’s principal medical practice, San Diego Comprehensive Pain Management Center. According to the indictment, this compounding practice was grossly improper and resulted in the production of adulterated fentanyl. Smith nevertheless directed administration of this fentanyl to patients repeatedly.

The indictment alleges that beyond providing patients with adulterated fentanyl, Smith violated the applicable standards of care by, among other things, prescribing materially excessive quantities of fentanyl, prescribing unnecessary oral opioid medications in conjunction with pain-pump medication, and installing pain pumps in patients without proper assessments for patient need.

Smith then had false and fraudulent reimbursement claims submitted to Medicare for these administrations. Among other things, the claims were inflated by nearly 60 percent; they sought reimbursement for large volumes of unnecessarily manufactured fentanyl; they falsely represented that excess fentanyl had been discarded, when in fact it was used; and they did not disclose that the fentanyl was adulterated.

According to the indictment, Oertle illegally ordered fentanyl citrate for compounding; compounded fentanyl with Smith; and helped direct the illegal billing practices.

Smith has bad disciplinary charges brought against him by licensing authorities in both California and Nevada.

In June 2022 the Board of Medical Examiners of the state of Nevada, in disciplinary case 22-47823-1, alleged that Smith filed an application to practice medicine with them in September 2017. He was asked if he had ever been investigated by any other medical licensing board, and he answered “no” to that question. However, they claim he was “repeatedly” investigated by the California Medical Board prior to his application with them. Additionally he allegedly had malpractice cases pending against him that he did not disclose.

In proceedings before the California board, a final order and Decision dated August 25, 2020, in Case No. 800- 2015-013651, the California Board found that Smith committed acts of gross negligence, repeated negligent acts, failed to maintain adequate and accurate medical records, and unprofessional conduct in the care and treatment of multiple patients. The California Board found Smith incompetent in the care and treatment of a patient, and that he excessively prescribed controlled substances to three (3) patients.

Effective October 15, 2020, the California Board revoked Smith’s license to practice medicine in the State of California, with the order stayed, and he was placed on probation for seven (7) years subject to numerous terms and conditions.

In a subsequent California matter, a final order and Decision dated December 22, 2021, in Case No. 800-2018-042234, the California Board found that Smith committed acts of gross negligence in the care and treatment of three (3) patients, repeated negligent acts, excessively prescribed controlled substances, and failed to maintain adequate and accurate medical records in the care and treatment of two (2) patients, and unprofessional conduct.

Effective January 21, 2022, the California Board again revoked Respondent’s license to practice medicine in the State of California, with that order stayed, and was placed on probation for the duration of Respondent’s probation in the prior matter, Case No. 800-2015-013651, until the anticipated end date of October 14, 2027, subject to additional terms.

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NLRB Reinstates Off-Duty Employee Rights to Access Employer’s Property

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3-2 decision, in a closely followed employment law case, the National Labor Relations Board reinstated its prior 2011 standard, which applied a more expansive right of off-duty contractor employees to access publicly accessible areas of the primary employer’s workplace, for the purpose of engaging in organizing activity. The new decision overturns Bexar County I, 368 NLRB No. 46 (2019)

In this newest case, (Bexar County II) the San Antonio Symphony leases performance space from the Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts.

On the evening of February 17, 2017, about a dozen Symphony employees sought to peacefully leaflet on the sidewalk in front of the main entrance to the Tobin Center. The Symphony employees had been distressed to learn that Ballet San Antonio had opted to use recorded music, rather than live music, for its production of Tchaikovsky’s Sleeping Beauty. The use of recorded music denies the Symphony employees the opportunity to work at the performance by playing the score. Because of financial difficulties, the Symphony had already had to furlough the Symphony employees for 3 weeks during the 2016–2017 season.

To raise awareness among Ballet San Antonio’s patrons about the use of recorded instead of live music, the Union decided to leaflet before the performances.

Event staff and San Antonio police officers at the Respondent’s direction immediately informed the Symphony employees that they could not distribute the leaflets anywhere on the Respondent’s property, including the sidewalks. The Symphony employees were forced to relocate across the street off the Tobin Center grounds onto a public sidewalk where there were fewer patrons.

This reaction lead to litigation before the NLRB, and two decisions, Bexar I – and after remand from an appellate court –  Bexar II.

Congress passed the National Labor Relations Act in 1935, during the New Deal era. Under section 7 of the NLRA employees’ rights include more than just the right to form a union. The NLRA protects any concerted employee activity undertaken for mutual aid. Employee actions have to meet several standards to deserve protection.

At issue in both Bexar I and II is the application of section 7. An underlying problem central to these two cases is that Section 7 only confers rights directly to employees, not to unions or their nonemployee organizers. The off-duty employees who work for a contractor of a property owner do not fit neatly into these categories.They are neither employees of the property owner nor are they nonemployees with no relationship to the property owner’s property where they work.

Precedent for the problem in the Bexar cases dates back to 2011, when the Board in New York New York considered whether off-duty food service employees had the right to engage in organizational leafleting of customers outside their employer’s place of business – not on their employer’s property, but in the public areas of a hotel-casino for which they and their employer provided services integral to the property owner’s business. (New York New York Hotel & Casino, 356 NLRB 907 (2011)).

In Bexar County I, the Board acknowledged that the New York New York test – which had been approved by the D.C. Circuit – controlled this case. Nonetheless, the Board overruled New York New York and announced a new standard to govern off-duty contractor employees’ access to the property where they regularly work (but that is not owned by their employer) to engage in Section 7 activity.

On appeal of Bexar I, the D.C. Circuit held that the Board’s new access standard was arbitrary. The court permitted the Board on remand to “decide whether to proceed with a version of the test it announced and sought to apply in this case or to develop a new test altogether.

On remand the NLRB noted its “agreement with the D.C. Circuit’s conclusion that the Bexar County I standard it established “is arbitrary in the way that it implements its new standard.” Part of the Board’s task in devising an access standard for off-duty contractor employees is to ensure that it only reaches those contractor employees with a sufficient connection to the property to merit Section 7 access rights.

The NLRB concluded in Bexar County II, that it would return to the New York New York Hotel & Casino, 356 NLRB 907 standard, which held that a “property owner may lawfully exclude [off duty contractor] employees only where the owner is able to demonstrate that their activity significantly interferes with his use of the property or where exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and discipline (as those terms have come to be defined in the Board’s case law).”

Applying the New York New York test here, the NRLB affirmed the judge’s finding that Bexar County violated Section 8(a)(1) by excluding the Symphony employees from the Respondent’s property to distribute union leaflets to the Respondent’s patrons about an issue affecting the Symphony employees’ terms and conditions of employment, specifically their number of hours of work. “They had a Section 7 right to inform the public about Ballet San Antonio’s use of recorded instead of live music, which directly affected the Symphony employees’ working conditions.”

“In order to protect contractor employees’ Section 7 rights, we believe that it is appropriate for us to apply the New York New York test to this case and to all pending cases.”

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Study Shows 7.4 Million Diagnostic Errors Annually in Emergency Rooms

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The National Academy of Medicine (NAM) has called diagnostic error a “blind spot” for modern medicine and improving diagnosis a “moral, professional, and public health imperative.” Diagnostic errors – inaccurate or delayed diagnoses – “persist throughout all settings of care and continue to harm an unacceptable number of patients. It is likely that most people will experience at least one diagnostic error in their lifetime, sometimes with devastating consequences.”

And a new study released Thursday by the Agency for Healthcare Research and Quality, U.S. Department of Health and Human Services, with the assistance of Johns Hopkins University Evidence-based Practice Center in Baltimore, estimates that roughly 7.4 million people are inaccurately diagnosed of the 130 million annual visits to hospital emergency departments in the United States. Some 370,000 patients may suffer serious harm as a result.

The Agency for Healthcare Research and Quality (AHRQ), through its Evidence-based Practice Centers (EPCs), sponsors the development of systematic reviews to assist public- and private-sector organizations in their efforts to improve the quality of healthcare in the United States.

The literature review used for this study covered publication dates from January 2000 to September 2021, and identified 19,127 abstracts, screened 1,455 full text studies, and included 279 studies that addressed the key issues of the study.

The top 15 clinical conditions associated with serious misdiagnosis-related harms were (1) stroke, (2) myocardial infarction, (3) aortic aneurysm and dissection, (4) spinal cord compression and injury, (5) venous thromboembolism, (6) meningitis and encephalitis, (7) sepsis, (8) lung cancer, (9) traumatic brain injury and traumatic intracranial hemorrhage, (10) arterial thromboembolism, (11) spinal and intracranial abscess, (12) cardiac arrhythmia, (13) pneumonia, (14) gastrointestinal perforation and rupture, and (15) intestinal obstruction.

Average disease-specific error rates ranged from 1.5 percent (myocardial infarction) to 56 percent (spinal abscess), An estimated 5.7 percent of all ED visits had at least one diagnostic error.

If overall rates are generalizable to all U.S. ED visits, this would translate to 7.4 million ED diagnostic errors annually; 2.6 million diagnostic adverse events with preventable harms; and 371,000 serious misdiagnosis-related harms, including more than 100,000 permanent, high-severity disabilities and 250,000 deaths.

Key process failures were errors in diagnostic assessment, test ordering, and test interpretation. Most often these were attributed to inadequate knowledge, skills, or reasoning, particularly in “atypical” or otherwise subtle case presentations.

Although estimated ED error rates are low (and comparable to those found in other clinical settings), the number of patients potentially impacted is large. Not all diagnostic errors or harms are preventable, but wide variability in diagnostic error rates across diseases, symptoms, and hospitals suggests improvement is possible.

However, the New York Times reports that the study was met with criticism from the American College of Emergency Physicians, whose president called the conclusions “misleading, incomplete and erroneous,” and said the reliance on studies conducted outside of the U.S. may have led to overestimates of mistakes.

In a statement to the Times, the group’s president, Christopher Kang, MD, said, “The report conveys a tone that inaccurately characterizes and unnecessarily disparages the practice of emergency medicine in the United States,” and, “While most medical specialties have similar training in Western nations, emergency medicine does not.”

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Health Net Loses $14.4M Jury Verdict Over Surgery Delay

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A Los Angeles Superior Court Jury ordered Health Net to pay $14.42 million, including $6.92 million in compensatory damages and $7.5 million in punitive damages, to a woman who alleged the health care giant caused her to become addicted to opiate pain medication, which she was prescribed only after she had already unnecessarily waited months for Health Net to provide timely referrals to specialists.

The Los Angeles Superior Court jury reached its verdict on Monday, after only a few hours of deliberations.The case is Elaine Courtney v. Health Net, Los Angeles Superior Court, Case No. 18STCV05327.

“The fundamental defect in plaintiff’s claims is that Health Net Inc. was not responsible for providing or authorizing plaintiff’s care and, when plaintiff raised issues about her treatment through the grievance process of her health plan, Health Net … responded promptly and authorized the requested treatment,” the Health Net attorneys maintained.

But plaintiff’s attorney Travis Corby called the case an important one for the health insurance industry and for Medi-Cal recipients. According to a press release by her attorneys, Ms. Courtney needed urgent medical care for a pelvic prolapse issue that was causing her extreme pain.

In February 2017, Ms. Courtney received an urgent referral to a colorectal specialist for a surgical consult. According to the health plan, an appointment should have been made available within 96 hours. But she was told that the correct specialist was not available to her under her Health Net Medi-Cal plan and she was instead sent back to a general surgeon that she had already seen that was admittedly not specialized to fix her problem.

Meanwhile, Health Net had 25 colorectal surgeons available in its Southern California network but refused to allow access to any of them.

As a result, Ms. Courtney was made to wait until August 22, 2017 to see a qualified specialist. Even then, she experienced additional delays from the health plan. The specialist doctor’s surgical request were then denied on five separate occasions over four months, because of issues with the network. Again, Ms. Courtney repeatedly reached out to Health Net, pleading for help, but it did nothing to overturn the denials.

Ms. Courtney was not able to get in for surgery until December 13, 2017 – a ten-month delay. As a result, Ms. Courtney became dependent on opioid pain medication that was only first prescribed to her months into the delay while she waited to Health Net to arrange and provide access to specialists.

During that year, Ms. Courtney suffered immense pain and was given the runaround by Health Net’s bureaucracy. All the while, Health Net was on notice that she was unable to care for her four children, that her condition prevented her from using the bathroom without intervention, that she was in extreme pain, and that she had been prescribed the opioid pain medication to manage the pain while waiting for surgery.

“Hopefully this verdict sends a message to Health Net and other health plans,” Corby said.

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Cal/OSHA Adopts COVID-19 Prevention Non-Emergency Regulations

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The Occupational Safety and Health Standards Board today adopted the COVID-19 Prevention Non-Emergency Regulations. The COVID-19 Prevention Emergency Temporary Standards will continue to remain in effect while the Office of Administrative Law (OAL) reviews the proposed Non-Emergency COVID-19 Prevention Regulations. OAL has 30 working days to complete its review. If approved by OAL, the new regulations will remain in effect for two years.

Notable provisions include:

– – COVID workplace measures: Employers are legally obligated to provide and maintain a safe and healthy workplace for employees, including by taking measures to prevent COVID-19 exposure. Employers must maintain an effective written Injury and Illness Prevention Program (IIPP) that addresses COVID-19 as a workplace hazard and includes measures to prevent workplace transmission, employee training, and methods for responding to COVID-19 cases at the workplace. Employers may address COVID-19 workplace measures within their written IIPP or in a separate document.
– – COVID Testing: Employers must make COVID-19 testing available at no cost and during paid time to employees following a close contact, except for returned cases.
– – Ventilation: For all indoor locations regardless of size, employers must review applicable CDPH guidance and implement effective measures to prevent transmission through improved filtration and/or ventilation.

– – Close Contact Definition: Close contact is defined by the size of the workplace:
– – For indoor spaces of 400,000 or fewer cubic feet per floor, a close contact is defined as sharing the same indoor airspace as a COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the COVID-19 case’s infectious period, as defined in the regulations, regardless of the use of face coverings.
– – For indoor spaces of greater than 400,000 cubic feet per floor, a close contact is defined as being within six feet of the COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the COVID-19 case’s infectious period, as defined in the regulations, regardless of the use of face coverings.
– – Offices, suites, rooms, waiting areas, break or eating areas, bathrooms, or other spaces that are separated by floor-to-ceiling walls shall be considered distinct indoor spaces.

– – Infectious Period Definition: The regulations use the definition of “infectious period” found in the most recent California Department of Public Health (CDPH) State Public Health Officer Order.

Cal/OSHA is updating its resources to assist employers with understanding their obligations required by the COVID-19 Prevention Regulations. The COVID-19 Prevention Resources webpage contains an executive summary that describes the regulations. When the new regulation becomes effective, Cal/OSHA will publish an updated set of FAQs and model program.

The Occupational Safety and Health Standards Board (OSHSB), a seven-member body appointed by the Governor, is the standards-setting agency within the Cal/OSHA program. The Standards Board’s objective is to adopt reasonable and enforceable standards that are at least as effective as federal standards. The Standards Board also has the responsibility to grant or deny applications for permanent variances from adopted standards, and respond to petitions for new or revised standards.

The California Division of Occupational Safety and Health, or Cal/OSHA, is the division within the Department of Industrial Relations that helps protect California’s workers from health and safety hazards on the job in almost every workplace. Cal/OSHA’s Consultation Services Branch provides free and voluntary assistance to employers to improve their worker health and safety programs. Employers should call (800) 963-9424 for assistance from Cal/OSHA Consultation Services.

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CMS Expected to Be More Aggressive With WC Payers in 2023

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Under the Medicare Secondary Payer (MSP) law, first enacted in 1980 and updated many times since then, Medicare may not pay claims when another payment is available or reasonably expected to be available, such as workers’ compensation paid medical care for an industrial injury.

When a primary-payer plan doesn’t or can’t pay “promptly” – say, for instance, when it is contesting liability – Medicare can make a conditional payment on behalf of a beneficiary, for which it can later seek reimbursement from the primary plan. If revise 42 CFR section 405.980 and corresponding manual instructions Medicare pays and then seeks reimbursement, only to be refused, the United States can sue the primary plan (or a medical provider) to recover its payment.

The Centers for Medicare & Medicaid Services (CMS) must protect the fiscal integrity of Medicare trust funds. And the Office of the Inspector General (OIG) is responsible for the oversight of that process.

An OIG audit which took place more than a decade ago determined that CMS had not recovered $332 million of the $416 million of Medicare overpayments that it had identified in audit reports issued during the 30-month period ended March 31, 2009.

And now, a new OIG audit published this summer, reflects that CMS conditional payment collection results remain inadequate, even after a decade of efforts to improve its track record.

OIG verified that CMS collected $120 million of the $498 million in sustained Medicare overpayments identified in HHS-OIG audit reports issued during its audit period. Of this sustained amount, CMS reported that it had collected $272 million (55 percent) and that it had not collected $226 million (45 percent).

In addition, CMS did not take corrective action in response to all of the recommendations made in prior audit report published a decade ago. The Report concluded that the “combination of a substantial balance of uncollected overpayments, inadequate policies and procedures, and unimplemented recommendations increases the risk that CMS will not collect millions of dollars owed to the Medicare Trust funds.” Thus, in this 2022 report, a number of recommendations were again made.

CMS officials gave various reasons for not collecting sustained overpayments, such as provider appeals and CMS/MAC redeterminations of overpayment amounts.

One of the recommendations this year by OIG is for CMS to “revise 42 CFR section 405.980 and corresponding manual instructions” which is an invitation for a rulemaking process that will likely make changes to payer appeals of WCMSA settlement set-aside proposals.

Under this regulation as it is currently written, party may request that a CMS contractor reopen its initial determination or redetermination within 1 year from the date of the initial determination or redetermination for any reason, or within 4 years from the date of the initial determination or redetermination for good cause in accordance with § 405.986. Some industry experts expect that the time frame for appeals is likely to be shortened.

Additionally, CMC announced its intent to solicit applicants for a new Workers’ Compensation Review Contractor (WCRC) that will evaluate workers’ compensation Medicare set-aside arrangement (WCMSA) proposals and project the future medical costs, including prescription drugs, related to the workers’ compensation (WC) injury, illness, or disease that would be otherwise reimbursable by Medicare.

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California Joins 17 States in Employment Definition Classification Battle

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The California Attorney General joined a coalition of 17 attorneys general, as well as state and local labor agencies, in a comment letter in support of a U.S. Department of Labor (DOL) proposal to strengthen federal protections against worker misclassification.

In filing the comment letter this month, California joins the attorneys general of Massachusetts, New York, Pennsylvania, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, Rhode Island, and Washington, as well as the City of Philadelphia, the Pennsylvania Department of Labor and Industry, and the Washington Department of Labor and Industries.

Worker misclassification occurs when a firm inappropriately treats its employees as independent contractors, thereby evading legal obligations such as minimum wage, overtime, payroll taxes, and workers’ compensation insurance.

Over 26 States (including California after passing AB-5) employ variations of the “ABC” test, which generally provides that individuals who provide services in exchange for remuneration are employees unless all three of the following elements are proven: (A) such individual is free from control over the performance of such service; (B) such service is outside the putative employer’s usual business; and (C) such individual is customarily engaged in an independent trade, profession or business.

However, in 2019, the NLRB adopted a standard (SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019)) that allowed employers to classify workers as independent contractors if they can demonstrate, on balance, that the workers appear to have access to “entrepreneurial opportunity” similar to that of running an independent business.

The NLRB’s 2019 decision set aside a prior, more stringent test (FedEx Home Delivery, 361 NLRB 610, 611 (2014)), for classifying workers as independent contractors. That prior standard held that while multiple factors must be considered, a significant factor in any worker classification analysis was the extent to which an employer controls an individual’s work.

During President Trump’s administration, the DOL issued a final rule clarifying when workers are independent contractors versus employees. The rule applied an economic-reality test that primarily considers whether the worker operates his or her own business or is economically dependent on the hiring entity.

The standard was slated to take effect in March 2021, but President Joe Biden’s administration issued rules delaying and ultimately withdrawing the standard.

However, the Coalition for Workforce Innovation (a group that represents Uber, Lyft and other gig-economy businesses) and other similar business groups convinced Judge Marcia Crone of the U.S. District Court for the Eastern District of Texas to reinstated the Trump administration’s rule, which she did in a 43 page March 14 order, finding that the Biden administration’s actions violated the Administrative Procedure Act (APA).

In the Attorney General comment letter, the coalition urges DOL to act swiftly on its proposal to rescind and replace a Trump-era rule regarding independent contractor status, which they say put workers at increased risk of misclassification by unlawfully broadening the definition of an independent contractor and upending previous standards implemented under the federal Fair Labor Standards Act (FLSA).

The attorneys general, among other things, assert:

– – The proposed rule is consistent with the text and purpose of the FLSA, legal precedent, and prior DOL guidance;
– – Replacing the Trump-era rule, which (they say) was contrary to law, with the current proposal will restore clarity for workers, businesses, and the public;
– – Through the economic reality test, the proposed rule offers strong protections against workers being improperly classified;
– – DOL took appropriate steps to thoroughly analyze alternative potential regulatory approaches and the current proposal is necessary to achieve consistent application of the FLSA; and
– – DOL should act swiftly to adopt the proposed rule.

Thus, the rules defining what is and is not an “independent contractor” remain controversial and to some extent volatile and uncertain in many jurisdictions. The final rule by the DOJ in the current chapter of the classification battle continues, with now 17 Attorney Generals supporting a more liberal definition of employee status.

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