Rene Thomas Folse, JD, Ph.D. is the host for this edition which reports on the following news stories: Employer Cannot Refuse to Hire Worker on Medical Examination Alone. Attorney General Sues Team Owner & NFL for Hostile Workplace Cover-up. Temporary Total Disability Rates for 2023 to Increase by 5.16%. WCIRB Releases Multibureau Evaluation of COVID-19 Claims & Costs. Former DIR Director Critical of Cal/OSHA’s COVID Regulations. EK Health Announces New “Billtelligent” Medical Bill Review Technology. Amazon Plans New Virtual Care Offering Based on Messaging. Industry Leaders Share Ideas at Healthcare Conference in Las Vegas. 
John Duncan is a former director of the California Department of Industrial Relations and served under two California governors.
He just published a commentary on CalMatters that claims “last minute changes to Cal/OSHA’s COVID regulations are a mistake.” And clarifies that there “is a right way and wrong way to draft a new regulation.”
He says that when adopting difficult workplace policies, rule makers should notify the public and involve stakeholders. Unfortunately, the California Occupational Safety and Health Agency is poised to make a mistake next month on their two-year extension of California’s COVID rules by squeezing in a significant change at the last minute.
Last month, four members of the Cal/OSHA Standards Board ordered the agency’s staff to rewrite the draft regulations and add exclusion pay, which is essentially paid sick leave for an employee who tests positive or is exposed to COVID. If they change the regulation, stakeholders across California will see a significant change made just before the final vote on this two-year extension of COVID precautions.
The merits of whether Cal/OSHA should continue requiring exclusion pay is not the issue, he says. There is a legitimate discussion about exclusion pay, and another legitimate discussion about whether emergency regulations should be extended past the end of the COVID emergency declaration in a few months. My point here is that resolving complicated and important questions requires time to gather data, talk to affected communities and generate workable solutions.
“In my tenure as director of California’s Department of Industrial Relations, occupational safety and health standards were subject to a thorough vetting process, centered around the goal of establishing consensus by using scientific evidence and other underlying data. Maintaining a fair, even-handed and transparent process is critical for ensuring democratic rulemaking and effective compliance with standards that protect California’s workers and employers alike.”
“The question today is how should a regulation be drafted in such a challenging climate?”
He then goes on to say that the answer is with data, careful preparation and stakeholder involvement. In 2009, Cal/OSHA adopted similar regulations for aerosol transmissible diseases in health care settings – and this was not some weak regulation with illusory protections. It was a first-in-the-nation standard and included specific provisions related to training, protective equipment, recordkeeping and more.
Most surprisingly, the rules passed without any opposition when the Cal/OSHA Standards Board voted on it. It was something that may seem unthinkable in today’s divisive times: a consensus regulation based on scientific data, expert stakeholder input and careful discussion.
“Cal/OSHA should look to its past successes and not make such a big change at the last second. Rulemaking is occasionally awkward, loud, disagreeable and painfully slow, but it is the best system out there for such important decisions.”
He concludes his commentary by saying there is “a slogan many sports teams and athletes follow: respect the process. That is an appropriate theme as California once again strives to lead in addressing an important workplace health and safety issue.”
The Division of Workers’ Compensation (DWC) has announced that the 2023 minimum and maximum temporary total disability (TTD) rates will increase on January 1, 2023. The minimum TTD rate will increase from $230.95 to $242.86 and the maximum TTD rate will increase from $1,539.71 to $1,619.15 per week.
Labor Code Section 4453(a) (10) requires the maximum and minimum weekly earnings upon which TTD is based be increased by an amount equal to percentage increase in the State Average Weekly Wage (SAWW) as compared to the prior year.
The SAWW is defined as the average weekly wage paid to employees covered by unemployment insurance as reported by the U.S. Department of Labor for California for the 12 months ending March 31 in the year preceding the injury. In the 12 months ending March 31, 2022, the SAWW increased from $1,570 to $1,651- an increase of 5.15924 percent.
The calculation of the 2023 SAWW increase is as follows:
– – (2022 SAWW – 2021 SAWW)/2021 SAWW
– – $1,651 – $1,570 = 81/1570 = 5.15924%
The calculation of minimum TTD rate for 2023 is as follows:
– – Minimum earnings for 2023 x SAWW increase x 2/3 = minimum TTD rate for 2023
– – $346.42 x 1.0515924 = $364.29 minimum TTD earnings x 2/3 = $242.86 minimum rate for 2023
The calculation of maximum TTD rate for 2023 is as follows:
– – Maximum earnings for 2023 x SAWW increase x 2/3 = maximum TTD rate for 2023
– – $2,309.56 x 1.0515924 = $2,428.72 maximum TTD earnings x 2/3 = $1,619.15 maximum rate
Under Labor Code Section 4659(c), workers with a date of injury on or after January 1, 2003 who receiving life pension (LP) or permanent total disability (PTD) benefits are also entitled to have their weekly LP or PTD rate adjusted based on the SAWW.
SAWW figures may be verified using the U.S. Department of Labor’s data.
EK Health Services Inc. is a national workers’ compensation managed care organization, and is a major vendor of utilization and bill review services for California claims administrators.
EK Health just announced the launch of Billtelligent, a proprietary technology that it says is taking medical bill review in workers’ compensation to the next level. Billtelligent eliminates barriers for EK Health, empowering an independence the national managed care company had not previously realized.
Billtelligent leverages a unique cloud-based, modular design focused on efficient bill handling through innovative strategies, supported by nimble technology. The company says it promotes flexibility through intelligent routing, automation, auto-adjudication and the ability to customize workflows with incredible specificity (without cumbersome management requirements).
“We did not want to create another software for software’s sake,” said Eunhee Kim, EK Health’s Owner & CEO. “With Billtelligent, we have control at all levels and we can bring the change our industry deserves. We will be faster, flexible and more accurate. This gives us the ability to better optimize managed care strategies and improve quality of care for injured workers – which is our ultimate focus.”
EK Health says it is keeping with its promise to transform the workers’ compensation industry as an innovator dedicated to integrity, transparency, and customer-focused solutions.
“We have been asked many times to ‘demystify medical bill review’, due to the unnecessary complexities, exorbitant fees and undisclosed revenue sharing that exists today,” shared Zebrah L. Jahnke, VP of Business Development. “We knew offering transparency required full ownership of our processes and technology.”
“It was clear to me that we needed to be free from the constraints of leased software to fully realize our potential. With Billtelligent, we have direct access to PPOs, allowing us to create our own onboarding and custom network design,” Kerri Wilson, EK Health’s President & Chief Operating Officer explained.
The company say the benefits and and advantages include:
– – Stands alone in design, functionality, and customization
– – Was built from the ground up by EK Health, giving complete independence and ownership
– – Is a modern bill review technology designed to evolve
– – Removes barriers through automation & limitless creative workflows
– – Replaces complexity with simplicity
– – Supports EK Health client programs with reduced turnaround times
– – Ensures quality results through efficient execution
– – Intelligent trigger-based routing for near real-time bill processing as the rule, batch processing as the exception
– – Real-time access; real-time status; real-time fixes – all before a bill is finalized
– – Sophisticated pended-bills load balancing to optimize workforce productivity
– – User-friendly, customizable client portal allows external users access to view bills for approval/denials within the bill’s life-cycle
– – Highly configurable and flexible system requiring minimal code changes to introduce new features, adapt to future requirements and onboard new clients-
– – Limitless unique bill routing workflows, automate agreements, and manage client-specific network structures
Through this innovative technology, EK Health says it is not just meeting clients where they are today, EK Health is taking them into the future with nimble solutions realizing immediate gains.
Amazon is stepping back into virtual care with a new service that uses secure messaging to connect patients with doctors for help with nearly two dozen conditions.
The retail giant said it will launch “Amazon Clinic” in 32 states to provide medication refills and care for conditions like allergies, erectile dysfunction, hair loss, migraines and urinary tract infections. That list does not include the flu, COVID-19, ear infections or other urgent care conditions for which patients often seek help through telemedicine.
Amazon said it will work to add other conditions over time to the service, which will not accept insurance. It also plans to expand the service to more states in the coming months.
Virtual care, or telemedicine, exploded in popularity when COVID-19 hit a couple years ago and patients initially hunkered down in their homes to avoid catching the virus. Its use has since waned but remains popular for its convenience and its ability to improve access to care.
Some doctors had started providing care through secure messaging before the pandemic. They began working through companies like 98point6 or CirrusMD, which touts its ability to connect people with a doctor in less than a minute.
Tuesday’s announcement from Amazon comes more than two months after the company said it will shut down Amazon Care, a hybrid virtual, in-home service it spent years developing. The company launched that service in 2019 for its Washington employees. It expanded it last year, allowing private employers nationwide to sign up for the service. But that effort didn’t get much traction.
The company shifted its target, announcing in July that it planned to acquire One Medical, a primary care organization that, as of March, had about 767,000 members and 188 medical offices in 25 markets. The $3.9 billion deal was seen as way for Amazon to reposition its health ambitions towards a model that was more established and could me more profitable. The Federal Trade Commission is reviewing that deal.
The planned purchase of One Medical was the first major acquisition announced under Amazon CEO Andy Jassy, who took over the role from founder Jeff Bezos last year. He has said he sees health care as a growth opportunity for the company beyond its more established retail and cloud computing businesses.
Amazon’s foray into health care also includes Amazon Pharmacy, an online drug store that allows its Prime members to order medication or prescription refills, and have them delivered to their front door in a couple of days. In its announcement on Tuesday, Amazon said Amazon Pharmacy and One Medical were two key parts of its health care plans.
“But we also know that sometimes you just need a quick interaction with a clinician for a common health concern that can be easily addressed virtually,” the company said.
Amazon.com Inc. said the price for care will be set by the providers, not Amazon Clinic, and it did not offer a range in a blog post announcing the service.
Rene Thomas Folse, JD, Ph.D. is the host for this edition which reports on the following news stories: WCAB Defines “High Velocity Eye Injury” Required for Extended TTD. DOI has Jurisdiction to Invalidate Carrier “Unfiled” Side Agreements. Walmart Sues 45 National Carriers For Opioid Settlement Costs. Santa Rosa Neurosurgeon Convicted for Opioid Prescriptions. NCCI Publishes Update to 2021 State of the WC Line Report. WCIRB Releases- 2022 Geo Study with Interactive Map. Orange County Cities Consider Protections for Hospitality Workers. Walgreens VillageMD to buy Summit Health for $9B.
When HLTH launched in 2017, it embarked on an ambitious goal to disrupt the status quo for events within the healthcare industry. It set out to bring a new vision to healthcare events that embodied the industry’s highest aspirations for innovation and transformation, all while evolving the antiquated approaches that have existed for decades.
Healthcare is complex, and the community HLTH serves is multi-layered and consists of diverse individuals and organizations from around the world. Additionally, as the industry experiences a period of rapid change, one important adaptation HLTH is making to address these factors is a focus on audience journeys-tailoring pathways through content, programs and meetings based on a deeper learning about each population and individual that interacts with them.
Over the past five years, HLTH has become the preeminent event in the healthcare industry. This years industry event took place in Las Vegas starting on November 13. Content sessions this year showcase the most exciting, compelling thinkers and industry leaders. The event this year includes the StartUp Health Festival which has gathered thousands of CEOs, investors, world leaders and entrepreneurs to focus on solving the world’s biggest health challenges.
The fifth annual event drew thousands of healthcare leaders and innovators to Las Vegas. It’s only five years old, but the HLTH Conference has emerged as a big deal in healthcare. More than 300 people were expected to speak at the event. Some of the speakers included Greg A. Adams, chair and CEO of Kaiser Permanente, Sam Hazen, CEO of HCA Healthcare, Rosalind “Roz” Brewer, CEO of Walgreens Boots Alliance, U.S. Health and Human Services Secretary Xavier Becerra, and more.
Thomas Kurian, Google Cloud CEO, spoke to healthcare and technology leaders, outlining some of the company’s latest news and talking about how technology is changing the industry. Google Cloud is working with payers, providers, and pharmaceutical companies. “It’s an ecosystem that needs to deliver the care that people need,” Kurian said.
Google Cloud and Epic, the electronic health records firm, have signed an agreement hailed as the first step in enabling customers to run their Epic workloads on Google Cloud. Hackensack Meridian Health said it plans to move its Epic workloads to Google Cloud, touting gains in efficiency, innovation, and security.
Even with the COVID-19 pandemic and its assorted challenges, HCA Healthcare CEO Sam Hazen says the company has emerged with a commitment to embracing healthcare technology. Speaking at the HLTH Conference Sunday, Hazen said technology is the key to advancing everything from patient care to workforce development. “We’ve come out of the pandemic with a very focused effort in digitizing HCA healthcare in ways other industries have done,” Hazen said.
Geisinger CEO Jaewon Ryu made a case for value-based care. Ryu outlined impressive statistics demonstrating the effectiveness of Geisinger’s home-based health program and an initiative to help patients get better food.
To engage in such efforts, Ryu said, “You need a payment model that supports it.” And that’s where he made the case for health systems to move more toward value-based care, and away from the traditional fee-for-service model.
With value-based care, health systems are rewarded for improving patients’ health, and are essentially taking on the risk that they will be successful in keeping patients healthy, or at least from avoiding more costly care.
The Geisinger at Home program, which brings healthcare professionals to patients’ homes to manage complex conditions, has enjoyed considerable success, Ryu said. Patients in those programs have 36% lower hospitalization rates, and they have seen a 20% reduction in emergency department visits.
More summaries of these topics can be read on the Chief Health Care Executive website.
The Workers’ Compensation Insurance Rating Bureau of California (WCIRB), in collaboration with nine other workers’ compensation rating bureaus, has jointly released COVID-19 and Workers’ Compensation – Phase II of the Multibureau Collaboration.
This updated study includes two years of claims data – Accident Years (AY) 2020 and 2021 through year-end 2021 – from the following workers’ compensation bureaus: California, Delaware, Indiana, Michigan, Minnesota, New Jersey, North Carolina, Pennsylvania, Wisconsin and National Council on Compensation Insurance (NCCI).
One result of this effort is the creation of a COVID-19 claims database, which includes a comprehensive view of COVID-19 claim characteristics and trends. The analysis does not include experience from self-insured employers or denial and expense-only claims.
Key findings in the report include:
– – This analysis relied on data from 45 jurisdictions, representing $1.1 billion in COVID-19-related losses from about 117,000 claims. The average claim cost during the two-year period was approximately $9,600.
– – On average, COVID-19 claims decreased from 11 percent of workers’ comp lost-time claims reported in AY 2020 to 4 percent in AY 2021 across the jurisdictions included in the study.
– – For California, COVID-19 claim shares were somewhat higher in 2020 with 13 percent of lost time claims involving COVID-19. For 2021, the California COVID-19 claim share of 4 percent was similar to the national average.
– – Approximately 75 percent of reported COVID-19 lost-time claims were from the healthcare sector, while that sector only accounts for about 9 percent of non-COVID-19 lost-time claims.
– – In California, with its relatively broad presumptions, about one-half of COVID-19-insured employer claims were from the healthcare sector.
– – The share of COVID-19 claims and losses was largest in the second and fourth quarters of AY2020.
– – COVID-19 was not a significant loss driver for most industry segments.
– – However, COVID-19 claims in the Healthcare sector accounted for nearly 50% of all lost-time claims and more than 20% of paid+caselosses.
– – For most states, the largest share of COVID-19 claims has been in the Healthcare industry sector.
– – Although COVID-19 claims have been a significant driver of overall claims for the Healthcare sector, COVID-19 claims represent a small share of claims for other industries.
– – Healthcare with Overnight Care (which includes retirement homes and nursing homes) had the highest relative share of COVID-19 claims.
– – Healthcare workers have had the highest share of indemnity-only claims (60%) and a relatively low share of medical-only claims (15%).
– – Most hospitality-industry claims have been medical-only (71%).
– – Average severities are relatively consistent among years.
– – Severities for both COVID-19 and non-COVID-19 claims were relatively stable across years.
– – On average, COVID-19 claims have closed faster than non-COVID-19 claims, primarily due to the higher prevalence of indemnity-only COVID-19 claims.
This updated report confirms significant findings from the WCIRB 2020 report and includes additional insights on industry sector and accident-quarter metrics. Claim and loss activity varied across jurisdictions, impacting individual states and sectors differently and at varying times. Uncertainties remain about the long-term impact of COVID-19.
Rene Thomas Folse, JD, Ph.D. is the host for this edition which reports on the following news stories: Carrier Cannot Disqualify Multiple WCJ’s in Dec’d Defense Attorney Case. Growers SIG Sues Grower for $3M Cost of Post-Termination Claims. L.C. 432.6 Nullifies Employer’s Post litigation Proposed Arbitration Agreement. Opposing Party Prejudice Not Required for Arbitration Waiver. Epic Failure of $370M Fraud Detection Tech System in California & 7 States. Merced County Doctor Indicted for $53M Insurance Fraud Scheme. DWC Publishes 2021 Audit Report of Audit of 40 Entities. CDC Updates Opioid Clinical Treatment Guidelines. Nine California Hospitals Given Specialty Excellence Awards. Database of Hospitals Penalized By Medicare for Re-admissions.
La Vonya Price suffered a stroke in 2003 that initially left her paralyzed. After years of treatment, she eventually regained the use of her body and relearned how to speak, stand, and walk, yet she did not fully recover. Price suffered some permanent paralysis, which limited her ability to walk and the use of her left foot. Throughout 2005 and 2006, Price had to use a walker and a wheelchair because of her limited mobility. By 2007, Price’s condition had improved, but she still struggled with grasping and holding items, although she could hold small items without them falling.
Price first worked part-time for the Victor Valley Unified School District between August 2006 and September 2006 as a substitute para-educator for special needs students. She was not required to take or pass a physical examination for the position, and she did not tell the District she had a disability or any medical restrictions.
After moving to another job elsewhere in 2013, but she returned to the District again in February 2018, when she was hired as a substitute Instructional Assistant for special education students. Price was assigned to work one-on-one with an autistic student, who would sometimes run away from teachers and aides, including Price.
In July or August 2018, Price applied for a full-time position as an Instructional Assistant for special needs students. She received an offer for a full-time position that was contingent on passing a physical exam. When she failed the physical exam for not being “medically suitable for the position,” the District rescinded the offer, terminated her as a substitute, and disqualified her from any future employment with the District.
The part-time and full-time Instructional Assistant positions have the same duties and responsibilities. As a part-time Instructional Assistant, Price was assigned to a one-on-one position with a “runner,” and she successfully performed that position before being offered the full-time position, even though she frequently had to run after students.
Price sued the District for retaliation and various disability-related claims, but the trial court granted summary judgment in favor of the District. Price contended on appeal that the trial court erroneously granted summary judgment to the District because there are triable issues of fact concerning all of her claims. The Court of Appeal agreed as to her first claim for disability discrimination, but disagree as to the rest of her claims in the published case of Price v. Victor Valley Union High School Dist.- E076784 (November 2022).
The District asserts the fact that Price failed her physical examination means that she was not qualified to perform the job. The Court of Appeal disagreed.
The District reads Quinn v. City of Los Angeles (2000) 84 Cal.App.4th 472 to stand for the broad proposition that an employer may always impose physical requirements as a condition of employment and thus may always refuse to hire someone who does not meet those requirements. In Quinn the plaintiff-police officer was not qualified for the position because he failed a “sound localization test” due to a hearing impairment. “The ability to localize sound is particularly significant to police officers in split second, life-threatening situations when an officer cannot clearly see.” The Quinn court held that the plaintiff’s termination was lawful because he “was never initially qualified for the position” as a matter of law.
The court Quinn court “did not hold that employers have unfettered discretion to deny employment to anyone who fails any physical test, as the District suggests.” Rather, the Quinn court recognized only the “fundamental principle” that employers may deny a position to an applicant who cannot safely perform the essential functions of the job due to a medical condition.
Because the determination of essential job functions is a “highly fact-specific inquiry,” it is usually an issue of fact for the jury to decide. The District argues Price could not perform the essential functions of a special education Instructional Assistant because of her medical restrictions. In particular, the District contends the job had physical demands that Price could not meet, namely, running after students. Even if true, Price has raised a triable issue of fact as to whether this was an essential function of a full-time Instructional Assistant.