The Ninth Circuit Court of Appeals in a case entitled Murray v. Mayo Clinic, joined four other Circuit Courts of Appeal in holding that a "but for" causation standard applies in ADA discrimination claims.

This standard is considered to make it more difficult for employees to prove discrimination claims than what had been applied previously and is referred to as "a motivating factor standard." The court reasoned that this change was required to comport with two earlier United States Supreme Court rulings that had adopted a similar standard based on similar statutory language found in the federal law prohibiting age discrimination in employment.

Using this new standard, ADA discrimination plaintiffs bringing a claim under 42 U.S.C. § 12112, which bars discrimination "on the basis of disability," must now show that the adverse employment action would not have occurred but for the disability discrimination.

Under the former standard, a jury could have found an employer had violated the ADA even if the employer proved that it had a "mixed motive" for the adverse action, i.e., both legitimate and illegitimate reasons.

While employers can rejoice about this important change, any celebration should await review of their applicable state disability discrimination practice.

Many states have adopted standards that are different from what is afforded by this recent interpretation of federal law. Indeed, employees in those states may eschew federal claims in favor of a more liberal state law cause of action. Because employees can, and most often do bring claims under both federal and state law, juries will now face the unenviable task of applying two different legal standards that could yield different results: no liability under federal law, but liability under state law.

According to Bryan Hawkins in the Sacramento office of Stoel Rives LLP, California’s ADA equivalent "the Fair Employment and Housing Act" requires that plaintiffs prove that the discrimination occurred "because of" their disability.

California courts have interpreted this to require proof the disability was a substantial motivating factor behind the discrimination, rather than simply a motivating factor. This puts California’s standard somewhere between the "motivating factor" standard and the "but for" standard. With that being said, most California plaintiffs plead violations of the Fair Employment and Housing Act rather than the ADA, so attorney Bryan Hawkins doesn’t believe Murray will provide California employers with much (if any) relief ...

A Southern California-based ophthalmology group, its former CEO and several of its physicians have paid the United States and California $6.65 million to settle False Claims Act allegations that they defrauded public health care programs by billing for unnecessary eye exams, improperly waiving Medicare co-payments, and violating other regulations, the Justice Department announced today.

Retina Institute of California Medical Group (RIC), is a medical partnership of ophthalmologists who specialize in the treatment of retinal diseases. RIC operates in multiple locations in Los Angeles, Orange and Riverside counties. On October 2, the RIC and several other defendants paid the United States $6,353,410 and paid California $296,590 pursuant to a settlement agreement.

The other defendants who participated in the settlement are:

-- Dr. Tom S. Chang, of Pasadena;
-- Tom S. Chang, M.D., Inc., a Pasadena-based company;
-- Dr. Michael A. Samuel, of Arcadia;
-- Dr. Michael J. Davis, also of Arcadia;
-- Brett Braun, former CEO of Retina Institute of California Medical Group;
-- California Eye and Ear Specialists, a Pasadena-based subsidiary of Trilogy Eye Medical Group Inc., a company for whom Chang and Samuel serve as senior executives; and
-- San Gabriel Ambulatory Surgery Center LP, a San Gabriel-based company.

Between January 2006 and August 2017, the defendants allegedly violated the False Claims Act by submitting bogus claims to Medicare and Medicaid/Medi-Cal, according to a settlement agreement signed in this case. Medicare reimburses physicians for examining patients, paying more money as the medical exams performed increase in complexity. RIC personnel allegedly improperly billed public health programs by misclassifying simpler exams as being more complex, using billing codes normally used for patients with severe or emergency conditions.

RIC and the other defendants also allegedly waived Medicare co-payments and deductibles without proper documentation of patients’ financial hardship, which was intended to induce referrals. The defendants allegedly also billed Medicare and Medicaid for medical services that weren’t performed, were unnecessary, not documented in the medical record or were not in compliance with applicable rules and regulations.

The allegations were made in a whistleblower lawsuit filed in United States District Court by Bobbette A. Smith and Susan C. Rogers, who formerly worked for RIC as administrators, under the qui tam - or whistleblower - provisions of the False Claims Act. These provisions permit private individuals to sue on behalf of the government for false claims and to share in any recovery. The United States may intervene in the lawsuit, or, as in this case, the whistleblower may pursue the action. Smith and Rogers will receive a share of the settlement, but that amount has not yet been determined.

The case, which was filed in May 2013 and unsealed in July 2016, was monitored by the United States Attorney’s Office, as well as the U.S. Department of Health and Human Services - Office of Inspector General.

The lawsuit is captioned United States, et al., ex rel. Smith and Rogers v. Tom S. Chang, M.D., et al., No. 13-CV-3772-DMG (C.D.Cal.) ...

A jury awarded $8 billion in punitive damages to a man who accused Johnson & Johnson, the drugmaker, of failing to warn that young men using its antipsychotic drug Risperdal could grow breasts. Analysts called the amount excessive, particularly since the plaintiff, Nicholas Murray, had already won $680,000 in compensatory damages over his claims.

J&J said the award was "grossly disproportionate with the initial compensatory award" and said it was confident it would be overturned.

The Philadelphia Court of Common Pleas verdict was the first in which a Pennsylvania jury had been able to consider awarding punitive damages in one of thousands of Risperdal cases pending in the state.

In 2013, Johnson & Johnson paid more than $2.2 billion to resolve civil and criminal investigations by the U.S. Department of Justice into its marketing of Risperdal and other drugs.

According to a recent filing, the company faces some 13,400 lawsuits tied to Risperdal, which allege the drug caused a condition called gynecomastia in boys, in which breast tissue becomes enlarged.

Risperdal was approved by the U.S. Food and Drug Administration in 2002 to treat schizophrenia, but was not cleared for use in children until 2006. While the drug’s label does note that gynecomastia was reported in 2.3% of Risperdal-treated patients in clinical trials involving 1885 children and adolescents, the lawsuits generally claim the company understated the risk.

Johnson & Johnson is also among drugmakers named in lawsuits seeking to hold the pharmaceutical industry responsible for the nation’s opioid crisis and in August was asked to pay $572.1 million to the state of Oklahoma for its role in fueling the epidemic ...

Maria Leon sustained an injury arising out of and occurring in the course of her employment resulting in her death on November 20, 2012, while she was employed as a caregiver by the Department of Social Services (DSS), and as a kitchen helper by Meals on Wheels.

Ms. Leon was survived by two sons, Juan Manuel Vasquez and Julian Vasquez. An Application for Adjudication of Claim was filed and both were claiming a death benefit as dependents of Ms. Leon.

They also filed a civil action for negligence in LA County Superior Court against the operators of Golden West Towers, the senior living center where Ms. Leon was murdered by a tenant of the center.

Julian Vasquez filed a petition dismissing his claim with prejudice on February 29, 2016. On the same date, the attorney for Juan Manuel Vasquez filed a petition to withdraw as attorney, citing Juan Manuel Vasquez's failure to cooperate with his counsel in the prosecution of the claim.

An order was issued on March 24, 2016, dismissing with prejudice the "potential dependent Julian Vasquez." The WCJ also issued an order relieving counsel representing Juan Manuel Vasquez.

On March 25, 2016, a settlement check in the sum of $559,311.17, was issued to Juan Manuel Vasquez as a result of third party tort litigation.

In light of the dismissal of the claims of Julian Vasquez and Juan Manuel Vasquez, The Death Without Dependents unit of the Department of Industrial Relations (DWD), sought to proceed as an applicant to claim the statutory death benefit under Labor Code section 4706.5.

The WCJ found that the DWD failed to meet its burden of proof to establish Ms. Leon had no surviving dependents, and that the defendants provided sufficient evidence to prove that at least Juan Vasquez and his three children were the dependents of Ms. Leon prior to her death. The WCJ further held that a credit of $599,31 1.17 for Mr. Vasquez' civil recovery is applicable and would negate a claim for death benefits. The WCJ denied DWD's application for death benefits. The DWD petition for reconsideration affirmed the take nothing the panel decision of Mary Leon v DSS.

Dependency is determined as of the time of injury, and may be found to be total or partial, depending on the facts established. "Dependency may be defined as reliance upon another person for support. Total dependents are those who at the time of injury are solely supported by the decedent, or who have a legal right to look to him for their entire support . . . . Partial dependents are those who at the time of injury have means of support other than the deceased's contributions . . . . " (Mendoza v. Workers' Comp. Appeals Bd. (1976) 54 Cal.App.3d 820 [41 Cal.Comp.Cases 71]. )

However, if the employee dies and leaves no dependents, the death benefit escheats to the State of California and is to be paid to the Death Without Dependents unit of the Department of lndustrial Relations, pursuant to Labor Code section 4706.5(a). This provision has been held to require the DWD to affirmatively establish the absence of any dependents, either total or partial, of the deceased.

DWD argues that because Juan Manuel Vasquez and Julian Vasquez chose not to pursue their claims for death benefits, they must be found not to be entitled to the benefit and therefore DWD should be found to be entitled to receive the benefit.

This, however, is not what the law requires. The law does not provide that the death benefit escheats to DWD if a dependent, either partial or total, has not received the benefit. Rather, the law requires DWD to establish that no "person entitled to a dependency death benefit" exists. DWD has not established that Juan Manuel Vasquez or Julian Vasquez were not dependent upon their mother and had no claim to a death benefit as partial dependents. Since Juan Manuel Vasquez and Julian Vasquez chose to receive a civil settlement in an amount greater than the amount of the death benefit, and withdrew their claims for workers' compensation death benefits, the WCJ properly found DWD did not meet its burden to establish that "such employee does not leave surviving any person entitled to a dependency death benefit." ...

The Workers’ Compensation Insurance Rating Bureau of California (WCIRB) has released the Interactive Policy Year Stats - 2019 Edition report that provides premium, exposure and loss information based on unit statistical report data submitted to the WCIRB for policy years 2003 to 2016.

The Interactive Policy Year Stats - 2019 Edition report offers a spreadsheet-based user interface, allowing users to browse loss, exposure and premium information and filter data by North American Industry Classification System (NAICS) sector, claim status and claim type. In addition to policy year information, some loss information by accident year is also included.

This new format was first introduced in 2018, replacing the WCIRB’s annual Summary of Policy Year Statistics report.

...

Opioid dispensing to workers injured on the job has decreased substantially in recent years in all 27 state workers’ compensation systems studied, according to a WCRI report, Interstate Variations in Dispensing of Opioids, 5th Edition. Increases in non-opioid pain medications did not fully offset these decreases. As a result, the percentage of workers’ compensation claims with pain medication decreased in each of the 27 study states.

However, workers continued to receive treatment for their pain for the most part. The WCRI study suggests that providers have switched from multi-pronged pain treatments, which involve pain medications (including opioids) and other restorative therapies, to a treatment protocol that more frequently relies solely on non-pharmacologic services.

This change in treatment patterns conforms to the recommendations of opioid prescribing and pain treatment guidelines and policies implemented in a number of states, which call for broad adoption of alternatives to opioids for treating acute and chronic pain. While this switch occurred, in some states, there were small net increases in the percentage of claims that received neither pain medications nor non-pharmacologic treatment.

What are these non-pharmacologic pain management services and how frequently are they used?

-- The most frequent services billed and paid under workers’ compensation were physical medicine evaluation, active and passive physical medicine, and passive manipulations. We found that the frequency of use of each of the non-pharmacologic pain management services varied across the 27 states..
-- Physical medicine evaluations were conducted in the majority (more than 50 percent) of claims in 24 of 27 states. As part of an evaluation, the physical therapist may decide whether additional treatments are necessary. The provider may offer additional treatment, they may demonstrate some home exercises for the worker to do on their own, and they may recommend some self-care during that visit.
-- Active physical medicine was the most frequent form of treatment in all 27 states. The percentage of claims with active physical medicine ranged from a low of 50 percent in Massachusetts and 51 percent in Louisiana to a high of 67 percent in California and 68 percent in Nevada. Active physical medicine is exercises and movements performed by the worker.
-- Passive physical medicine modalities were the second most frequent treatment in 18 states, with the percentage of claims ranging from a low of 30 percent in Texas and 32 percent in Massachusetts to over 50 percent in California, Connecticut, Delaware, Maryland, and Nevada. Passive treatments, including the modalities covered here and passive manipulations covered below, are administered by the manual therapy provider to the affected area. They are used in the early stages of treatment when the patient is too injured or their condition is causing too much pain for them to do active exercises. Passive physical medicine modalities include electrical stimulation therapy and hot and cold therapy.
-- Passive manipulations were relatively frequent in the study states, ranging from 24 percent of claims in Arkansas to 58 percent in Nevada. Passive manipulations include manual therapy and massage. Chiropractic manipulations were used in 10 - 14 percent of claims in seven states, while they were rarely used in most other states.
-- Interventional pain management was the fourth most frequent pain treatment, ranging from 16 percent of claims in Maryland to 27 percent in Georgia. This category of pain treatment includes epidural procedures, facet and sacroiliac joint interventions, trigger point injections, and other injections and nerve blocks.
-- Fifteen percent of claims in California and 4 percent of claims in New York received acupuncture, but this treatment was rarely seen elsewhere. Behavioral evaluation and behavioral treatments were very infrequently used.

The data underlying these measures comprise over 222,000 nonsurgical workers’ compensation claims with more than seven days of lost time from 27 states ...

The Division of Workers’ Compensation has posted three new orders adjusting the Official Medical Fee Schedule (OMFS) to conform to changes in the Medicare payment system as required by Labor Code section 5307.1.

The Physician and Non-Physician Practitioner Fee Schedule update order adopts the following Medicare changes:

-- CMS Medicare National Physician Fee Schedule Relative Value File RVU19D October 1, 2019 quarterly update
-- National Correct Coding Initiative Practitioner Procedure to Procedure (PTP) Edits October 1, 2019 quarterly update
-- National Correct Coding Initiative Medically Unlikely Edits October 1, 2019 quarterly update (excluding MUE “0” value codes)
-- CMS ZIP Code to Carrier Locality files October 1, 2019 quarterly update, for Geographic Practice Cost Index (GPCI) locality mapping

The Hospital Outpatient Departments and Ambulatory Surgical Centers fee schedule update order adopts the following Centers for Medicare & Medicaid Services (CMS) Medicare changes:

-- The CMS Medicare Hospital Outpatient Prospective Payment System (OPPS) October 2019 Addendum A quarterly update
-- The CMS Medicare OPPS October 2019 Addendum B quarterly update
-- The CMS Ambulatory Surgical Center Payment System, October 2019 ASC Approved HCPCS Code and Payment Rates, Column A entitled
-- HCPCS Code” of “Oct 2019 ASC AA” and Column A entitled “HCPCS Code” of “Oct 2019 ASC EE”
-- Certain sections of the CMS Medicare OPPS October 2019 Integrated Outpatient Code Editor (I/OCE), IOCE Quarterly Data Files V20.3 quarterly update
-- CMS October 2019 Update of the Hospital Outpatient Prospective Payment System (OPPS), Change Request (CR) 11451 (August 30, 2019), Transmittal R4387CP

The pathology and clinical laboratory fee schedule update order adopts the following Medicare change:

-- CY 2019 Q4 Release: Revised for October 2019 (19CLABQ4)

The orders adopting the OMFS adjustments is effective for services rendered on or after October 1, 2019 and can be found on the DWC website ...

A CVS Health Corp health plan that uses an outside drug pricing group to help it decide whether to cover certain new medicines has gained little traction with customers, according to its top medical executive, and has drawn fierce criticism from patient advocacy groups.

The company has held back on marketing the pharmacy benefit plan while it talks to these groups, CVS said. The plan, launched a year ago, is based on analyses by the Institute for Clinical and Economic Review (ICER), a Boston-based group that assesses effectiveness of drugs to determine appropriate prices.

Using ICER’s cost effectiveness assessment, CVS decides whether to include second or third medicines entering the market if there are already similar ones in the plan.

Opposition to the CVS plan is part of much broader concerns cited by drug companies and advocacy groups, many of which receive funding from the pharmaceutical industry. Some say that ICER’s analysis based on additional years of "quality life" gained from a given treatment is arbitrary and disregards the costs of drug development and patient needs.

More than 50 groups, including drugmakers, PhRMA, the industry’s main lobby group, and other advocacy groups, have provided comment during a public input period included in a review by ICER of its assessment methods. Many asked ICER to eliminate price recommendations from its efficacy analyses.

ICER has defended its methods, which are based on a widely-used cost effectiveness analysis.

The soft rollout of CVS’ ICER-related product comes as employer health plan sponsors - its biggest clients - are showing increased concern over their cost for new high-priced drugs, and are considering refusing to pay for them at all, CVS Chief Medical Officer Troy Brennan said in a recent interview.

If corporate customers follow through on that threat, CVS said it could change tactics with the plan.

Earlier this year, Novartis AG launched Zolgensma, a more than $2 million gene therapy for a rare but deadly disease called spinal muscular atrophy.

The new CVS program, cited as an example of ICER’s growing influence on U.S. drug pricing, would not apply to such a breakthrough treatment. It is a tiny plan by CVS standards as the company manages pharmaceutical benefits for more than 102 million people and also owns Aetna insurance and a national pharmacy chain.

The plan’s scope is limited to so-called me too drugs, those where similar effective treatments already exist, and aims to pressure drugmakers to set lower prices. For example, two of three very similar drugs for migraine approved in 2018 could have been excluded, but drugmakers set prices ICER deemed cost effective.

Large healthcare consultant and brokerage Mercer said it has begun to field similar concerns ...

The cost of ambulance services has risen in recent years - a single trip can exceed $45,000 for an air ambulance service and $1,400 for a ground ambulance service. Medical transportation in workers compensation (WC), however, can take many different forms. These include air ambulances, emergency and nonemergency ground ambulances, nonemergency transportation to and from medical appointments, mileage reimbursement for instances where the injured worker can drive themselves, and other ancillary transportation-related services.

Recently, air ambulance services and their associated costs have garnered attention. The US Congress, the National Association of Insurance Commissioners, and several state governments and related stakeholders have explored issues surrounding the cost of air ambulance services. In response, several states, as well as the US Congress, have introduced legislation aimed at addressing these concerns.

In the WC arena, much of the discussion has centered around a state’s ability to regulate air ambulance reimbursement rates. Some states have fee schedules that encompass air ambulance services, which are intended to regulate WC maximum allowable reimbursements (MARs). However, the federal Airline Deregulation Act of 1978 (ADA) expressly preempts state law "related to price, route, or service of an air carrier." The question of which law governs fee schedule limitations on air ambulance reimbursement has led to legal challenges in several states. So far, state and federal courts have largely found that the ADA preempts state WC laws and regulations limiting air ambulance reimbursements.

Ambulance services include both ground ambulance and air ambulance. Before looking at the cost of these services, it is important to discuss how reimbursement for these services is determined. Typically, reimbursement consists of two components: a base payment and a mileage payment. The base payment rate reflects the level of service intensity and varies based on whether the transport:

-- Is emergency or nonemergency
-- Requires basic life-support staff (BLS) or advanced life-support (ALS) staff
-- Is ground or air transport

The mileage payment rate reflects the cost of using the ambulance, including fuel and maintenance. While ground ambulance transports are utilized at a much higher rate than air ambulance transports, the cost per episode for ground transports is significantly lower. The frequency and cost per episode vary for each type of ground (emergency and nonemergency) and air ambulance (fixed- or rotary-wing) transport.

Air ambulances can be broken down into two categories: fixed wing (e.g., an airplane) and rotary wing (e.g., a helicopter). Rotary-wing ambulances can be used in place of ground ambulances in emergencies where the injured worker needs to be transported a short distance quickly. Another important characteristic of a rotary-wing ambulance is its ability to land in a variety of locations, including locations that could be difficult for a ground ambulance to reach. On the other hand, fixed-wing transports are typically utilized for longer distance travel.

Historically, rotary-wing episodes have been more prevalent than fixed-wing episodes; rotary-wing episodes accounted for approximately 85% of both payments and episodes for air ambulance services from 2013 to 2017. Chart 4 displays the average payment per episode for fixed-wing and rotary-wing episodes for the base and mileage components.

The average payment per episode increased for both fixed-wing and rotary-wing episodes since 2013. The average base payment is higher for rotary-wing episodes compared with fixed-wing episodes. In contrast, the average

The average payment per episode for an air ambulance is, however, costly, exceeding $20,000 in recent years. Payments for ambulance services, including ground and air, account for more than 75% of total medical transportation costs, and the average payment per episode for ambulances, both ground and air, has increased since 2013 ...

Nicole Riley worked in the El Dorado County Psychiatric Health Facility (PHF) where she expressed concerns about safety. These concerns related to changes to work schedules that resulted in fewer staff at times and construction modifications to the layout of the PHF that eliminated a hallway providing visual access to the community room before entering it..

After she was injured by a patient and filed a workers’ compensation claim, she took a higher paying job with the Office of the Public Guardian because she felt unsafe at the PHF.

Less than two months into the one-year probationary period for her new job, she was terminated for failure to complete probation satisfactorily. Riley sued the County for wrongful termination on a number of theories, including retaliation under the Fair Employment and Housing Act She alleged the proffered reason for her dismissal was pretextual.

She alleged "the real reason she was fired from the Public Guardian’s Office was to retaliate against her for her complaints about safety concerns" and the firing "constituted unlawful discrimination for her association with and advocacy for mental health and disabled patients and was retaliation for filing her worker’s compensation claim."

The trial court granted the County’s motion for summary judgment. On appeal from the judgment in favor of the County, Riley contends the trial court erred in finding her claims were not covered by FEHA. She asserts that her advocating for mentally disabled patients and her filing of a workers’ compensation claim were protected activities and she had associational status due to her advocacy for a protected class.

The court of appeal affirmed the dismissal in the unpublished case of Riley v County of El Dorado.

In order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.

Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation "drops out of the picture," and the burden shifts back to the employee to prove intentional retaliation.

In finding Riley’s complaints regarding safety were not a protected activity, the trial court relied in part on Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368. Complaints about workplace safety are not a protected activity that will support a FEHA retaliation claim.

With respect to the workers' compensation claim, the determination as to what constitutes a protected activity is inherently fact driven.

Here, the filing of the workers’ compensation claim was completely unrelated to any discriminatory employment practice. Riley did not file for stress injuries caused by discriminatory harassment. Rather, she sought--and received--treatment in the form of physical therapy, chiropractic, and acupuncture services, for her physical injuries of bumps, bruises, and neck and shoulder injuries caused by an assault in the workplace. In this circumstance, the filing of a workers’ compensation claim is not a protected activity ...

Reuters reports that Johnson & Johnson will pay $20.4 million to settle claims by two Ohio counties, allowing the U.S. healthcare giant to avoid an upcoming federal trial seeking to hold the industry responsible for the nation’s opioid epidemic. J&J became the fourth drugmaker to settle claims ahead of the Federal Court trial against multiple manufacturers and distributors in Cleveland scheduled for later this month. The case is considered a bellwether for more than 2,600 lawsuits by state and local governments that are pending nationally. "The settlement allows the company to avoid the resource demands and uncertainty of a trial as it continues to seek meaningful progress in addressing the nation’s opioid crisis," J&J said in a statement. "The company recognizes the opioid crisis is a complex public health challenge and is working collaboratively to help communities and people in need," it added. J&J which formerly marketed the painkillers Duragesic and Nucynta, said the settlement includes no admission of liability. The company will pay $10 million to Cuyahoga and Summit counties, reimburse $5 million of their legal and other expenses and provide $5.4 million to non-profit organizations that run opioid-related programs in the counties. Mallinckrodt Plc finalized a $24 million settlement with the same two counties on Monday. Endo International Plc and Allergan Plc also settled with the two counties in August to avoid going to trial. The remaining defendants in the Oct. 21 federal trial include McKesson Corp, AmerisourceBergen, Cardinal Health, Teva Pharmaceutical Industries Ltd, Walgreens Boots Alliance Inc and Henry Schein Inc. OxyContin maker Purdue Pharma LP succumbed to pressure from the lawsuits and filed for bankruptcy protection in September. Earlier in the year, an Oklahoma judge ordered Johnson & Johnson to pay $572.1 million to the state for its part in fueling an opioid epidemic by deceptively marketing addictive painkillers. Purdue Pharma and Teva had settled claims by Oklahoma’s attorney general for $270 million and $85 million, respectively ...

Reuters reports that Johnson & Johnson will pay $20.4 million to settle claims by two Ohio counties, allowing the U.S. healthcare giant to avoid an upcoming federal trial seeking to hold the industry responsible for the nation’s opioid epidemic.

J&J became the fourth drugmaker to settle claims ahead of the Federal Court trial against multiple manufacturers and distributors in Cleveland scheduled for later this month. The case is considered a bellwether for more than 2,600 lawsuits by state and local governments that are pending nationally.

"The settlement allows the company to avoid the resource demands and uncertainty of a trial as it continues to seek meaningful progress in addressing the nation’s opioid crisis," J&J said in a statement. "The company recognizes the opioid crisis is a complex public health challenge and is working collaboratively to help communities and people in need," it added.

J&J which formerly marketed the painkillers Duragesic and Nucynta, said the settlement includes no admission of liability.

The company will pay $10 million to Cuyahoga and Summit counties, reimburse $5 million of their legal and other expenses and provide $5.4 million to non-profit organizations that run opioid-related programs in the counties.

Mallinckrodt Plc finalized a $24 million settlement with the same two counties on Monday. Endo International Plc and Allergan Plc also settled with the two counties in August to avoid going to trial.

The remaining defendants in the Oct. 21 federal trial include McKesson Corp, AmerisourceBergen, Cardinal Health, Teva Pharmaceutical Industries Ltd, Walgreens Boots Alliance Inc and Henry Schein Inc.

OxyContin maker Purdue Pharma LP succumbed to pressure from the lawsuits and filed for bankruptcy protection in September.

Earlier in the year, an Oklahoma judge ordered Johnson & Johnson to pay $572.1 million to the state for its part in fueling an opioid epidemic by deceptively marketing addictive painkillers.

Purdue Pharma and Teva had settled claims by Oklahoma’s attorney general for $270 million and $85 million, respectively ...

Gov. Gavin Newsom signed Senate Bill 542. The new law creates a rebuttable presumption that a first responders PTSD struggles are an occupational injury, The new law would apply to injuries occurring on or after January 1, 2020.

The rebuttable presumptions for first responder work-related injuries already included physical ailments such as heart disease, cancer and hernias.

Before Newsom signed SB 542, California’s law limited psychiatric injury compensation to those that could prove the injury was at least 50 percent related to their job.

Section 3212.15 is added to the Labor Code. Under these new provisions, in the case of certain state and local firefighting personnel and peace officers, the term "injury" also includes post-traumatic stress that develops or manifests itself during a period in which the injured person is in the service of the department or unit. And the law would prohibit compensation from being paid for a claim of injury unless the member has performed services for the department or unit for at least 6 months, unless the injury is caused by a sudden and extraordinary employment condition. The six months of employment need not be continuous.

The injury so developing or manifesting itself in these cases shall be presumed to arise out of and in the course of the employment. This presumption is disputable and may be controverted by other evidence.

This presumption shall be extended to a member following termination of service for a period of 3 calendar months for each full year of the requisite service, but not to exceed 60 months in any circumstance, commencing with the last date actually worked in the specified capacity.

Newsom signed the law alongside two other bills that will provide mental health support to firefighters and peace officers. The second new law establishes standards for peer support programs. The third signing prohibits the outsourcing of local emergency dispatch services to for-profit agencies.

AB 1116, the California Firefighter Peer Support and Crisis Referral Services Act by Assemblymember Tim Grayson (D-Concord), establishes statewide standards for first responder peer support programs to provide an agency-wide network of peer representatives available to aid fellow employees on emotional or professional issues.

SB 438 by Senator Robert Hertzberg (D-Van Nuys) will prohibit a public agency from outsourcing its local emergency dispatch services to a private, for-profit entity - except when pursuant to a joint powers or cooperative agreement. It also clarifies that a public safety agency maintains the authority to determine the appropriate deployment of emergency resources within the agency’s jurisdiction in order to provide the highest and best level of emergency response for the community it serves ...

A federal law enforcement action involving fraudulent genetic cancer testing has resulted in charges in five federal districts against 35 defendants associated with dozens of telemedicine companies and cancer genetic testing laboratories (CGx) for their alleged participation in one of the largest health care fraud schemes ever charged.

According to the charges, these defendants fraudulently billed Medicare more than $2.1 billion for these CGx tests. Among those charged are 10 medical professionals, including nine doctors.

No single organization was behind the fraud, and the operation dubbed "Double Helix" targeted defendants in Florida, Georgia, Louisiana, and Texas, the Justice Department said.

The alleged scheme was put into motion when a telemarketing or in-person "recruiter" would convince a Medicare enrollee to take a genetic test - assuring them that the full cost was covered by the program. Then, the patient would provide their Medicare information. Bills to Medicare connected with the scam mostly ranged from $7,000 to $12,000.

The coordinated federal investigation targeted an alleged scheme involving the payment of illegal kickbacks and bribes by CGx laboratories in exchange for the referral of Medicare beneficiaries by medical professionals working with fraudulent telemedicine companies for expensive cancer genetic tests that were medically unnecessary. Often, the test results were not provided to the beneficiaries or were worthless to their actual doctors.

Some of the defendants allegedly controlled a telemarketing network that lured hundreds of thousands of elderly and/or disabled patients into a criminal scheme that affected victims nationwide. The defendants allegedly paid doctors to prescribe CGx testing, either without any patient interaction or with only a brief telephonic conversation with patients they had never met or seen.

The U.S. Department of Health and Human Services Office of Inspector General has previously issued a fraud alert for consumers in an effort to educate the public about such schemes.

The enforcement actions were led and coordinated by the Health Care Fraud Unit of the Criminal Division’s Fraud Section in conjunction with its Medicare Fraud Strike Force (MFSF), as well as the U.S. Attorney’s Offices for the Southern District of Florida, Middle District of Florida, Southern District of Georgia, Eastern District of Louisiana, and Middle District of Louisiana.

The MFSF is a partnership among the Criminal Division, U.S. Attorney’s Offices, the FBI, DEA and HHS-OIG.

In addition, the operation included the participation of various other federal, state and local law enforcement agencies, including the Louisiana Medicaid Fraud Control Unit ...

Victoria Enriquez sustained industrial injury to her psyche while employed during a cumulative period ending November 30, 2004 by County of Santa Barbara.

A 2014 Opinion and Decision After Reconsideration found permanent disability of 60 percent, based on an AME who reported that applicant was unable to compete in the open labor market.. However, the AME apportioned 40 percent of applicant's permanent disability to other factors reducing her disability to 60 percent.

After the issuance of the Decision After Reconsideration of July 18, 2014, Enriquez sought SIBTF benefits.

After submission of the SIBTF case in 2016, the WCJ issued an Order Vacating Submission and Ordering Further Discovery. "Specifically/' wrote the WCJ in his Order, "the parties are to elicit an opinion from the AME, Dr. Plesons, whether Applicant had a preexisting labor disabling permanent disability, prior to the industrial injury." At an August 2016 hearing, it was noted that "SIBTF will write letter to doctor."

Nevertheless, despite the fact that the WCJ found that further development of the record was necessary, the fact that defendant was designated to contact Dr. Plesons, and the fact that applicant carries the burden of proof on the issue, no further evidence was procured or admitted into the record.

Ultimately the WCJ rendered a decision on an evidentiary record he had previously found to be inadequate. The SIBTF Petition for Reconsideration was granted, and the Findings of Fact and Order was rescinded in the panel decision of Enriquez v County of Santa Barbara.

On April 19, 2004, SB 899 went into effect. SB 899 contained far-reaching amendments to the California workers' compensation system. Among these changes, former Labor Code sections 4663 and 4750 were repealed, and a new Labor Code section 4663 was enacted to now provide that "Apportionment of permanent disability shall be based on causation."

Although SB 899 repealed the old apportionment statutes, Labor Code section 4751 governing SIBTF liability remained unaltered. Thus, even after SB 899, in order to qualify for SIBTF benefits, the employee must show that his or her disability was labor disabling prior to the subsequent industrial injury. (Escobedo v. Marshalls (2005) 70 Cal.Comp.Cases 604, 619 (Appeals Board en banc).) "Accordingly, if an applicant's non-industrial pathology causes apportionable permanent disability . . . then [SIBTF] benefits will not be payable under section 4751 unless the applicant demonstrates that the pathology was causing permanent disability prior to the subsequent industrial injury."

The requirement for the existence of a prior "labor disabling" permanent disability under section 4751 is the same requirement that existed for apportionment of permanent disability under Labor Code section 4750 prior to the enactment of Senate Bill 899 (SB 899), effective April 19, 2004.

The finding that applicant had 40 percent disability apportionable to other factors pursuant to current Labor Code section 4663 "is in no way tantamount to a finding that applicant had 40 percent (or any) labor disabling permanent disability at the time of her industrial injury." The WCJ must make a finding supported by substantial medical evidence that, at the time of the industrial injury, applicant had a labor disabling permanent disability ...

According to a long-term study in Hawaii reviewed by Reuters Health, on-the-job exposure to high levels of pesticides might raise the risk of developing heart disease or having a stroke.

Farm and agricultural workers need to wear personal protective equipment and, even after they retire should continue to have their health monitored for cardiovascular complications, the authors conclude in the Journal of the American Heart Association.

"Pesticides have a long half-life and exist in the body for a long time, so side effects may appear even 10-20 years later," said lead author Zara Berg of Fort Peck Community College in Peck, Montana. "Many workers may not think that exposure during their younger or middle years is crucial, but it actually is," said Berg.

For the analysis, Berg’s team used data from the Kuakini Honolulu Heart Program, established in 1965 to study heart disease in middle-aged Japanese-American men living on the island of Oahu. Participants were born between 1900 and 1919 in Japan or Hawaii and were between ages 45 and 68 at the beginning of the study. Data was updated through 1999, which allowed for up to 34 years of follow-up with surviving participants.

Berg and colleagues focused on 7,557 men who had provided information on their work history and had no heart disease at the beginning of the study period.

To gauge pesticide exposures, the research team used the Occupational Safety Health Administration exposure scale, which estimates typical pesticide amounts encountered during an eight-hour workday and 40-hour workweek based on a participant’s job, age and years worked in that industry, particularly for industrial, factory and agricultural workers.

Berg’s team then looked at medical records to assess who developed cardiovascular disease, which they defined as coronary heart disease or a cerebrovascular incident such as a stroke.

Overall, just 451 men had high exposure to pesticides and 410 men had low-moderate exposure, while the rest had none.

After adjusting for other cardiovascular risk factors like age, weight, physical activity, alcohol and smoking, researchers found that the men with high pesticide exposure were 42% more likely than those with none to develop cardiovascular disease during the first 10 years of follow-up.

"High exposure during middle age led to cardiovascular disease sooner," Berg noted. "Pesticides can also affect cholesterol and the concentration of heavy metals in the body."

Heart disease wasn’t associated with low or moderate levels of exposure to pesticides, and the link to high exposure was not seen in the longer term up to 34 years.

One limitation of the study is that only a small proportion of men had high or low-moderate pesticide exposure, the authors note. The fact that the men were all from a single ethnic group is a strength of the analysis because it removes some potential confounding differences, they add, but also means the results might not be generalizable to other populations.

Research studies are still trying to unpack how pesticides contribute to heart disease and death, whether through inflammation or oxidative stress, as well as how often or how much exposure is most harmful ...

New California Workers’ Compensation Institute research shows the number of California workers’ compensation inpatient hospital stays fell nearly 31 percent from 2010 through 2018, fueled in large part by a steady decline in spinal fusions.

The study, authored by CWCI Senior Research Associate Stacy Jones, uses hospital discharge data from nearly 32.3 million inpatient stays compiled by the state Office of Statewide Health Planning and Development (OSHPD) to measure and compare the volume and types of California inpatient hospitalizations paid under workers’ compensation to those paid by Medicare, Medi-Cal and private coverage.

Workers’ compensation is the smallest of the 4 medical delivery systems reviewed, accounting for just 0.4 percent of all inpatient stays in 2018, which is down from 0.6% in 2010, primarily due to a surge in Medi-Cal hospitalizations after 3.7 million adult Californians were added to the Medi-Cal rolls after Affordable Care Act plans became available in 2014.

At the same time, a number of factors spurred a decline in workers’ comp inpatient stays from 2010 to 2018, including:

-- Fluctuations in the number and types of claims;
-- Increased use of ambulatory surgery centers;
-- The adoption of utilization review and independent medical review programs requiring that treatment meet evidence-based medicine standards;
-- Technological and procedural advances that allow more services to be provided in outpatient settings; and
-- A 45.9 percent reduction in the number of spinal fusions since 2010, though fusions are still the top inpatient service rendered in workers’ comp, representing more than 1 in 6 injured worker hospitalizations last year.

In addition to tracking inpatient trends for California workers’ compensation, Medicare, Medi-Cal and private plans over the 9-year span of the study, other analyses and exhibits in the report provide detailed data showing:

-- The breakdown of workers’ comp inpatient stays among the top 5 Major Diagnostic Categories (MDCs);
-- The proportion of surgical vs. "medical" (non-surgical) hospitalizations in each of the 4 payer groups;
-- The top 5 workers’ comp surgical and medical inpatient discharges by diagnostic-related group (MS-DRG);
-- The breakdown of the top 10 workers’ comp MS-DRGs across payer groups in 2018;
-- The volume and prevalence of spinal fusion surgeries by payer group from 2010 through 2018;
-- The top 10 hospitals based on the percentage of their inpatient discharges covered by workers’ comp, and the proportion of California workers’ comp medical and surgical hospitalizations rendered at those facilities.

CWCI has released its study as a Research Update report, "California Workers’ Compensation Inpatient Hospital Trends, 2010-2018." Institute members and subscribers can access the report in the Research section at www.cwci.org and others can purchase it from the Institute’s online Store ...

A 36-year-old doctor could get life in prison after he took in roughly $700,000 by illegally prescribing opioids and contributing to an epidemic of abuse that reached far beyond his practice in the small town of Martinsville, Virginia.

Dr. Joel Smithers, a 36-year-old married father of five who lives in Greensboro, North Carolina, was convicted in May of more than 800 counts of illegally prescribing drugs, including the oxycodone and oxymorphone that caused the death of a West Virginia woman. When he is sentenced the best Smithers can hope for is a mandatory minimum of 20 years.

Patients from five states drove hundreds of miles to see him, spending up to 16 hours on the road to get prescriptions for oxycodone and other powerful painkillers.

Authorities say that, instead of running a legitimate medical practice, Smithers headed an interstate drug distribution ring that contributed to the opioid abuse epidemic in West Virginia, Kentucky, Ohio, Tennessee and Virginia.

In court filings and at trial, they described an office that lacked basic medical supplies, a receptionist who lived out of a back room during the work week, and patients who slept outside and urinated in the parking lot. At trial, one woman who described herself as an addict compared Smithers' practice to pill mills she frequented in Florida.

"I went and got medication without - I mean, without any kind of physical exam or bringing medical records, anything like that," the woman testified.

A receptionist testified that patients would wait up to 12 hours to see Smithers, who sometimes kept his office open past midnight. Smithers did not accept insurance and took in close to $700,000 in cash and credit card payments over two years.

At his trial, Smithers portrayed himself as a caring doctor who was deceived by some patients. "I learned several lessons the hard way about trusting people that I should not have trusted," he said.

A city of about 14,000 near Virginia's southern border, Martinsville once was a thriving furniture and textile manufacturing center that billed itself as the "Sweatshirt Capital of the World." But when factories began closing in the 1990s, thousands of jobs were lost. Between 2006 and 2012, the city had the nation's third-highest number of opioid pills received per capita, according to an Associated Press analysis of federal data ...

The Department of Justice announced that Avanir Pharmaceuticals, a pharmaceutical manufacturer based in Aliso Viejo, California, was charged for paying kickbacks to a physician to induce prescriptions of its drug Nuedexta.

The Northern District of Ohio also announced indictments of four individuals, including former Avanir employees and one of the top prescribers of Nuedexta in the country, who were involved in the kickback scheme.

Avanir has also agreed to pay over $95 million to resolve civil False Claims Act allegations of kickbacks as well as its false and misleading marketing of Nuedexta to providers in long term care facilities to induce them to prescribe it for behaviors commonly associated with dementia patients, which is not an approved use of the drug.

In addition to the $95,972,017 being paid to resolve the United States’ civil claims, Avanir will pay an additional $7,027,983 to resolve state Medicaid claims.

Prosecutors alleged Avanir violated the Anti-Kickback Statute by paying a doctor to induce him to become a high prescriber of Nuedexta to beneficiaries of federal healthcare programs, offering him financial incentives to write additional Nuedexta prescriptions for beneficiaries of federal healthcare programs, and inducing him to recommend that other physicians prescribe Nuedexta to beneficiaries of federal healthcare programs.

Nuedexta is approved by the Food and Drug Administration for the treatment of pseudobulbar affect (PBA), which is characterized by involuntary, sudden, and frequent episodes of laughing or crying, and occurs secondary to a neurologic disease or brain injury.

The Northern District of Georgia also announced a deferred prosecution agreement resolving the charge, under which Avanir admits that it paid the doctor to induce him to not only maintain, but increase his prescription volume. Under the agreement’s terms, Avanir will pay a monetary penalty in the amount of $7,800,000, and a forfeiture in the amount of $5,074,895. The United States will defer prosecuting Avanir for a period of three years to allow the company to comply with the agreement’s terms. The agreement will not be final until accepted by the court.

Named in the 83-count indictment are: Deepak Raheja, 63, of Hudson; Gregory Hayslette, 43, of Aurora; Frank Mazzucco, 41, of Dublin, and Bhupinder Sawhny, 70, of Gates Mills. All four are charged with conspiracy to solicit, receive, offer and pay health care kickbacks. Avanir has agreed to cooperate in the prosecution of these individuals.

The civil settlement resolves lawsuits filed by former employees of Avanir, under the qui tam or whistleblower provisions of the False Claims Act. Kevin Manieri will receive $12,389,823 of the civil settlement, and Duane Arnold and Mark Shipman will receive $5,365,000 of the civil settlement ...

The U.S. Department of Labor's Office of Workers' Compensation Programs (OWCP) announced the implementation of new opioid controls to protect injured federal workers. The new controls aim to reduce the risk of long-term opioid use. The Department is committed to reducing the potential of opioid misuse among injured federal workers receiving benefits under the Federal Employees' Compensation Act (FECA).

The new controls impose a 7-day limit on the initial fill of an opioid prescription. The limit follows the Centers for Disease Control and Prevention (CDC) guidelines and is consistent with restrictions now in place in states across the country. Day-supply limits on initial opioid prescriptions have been a widely used strategy to reduce the chances of unintended chronic opioid use. A limit on additional opioid prescriptions, however, is less common. The Department has taken the additional step to limit the number of subsequent opioid prescriptions.

The new policy allows filling three subsequent 7-day opioid prescriptions for a maximum of 28-days, but requires prior Departmental approval for any prescription beyond this period. To obtain the approval, the prescribing provider must complete a detailed evaluation of the injured worker and certify the medical need for additional opioids. The Department's FECA Medical Benefits Examiners will review these evaluations.

These new controls are a part of the Department's ongoing efforts to reduce the potential for opioid misuse and addiction among injured federal workers. The Department created the Opioid Action Plan in response to the President's initiative in combating the opioid epidemic. The plan centers on four areas: effective controls, tailored treatment, impactful communications and aggressive fraud detection.

The President's focus on the nation's opioid crisis has shown some promising results. Among injured federal workers, the Department's latest data shows 34% decline in overall opioid use, 25% decline in new opioid prescriptions, 54% decline in new opioid prescriptions lasting more than 30 days, 71% drop in claimants with a morphine equivalent dose (MED) of 500 or more, and a 43% drop in users with an MED of 90 or more. These efforts to protect the federal workforce will continue.

OWCP provides wage replacement benefits, medical benefits, vocational rehabilitation and other benefits to federal workers who sustain a work-related injury or occupational disease. The workers' compensation healthcare costs for injured federal workers have averaged nearly $1 billion annually over the past several years.

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