Menu Close

Encompass Health to pay $48M to Resolve Fraud Claim

Encompass Health Corporation, based in Birmingham, Alabama, is one of the United States’ largest providers of post-acute healthcare services, offering both facility-based and home-based post-acute services in 36 states and Puerto Rico through its network of inpatient rehabilitation hospitals, home health agencies, and hospice agencies.

In California they operate the Encompass Health Rehabilitation Hospital of Bakersfield, on 5001 Commerce Drive, and Encompass Health Rehabilitation Hospital of Modesto located at 1303 Mable Avenue.

Encompass Health Corporation (formerly known as HealthSouth Corporation), has agreed to pay $48 million to resolve allegations that some of its inpatient rehabilitation facilities (IRFs) provided inaccurate information to Medicare to maintain their status as an IRF and to earn a higher rate of reimbursement, and that some admissions to its IRFs were not medically necessary.

Medicare and Medicaid use information about patients’ diagnoses to determine whether a facility is properly classified as an IRF, and to determine the level of reimbursement the facility is awarded for specific patients.

The government alleged that beginning in 2007, in order to insure compliance with Medicare’s rules regarding classification as an IRF, and to increase Medicare reimbursement, some Encompass IRFs falsely diagnosed patients with what they referred to as “disuse myopathy” when there was no clinical evidence for this diagnosis.

Additionally, Encompass IRFs allegedly admitted patients who were not eligible for admission to an IRF because they were too sick or disabled to participate in or benefit from intensive inpatient therapy.

“This important civil settlement concludes a lengthy, comprehensive investigation that brought to light a nationwide scheme that the government contends was intended to defraud our fragile public health programs,” said U.S. Attorney Maria Chapa Lopez. “In doing so, we confirm our commitment to civil health care fraud enforcement as a key component of the mission of our office.”

The settlements resolve allegations raised in three lawsuits filed by Dr. Emese Simon M.D., a former contract physician employed at an Encompass inpatient rehabilitation facility in Sarasota, Florida; Melissa Higgins the former Director of Therapy Operations at Encompass’s inpatient rehabilitation facility in Arlington, Texas; and Dr. Darius Clarke M.D. the former Medical Director at Encompass’s inpatient rehabilitation facility in Richmond, Virginia, and his company, Restorative Health & Wellness P.L.L.C.

The lawsuits were filed under the qui tam, or whistleblower, provisions of the False Claims Act, which permit private individuals to sue on behalf of the government for false claims and to share in any recovery.

Here, the whistleblowers collective share of the settlement will be $12.4 million.

The three cases are captioned United States ex rel. Simon, et al. v. HealthSouth Corp., et al.; Case No. 08-CV-236 (M.D. Fla.); United States ex rel. Higgins v. HealthSouth Corp.; Case No. 3:12 CV 2496 (N.D. Tex.); and United States ex rel. Clarke et al. v. HealthSouth Corp.; Case No. 1:12 CV 853 (E.D. Va.). The claims resolved by the settlement are allegations only, and there has been no determination of liability.

Statewide Sweep Nabs 169 Illegal Contractors

One hundred and sixty-nine legal actions were taken against both licensed and unlicensed contractors after the Contractors State License Board (CSLB) conducted three undercover sting operations and 46 sweep operations around California.

The enforcement actions, which took place between June 3 and June 25, 2019, were part of a nationwide effort coordinated by the National Association of State Contractors Licensing Agencies (NASCLA). These efforts were implemented to heighten consumer awareness about the importance of hiring licensed contractors and the risks of using those who are not, and ensuring that contractors follow all relevant laws related to workers’ compensation and down payments.

In California, investigators from CSLB’s Statewide Investigative Fraud Team (SWIFT) partnered with several local law enforcement agencies to conduct three sting operations at homes in Rancho Cordova (Sacramento County), Paso Robles (San Luis Obispo County), and Campbell (Santa Clara County). Forty-six sweep operations were conducted in Alameda, Butte, Contra Costa, Fresno, Los Angeles, Mendocino, Monterey, Napa, Orange, Placer, Riverside, Sacramento, San Bernardino, San Diego, San Francisco, Santa Clara, and Sonoma counties.

For the stings, SWIFT investigators contacted suspects in several ways, including through their business profiles on social media and advertisements on craigslist.org. The suspected unlicensed operators came to the sting locations to place bids on projects like painting, concrete, ceramic and mosaic tile, flooring and floor covering, siding and decking, masonry, electrical, warm-air heating, ventilating, and air-conditioning, and tree services. Sweeps were conducted based on tips from consumers, and through coordinated efforts with partner agencies.

Of the suspects caught in the stings and sweeps, 37 individual cases were referred to a prosecutor after a thorough investigation was made by CSLB. Additionally, 44 licensees were issued administrative citations. Also, 36 of the individuals were issued a fine for contracting without a license (Business and Professions Code (BPC) section 7028). In addition, 52 individuals received a “Notice to Appear in Court” (NTA) and may face misdemeanor criminal charges after being caught for breaking state contracting laws.

Of those issued an NTA, 51 suspects were found to be contracting without a license ((BPC) § 7028). In California, a state-issued license is required to perform any contracting work that costs $500 or more in labor and materials combined. The penalty for a first conviction is up to six months in jail and/or a fine of up to $5,000.

Thirteen may also be charged with requesting an excessive down payment (BPC §7159.5). In California, a home improvement project down payment cannot exceed 10 percent of the contract total or $1,000, whichever is less. This misdemeanor charge carries a maximum penalty of six months in jail and/or up to a $5,000 fine.

Also, 12 of the suspects issued a court date did not have workers’ compensation insurance for their workers ((LC) §3700.5). Some of these cases resulted in 63 “stop orders” (BPC §7127). CSLB investigators can halt jobsite activity when any person, with or without a contractor license, does not have workers’ compensation insurance coverage for employees. Failure to comply with a stop order can result in misdemeanor charges and penalties, including 60 days in jail and/or up to $10,000 in fines.

Additionally, 45 of the individuals may also be charged with a misdemeanor count of illegal advertising (BPC §7027.1). California law requires licensed contractors to place their CSLB license number in all print, broadcast, and online advertisements. Those without a license can advertise to perform jobs valued at less than $500, but the ad must state that they are not a licensed contractor. The penalty is a fine of $700 to $1,000.

Lastly, one suspect could be charged with being an unregistered salesperson (BPC §7153). All salespeople working for a contractor must be registered with CSLB.

June 24, 2019 News Podcast


Rene Thomas Folse, JD, Ph.D. is the host for this edition which reports on the following news stories: Ronald Grusd M.D. Office Manger to Serve 5 Years, Arrests Made for $120M Fake Insurance Scheme, Santa Ana Psychiatrist to Serve 57 Months in Prison, Truck Driver Pleads Guilty to Comp Fraud, School Custodian Sentenced for Fraud, Executive Order Forces Healthcare Price Disclosure, “ABC” Test “Doomsday Scenario” for Hollywood, Solar Company Cited for Worker’s Fall from Roof, FDA Launches Pilot Blockchain Technology Project,
Sale of Applied Underwriters to Close in 2019.

Wearable Technology WorkComp Game Changer

More and more, employers are looking at how wearable technology can be implemented in the workplace, with improving employee safety as a primary goal. Devices can allow companies to monitor and track activities, analyze motions, alert for hazards, and augment physical capabilities, among other things.

Workers compensation has experienced a long-term decline in overall claim frequency, with a 19% decrease from Accident Year 2011 to Accident Year 2016. Among other causes, NCCI research points to automation, robotics, and continued advances in safety as contributing factors to the decrease. However, during this same time period, total claim severity increased 13%.

When it comes to workers compensation, wearables are in their infancy. While wearables are being tested today by insurance companies, as well as other employers and their workers, the technology and its potential is primarily in the proof-of-concept phase.

Companies are expressing interest in exploring uses for wearables as advances are made, yet only a handful of companies have piloted the technology to date, according to the stakeholders NCCI interviewed. Similarly, while some larger employers are piloting wearables, the actual use among employers overall appears limited so far.

Primary stakeholders in the implementation process for wearables include insurance companies, agents, policyholders/employers (including risk managers and human resources personnel), employees, and wearables vendors that provide the technology and can partner with insurance companies and employers on proof-of-concept/pilot projects.

Wearable technology, as it relates to workers compensation, ranges from measuring an employee’s physical activity, posture, or location to measuring multiple workplace conditions such as movement, light, humidity, temperature, and other environmental conditions. Some wearables can pair the data collected with third-party data—such as data about weather conditions—to provide a more complete picture of the working environment and associated risks.

In addition to preventing injuries, wearable devices could assist injured workers returning to work and help keep them there once they return. In a compelling example of how wearables can be used in workers compensation return-to-work scenarios, a first responder who suffered a spinal cord injury in the line of duty was fitted with an exoskeleton. The individual was able to return to work as a police officer six months after he was injured.

In terms of affordability, as with any new product, wearable costs are expected to decrease over time as new companies and products enter the marketplace. However, employers may have concerns about investing in wearable devices if they have short lifespans as next-generation technology and/or newer versions of the wearable devices become readily available.

The stakeholders NCCI spoke with believe that wearable technology has the potential to be a game-changer for workers compensation. One stakeholder indicated a 30% to 50% reduction in back-related injuries during the proof-of-concept stage and the potential for more reductions in injuries and claim costs as wearable technology improves and becomes more widely used.

As wearable technology advances, the interviewed stakeholders agree that wearables are well positioned to become an integral part of the future workplace and the workers compensation system. Notably, with more widespread use, wearables could provide data and information that could lead to safer workplaces and may help reduce recovery times, facilitate return-to-work, and reduce the overall costs of workers compensation claims.

WCIRB Submits 2020 Regulatory Filing

The Workers’ Compensation Insurance Rating Bureau of California (WCIRB) submitted a 578 page January 1, 2020 Regulatory Filing to the California Insurance Commissioner.

The filing contains the following proposals:

Amendments to the California Workers’ Compensation Uniform Statistical Reporting Plan – 1995 (USRP) contained in Section A are proposed to become effective January 1, 2020 and applied to a policy with an effective date on or after January 1, 2020. These proposed amendments include changes to the Standard Classification System, including changes to increase the hourly wage thresholds for most dual wage classifications to reflect wage inflation since the thresholds were last amended, and changes for clarity and consistency in the administration of the USRP.

Amendments to the Miscellaneous Regulations for the Recording and Reporting of Data – 1995 (Miscellaneous Regulations) contained in Section B are proposed to become effective January 1, 2020 and applied to a policy with an effective date on or after January 1, 2020. These proposed amendments include changes to revise the submission requirements for group insurance policies as well as for clarity and consistency in the administration of the Miscellaneous Regulations.

Amendments to the California Workers’ Compensation Experience Rating Plan – 1995 (ERP) contained in Section C are proposed to become effective January 1, 2020 and applied as of the first rating effective date of a risk on or after January 1, 2020. These proposed amendments include changes to the physical audit threshold, experience rating threshold, Expected Loss Rates and D-Ratios as well as for clarity and consistency in the administration of the ERP.

“Non-Profit” Hospitals Report Massive Profits

America’s 82 top non-profit hospital groups have experienced massive growth in annual revenues and asset value even as health care costs for most families and individuals are zooming upward, according to government watchdog Open The Books.

The 82 largest U.S. non-profit hospitals recorded revenues of $296.6 billion for their primary entity in FY2017 (or latest year available). The largest systems ranked by revenues are Kaiser Foundation, Oakland, CA ($54 billion); Partners HealthCare, Somerville, MA ($12.7 billion); University of Pittsburgh Medical Center Group, Pittsburgh, PA ($12.5 billion); MayoClinic, Rochester, MN ($11.1 billion); and Dignity Health, San Francisco, CA ($9.9 billion).

Average net asset growth year-over-year for the 82 non-profit hospitals was 23.6 percent: $164.2 billion grew to $203.1 billion. The largest percentage increases in net assets were individually recorded by Ascension Health, St. Louis, MO(1211%); Highmark Health, Pittsburgh, PA (271%); Baylor Scott & White Health, Dallas, TX (247%); and Texas Health Resources, Arlington, TX (146%).

The 82 large non-profit healthcare providers paid out $297.5 million in compensation to their single most highly compensated employee. On average, the top executive in each organization made $3.5 million.

For comparison, the five for-profit corporations had revenues of $96 billion with disclosed expenses of $80 billion. Their net assets increased by $600 million last year – an increase in assets from $40.1 billion to $40.7 billion (1.5 % growth). The most highly compensated executive was Tenet HealthCare Corporation CEO who made $6.3 million. Furthermore, Medicare/Medicaid comprised 25 percent of their annual revenues.

Only 14 of the 82 non-profit organizations Open the Books studied properly disclosed the amount of revenues derived from Medicare/Medicaid on their IRS 990 returns last year. The 14 hospitals who disclosed their program service revenues had $100.2 billion in total revenues of which $28 billion came from Medicare/Medicaid (28%). Therefore, Open the Books estimated that the 82 non-profit hospitals did $83 billion in Medicare/Medicaid work last year.

Roughly $2 billion flowed into these non-profit organizations from federal agencies via grants primarily used for research (FY2018). The largest recipients were Partners HealthCare, Sommerville, MA ($903.4 million); Mayo Clinic in Rochester, MN at $282.9 million followed by the Children’s Hospital of Philadelphia in Philadelphia, PA ($182.6 million); Cleveland Clinic in Independence, OH ($101.6 million); and Kaiser Foundation in Oakland, CA ($78.6 million).

These large non-profit hospitals received charitable contributions of $5.2 billion last year (includes affiliated organizations). The largest recipients of charity (excluding government grants) were Partners HealthCare, Somerville, MA ($2.2 billion); Mayo Clinic, Rochester, MN ($1.1 billion); Cleveland Clinic, Independence, OH ($179.3 million); Cedars-Sinai, Los Angeles, CA ($130.9 million); ProMedica, Toledo, OH ($124.7 million); and Texas Children’s Hospital, Houston, TX ($112.2 million).

The 82 non-profit hospital organizations collectively spent $26.4 million on lobbying last year. The top four providers with the most lobbying were University of Pittsburgh Medical Group, Pittsburgh, PA ($2.3 million); Mayo Clinic, Rochester, MN ($1.8 million); Dignity Health, San Francisco, CA ($1.7 million); and Christus Health, Irving, TX ($1.3 million). Non-profits cannot use charitable contributions or government payments for lobbying purposes.

The non-profits must re-invest in their communities and therefore construction of new facilities is on-going. For example, in Illinois, the top contractor at Advocate Medical isn’t a healthcare service vendor, but a construction project manager ($26.1 million). Illinois lost population during the last ten-years. This pales in comparison to Partners HealthCare in Massachusetts – the top three vendors are construction contractors who reaped $191.4 million last year.

Neither the non-profit nor the for-profit hospital corporations disclose the real prices actually paid by their patients.

Bankruptcy Judge May Halt Opiate Trials

The fate of thousands of lawsuits seeking to hold drugmakers responsible for fueling the U.S. opioid epidemic hinges in part on a thorny legal question: Can a company use a bankruptcy to stop lawsuits from cities and states?

U.S. Bankruptcy Judge Kevin Gross is expected in July to decide whether to halt more than 160 active lawsuits brought by state attorneys general, cities and counties against opioid manufacturer Insys Therapeutics Inc. When it filed for Chapter 11 protection in Delaware earlier this month, Insys requested the cases be paused.

A bankruptcy filing would normally halt active litigation immediately, giving a company such as Insys time to reorganize and preserve money that would otherwise be spent fighting the cases.

But a longstanding exception in U.S. bankruptcy law can keep the lawsuits alive if they are enforcing government officials’ “police or regulatory power.” The exception holds that government actions seeking to enforce laws related to matters such as public health and safety are not automatically stopped by a company’s bankruptcy filing as other lawsuits are.

State and local officials are suing Insys and other drugmakers in an attempt to address harm from an opioid crisis that has killed nearly 400,000 people between 1999 and 2017. More than half these deaths resulted from prescription painkillers, according to the U.S. Centers for Disease Control and Prevention.

“Criminal enterprises ” should not be permitted to shield themselves from the consequences of their misconduct by running to bankruptcy court and obtaining the equivalent of a stay that allows them to evade justice,” said Minnesota Attorney General Keith Ellison and Maryland Attorney General Brian Frosh in a Tuesday legal filing opposing Insys’s request to halt lawsuits.

The opioid crisis “is a national public health emergency,” they said in the filing, which other state attorneys general supported, including those in New York, New Jersey and Arizona. “The interests of the public therefore are served by allowing these police powers actions of the states to continue unfettered by the injunctions that Insys seeks.”

Insys already had reached a $225 million settlement before filing for bankruptcy with the U.S. Justice Department, admitting to illegal conduct in resolving claims that it bribed doctors to write prescriptions, including medically unnecessary ones, for a fentanyl spray called Subsys designed to treat cancer pain.

The Chandler, Arizona-based company still faces, overall, more than 1,000 lawsuits raising similar allegations of deception and fraud in marketing its opioids. The misconduct occurred under a prior management team that has since “entirely turned over” and Insys is now committed to lawful marketing practices, the company said in court papers.

Insys contends in bankruptcy-court filings that Judge Gross should halt the lawsuits against it regardless of any exceptions, lest the company drain limited financial resources fighting cases on multiple fronts.

Allowing the cases to continue would leave less money for creditors, including the very government officials seeking to hold it to account, Insys contends, adding that its request is not an attempt to escape liability.

It had less than $40 million in the bank when filing for bankruptcy and predicts spending up to $9 million through December to continue fighting lawsuits, according to court papers.

The judge’s ruling is expected to influence whether another opioid manufacturer facing 2,000 lawsuits – OxyContin maker Purdue Pharma LP – decides to file for bankruptcy protection, according to a person familiar with the matter and legal experts. A Purdue spokesman declined to comment.

A ruling allowing the Insys litigation to proceed could discourage Purdue from seeking bankruptcy protection, while pausing the cases might signal that Chapter 11 bankruptcy proceedings are a viable way to halt lawsuits and take advantage of breathing room to reach a broader settlement with plaintiffs, according to the person familiar with the matter and several legal experts.

Gig Companies Adapt to ABC Test

Deliv is a Menlo Park-based crowdsourced, same-day delivery startup. Deliv bridges the last mile gap between multichannel retailers and their customers. Deliv offers same-day service to mall shoppers.

Starting this August, Deliv drivers will be employees with benefits such as coverage for workers’ compensation and unemployment, paid sick leave, access to a retirement plan and health/dental/vision coverage.

According to the report in the SF Chronicle, this is a rare move by a gig economy company to change its employment model. And it’s sure to be closely watched, as California adjusts to last year’s groundbreaking state Supreme Court ruling called Dynamex that makes it harder for companies to claim that workers are independent contractors, and considers legislation that could force other companies to change how they classify their workers.

A pending bill, AB5, would codify Dynamex, extending its reach beyond wage issues to other labor code matters and exempting some professions, such as doctors, architects and hairstylists. Lawmakers, companies and unions are now thrashing out how that would work — with many gig enterprises, such as Uber and Lyft, seeking to be exempted.

Deliv’s change, which applies only to its workers in California, “is the best approach for all our stakeholders,” said Deliv CEO Daphne Carmeli. The company declined to say how much it would cost. It is setting up a California subsidiary to hire the couriers as employees.

Deliv appears to be the first prominent California gig company to change its business model – but it won’t be the last.

Deliv, which operates in 1,400 cities in 35 metropolitan markets nationwide, works with Home Depot, Best Buy and Macy’s as well as smaller companies. Retailers pay it for deliveries and choose whether to pass some or all of that cost along to customers.

While providing benefits and withholding for Social Security and other safety net programs will cost Deliv more, Carmeli thinks that the company will receive economic advantages such as more-efficient drivers thanks to more training and management, lower recruiting costs and less turnover.

Uber and Lyft, the two biggest gig companies in AB5’s crosshairs, both said that their business models, as well as drivers’ stated preferences, rely on flexibility, which they said would be hard to achieve while also meeting requirements such as mandated meal/rest breaks and overtime. Both said they’d likely need to insist that drivers work for only one service, and limit how many drivers work at a time, two changes that would curb drivers’ earnings potential.

The ride-hailing rivals have joined forces to push for a hybrid model that would include some benefits, a guaranteed wage floor and an association to speak for drivers, who would remain independent contractors.

Attorney Pleads Guilty in Oxycodone Sales Case

A Downey-based attorney pleaded guilty to a federal narcotics distribution charge for illegally selling more than 1,000 oxycodone pills after offering the opioid drugs for sale on Craigslist.

Jackie Ferrari, 36, a resident of Downey, pleaded guilty to one count of illegally distributing oxycodone.

According to court documents, Ferrari sold a law enforcement source 50 oxycodone pills for $1,200 during a transaction on January 10. Ferrari was arrested in this case on January 18 after agreeing to sell the source another 180 pills for $4,100.

The investigation into Ferrari began after a 22-year-old woman died in August 2018 of a fentanyl overdose, and text messages on the victim’s phone initially indicated that she may have purchased the narcotics from a drug trafficker associated with Ferrari.

While investigators did not link Ferrari to that overdose death, they opened an investigation based on evidence that she is a large-scale trafficker in opiates via the website Craigslist, and information developed by two local police departments tying Ferrari to drug trafficking activities in late 2017, according to an affidavit filed in this case.

Court documents describe how Ferrari posted ads on Craiglist offering oxycodone and other drugs under coded names such as “foxy roxy dolls,” which referred to Roxicodone, a short-acting version of oxycodone. In her plea agreement, Ferrari admitted informing customers that they would be required to ingest a pill in her presence, to verify that they were not law enforcement.

As a result of today’s guilty plea, Ferrari will face a statutory maximum sentence of 20 years in federal prison when she is sentenced on October 21 by United States District Judge Michael W. Fitzgerald.

The investigation into Ferrari is being conducted by the High Intensity Drug Trafficking Area (HIDTA) Task Force, which operates under the direction of the Drug Enforcement Administration. The investigation is being led by DEA agents and deputies with the Los Angeles County Sheriff’s Department.  The Costa Mesa Police Department and the Cypress Police Department provided substantial assistance in the investigation.

Major Cannabis Research Industries Collaborating

Huge research companies may be putting their thumb on the scale in favor of increasing public use of cannabis world wide.

EMMAC Life Sciences Ltd is the European medical cannabis company, working to join together the latest science and research with cutting-edge cultivation, extraction and production. Hyris is a privately held, UK-based biotechnology company founded in 2014 by an entrepreneurial team with deep experience in biotechnology and electronics.

EMMAC,announced an exclusive collaboration with Hyris Ltd, to develop a comprehensive library of genetic profiles of existing cannabis varieties, and to industrialise DNA-based methods for the identification of its unique branded cultivars.

The Hyris platform will enable EMMAC to gain an exact overview of available cannabis species as well as run specific DNA-based tests for the positive identification of EMMAC proprietary strains, ensuring industry-leading quality control, regulatory compliance and anti-counterfeiting assurance for customers and partners.

The portable, distributed testing platform ensures that all stakeholders (industrial, agronomy, Pharma, patients’ advocacy, regulators) from multiple geographies are able to participate in the creation and exchange of data through a proprietary cloud-based platform in real time, ensuring immediate access to the latest required information.

Barbara Pacchetti, Chief Scientific Officer of EMMAC, commented: “EMMAC is committed to investing in the latest innovations in cannabis cultivation, extraction, production and other value-adding associated technologies, to ensure the highest quality medical cannabis product for our customers. The Hyris platform enables us to provide industry-leading quality assurance for our products, across geographies in real-time to our multiple stakeholders.”

Stefano Lo Priore, CEO of Hyris, commented: “We are excited about this partnership and look forward to providing value to EMMAC, its partners, customers and regulators. As an emerging leader in the DNA-based analysis of plants, Hyris looks forward to the growing number of diverse stakeholders able to generate and process highly relevant genetic data to ensure quality, traceability and compliance.”

Earlier this month, EMMAC bought French hemp-based and cannabis healthcare company GreenLeaf, as the legal use of cannabis for medicinal purposes steadily increases.

Cannabis stocks have been a growing trend on world stock markets, particularly on the Toronto stock exchange after Canada became one of the first major economies to legalize the recreational use of marijuana.