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July 20, 2020 – News Podcast


Rene Thomas Folse, JD, Ph.D. is the host for this edition which reports on the following news stories: WCAB En Banc Rescinds Some Suspension Orders in September. Mobile Wash New Target of AB-5 Misclassification Suit. San Diego Psychiatrist to Serve 21 Months for Fake Treatment. 27 So. Cal. Nursing Facilities Pay $16.7M for Inflated Medical Bills. Claim Volume Declines as Insurance Fraud Storm Arrives. Major Carriers Report Massive Q2 COVID-19 Losses. WCIRB Expects $1.2B in COVID Comp Claims. Complex Matrix of National Requirements for Job Re-Opening. Smoking or Vaping are COVID-19 Complications Risk Factors. FDA Approves Device Reducing Disc Reherniation Risk.

California Class Action Claims TeamHealth Inflates ER Charges

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

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

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

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

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

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

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

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

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

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

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

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

At Least 13 States Considering COVID-19 Liability Limits

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

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

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

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

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

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

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

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

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

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

Congress Begins Permanent Medicare Transition to Telehealth

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

July 13, 2020 – News Podcast


Rene Thomas Folse, JD, Ph.D. is the host for this edition which reports on the following news stories: Judge Rules OSHA Injury Report Form 300 is Not Confidential. Court Jurisdiction in Subrogation Action Ends When Case Dismissed. Privette Doctrine Tested Again in Roofer Fall Claim. Novartis Pharmaceuticals Resolves Kickback Case for $51M. Bay Area Woman Sentenced for Filing $9.5M Fraudulent SDI Claims. Monterey County DA Reports Two Premium Fraud Cases. CASISF Approves 2020-21 $6.5B Alternative Security Program. New Reporting Forms Required for Public Self-Insureds. Smartphones Cause Uptick in Motor Vehicle Accident Comp Claims. Blood Type Research May Support COVID-19 Apportionment.

WCAB En Banc Rescinds Some Suspension Orders in September

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

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

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

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

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

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

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

Major Carriers Report Massive Q2 COVID-19 Losses

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

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

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

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

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

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

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

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

Complex Matrix of National Requirements for Job Re-Opening

Governors and public health officials across the country have implemented stringent measures to help contain the spread of COVID-19, such as safer at home and face covering mandates. Some jurisdictions also require employers to screen the health of employees, often as they begin a shift. These health screening steps, including temperature checks, are becoming more common as states further reopen their economies.

A a recent post by Littler covers statewide laws and orders across the country, that require employers to take employees’ temperatures and/or conduct other employee health screening procedures, such as asking employees about any COVID-19-consistent symptoms using a questionnaire or checklist.

In California, currently there is no state requirement for temperature screenings. However, some California localities have provisions concerning employee temperature screenings. California does require employers to train employees on how to limit the spread of COVID-19, including how to screen themselves for symptoms and stay home if they have them. Some California localities have provisions concerning employee health screenings.

The post does not address other significant issues related to employer screenings of employee health, including potential wage and hour, discrimination, and privacy concerns. As a result, employers should consult with counsel for details on additional orders that may apply to their operations and for guidance on related legal questions.

Last month, Littler released the results of its COVID-19 Return to Work Survey Report, completed by 1,010 in-house counsel, human resources professionals and C-suite executives.

Employers are moving forward with caution, as only 18 percent plan to bring employees back immediately after stay-at-home orders expire. Another 33 percent will wait a few weeks and 42 percent plan to take a “wait and see” approach to gauge the outcome of other business’ reopening efforts.

Employers are also taking numerous steps to maintain employees’ safety, including increased cleaning (90 percent), limiting employee contact in common areas (87 percent), providing and/or encouraging the use of face coverings or other protective gear (86 percent) and modifying workspaces to maintain safe distances (78 percent).

More than half (58 percent) of respondents also plan to conduct testing or health screenings on employees, with most referring to temperature checks (89 percent) and symptom screenings (72 percent) and a small number selecting antibody (8 percent) and antigen (7 percent) tests.

Yet while the U.S. Equal Employment Opportunity Commission has released some guidance about screening employees for COVID-19, uncertainty remains around implementation, privacy matters and litigation risks.

Employers interested in further information may wish to consult Littler articles identifying face covering guidance and return to work protocols, as well as its interactive reopening map.

Smoking or Vaping are COVID-19 Complications Risk Factors

The WCIRB estimates about 30,000 COVID-19 claims will be filed in California, generating about $1.2 billion in costs. About 15,000 have been filed so far. Medical research on causative and risk factors are in the process of being created and published. This research will be critical evidence as causation and apportionment issues are litigated in these claims.

COVID-19 morbidity and mortality reports in the U.S. have not included findings specific to young adults. The Centers for Disease Control and Prevention provides a list of conditions and associated behaviors, including smoking, conferring risk of severe COVID-19 illness regardless of age.

A new University of California San Francisco study published this month in the Journal of Adolescent Health, examined young adults’ medical vulnerability to severe COVID-19 illness, focusing on smoking-related behavior.

A young adult subsample (aged 18-25 years) was developed from the National Health Interview Survey, a nationally representative data set, pooling years 2016-2108. The medical vulnerability measure (yes vs. no) was developed, guided by the Centers for Disease Control and Prevention risk indicators. The estimates of medical vulnerability were developed for the full sample, the nonsmoking sample, and the individual risk indicators. Logistic regressions were conducted to examine differences by sex, race/ethnicity, income, and insurance.

Smoking was the most common risk factor for severe COVID-19 complications among otherwise largely healthy young people. For young men, smoking or vaping may more than double the potential of being hospitalized, needing intensive care or even dying from the virus. For young women, it could increase the possibility 1½ times.

The findings from this analysis indicate that nearly one in three young adults are medically vulnerable to severe COVID-19 illness (32%).

In contrast, in the nonsmoking young adult group, only about one in six is medically vulnerable to severe COVID-19 illness (16%).

This difference between estimates is driven largely by the sizable portion of young adults who reported that they engaged in past 30-day smoking (1 in 10) and past 30-day e-cigarette use (1 in 14).

By contrast, relatively fewer young adults reported medical conditions identified by the CDC as conferring severe illness risk.