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Obama Signs SMART Act Expediting Medicare Settlements

To usher in the New Year, Congress passed H.R. 1845, which contains, in part, the bipartisan Strengthening Medicare and Repaying Taxpayers (“SMART”) Act. The SMART Act, as adopted, amends several portions of the Medicare Secondary Payer (“MSP”) statute and aims to simplify and soften portions of the statute that have been burdensome to beneficiaries and industry stakeholders. This legislation has now been signed into law by President Obama. Notably, the beneficial provisions of the SMART Act apply only to non-group health plans (i.e., workers’ compensation, no-fault and liability insurance (including self-insurance) plans) and not to employer group health plans.

According to a summary prepared by the Association Corporate Counsel, “conditional” payments occur where Medicare pays for items or services that are later determined to be the financial responsibility of a group health plan or non-group health plan (each a “primary plan”). In the non-group health plan context, the Centers for Medicare and Medicaid Services (“CMS”) can seek to recover medical costs associated with the illness, injury or incident giving rise to the claim from the non-group health plan or from Medicare beneficiaries or others who receive settlement proceeds. In practice, most demand letters associated with liability settlements are sent to Medicare beneficiaries.

Under current CMS policy, CMS does not issue a “final” conditional payment determination amount until after settlement. Although preliminary information concerning conditional Medicare payments can be obtained prior to settlement, the dispute resolution process post-settlement regarding the appropriate amount can be lengthy and complicated. This has been a source of considerable frustration for Medicare beneficiaries. Further, CMS’ refusal to provide a final conditional payment amount prior to settlement creates additional risk for non-group health plans because CMS can recover Medicare conditional payments from a primary plan for injury related medical care notwithstanding the fact that the plan has already paid the claim and obtained a release for such medical care. Not knowing the final conditional payment amount prior to settlement impedes the non-group health plan’s ability to directly satisfy Medicare’s interests (e.g., by sending one check to Medicare and another to the claimant) because payment of settlement proceeds must generally be made promptly after settlement. This has lead liability insurance and other plans to seek work around release provisions designed to ensure that Medicare’s interests are, in fact, satisfied, adding to the complexities (and timeframes) for settlement.

The SMART Act addresses these concerns by requiring that CMS make a “statement of reimbursement” available to the Medicare beneficiary, his or her authorized representatives, and/or the non-group health plan with the beneficiary consent’s on a secure website prior to settlement of a non-group health plan claim. The settling parties can rely upon the statement as the final agency determination of Medicare conditional payments where certain conditions are met. This will allow the parties to factor the final “lien” amount into their settlement negotiations and allow primary plans to implement more direct and effective strategies for ensuring satisfaction of Medicare’s recovery rights (such as issuing separate checks to the beneficiary and Medicare). The statute imposes specific procedures around the statement of reimbursement process, including timelines for notice to the government in advance of an expected settlement and timelines for CMS’ response. CMS must promulgate final regulations to implement this process within nine months after the SMART Act enactment.

Many stakeholders have expressed concern over the slow and cumbersome process available for beneficiaries who wish to dispute costs that a CMS contractor identifies as Medicare conditional payments on the basis that such costs are not related to the illness, injury or incident at issue. The SMART Act requires that the Secretary provide Medicare beneficiaries and their authorized representatives a “timely process to resolve the discrepancy.” Specifically, if the individual or representative provides documentation explaining the discrepancy and offering a proposal to resolve it, CMS must, in turn, determine whether there is a reasonable basis to include or exclude the claims at issue in the Medicare conditional payment amount within 11 business days after receipt of the document. Additional processes for resolution are specified. The statute does not allow any administrative or judicial review of the Secretary’s determinations under this new process. However, Medicare beneficiaries still would retain the ability, as under current law, to exercise formal administrative or judicial appeals to contest final conditional payment demands from CMS. The Secretary also must promulgate implementing regulations concerning these processes within nine months of enactment.

Under current MSP law, “Responsible Reporting Entities” are required to determine whether a claimant is a Medicare beneficiary and, if so, submit certain detailed information to CMS. An RRE that fails to report the claimant’s information, as required, “shall be subject to a civil monetary penalty of $1,000 for each day of non-compliance with respect to each claimant,” with no exception for good faith efforts to obtain the information. While CMS has yet to publish implementing regulations or, to our knowledge, impose any such penalty, the potential financial risk to RREs is substantial. The SMART Act modifies the statutory language to provide that an RRE “may be subject to a civil money penalty of up to $1,000 for each day of noncompliance” per claimant. Moreover, and equally important, the SMART Act requires the Secretary to publish notice within sixty days of enactment soliciting proposals on practices that will and will not be subject to sanctions for non-reporting, including not imposing sanctions for good faith efforts to identify beneficiaries, and thereafter issue final rules regarding such practices.

CWCI Study Sees High Carpal Tunnel Injuries for Hospital Workers

The California Workers’ Compensation Institute has released the sixth edition of its “Injury Scorecard” research series, providing detailed data on accident year (AY) 2001 to 2011 workers’ compensation claims experience for cases in which the primary diagnosis was carpal tunnel syndrome. The new Scorecard is based on data from 19,899 California open and closed job injury claims for carpal tunnel syndrome that through December 2011 resulted in total payments of $738 million. The Scorecard shows that over the 11-year span of the study, carpal tunnel claims accounted for less than 1% of California job injury claims, but 2.4% of all paid losses.

More than 60% of carpal tunnel claims come from the professional/clerical, manufacturing, and mercantile sectors, though since 2008, the highest growth rate of carpal tunnel claims has been among hospital workers, who accounted for nearly 14% of the claims since 2008, up from 6.3% in the prior five years. More than half of the carpal tunnel claims over the past decade have resulted in permanent disability (PD) – more than triple the rate for all job injury claims, and these PD cases account for nearly 89 cents out of every dollar paid on carpal tunnel claims. Since 2001, the average claim duration for carpal tunnel claims has been nearly 31 months from the claim filing date to claim closure – nearly triple the average of 10.8 months for all other work injury claims – and for carpal tunnel PD cases, the average duration has been nearly 4 years (1,406 days), or about 5 months longer than the average for PD cases involving other types of injuries. The Score Card notes a number of factors that may contribute to the longer claim durations in carpal tunnel cases including uncertainty and disputes over the cause and nature of the injury; notification and initial treatment delays; high levels of attorney involvement; the high incidence of lost time claims (especially PD claims), and treatment plans that often involve surgery followed by physical therapy and delayed return to work. As a result, average payments on carpal tunnel claims have consistently exceeded the average for all claims at 12, 24 and 36 months post injury. For example, for accident year 2007-2009 lost time claims, total benefit payments for carpal tunnel cases at 36 months post-injury averaged $35,129 ($16,980 medical + $18,149 indemnity); 20% more than the average of $29,211 ($15,646 medical + $13,565 indemnity) paid for all California workers’ compensation lost time claims.

The Score Card also features a profile of injured workers with carpal tunnel syndrome, as well as claim distributions by industry sector, injured worker county of residence, and nature and cause of injury. In addition, several Score Card exhibits compare the results for carpal tunnel claims to those for all California workers’ compensation claims (these include the exhibits showing the percentage of claims with PD payments within 3 years of injury; the attorney involvement data; the claim closure data; the prescription drug distributions; the breakdowns of medical development by Fee Schedule Section at 12 and 24 months post injury; the notice and treatment time lags; the medical network utilization rates; and the 12-, 24- and 36-month loss development).

CWCI Industry Score Cards and summary Bulletins are available to CWCI members and research subscribers on CWCI’s web site, Anyone wishing to subscribe may do so by going to CWCI’s online Store. The next Score Card in the series will focus on “Other Injuries, Poisonings and Toxic Effects.”

Survey Confirms Concerns Over Opioid Medications

Tampa, Florida-based CompPharma is a consortium of pharmacy benefit managers. It’s 9th annual survey report, titled “Prescription Drug Management in Workers’ Compensation” states that claims “payers have gotten the message: narcotics are highly problematic for workers’ comp claimants, employers and insurers.” The new survey confirms that addiction to opioid pain medications and the dispensing of drugs by doctors remain top concerns for workers’ compensation companies. The report relies on survey responses from insurers, third-party administrators, and employers with prescription expenses totaling nearly $475 million.

Concern over the long-term implications of prescribing narcotic pain medications to injured workers has grown during the past two years with respondents to this year’s survey conducted by CompPharma L.L.C. saying the issue remains “very significant.”

Despite relatively flat drug costs, respondents continue to be significantly concerned about the issue. In response to the question “How big a problem are drug costs?” on a 1 through 5 scale with 3 being “drug costs are equally as important as other medical cost issues,” drug costs were rated a 4.1, or “more important than other medical cost issues.” This was three-tenths of a point higher than last year’s results (3.8). Moreover, respondents are concerned (4.2) that drug costs will be more of a problem in the next 12-24 months than they are today.

And consistent with results from last year, respondents judged opioids to be a very significant problem, giving it an average of 4.8, identical to responses in the 2011 survey. This is the highest score for any survey question in the history of the survey, and a clear indicator of the level of the industry’s anxiety over a problem it has yet to fully understand, much less address.

The concern over physician dispensing has grown over the last few years, driven by payers’ own experience and the research from NCCI and WCRI quantifying the dramatic increase in the percentage of drug dollars going to pay for physician-dispensed medications.

In 2010, many responses noted newly implemented programs or steps designed to address opioid use. In 2011, implementing and upgrading those programs was the most common change to respondents’ pharmacy management programs.

Half of all respondents utilized a “urine drug-testing program to monitor claimant compliance.” Among those who did not answer in the affirmative were payers that operated in states where they could not require UDT, although they did encourage or recommend testing whenever possible. Others did not have “formal” programs but did reimburse for UDT and were in the process of setting up a program, or were discussing a program with their PBM. There is a clear indication that this tool is growing in popularity.

Pharmacy management in workers’ comp has evolved dramatically over the nine years that surveys have been taken. From a focus on the price of the pill and the size of the retail pharmacy network in 2003 to today’s concern about opioids, physician dispensing and clinical management, there has been a remarkable increase in sophistication and understanding. With that said, it is evident that despite all the attention paid to and resources focused on this issue, payers’ level of concern about pharmacy management continues to remain quite high.

One of Ten Most Wanted Health Care Fugitives Arrested in Canada

A fugitive convicted in a $1-million health-care fraud scheme in California was arrested in Canada. Police said Leonard Nwafor was detained on an extradition warrant at his Toronto residence. The U.S. Marshals Service contacted Toronto authorities in August to seek their help in finding Nwafor and issued the extradition warrant last month.

Nwafor fled California after the conviction. In 2010, he was sentenced in absentia to nine years in prison and ordered to pay more than $500,000 in restitution and $25,000 in fines. He was also ordered to forfeit more than $500,000 in stolen funds to the U.S. government.

Authorities believe he had been living in Canada since he fled. Nwafor was also wanted by the U.S. Postal Inspection Service, which had placed him among its 10 most-wanted fugitives. The agency charges that Nwafor opened fraudulent credit card accounts in Arizona and used the cards in Southern California.

Nwafor was convicted at trial in September 2008 of conspiracy to commit health care fraud and health care fraud. At trial, evidence established that Nwafor, through his company, Pacific City Group Inc., aka Pacific City Medical Equipment, submitted $1,109,438 in fraudulent claims to Medicare. As a result of the fraudulent claims, Nwafor received $526,243 in payments from Medicare. The evidence presented at trial showed that almost all the claims Nwafor submitted to Medicare were for expensive, high-end power wheelchairs and wheelchair accessories that were not needed by the beneficiaries.

Elderly and disabled Medicare beneficiaries testified that individuals known as “marketers” approached them on the street, at home or in church and encouraged the beneficiaries to give the marketers their Medicare numbers and other personal information in exchange for free power wheelchairs. Evidence presented at trial established that Nwafor billed Medicare for power wheelchairs on behalf of more than 170 beneficiaries, none of whom actually needed the wheelchairs. The power wheelchairs Nwafor claimed Pacific City provided to the beneficiaries can be billed to Medicare for up to $7,000 each.

The evidence also showed that Nwafor supplied power wheelchairs to beneficiaries who were not able to use the chairs. One beneficiary, who was blind, testified that he could not see to operate the wheelchair and never used it. The same beneficiary also testified that a delivery driver working for Nwafor and the delivery driver’s girlfriend paid him $200 to refer them to other Medicare beneficiaries.

Another beneficiary testified about the aggressive techniques marketers used to recruit her and her husband into the fraudulent scheme. This beneficiary testified that an individual purporting to be from Medicare, but who was actually associated with Nwafor and his co-conspirators, threatened to terminate the Medicare benefits of the beneficiary and her husband unless they accepted two power wheelchairs that the beneficiary and her husband did not need.

The evidence at trial included testimony from Los Angeles-area physicians whose names appeared on prescriptions Nwafor used to support his false claims to Medicare. One of these physicians, a psychiatrist, testified that he does not prescribe power wheelchairs as part of his practice, and had never written a prescription for one. Other physicians testified that the prescriptions bearing their names were phony and that their handwriting was not on any of the prescriptions.

After his conviction, Nwafor admitted in documents he filed with the court that he purchased the prescriptions and documents he used to support his false claims to Medicare from a co-conspirator for approximately $1,300 per prescription. One of Nwafor’s co-conspirators, Ajibola Sadiqr, admitted that he purchased fraudulent prescriptions and documents from Nwafor to perpetrate his own fraudulent power wheelchair Medicare fraud scheme. Sadiqr pleaded guilty and is scheduled to be sentenced on April 12, 2010.

Scientists Develop Objective Measurement of Pain

Scientists have long searched for a method to objectively measure pain and a new study from Brigham and Women’s Hospital advances that effort. The study appears in the January 2013 print edition of the journal Pain.

Specifically, researchers studied 16 adults with chronic back pain and 16 adults without pain and used a brain imaging technique called arterial spin labeling to examine patterns of brain connectivity (that is, to examine how different brain regions interact, or “talk to each other”). They found that when a patient moved in a way that increased their back pain, a network of brain regions called Default Mode Network exhibited changes in its connections. Regions within the network (such as the medial prefrontal cortex) became less connected with the rest of the network, whereas regions outside network (such as the insula) became connected with this network. Some of these observations have been noted in previous studies of fibromyalgia patients, which suggests these changes in brain connectivity might reflect a general feature of chronic pain, possibly common to different patient populations.

“This is the first study using arterial spin labeling to show common networking properties of the brain are affected by chronic pain,” said study author Ajay Wasan, MD, MSc, Director of the Section of Clinical Pain Research at BWH. “This novel research supports the use of arterial spin labeling as a tool to evaluate how the brain encodes and is affected by clinical pain, and the use of resting default mode network connectivity as a potential neuroimaging biomarker for chronic pain perception.”

“While we need to be cautious in the interpretation of our results, this has the potential to be an exciting discovery for anyone who suffers from chronic pain,” said Marco Loggia, PhD, the lead author of the study and a researcher in the Pain Management Center at BWH and the Department of Radiology at Massachusetts General Hospital. “We showed that specific brain patterns appear to track the severity of pain reported by patients, and can predict who is more likely to experience a worsening of chronic back pain while performing maneuvers designed to induce pain. If further research shows this metric is reliable, this is a step toward developing an objective scale for measuring pain in humans.”

Tulare County Employee Arrested for Comp Fraud

On January 4, 2013, Investigators from the Office of the District Attorney, County of Tulare arrested Michael D. Maloney, age 52, of Porterville. Maloney was wanted for allegedly filing a fraudulent workers’ compensation claim.

Maloney was arrested on a $10,000.00 bail felony warrant and was subsequently booked into the jail at the Tulare County Sheriff’s Office, Porterville Sub Station. He was later transferred to the Main Jail without further incident.

Maloney was employed by the County of Tulare, Resource Management Agency assigned to Yard 5 in Terra Bella, as a heavy equipment operator. The total alleged loss to date is about $25,184.66.

Investigators from the Office of the District Attorney will continue investigating all allegations of Workers’ Compensation Fraud and additional arrests are pending.

U.S. Government Launches Sports Related Concussion Study

The U.S. government launched a sweeping study of rising sports-related concussions amid concerns that the injuries may have contributed to the suicides of professional football players.

Returs Health reports that the Institute of Medicine, part of the National Academies of Science, will probe sports-related concussions in young people from elementary school through early adulthood. The study will include military personnel and their dependants, and review concussions and risk factors.

The study, one of the most extensive ever done, will be scrutinized intently by Americans worried about brain injuries in sports, said Robert Graham, head of the panel carrying out the study. “You start talking about, ‘Is it safe for Sally to be playing soccer?,’ you get lots of public interest,” Graham, a public health expert at George Washington University in Washington, told Reuters after the committee’s first meeting. He said the panel likely would submit its report to the Institute of Medicine in the middle of the summer, with publication expected in late 2013.

A 2010 study by the U.S. Centers for Disease Control and Prevention (CDC) found that U.S. emergency rooms yearly treat 173,000 temporary brain injuries, including concussions, related to sports or recreation among people less than 19 years of age. The number of emergency room visits for such injuries rose 60 percent in the previous decade among children and adolescents, the CDC study showed.

A separate 2007 study showed that the incidence of brain injury was highest in football and girls’ soccer. About 2,000 former National Football League players sued the league last year, alleging it concealed the risk of brain injury from players while marketing the ferocity of the game. Many of these same players have filed workers’ compensation claims in California claiming that head injuries decades ago have caused dementia in later years.

Concerns about a possible link between concussions and mental illnesses, such as depression, grew in the wake of the suicides of former NFL players Junior Seau, Ray Easterling and Dave Duerson in the last two years.

Participants at the committee’s meeting said there was a shortage of data on sports-related concussions among young people. The number of relevant brains available for study is in the single digits, and many studies lack breakdowns by age.

Sponsors of the study include the Department of Defense, the CDC and the National Institutes of Health. The panel will also examine studies being done by the CDC and the American Academy of Neurology.

Hyatt Settles Union Instigated Cal/OSHA Probes.

Hyatt at Fisherman’s Wharf announced it has reached a settlement with the California Division of the Occupational Safety and Health (Cal/OSHA) after working cooperatively with the agency to ensure continued workplace safety for the hotel’s housekeeping staff.

No ergonomic violations related to housekeeper tasks such as bed making, vacuuming or dusting, were found after exhaustive investigations by four separate OSHA jurisdictions, and all repetitive motion citations were withdrawn at Hyatt at Fisherman’s Wharf.

The settlement resolves the last of 12 inspections at Hyatt hotels that were instigated by complaints made by the UniteHere union as a part of its ongoing campaign to pressure Hyatt to force associates into union membership through non-democratic and intimidating tactics. Hyatt stands by its associates’ rights to a secret ballot election to determine union representation.

“We take the safety and health of all our associates very seriously. Their wellbeing is of paramount importance to us,” said Matt Humphreys, General Manager, Hyatt at Fisherman’s Wharf. “We’re pleased that we were able to work cooperatively with Cal/OSHA and that the settlement does not support the union’s complaints that our housekeepers are exposed to repetitive motion injuries.”

In the settlement, Hyatt at Fisherman’s Wharf agreed to continue with its ongoing, thorough job hazard analysis of housekeepers’ job tasks to determine if they pose any unsafe or unhealthy workplace exposures, and to examine housekeeper tools and equipment. That analysis is led by a certified and independent ergonomist. In addition, Hyatt at Fisherman’s Wharf will make changes to its workplace training and equipment inventory.

DWC On Track With SB 863 New Regulations

The Department of Industrial Relations and its Division of Workers Compensation (DIR/DWC) announced new regulations implementing provisions of Senate Bill 863, California’s landmark workers’ compensation reform signed last year by Governor Edmund G. Brown Jr. to save businesses millions of dollars in unnecessary costs while boosting worker protections. “We are on track to implement the wide-ranging reform which was the result of extensive input by workers and employers,” said DIR Director Christine Baker. “These reforms are engineered to reduce unnecessary costs while redirecting some of the savings to increase benefits for disabled workers.”

Key components of Senate Bill 863, which became law on January 1, 2013, include a 30 percent increase in permanent disability indemnity rates for workers phased in over two years. Other aspects of the bill, including those designed to cut costs for businesses, will now be implemented through regulatory action. Today’s new regulations launch that full rulemaking process with public hearings scheduled to take place by March.

The new regulations, approved on an interim basis by the Office of Administrative Law, improve workers’ compensation by creating an independent medical panel to review injuries, streamlining billing disputes and curbing unnecessary liens. Details of these new regulations include:

Utilization Review, Independent Medical Review – For injuries on or after Jan. 1, 2013, and effective July 1, 2013 for all dates of injury, medical treatment disputes will be resolved by physicians through an efficient process known as independent medical review (IMR), rather than through the often cumbersome and costly adjudication system. If utilization review denies, delays or modifies a treating physician’s request for a specific course of medical treatment for the reason that the treatment is not medically necessary, the injured employee will have the right to request a review of that decision by IMR conducted by a physician. The physician review will be expeditious and based upon evidence-based standards to ensure that injured employees receive timely and appropriate medical treatment.

Qualified Medical Evaluator Regulations and PDRS – The new regulations amend existing rules to clarify that independent medical review is the sole process for resolving disputes regarding ongoing medical treatment issues; limits the number of offices from which a Qualified Medical Evaluator (QME) may conduct evaluations; streamlines the application process for chiropractors; allows for factual corrections of a comprehensive medical-legal report from a QME panel; and amends a number of forms.

Independent Bill Review– Medical service billing disputes for dates of service on or after Jan. 1, 2013, will be resolved through a non-judicial process of independent bill review (IBR). The IBR applies to any medical service bill where the fee is determined by a fee schedule adopted by the DWC. If the medical provider disagrees with the amount paid by a claims administrator on a properly documented bill following a second review, he or she can request an IBR. This regulation will eliminate unnecessary, costly litigation.

Electronic document filing and lien filing fee – Any lien for reasonable medical expenses incurred by or on behalf of the injured employee (except disputes subject to independent medical review or independent bill review) and filed on or after Jan. 1, 2013, is subject to a lien filing fee of $150. For those liens filed before Jan. 1, 2013, there will be a $100 activation fee which must be paid prior to Jan. 1, 2014, or the lien will be subject to dismissal by operation of law.

Self-Insurance and Annual Actuarial Reports – These new regulations will implement SB 863’s requirement for all private self-insured employers and groups to obtain an actuarial report to more accurately establish the organization’s California workers’ compensation liability exposure. The regulations will further define new methods in how the OSIP establishes security deposit collateral requirements based on this additional information.

Interpreter Services – SB 863 amended Labor Code section 4600(g) to state that an injured worker is entitled to the services of a “qualified interpreter” at medical appointments if the injured worker is not proficient in English. These regulations define the “qualified interpreter for purposes of medical treatment appointments” as “an interpreter who has a documented and demonstrated proficiency in both English and the other language; a fundamental knowledge in both languages of health care terminology and concepts relevant to health care delivery systems; and education and training in interpreting ethics, conduct and confidentiality” so that employers can furnish, and non-English-speaking injured employees can receive, interpreter services at medical treatment in accordance with the statute.

Supplemental Job Displacement Benefits – Makes modifications reflecting regulatory changes regarding offers of work, notifications and vouchers for retraining workers injured on the job.

Hospital outpatient departments and ambulatory surgical centers fee schedule – The statute also amended the official medical fee schedule for hospital outpatient departments and ambulatory surgical centers, reducing the facility fee for ambulatory surgical center services to 80 percent of what Medicare bills for the same services in a hospital outpatient. This change will save an estimated $62 million plus additional savings in system costs. The regulation is effective Jan. 1, 2013.

Extensive information on workers’ rights and employers’ responsibilities as well as information for small business owners can be found on DIR’s website. DIR’s rulemaking web page includes a quick overview of regulations and is updated regularly.

City of Milpitas Defeats Employee With Fibromyalgia FEHA Claim

Yvonne Andrade brought an action against defendant City of Milpitas for failure to accommodate her disability and retaliation.

In August 2000, Andrade became a permanent hourly paid employee for the City. Since that time, she has held the position of office specialist for the planning and neighborhood services department, which is located at city hall. Andrade attends planning commission meetings and drafts the minutes for the planning commission and the library commission. She also performs office administrative functions, including generating correspondence, completing forms and other documents for planners, and entering timesheet information into the payroll computer system. Andrade’s job duties require her to be present in the office to assist other City personnel, to answer telephones, to file documents, to interact with other City employees, and to assist at public meetings.

In March or April 2008, Andrade was diagnosed with fibromyalgia. Andrade took a medical leave from July to October 2008. In October, her doctor released her to work for 40 hours a week, but placed partial work restrictions relating to lifting and other physical activities. Andrade agreed that the City accommodated these restrictions.

Andrade was hospitalized for a week in November 2008. She was also hospitalized in February 2009 when she was diagnosed with Addison’s disease, arrhythmia, and arthritis. Medication controls the symptoms of her Addison’s disease and her arrhythmia. Andrade periodically receives physical therapy for her arthritis. However, Andrade is in pain every day from fibromyalgia. Sometimes her pain is so severe that she is unable to function and is bedridden.

Andrade used her leave time, including vacation time and sick leave, to enable her to be paid when she did not come to work and she also took leave without pay. Andrade was also allowed to make up missed time by working at lunch time or until 6:00 p.m. No one at the City was critical or complained about her missing work and taking leave without pay or denied her the ability to go home when she did not feel well. In November or December 2008, Andrade spoke to her supervisor, and asked to work from home when she was not feeling well. She told him that this arrangement would vary from two to four hours a week. He told her that she could occasionally work from home on a limited basis.

The City refused to allow her access to the computer systems from her home as this would pose a security threat to City information from outside. Andrade argued that the City failed to accommodate her medical condition because it refused to allow her to perform some of her duties from home. She also argued that the City failed to engage in the interactive process in a timely manner to determine effective reasonable accommodation.

The trial court granted summary judgment in favor of the City of Milpitas, and Andrade appealed. The Court of Appeal in the unpublished opinion of Yvonne Andrade v City of Milpitas affirmed the dismissal of her case.

An employer is not required to choose the preferred accommodation or the one that the employee seeks.Rather, the employer providing the accommodation has the ultimate discretion to choose between effective accommodations, and may choose the less expensive accommodation or the [one] that is easier for it to provide. As the Supreme Court has held,an employee cannot make his employer provide a specific accommodation if another reasonable accommodation is instead provided. Moreover, an employer is not required to make an accommodation that the employer demonstrates would “produce undue hardship.”

Here, the undisputed evidence was that Andrade requested that she be allowed to work from home for two to four hours per week depending on her health and ability to work. Thus, the City offered a reasonable accommodation for Andrade’s disability.