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Mandated COVID-19 Vaccinations Clash With Employee Rights

Several legal experts say workplace safety rules may clash with federal protections for individual rights if employees resist potential employer efforts to require them to take a prospective COVID-19 vaccine, but safety considerations will likely carry more weight in court.

According to the report in Business Insurance, “When there is a vaccine, it will be a gamechanger, but it will raise issues,” said Dennis Brown, managing shareholder in the San Jose, California, office of Littler Mendelson P.C., which represents employers.

“Because COVID-19 is highly contagious and dangerous for some people – there will be a big rush by employers to require vaccinations, and part of that is driven by fear,” he said. “Employers will be under tremendous pressure to require the vaccine.”

Yet Mr. Brown and other employment law attorneys say they are bracing for challenges to vaccine requirements.

Employers may require vaccines to comply with regulations such as the U.S. Occupational Safety and Health Administration’s general duty clause, which calls for employers to provide safe work sites. But they also face requirements to comply with legal exemptions for individuals on the basis of health or religion.

Title VII of the Civil Rights Act, for example, bars employment discrimination on the basis of religion, among other things, and the Americans with Disabilities Act states that a disabled person can be exempt from receiving a mandatory vaccination under certain conditions.

“The Title VII and ADA disability accommodations are not new to employers, but this context is new,” said Casey Denson, a New Orleans-based employment law attorney for her own firm, Casey Denson Law LLC, which represents employees. She said there’s no legal precedence concerning vaccine exemptions for COVID-19, so it’s unclear how courts will rule.

Mr. Brown said courts are “less hospitable” to religious exemptions than to medical concerns “as a general rule” and that the pandemic could further tip the scales away from accepting personal religious exemptions in favor of protecting all workers and businesses. Overall, in health care settings, exemptions almost never stand as “the balancing test you go through between individual liberty and public health and safety tilts heavily to public safety,” he said.

How the EEOC guidance would pertain to a COVID-19 vaccine remains to be seen, Ms. Denson said.

“It’s going to depend on the type of business you have, whether you are interacting with coworkers, customers or older individuals” shown to be at risk for COVID-19 complications, she said. “Even though we have legal frameworks for decisions on vaccines it’s going to be a complicated decision.”

We will have to see how things play out,” said David Kurtz, Boston-based partner with Constangy, Brooks, Smith & Prophete LLP, which represents employers.

“When it came to influenza vaccines, the EEOC said employers should consider encouraging people to get vaccines but not force them. (COVID-19) will absolutely shake things up. One of the things that is so unusual with COVID-19 is when people have the flu they know it; when it comes to COVID-19 you hear that people are asymptomatic. That’s part of the problem employers are facing.”

Samuel Burgess, Syracuse, New York-based senior counsel with Bond, Schoeneck & King PLLC, said courts will likely side with employers seeking to protect their entire workforce through compulsory vaccinations.

“We’ve seen this in the schools context with the measles and the flu shot requirements in the health care setting, and how courts aim to look at protection for the public and the greater good,” he said.

Study Says Household Exposure Most Likely Source of COVID-19

Although California employers may face a presumption of compensability in COVID-19 claims, ongoing research may provide opportunities to dispute the presumption.

South Korean epidemiologists have found that people were more likely to contract the new coronavirus from members of their own households than from contacts outside the home.

A study published in the U.S. Centers for Disease Control and Prevention (CDC) on July 16, and summarized by Reuters, looked in detail at 5,706 “index patients” who had tested positive for the coronavirus and more than 59,000 people who came into contact with them.

The findings showed that less than 2% of patients’ non-household contacts had caught the virus, while nearly 12% of patients’ household contacts had contracted the disease.

By age group, the infection rate within the household was higher when the first confirmed cases were teenagers or people in their 60s and 70s.

“This is probably because these age groups are more likely to be in close contact with family members as the group is in more need of protection or support,” Jeong Eun-kyeong, director of the Korea Centers for Disease Control and Prevention (KCDC) and one of the authors of the study, told a briefing.

Children aged nine and under were least likely to be the index patient, said Dr. Choe Young-june, a Hallym University College of Medicine assistant professor who co-led the work, although he noted that the sample size of 29 was small compared to the 1,695 20-to-29-year-olds studied.

Children with COVID-19 were also more likely to be asymptomatic than adults, which made it harder to identify index cases within that group.

“The difference in age group has no huge significance when it comes to contracting COVID-19. Children could be less likely to transmit the virus, but our data is not enough to confirm this hypothesis,” said Choe.

Data for the study was collected between Jan. 20 and March 27, when the new coronavirus was spreading exponentially and as daily infections in South Korea reached their peak.

KCDC has reported 45 new infections as of Monday, bringing the country’s total cases to 13,816 with 296 deaths.

Independent Physicians Face Financial Pressure from COVID-19

According to an American Medical Association report, physician employment has grown 13 percent since 2012, with the percent of employed physicians surpassing their cohorts in physician-owned practices for the first time in 2018. A new report suggests that this phenomena will be accelerating.

More than half of independent physicians reported they are worried about their practices surviving the COVID-19 pandemic indicating there may be a sharp uptick in future partnerships and consolidation, the new report found.

Consulting firm McKinsey & Co. surveyed physicians nationally in both 2019 and, again, six weeks into the pandemic, to understand physician sentiment. Nearly half of the physicians surveyed in the six weeks after the pandemic was declared said they had less than four weeks cash on hand.

Nearly seven in ten (68%) of those who were looking for partners listed financial support as the primary driver, the report said.

“While autonomy has remained a priority for physicians, respondents indicated that they will consider partnerships or joining a health system as a result of financial uncertainty resulting from the COVID-19 pandemic,” authors Kyle Gibler, M.D., Omar Kattan, M.D., Rupal Malani, M.D., and Laura Medford-Davis, M.D., wrote in the report..

For example, more than half (54%) of large independent practice docs and 30% of small independent practice physicians said the pandemic “has shown me the benefits of working for a large practice outweigh the benefits of working in a smaller practice.”

Four in 10 physicians who responded said they are now more likely to pursue employment as a result of COVID-19.

Meanwhile, more than a quarter of independents are considering selling their practice or partnering with a larger entity due to COVID-19.

In 2019, 75% of responding physicians said they preferred to join an independent physician group while 41% said they preferred to join a hospital or health system. After COVID-19, nearly 90% of respondents said they preferred to join an independent group while 28% preferred to join a health system.

However, the report said, 26% of physicians who joined a practice or health system reported “buyer’s remorse,” stating that they were interested in returning to self-employment.

“As health systems explore the next chapter of physician acquisition, our research in the healthcare sectors suggests all parties should deepen their understanding of physicians’ needs,” the authors wrote. “Clear communication between health systems and physicians on the expectations and benefits of alignment, including the implications for physicians, their teams, and their patients, will be important considerations in building longer-term successful relationships.”

DWC Announces New Ethics Committee Appointments

Division of Workers’ Compensation (DWC) Administrative Director George Parisotto has appointed Jill A. Dulich to serve as a member of the Workers’ Compensation Ethics Advisory Committee. The appointment is effective July 1, 2020.

Jill A. Dulich will fill the position of a member of the public representing self-insured employers, previously held by Jim Zelko.

Dulich has been the Claims and Operations Manager for the California Self-Insurers’ Security Fund. In her role, she oversees the third party administrators that manage the claims that have been assigned to the Security Fund due to the default of a self-insured employer, as well as manages the daily administrative operations of the Fund. She also serves as the Executive Director for the National Council of Self-Insurers and for the California Self-Insurers Association.

Jim Zelko has been reappointed to the Committee, but in the position of a member of the public outside the workers’ compensation community in light of his recent retirement from Kaiser Foundation Health Plan.

The Ethics Advisory Committee, established in 1995 by Title 8, California Code of Regulations, section 9722, reviews all ethics complaints from the public against workers’ compensation administrative law judges.

The committee reviews all complaints without learning the names of complainants or judges, and then makes recommendations to the DWC Administrative Director and the Chief Judge. The members meet quarterly and serve without compensation.

The committee includes the following members: a member of the public representing organized labor; a member of the public representing insurers; a member of the public representing self-insured employers; an attorney who formerly practiced before the Workers’ Compensation Appeals Board and who usually represented insurers or employers; an attorney who formerly practiced before the Workers’ Compensation Appeals Board and who usually represented applicants; a presiding judge; a workers’ compensation administrative law judge (WCALJ) or retired WCALJ; and two members of the public outside the workers’ compensation community.

A judicial ethics complaint form and instructions can be found on the forms page of the DWC website.

California Class Action Claims TeamHealth Inflates ER Charges

Amid ongoing scrutiny of its business practices, physician-staffing giant TeamHealth is now facing a California based class action suit accusing the company of fraudulent patient billing and racketeering.

TeamHealth, based in Knoxville, Tennessee, is one of the largest providers of outsourced clinical staffing and administrative services for hospital-based and freestanding emergency departments in the country.

The company, which was acquired by private equity firm Blackstone Group LP in 2017, operates within 47 states and runs about 3300 acute and post-acute facilities. TeamHealth contracts with hospitals to staff and manage various departments, including emergency, critical care, radiology, and anesthesiology services. The company currently controls about 17% of the emergency medicine market in the United States, according to the legal challenge.

The lawsuit, filed July 10 in US District Court for the Northern District of California, contends that TeamHealth vastly inflates the rates it charges patients and aggressively pursues debt collection if patients fail to pay the inflated prices. The complaint alleges TeamHealth is illegally engaging in the corporate practice of medicine and is avoiding state bans of this practice by operating a web of subsidiaries and purportedly independent organizations.

In a statement to Medscape Medical News, TeamHealth denied the claims and indicated that the company plans to aggressively fight the lawsuit.

“TeamHealth is confident that our billing practices and organizational structure are fully compliant with long established laws and precedents,” TeamHealth said in an emailed statement. “TeamHealth maintains a long-standing practice against balance billing. We believe these claims are wholly without merit and we look forward to vigorously defending ourselves.”

The class action suit claims that TeamHealth is practicing corporate medicine but is able to skirt state laws that prohibit the practice through a spectrum of so-called subsidiaries and “independent” contractors.

As director of the enterprise, TeamHealth controls the terms of its physicians’ employment, all physician staffing decisions, and all the rates its physicians and practice groups charge patients, according to the suit. The complaint claims these rates are inflated far above what is reasonable and customary for the services provided.

The suit’s lead plaintiff, Sia Fraser, claims she experienced just such inflated bills after an emergency department visit. Fraser was treated for emergency gallstone surgery by a physician in a TeamHealth-owned physician group in September 2019 at Tri-City Medical Center in Oceanside, California. TeamHealth billed Fraser $1082 for an hour of observation care during the visit, according to the suit. For the same hospital visit, TriCity Medical Center billed Fraser $63 per hour for observation care performed by hospital physicians.

Craig Briskin, an attorney for Fraser with the law firm Justice Catalyst Law, said his team intends to obtain substantial monetary relief for consumers in the case and aim to return fairness and common sense to medical billing.

The suit comes at the heels of growing skepticism about TeamHealth’s practices. The company has come under fire in recent months for reportedly sending surprise bills to patients and slashing physicians’ hours during the coronavirus health crisis, according to ProPublica. One analysis of the company’s records by the news organization found that TeamHealth is substantially marking up medical bills to boost profits. Two TeamHealth affiliates in Texas, for instance, billed 7.7 times more than their actual costs for clinicians and support services, according to the June ProPublica report.

Most ER doctors are not employees of the hospital where they work. Historically they belonged to doctors’ practice groups. In recent years, wealthy private investors have bought out those practice groups and consolidated them into massive nationwide staffing firms like TeamHealth and its largest competitor, KKR-owned Envision Healthcare.

At Least 13 States Considering COVID-19 Liability Limits

As companies start planning their reopenings, business groups are pushing Congress to limit liability from potential lawsuits filed by workers and customers infected by the coronavirus.

President Donald Trump has floated shielding businesses from lawsuits. His top economic adviser Larry Kudlow said on CNBC last week that businesses shouldn’t be held liable to trial lawyers “putting on false lawsuits that will probably be thrown out of court.” He said the issue could require legislation, and Senate Majority Leader Mitch McConnell said that the issue would be a priority when lawmakers return.

New York Senator Daphne Jordan introduced legislation this month that would limit the civil liability of employers and employees over possible transmission of COVID-19 “caused by an act or omission while acting in good faith” and causing death or injury.

S.B. 8800, which is entitled “Get New York Back to Work act,” would apply to a “Covered Entity” which is defined as one or more individuals, business trusts, legal representatives, corporations, companies, associations, firms, partnerships, societies, joint stock companies, universities, schools, not-for-profit organizations, religious organizations or any organized group of such entities.

If adopted, no Covered Entity shall be liable in any civil action for the spread or possible transmission of COVID-19 caused by an act or omission of such covered entity acting in good faith in the workplace.

The bill describes “good faith” as “making reasonable efforts to act in compliance” with applicable guidance from federal, state and local authorities, among other governing bodies.

The bill was referred to a rules committee and would go into effect 30 days after passage.

In addition to New York, at least 12 other states – including Alabama, Arkansas, Georgia, Iowa, Kansas, Louisiana, Mississippi, North Carolina, Ohio, Oklahoma, Utah, and Wyoming – have begun enacting such legislation to narrow the liability limits related to and stemming from COVID-19.

On June 26, 2020, the Georgia General Assembly passed Senate Bill 359, also known as the “Georgia COVID-19 Pandemic Business Safety Act.” The Act, currently awaits final approval by Governor Brian Kemp pending his office’s legal review.

Although the various pieces of legislation may contain similarities, each law differs from state-to-state in a manner that leaves healthcare providers, businesses, and individuals vulnerable to differing rules and regulations related to COVID-19 liability across their respective footprints.

Congress Begins Permanent Medicare Transition to Telehealth

A bill introduced on Thursday in the US House of Representatives would make permanent some temporary changes that CMS has initiated in its telehealth coverage during the COVID-19 pandemic.

Cosponsored by members of the House Telehealth Caucus, the bipartisan legislation would eliminate most geographic and originating site restrictions on the use of telehealth in Medicare. The bill would allow telehealth visits to be conducted in a patient’s home. It would also permit rural health clinics and federally qualified health clinics to furnish telehealth services.

In addition, the bill would authorize the Department of Health and Human Services to waive or modify telehealth requirements in Medicare during and for 90 days after any emergency period. It would also require HHS to submit a report to Congress on telehealth utilization within 6 months after the end of the emergency period.

Industry groups hailed the introduction of this legislation. But many other details of how Congress or CMS might regulate telehealth coverage after the pandemic is over remain unclear. Moreover, the bill affects only Medicare. States would have to pass their own legislation to make permanent the temporary changes many of them have created in their Medicaid regulations on telehealth. And commercial insurers would not be bound by the House bill, should it be adopted and signed into law.

Among the temporary waivers CMS introduced under the authority of President Trump’s March 13 emergency declaration and the CARES Act, the agency:

— Allowed patients to receive services anywhere, including at home
Added 135 allowable telehealth services, more than doubling the number of services it allowed before
— Established reimbursement parity for in-person and telehealth visits
— Allowed telephone Evaluation and Management visits to be paid at the same rate as in-person visits
— Allowed the use of telehealth in post-acute care facilities
— Covered telehealth in rural health clinics and federally qualified health centers
Expanded the types of providers who can supply telehealth services
— Waived the collection of copays for telehealth visits

Prior to the COVID-19 crisis, CMS also expanded allowable telehealth services and introduced “virtual check-ins,” which doctors can use to determine whether patients should be seen in person. In addition, it gave Medicare Advantage plans the option of offering telehealth services to their members.

CMS has already started to use the information it has collected on telehealth use in the pandemic to inform its decisions going forward. “Early CMS data have shown telehealth to be an effective way for people to access health care safely during the COVID-19 pandemic, whether it’s getting a prescription refilled, managing chronic conditions, or obtaining mental health counseling,” Verma writes in the blog post.

Before the public health emergency, Verma said, an average of 13,000 fee-for-service Medicare beneficiaries received telehealth services each week. In the last week of April, nearly 1.7 million beneficiaries received telehealth services. More than 9 million beneficiaries received telehealth visits from mid-March through mid-June, including audio-only visits, virtual check-ins, and e-visits via patient portals.

In rural areas, she notes, 22% of Medicare patients used telehealth; 30% used it in urban areas. Patients in the Northeast and mid-Atlantic used more telehealth than did patients elsewhere.

AG Approves Sale of St. Francis Medical Center to Prime Healthcare

The California Attorney General issued a letter conditionally approving the sale of St. Francis Medical Center, a Verity Health System medical facility in Los Angeles County, to Prime Healthcare, Inc.

Daughters of Charity of St. Vincent de Paul, Province of the West, a religious organization, originally owned Verity. In 2015, the Daughters recapitalize the system with an investment of about $250 million. Verity was losing close to $175 million per year on a cash flow basis. In 2018 it filed for bankruptcy to help resolve a cash crunch while it found a buyer.

Under California law, any proposed sale of a non-profit health facility to a for-profit corporation must secure the approval of the state Attorney General, whose statutory charge is to consider the factors set forth in the law, including whether the transaction is in the public interest and whether the transaction affects the availability or accessibility of healthcare services to the affected community.

The Attorney General’s conditional consent represented in the letter seeks to protect access to care for the Los Angeles communities served by the hospital. If Verity and Prime close on the sale with the conditions outlined in the letter, they are consenting to comply with the conditions. The transaction must still be approved in Court where Verity has filed for bankruptcy.

The Attorney General’s conditions are based on an independent health expert’s in-depth analysis of the health and medical needs in the surrounding communities. Among other things, these conditions call for Prime, the prospective purchaser, to:

Keep St. Francis open for at least ten years after sale and continue operating as a Trauma II Center. St. Francis will continue to provide cancer services, cardiac services, women’s health services, neonatal intensive care, perinatal and pediatric services, psychiatric and other critical services recommended by the health expert;
Increase of its reach of charity care policy at St. Francis by covering care in full, serving those who earn at the 400 percent of federal poverty level ($51,040 for an individual and $86,880 for a family of three) and up to 600 percent of federal poverty for the discount payment policy;
— Commit $10,186,173 in charity care for patients in the surrounding community, and Prime has agreed to improve its charity care policies to cover significantly more patients;
— Increase the community benefit of St. Francis to $1,597,077 for six years exclusive of any grants received, to support the Southern California Crossroads Program, the Health Benefit Resource Center, Welcome Baby Program, Healthy Community Initiatives, American Career College access for onsite training, Paramedic Training and Education, and Patient Transportation Support;
— Maintain admitting privileges for staff in good standing, maintain on-call coverage contracts and comparable arrangements with physicians at fair market value to maintain Level II trauma care at St. Francis;
Commit the necessary investments required to maintain seismic compliance at St. Francis. Prime will be required to expend at least $35 million for capital improvements, excluding seismic retrofit costs, at St. Francis Medical Center over the five-year period from the closing date, including but not limited to upgrading its electronic medical records system. The expert report identified seismic issues at St. Francis; and
Maintain access to women’s healthcare services for ten years, and no limitations on LGBTQ healthcare services offered at St. Francis.

WCAB En Banc Rescinds Some Suspension Orders in September

On March 18, 2020, the Appeals Board issued its decision In Re: COVID-19 State of Emergency En Banc (Misc. No. 260) in response to the March 4, 2020 declaration of a state of emergency issued by the State of California’s Governor, Gavin Newsom,3 and pursuant to WCAB Rule 10370. (Cal. Code Regs., tit. 8, § 10370.)

The Appeals Board temporarily suspended specific WCAB Rules of Practice and Procedure in its decision including WCAB Rules 10961(a), 10962(c), 10990(f)(3)(E), and 10995(c)(3). (Cal. Code Regs., tit. 8, former §§ 10860, 10865, 10866, now §§ 10961(a), 10962(c), 10990(f)(3)(E), 10995(c)(3) (eff. Jan. 1, 2020).)

Pursuant to this suspension, workers’ compensation judges (WCJs) and arbitrators were provided with an unlimited extension of time within which to issue reports in response to petitions for reconsideration, removal or disqualification.

As of September 1, 2020, the Appeals Board in its new July 16, 2020 In Re: COVID-19 State of Emergency En Banc (Misc. No. 264) decision, rescinds its prior suspension of the following WCAB Rules:

10961(a) Actions by Workers’ Compensation Judge After Petition for Reconsideration is Filed.,
10962(c) Report of Workers’ Compensation Judge.,
10990(f)(3)(E) Reconsideration of Arbitration Decisions Made Pursuant to Labor Code Sections 3201.5 and 3201.7.and
10995(c)(3) Reconsideration of Arbitrator’s Decisions or Awards Made Pursuant to the Mandatory or Voluntary Arbitration Provisions of Labor Code Sections 5270 Through 5275.

These Rules will become effective again with respect to petitions filed on or after September 1, 2020.

Suspension of the other Rules as outlined in the March 18, 2020 en banc decision remains in effect until further notice.

Major Carriers Report Massive Q2 COVID-19 Losses

The global insurance industry could be hit with losses of $203 billion this year because of the coronavirus pandemic, according to Lloyd’s of London, the world’s largest insurance exchange. The claims costs are on a par with some of the most catastrophic hurricanes of recent years and could rise further if the virus isn’t contained, Lloyd’s said.

“Once the scale and complexity of the social and economic impact of COVID-19 is fully understood, the overall cost to the global insurance non-life industry is likely to be far in excess of those historical events,” Lloyd’s said.

Chubb’s disclosure of second quarter 2020 global net catastrophe losses underscores the damage COVID-19 is doing to some carriers’ bottom lines. The global property/casualty insurer estimated $1.8 billion in pretax catastrophe losses for Q2. Of that number, close to $1.4 billion in pretax catastrophe losses stem from the coronavirus pandemic. Losses from severe U.S. weather events and U.S. civil unrest constitute the difference.

Coronavirus losses could be an issue for some time, Chubb Chairman and CEO Evan Greenberg suggested during his comments about 2020 first-quarter earnings earlier this year. “In this case the degree of revenue impact is simply unknowable,” Greenberg said at the time.

CNA Financial Corporation announced that it expects to report net catastrophe losses in the second quarter of 2020 of $182 million related to COVID-19, $61 million related to civil unrest and $58 million related primarily to severe weather-related events, for a total catastrophe loss estimate of $301 million pretax.

The losses are substantially driven by healthcare professional liability with additional impacts from workers’ compensation, management liability, commercial property, trade credit, and surety. Due to the recent timing of the event, emergence pattern of claims, and long tail nature of certain exposures the losses are substantially classified as incurred but not reported (IBNR) reserves.

W.R. Berkley Corp. cautioned that its 2020 second quarter pretax catastrophe losses will reach $145 million, with more than half of that coming from COVID-19 related costs. Out of that total, $85 million stems from COVID-19 claims, the specialty insurer and reinsurer said. Civil unrest created another $20 million in pretax catastrophe losses, and $40 million stems from severe weather-related events, W.R. Berkley said.

W.R. Berkley indicated its COVID-19 claims, due to the pandemic and resulting economic crisis, consist of losses mostly from “contingency and event cancellation policies, workers compensation, professional liability and other liability-related products, as well as commercial property-related business interruption coverages.