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Tag: 2013 News

Court of Appeal Says Rating Need Not Be “Complex and Extraordinary” to Use Almaraz/Guzman Analogy

Arthur Cannon injured his left foot and heel while working as a police officer for the City of Sacramento. He was diagnosed with plantar fasciitis and provided with physical therapy, cortisone injections , and an orthotic device. His primary treating physician found him permanent and stationary in January 2010, with no impairme nt of his activities of daily living and capable of performing his usual occupation.

An agreed medical examiner, Dr. William Ramsey, agreed Cannon was permanent and stationary and that there was no impairment but recommended that he be precluded from such things as prolonged running. Dr. Ramsey explained in a supplemental report that at the time of his original report, he was “unable to offer any impairment from a strict interpretation of the AMA Guides, 5th Edition” because “other than some tenderness, no objective abnormalities were identifiable.” Now, however, Dr. Ramsey determined that it was acceptable to characterize Cannon’s residual condition “using a gait derangement abnormality” “by analogy, using Almaraz/Guzman-II as a basis.” Noting that Cannon’s problem was “relatively mild,” with “the left heel causing weightbearing problems” and the likelihood that the condition “would . . . be aggravated appreciably by running activity on other than a short-term basis,” Dr. Ramsey recommended characterizing Cannon by reference to “Table 17-5, page 529,” as having “a limp, despite the absence of any arthritic changes about adjacent joints, equivalent to 7% whole person impairment.”

Ramsey continued to explain in yet another subsequent report that because Cannon’s heel pain “interferes with weightbearing activities, particularly running,” he “thought that by analogy, it would be similar to an individual with a limp and arthritis, resulting in the 7% impairment recommended.” He conceded however that that “heel pain, or for that matter, other aspects of pain that do not have any accompanying objective measurement abnormalities, do not rate anything in the AMA Guides, whether or not these problems interfere with one’s activities.”

In a trial brief, the city argued that a rating by analogy under Almaraz/Guzman would be proper only if the case could be characterized as “complex or extraordinary,” which Cannon’s injury could not be. The workers’ compensation judge (judge) agreed, finding that Cannon had no permanent disability because his medical condition was not complex or extraordinary and therefore did not warrant departure from a strict application of the AMA Guides.

Cannon petitioned for reconsideration, arguing that a case does not have to be complex or extraordinary to be rated by analogy under Almaraz/Guzman. The board granted reconsideration and, agreeing with Cannon in a split panel decision, rescinded the judge’s findings and award and returned the matter to him for a new permanent disability rating based on Dr. Ramsey’s findings.

The Court of Appeal affirmed the award in the unpublished case of City of Sacramento v WCAB (Cannon).

The city argued that a rating by analogy under Almaraz/Guzman is permissible only in complex or extraordinary cases. The Court of Appeal disagreed. It concluded that “this is an unwarranted interpretation of the Sixth District’s decision in Milpitas Unified. What the Sixth District said was this: ‘The Guides . . . cannot rate syndromes that are ‘poorly understood and are manifested only by subjective symptoms.’ [Citation.] [¶] To accommodate those complex or extraordinary cases, the Guides calls for the physician’s exercise of clinical judgment to assess the impairment most accurately.’ (Milpitas Unified, supra, 187 Cal.App.4th at p. 823, italics added.) Thus, the Sixth District was using the term ‘complex or extraordinary cases’ to describe ‘syndromes that are ‘poorly understood and are manifested only by subjective symptoms,’ which the AMA Guides do not, and cannot, rate.”

“It is undisputed that Cannon’s condition — plantar fasciitis — is manifested only by his subjective experience of pain. Thus, his condition appears to fall right into the category of cases the Sixth District was describing in Milpitas Unified, where the AMA Guides ‘calls for the physician’s exercise of clinical judgment to assess the impairment most accurately.’ (Milpitas Unified, supra, 187 Cal.App.4th at p. 823.) Dr. Ramsey performed that assessment here and determined that Cannon’s plantar fasciitis resulted in a 7 percent whole person impairment equivalent to a limp with arthritis. The city has shown no error in that assessment and no error in the board’s decision based on that assessment.”

CMS Publishes Notice of Proposed Rule Making Regarding Appeal Process

On December 27, 2013, CMS issued a Notice of Proposed Rule Making relating to circumstances where “applicable plans” (liability insurance, no-fault insurance, and workers’ compensation law or plans) can appeal recoveries which are sought by Medicare under the MSP directly against applicable plans. Organizations or individuals seeking to have commentary considered should provide their recommendations via one of the approved delivery methods as specified in the NPRM no later than 5 pm on February 25, 2014.

The appeals process proposed within this NPRM will strictly be for “applicable plans” as Medicare beneficiaries currently have existing appeal rights where the beneficiary is listed as the debtor. Because there is currently no appeals process for applicable plans in a similar situation, and the SMART Act called upon CMS to create an appeals process for applicable plans, this NPRM has been issued in the efforts to give applicable plans the same rights to appeal as a beneficiary currently has available.

As it relates to the SMART Act, Section 201 specifically requires Medicare to promulgate regulations establishing a right of appeal and appeals process under which the applicable plan involved, or an attorney, agent, or third party administrator on behalf of such plan, may appeal a statement of reimbursement amount. Therefore, this NPRM has been issued to comply with the aforementioned requirement of the SMART Act.

While CMS has noted that the industry has expressed interest in an appeal process for determinations regarding Workers’ Compensation Medicare Set Asides (WCMSAs), this NPRM does not address this issue (CMS noted that it will be addressed separately).

Floyd, Skeren and Kelly LLP Announce Disabled Veterans Litigation Unit

Floyd, Skeren and Kelly LLP is pleased to announce the formation of its disabled veterans litigation unit. The attorneys in this group represent veterans who have claims for benefits pending before the Veteran’s Administration.

Veterans qualify for disability benefits if they suffer from a current diagnosis that has a “nexus” with military service. The scheme of benefits is very similar to workers’ compensation for civilian workers. The veteran need only show active military service, a discharge at greater than dishonorable service and a “nexus” between the current disability and military service to receive benefits. The nexus can be established by direct injury, an aggravation of a disease by military service, or by a presumption of causation imposed by federal law or in other ways. A nexus issue in veteran cases has the same implication as an AOE-COE issue in workers’ compensation claims.

Vietnam veterans, for example, who have had “boots on the ground” in Vietnam, even for one day, qualify for the Agent Orange presumption. Agent Orange is one of the herbicides and defoliants used by the military as part of its herbicidal warfare program. Between 1962 and 1971, the military sprayed nearly 20 million gallons of Agent Orange over Vietnam. The product contained an extremely toxic dioxin compound. Dioxins and furans are some of the most toxic chemicals known to science. Vietnam veterans who develop a number of diseases years after service such as ischemic heart disease, diabetes mellitus type II, a number of cancers including prostate cancer (and other listed diseases) are presumed to have a nexus between military service and those medical conditions;

Once a nexus has been established, a veteran may obtain medical care in any VA facility nationwide. This may include free care for health problems in addition to those that are service connected. The veteran may also receive a monthly tax free disability payment. The disability is rated using a rating schedule similar to the workers’ compensation scheme. The rating can increase over time if the condition worsens. There is no time limit to request an increase of a disability award. The system provides death and survivor benefits, payment for at home attendant care, educational and rehabilitation benefits and more.

Another veteran program provides a pension to war era veterans who are totally disabled for any reason even if there is no service connection. This program is “means tested” meaning that current income is measured and used to offset this benefit. If a war era veteran is 65 years of age or older, they are presumed to be totally disabled and entitled to this pension. The means testing allows the veteran to reduce any income by current medical expenses. Thus, even veterans who have a source of income may qualify for a pension if their income is currently used for medical care.

If a veteran’s claim for disability compensation or pension is turned down by the VA Regional Office (RO), they may seek the services of an “accredited” advocate to appeal an unfavorable decision. Lay and attorney advocates must be accredited by the Office of the General Council of the Veterans Administration to assure a minimal level of competency before they can serve a veteran. The appeal begins at the Regional Office where the claim was filed. The Veteran can ask for a de-novo review of the file by a Decision Review Officer (DRO). If unsuccessful, the claim can then be appealed to the Board of Veteran’s Appeals (BVA). The BVA decision can be appealed to the Court of Appeals of Veteran Claims (CAVC) and ultimately to the U.S. Supreme Court.  These cases are quite similar to workers’ compensation litigation in that they heavily involve forensic medical issues.  Practitioners need considerable experience with medical terminology and medicine in general.  Generally advocates can be paid a contingent fee of 20% of accrued and unpaid benefits as of the time of the successful appeal.  Thereafter the veteran retains 100% of the balance of the award.

Three of our attorneys, Rene Thomas Folse, Chris Lear and Tim Morgan have been accredited by the VA Office of General Council to represent veterans.  Rene is a Vietnam veteran, and Chris is also a veteran who has had several deployments in the Persian Gulf. Both served in the U.S. Army. Tim has a background in the civil litigation of medical malpractice claims and will assist with the complex forensic medical issues.

Any veteran who would like a no-cost consultation about his or her right to benefits may call Rene, 818 651-7028.  He is the litigation group lead counsel, and does initial client contact and intake. Since this is a federal program, we can represent veterans nationwide.  In those cases we will conduct our interviews by teleconference.

California Employers Face Employment Law Changes on January 1

Most California law enacted during the legislative year takes effect on January 1. The following highlights some of the changes that take place in a few weeks in the world of employment law.

California’s minimum wage will increase to $9.00 per hour effective July 1, 2014, and further increase to $10.00 per hour effective January 1, 2016 (AB 10.) In addition to affecting hourly employees, these increases may have an impact on employees who are “exempt” from overtime, due to related increases in threshold compensation that must be paid to qualify for various exemptions. For certain state law executive, administrative and professional exemptions, the employee must be paid a salary of at least twice the state minimum wage for full-time employment. In addition, for the commissioned inside sales exemption, the employee’s earnings must exceed 1½ times the state minimum wage. Employers in the cities of San Francisco and San Jose should also note that effective January 1, 2014, San Francisco’s minimum wage will increase to $10.74 per hour and San Jose’s minimum wage will increase to $10.15 per hour.The compensation threshold for California’s computer software employee exemption increases annually, as it is tied to the Consumer Price Index. Effective January 1, 2014, the threshold compensation component to qualify for this exemption increases to $40.38 per hour, or $7,010.88 per month, or $84,130.53 per year.

In addition, due to passage of the Domestic Worker Bill of Rights Act (AB 241), domestic work employees who work as personal attendants are now eligible for overtime. This generally includes, with some exceptions, individuals who are employed to work in a private household to supervise, feed or dress a child or a person who needs supervision by reason of advanced age, physical disability or mental deficiency. They are entitled to 1½ times their regular rate of pay for work in excess of nine hours in a workday or 45 hours in a workweek.

Under existing Cal-OSHA regulations, employees who work outside in temperatures exceeding 85 degrees must be provided with five-minute cool-down periods (recovery periods) in a shaded area on an as-needed basis to protect from overheating. The Labor Code statute for meal and rest periods has been amended to include recovery periods.  (SB 435.) Employers are prohibited from requiring employees to work during a recovery period, and must pay them one additional hour of pay for each workday a required recovery period is not provided.

Companion bills (AB 263, SB 666) protect undocumented workers from retaliation for pursuing employment-related claims. Employers are prohibited from reporting or threatening to report a current, former or prospective employee’s suspected immigration status, or the suspected immigration status of his or her family member, in retaliation for exercising a right related to his or her employment. Violation may result in revocation of the employer’s business license, civil penalties and/or criminal penalties. In addition, an attorney who engages in such conduct toward a witness or party to a civil or administrative action may be subject to suspension, disbarment or other discipline. These new laws further provide that an employer that retaliates against an employee or applicant for exercising rights under the Labor Code may be subject to a civil penalty of up to $10,000. The new laws also clarify that an individual is not required to exhaust administrative remedies or procedures prior to bringing a civil action under the Labor Code, unless the specific Labor Code statute under which the action is brought expressly requires exhaustion of an administrative remedy.

Existing law prohibits employers from retaliating against an employee for disclosing information to a government or law enforcement agency, if the employee has reasonable cause to believe that the information discloses a violation of a state or federal rule or regulation. This law has been expanded to also prohibit retaliation against an employee who makes an internal complaint to a supervisor or other employee with authority to investigate, discover or correct the violation. (SB 496.)  The law also has been amended to cover disclosures pertaining to perceived violations of local rules or regulations.

FEHA has been amended (SB 292) to state expressly that sexually harassing conduct need not be motivated by sexual desire. The Legislature made this clarification in response to a California appellate court opinion issued in 2011, Kelley v. The Conco Companies, 196 Cal.App.4th 191.

Current law restricts employers from considering certain criminal records in making hiring or employment decisions. A new law (SB 530) prohibits an employer from asking an applicant to disclose, or from utilizing as a factor in determining any condition of employment, information concerning a conviction that has been judicially dismissed or ordered sealed, unless certain limited exceptions apply.

Multiple new laws augment employment protections for crime victims. Existing law prohibits an employer from taking adverse employment action against an employee who is a victim of domestic violence or sexual assault and needs to take time off from work to seek relief. A new law (SB 400) extends these protections to victims of stalking. This new law additionally expands protections to prohibit retaliation because of the employee’s status as a victim, and requires employers to provide reasonable accommodation upon request for the victim’s safety while at work. Another new law (SB 288) prohibits employers from retaliating against an employee who is a victim of a serious felony or other specified crimes for taking time off from work, upon the victim’s request, to appear in court to testify at related proceedings.

FIO Report Suggest Fed Involvement In State Regulation of Insurance

In Title V of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act), Congress established the Federal Insurance Office (FIO) within the U.S. Department of the Treasury. One of the tasks of the FIO is to monitor all aspects of the insurance industry, including identifying issues or gaps in the regulation of insurers that could contribute to a systemic crisis in the insurance industry or the U.S. financial system. The Dodd-Frank Act also requires that the FIO Director report to the President and to the Committee on Financial Services of the House of Representatives and the Committee on Banking, Housing, and Urban Affairs of the Senate each year “on the insurance industry and any other information as deemed relevant by the Director or requested by such Committees.” FIO has prepared its 2013 Annual Report on the Insurance Industry with a view to its role as monitor of the insurance industry.

This Report says that the financial performance and condition of U.S. insurers continued to show recovery and improvement from the decline during the financial crisis. In 2012, the U.S. insurance industry reported record aggregate premium levels. The two principal sectors in the U.S. insurance industry are life and health (L/H) and property and casualty (P/C). The U.S. insurance industry currently has more than 1,000 L/H insurers and more than 2,700 P/C insurers. At year-end 2012 reported surplus levels were at record highs for both sectors. Both reported improved profitability in 2012. Market values of insurers have also been recovering since the financial crisis, when large investment losses led to sharp declines in the book values for many insurers..

L/H insurer insolvency levels are at the lowest point in forty years. P/C insurer insolvency levels are at relative lows compared to the last few decades. Insurer insolvencies occurred with some regularity during the late 1980s and early 1990s, and peaked in 1991 at 142. These insolvencies prompted Congressional inquiries and efforts by state regulators to develop a program whereby states were required, through an accreditation process, to adopt solvency laws and regulations that meet certain minimum standards. The laws and regulations of an accredited state must contain provisions substantially similar to, or no less effective than, the significant elements of the NAIC model solvency oversight laws and regulations that state regulators have identified as key. The accreditation standards include compliance with standardized practices, including those pertaining to off-site financial analyses,on-site financial examinations, cross-jurisdictional regulatory information sharing, and assessment and intervention authority with respect to troubled insurers. The accreditation process is a peer review exercise, and all 50 states and the District of Columbia are currently accredited by the NAIC. As a result, the responsibility for taking regulatory actions rests with the insurance regulator of the state in which the legal entity is domiciled. The frequency of L/H insurer insolvencies has decreased since the early 1990s and has remained at relatively low levels for the period during and since the financial crisis. The number of reported financially impaired L/H insurers in recent years is at the lowest since the 1970s.

Despite the seemingly good financial news, the report concludes that insurance regulation in the U.S. is best achieved through a hybrid model in which state and federal authorities can work together, their roles defined by which strength each party brings to the process of improving solvency and market-conduct regulation.  According to an article in the Insurance Journal, industry reaction thus far has been measured, if not mostly predictable: David Sampson, president and CEO of the Property Casualty Insurers Association of America, notes that the report “starts by listing a number of attacks on state regulation that PCI believes does not adequately reflect the strengths and historical success of the current state-based system.” Similarly, the National Association of Professional Insurance Agents (PIA) says the report fails to properly highlight conclusions of a June 27 Government Accountability Office report stating that the state-based system worked effectively to help mitigate the negative impacts the 2008 financial crisis had on the insurance industry. Interestingly, one group that didn’t question the report’s assessment of the state-based system was the National Association of Insurance Commissioners, which is comprised of state-based regulators. NAIC President and Louisiana Insurance Commissioner Jim Donelon says in a statement that the 71-page report “acknowledges the effectiveness of state-based insurance regulation and the improvements states have made.” No chest-beating there.Cheering the strengths of state regulation, however, was never the point of the FIO’s report.

One of the more colorful turns of phrase in describing the FIO’s recommendations was offered by PIA National Executive Vice President and CEO Mike Becker, who said while the group needs to take a closer look at the FIO report, “On first blush, this looks like the camel’s nose under the tent.”

Comp Medical Mileage Rate Decreases in 2014

The Internal Revenue Service has announced that the standard mileage rate for business miles will decrease from 56.5¢ per mile to 56.0¢ per mile as of January 1, 2014. The California Workers’ Compensation Institute notes that this means the mileage rate that California workers’ compensation claims administrators pay injured workers for travel related to medical treatment or evaluation of their injuries should be adjusted to the IRS rate for travel on or after January 1, 2014, regardless of the date of injury. Claims administrators, however, should continue to pay the current rate of 56.5¢ per mile for travel from January 1, 2013 through December 31, 2013.

State law [Labor Code §4600 (e)(2)], in conjunction with Government Code §19820 and Department of Personnel Administration regulations, requires claims administrators to reimburse injured workers for such expenses at the rate adopted by the Director of the Department of Personnel Administration for non-represented (excluded) state employees, which is tied to the IRS published mileage rate. In a December 6 news release (,-Medical-and-Moving-Announced), the IRS announced that as of January 1, 2014, the standard mileage rate would decrease to 56.0 cents per business mile driven. The IRS bases the standard mileage rate on an annual study of the fixed and variable costs of operating an automobile.

There have been multiple mileage rate changes since 2008, so the Division of Workers’ Compensation has posted downloadable mileage-expense forms that show applicable rates based on travel date. A new form with the 2014 rate is now available.

Value Based Insurance Promises Better Healthcare at Lower Cost

One of the central features of a value-based healthcare insurance system is a financial “stick.” If patients insist on medical procedures that science shows to be ineffective or unnecessary, they’ll have to pay for all or most of the cost.

The article in Reuters Health presents the case of Tanner Martin as an example. When the 17 year old developed excruciating back pain last year, he was sure he needed an X-ray to find out what was wrong. So was his mother, who worried that the pain might indicate a serious injury that could cause permanent disability. In Tanner’s case, when he and his mother went to the San Luis Valley Regional Medical Center in Alamosa, Colorado, they were invited to watch a short video first. The best approach to back pain like Tanner’s, it explained, is stretching, strength-building and physical therapy; X-rays and MRIs, according to rigorous studies, are unlikely to make a difference. If they insisted on the X-ray, they would have to pay $300 on top of the basic cost. They passed on the imaging, knowing they could change their minds if Tanner’s condition worsened. After three weeks of therapy, his back was as good as new.

The additional cost when patients choose procedures that research shows are unlikely to help their condition is a key element of San Luis Valley’s two-year experiment in value-based insurance, the premise of which is that a mix of financial carrots and sticks can steer patients toward medical services that will help them and away from ineffective or unnecessary ones. Starting in 2014, Engaged Public, the Denver research and consulting firm that designed the study, will scrutinize the two years of data to see what effects the novel plan had on healthcare costs and outcomes.

Healthcare policy wonks have been studying value-based insurance for a decade. For some consumer groups, the concept raises concerns over whether it will deter people from treatment when certain procedures are needed. But the idea has gained momentum since the passage of President Barack Obama’s healthcare reform law, which includes provisions to control healthcare spending that now tops $2.7 trillion a year in the United States. About one-third of that is attributed to wasteful or ineffective care. Among the provisions is one that allows state Medicaid programs to adopt value-based designs, as two, in Michigan and South Carolina, have. At least one private insurance plan sold in an “Obamacare” marketplace has done so as well. In addition, Obama’s Affordable Care Act encourages doctors and hospitals to form Accountable Care Organizations (ACOs), which are paid more under the Medicare program for older Americans if they control costs while also providing quality care. Some 4 million Medicare enrollees are now in one of the nation’s nearly 500 ACOs, and private insurance plans are adopting them as well. Medicare now penalizes hospitals if a patient is re-admitted for the same condition within 30 days.

Advocates of value-based insurance say that while focusing on the “supply side” – hospitals and doctors – is a good start, healthcare spending reforms must also involve the “demand” side: patients. For one thing, they say, patients who know they’re on the hook for care that won’t benefit them are less likely to badger their providers. “If someone goes to the doctor and really wants antibiotics for a cold or an MRI for back pain, it can take more time to talk him out of it than to order it,” said Dr. David Downs, medical director of Engaged Public.

The success of value-based insurance’s disincentives is far from assured and has some worried over the extent to which procedures would be considered off-limits. “We have reservations about financial obstacles that might keep patients from getting care they need,” said Joyce Dubow, senior healthcare reform director at AARP, the research and lobbying group formerly known as the American Association of Retired Persons. AARP is a partner in Choosing Wisely, a program in which medical specialty groups identify procedures – more than 200 so far – that do not benefit patients, according to rigorous scientific evidence. The list is a benchmark for discouraged procedures in value-based insurance plans.

The very idea that some diagnostic tests and treatments might not help patients comes as a shock to many Americans. The Choosing Wisely message is difficult to convey to the many patients who “think that when it comes to medical care newer is better and more is better,” said Dr. Yul Ejnes of Brown University’s Alpert Medical School. “So when patients have more skin in the game (in terms of cost), they’re more likely to ask, do I really need this?”

CMS Rolls Out Fingerprint-Based Provider Background Checks

CMS plans to award a contract early next year to a company that will conduct fingerprint-based background checks for thousands of Medicare providers and suppliers each year. The contract will come nearly three years after the agency released a final rule on the screening, which is one of several provisions in the Patient Protection and Affordable Care Act giving HHS new tools to crack down on Medicare fraud, particularly in areas of the program that have proved most vulnerable to abuse. Republicans have criticized the administration for not rolling them out faster. It’s unclear why the CMS has waited three years to implement the provision. An agency spokesman would say only that the agency “was not prepared at the time of the final rule’s effective date.” He added that fingerprinting won’t begin until two months after the CMS releases additional guidance on the issue, and he did not say when that would be.The winning firm will process the fingerprints within five business days and will report the results as pass, incomplete or fail findings for the CMS’ review, according to agency documents.

Tony Rodgers, a principal at the consulting firm Health Management Associates and the former deputy administrator for strategic planning at the CMS, attributed the delay to ironing out technical issues that could trigger liability for the government. These include making sure that the agency has the correct fingerprints, for the correct provider or supplier and making sure the process is fast enough that businesses aren’t forced to wait inordinate amounts of time to get paid for services.

The CMS rule on background checks divided Medicare providers and suppliers into three categories based on the risk of fraud. Those in the high-risk category, the CMS said, would be subject to the background checks. They include executives who have at least 5% direct or indirect ownership of newly enrolled home healthcare agencies and durable medical equipment agencies. Those businesses have been significant and persistent sources of Medicare fraud. In fiscal 2011, Medicare spent $18.4 billion on home healthcare and $81 billion on DME.

The industry, eager to shed that reputation, is welcoming the scrutiny. Michael Hamilton, executive director of Alabama Durable Medical Equipment Association, said “it’s about time” the fingerprinting provision was beginning. Most DME fraud, he said, is perpetrated by a small group of bad actors “looking to make a quick buck” while the vast majority of companies and their executives are above board. The American Association for Homecare, which represents home health providers and DME suppliers, supports fingerprinting and any provision that would cut down on fraud, a spokesman said.

The background checks are expected to affect as many as 7,500 executives each year, according to the CMS. If they fail, they and their companies could be prohibited from participating in Parts A and B of the Medicare program. To pass, an executive must not have been convicted in the last 10 years of a felony charge for crimes such as murder, rape, extortion, embezzlement, tax evasion and any act that endangers Medicare beneficiaries.

The strength of the screening measure, Rodgers said, lies in public awareness: As word spreads that the CMS is performing the checks, criminals may think twice about attempting to enroll.But Medicare fraud expert Jim Frogue, a partner in the consulting firm FrogueClark, had mixed feelings about the usefulness of the initiative. “CMS has innumerable technological tools it can leverage in 2014 to target Medicare fraud, including pre-payment billing analysis and real-time public records searches,” Frogue said. “Fingerprinting belongs more in the Spy Museum.” Still, he acknowledged it “could have a positive sentinel effect in weeding out questionable characters from areas particularly prone to fraud like home health and durable medical equipment.”

Foundation Names California Worst “Judicial Hellhole” in Nation

The American Tort Reform Foundation (ATRF) is a District of Columbia nonprofit corporation, founded in 1997. The Foundation says its primary function is to educate the general public about: how the American civil justice system operates; the role of tort law in the civil justice system; and the impact of tort law on the public and private sectors.

The Foundation issued its annual Judicial Hellholes® report this month, naming civil courts in California, Louisiana, New York City, West Virginia, Southwestern Illinois’ Madison and St. Clair counties, and South Florida among the nation’s “most unfair.”   According to the report, California was ranked as number 1 in the nation.   ATRF president Tiger Joyce also said that “this year’s report also identifies 10 marginally less problematic jurisdictions on the ‘Watch List,’ along with some particularly bad court decisions we call ‘Dishonorable Mentions.'” The Report says that California remains ignominiously atop the Judicial Hellholes list for a second consecutive year.

The Report goes on to say that California’s addiction to lawsuits claims average residents as victims, too. The California litigation system effectively imposed a $33.5 billion hidden tax – or $883 per resident – just for the costs of lawsuits settled thus far in 2013, reported Orange County Register columnist Joseph Perkins. “Most California residents are blissfully unaware of the tremendous toll lawsuit abuse has on the state,” he observed.  Perkins pins California’s poor reputation, in part, on former class-action kingpin Bill Lerach, whose seaside La Jolla Farms mansion and revoked bar membership are testimony to both the profitability and unscrupulousness of California’s lawsuit industry. Lerach shows no remorse after pleading guilty for his role in concealing lucrative kickbacks that his former law firm gave to individuals for serving as on-call plaintiffs in its storied securities litigation racket. He told the Wall Street Journal, “I’m proud of the work we did,” even after he was disbarred, sentenced to two years in prison, and ordered to pay an $8 million penalty.

The Report cites current litigation trends in the state. Over the past two years, plaintiffs’ lawyers have filed a surge of consumer class actions targeting what they have labeled as “Big Food.” Some of these claims are brought by veterans of lawsuits against the tobacco industry who are looking for the next deep pocket to sue. About a dozen plaintiffs’ law firms have taken to the courts with gusto, filing about 75 class action lawsuits between them in the past few years. By one count, which includes filings from additional firms, more than 100 consumer class actions were filed against food makers in 2012 alone, five times the number filed four years earlier. Rarely has there been a week in 2013 without a report of another class action filed against a food maker. In some instances, the lawyers bringing the cases do not even bother to find new clients – they recycle the same individuals as lead plaintiffs, over and over again, in lawsuits involving different manufacturers and products. California is the epicenter of this litigation due to its plaintiff-friendly consumer laws, large population, and the U.S. District Court for the Northern District of California’s growing reputation for receptivity to such claims. Some also point to the federal Ninth Circuit Court of Appeals’ willingness both to uphold questionable class certifications and be quite lenient when it comes to requiring consumers to show they actually relied on allegedly misleading conduct when deciding to purchase a given product. The Northern District of California, located in San Francisco, has earned the derisive moniker of “the food court,” since it hosts more food-marketing and food- labeling lawsuits than any other federal court.

For example, plaintiffs’ lawyers filed several cases over the past 15 months against companies like Chobani, Trader Joe’s and WhiteWave, which sells Horizon Organic dairy products and Silk brand products. These lawsuits claim that the companies use the term “evaporated cane juice” instead of “dried sugar cane syrup” or “sugar” to make consumers believe that there is no sugar in their product. As pointed out by WhiteWave, “evaporated cane juice was not controversial until this recent tsunami of lawsuits was filed.” An average consumer should not be surprised that cane means sugar.

Another trend – Lawsuits brought ostensibly to enforce technical standards of the Americans with Disabilities Act (ADA) in California reached an all-time high in 2012, making small business owners feel as though they have targets on their backs. In response to the crisis, Sacramento lawmakers enacted S.B. 1186 in September of 2012. Unfortunately, prior to final passage, the bill was stripped of a key provision requiring an attorney to notify a business owner of a violation at least 30 days prior to filing a claim so as to provide the business an opportunity to address the issue. California Citizens Against Lawsuit Abuse called the compromise measure the “most serious attempt at ADA litigation reform to ever come out of the Legislature,” but added that it “does not go as far as we would have preferred.”  Taxpayers in Torrance, California, are now on the hook for at least $75,000 in legal costs, as the town fights a lawsuit challenging the accessibility of a city-owned parking lot. The lawsuit also targeted a popular Italian restaurant and a family-owned bakery that use the lot, even though the businesses have no control over it. That case was filed by a man responsible for filing hundreds of lawsuits in Los Angeles County alone. The plaintiff, Jon Carpenter, is a Los Angeles resident, but is represented by a San Diego law firm that calls itself the Center for Disability Access.

As noted in previous Judicial Hellholes reports, there has been in recent years a steady migration of asbestos lawyers to California from states that, unlike California, have enacted reasonable civil justice reform laws to give asbestos defendants a fairer shake in court. Many of these transplants hail from reform-minded Texas, for example, and have eagerly opened offices in California, particularly in Los Angeles, where more plaintiff-friendly tort law, court procedures and juries give them a sizeable advantage over asbestos defendants.

So Cal Pain Doctor Faces Eight Counts For Illegal Prescriptions

The Los Angeles Times reports that a Southern California pain doctor who was featured in a 2012 Times investigative report on patient overdose deaths was barred Monday from writing prescriptions for some narcotics and other widely abused drugs. John Dimowo pleaded not guilty in a court hearing to eight counts of illegally prescribing Vicodin, Norco, Xanax and Adderall to undercover agents who pretended to be patients but had no legitimate need for the drugs. Dimowo, 55, was arrested in October on seven counts of unlawful prescribing; prosecutors added an eighth count Monday, said Los Angeles County Deputy Dist. Atty. John Niedermann.

Prosecutors had hoped to stop Dimowo from practicing medicine while the charges were pending. L.A. County Superior Court Judge Melissa N. Widdifield declined their request. But as a condition of bail, she ordered Dimowo to stop writing prescriptions for the types of drugs at issue in the case. Dimowo, who is free on $60,000 bail, is scheduled to be back in court Feb. 3 for a preliminary hearing to determine whether prosecutors have enough evidence to take him to trial.

Undercover agents posing as patients on visits to Dimowo’s Wilmington office were able to get prescriptions for addictive drugs without the doctor examining them, according to an affidavit. It described Dimowo as a prolific prescriber of painkillers such as Vicodin, writing an average of at least 37 prescriptions a day.

The Times reported last year that five of Dimowo’s patients fatally overdosed on medications he prescribed between 2009 and 2010, coroner records show. They ranged in age from 26 to 59. Authorities investigated the deaths but said they did not find sufficient evidence to hold him criminally liable for any of them.