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Tag: 2016 News

“CrossFit” Orange County Sheriff Arrested on Fraud Charges

An Orange County Sheriff’s Department (OCSD) deputy was arrested on charges for committing insurance fraud by failing to disclose his true physical abilities and activities to his health care providers and lying under oath.

Nicholas Zappas, 36, who lives in Laguna Niguel, is charged with 11 felony counts of insurance fraud and seven felony counts of perjury under oath. If convicted, Zappas faces a maximum sentence of 16 years in state prison. The defendant was arrested by Orange County District Attorney (OCDA) Investigators, and his arraignment date and time is yet to be determined.

At the time of the alleged crimes, Zappas was employed as an Orange County Sheriffs Department deputy for approximately 14 years.

On April 2, 2015, while working Harbor Patrol and engaged in a boat rescue, Zappas claimed he tripped over a fire hose falling on his back. He filed a workers’ compensation insurance claim for injuries to his left shoulder, left side of his neck, and lower back. He was placed on work restrictions of no lifting, pushing or pulling of greater than 10 pounds by a medical doctor due to his complaint of pain. The OCSD accommodated the work restrictions and Zappas was assigned to dispatch.

However, between May 2015 and November 2015,Zappas is accused of engaging in CrossFit, which is a high-impact exercise with varied functional movements. He allegedly lifted substantial weights in excess of 200 pounds, doing box jumps, burpees, squats, and other activities that were contrary to the limitations imposed by the doctor based on his description of his pain, symptoms and limitations. Zappas appeared on video while engaging in CrossFit. Thus he is accused of failing to disclose that he was participating in CrossFit to his medical physicians.

In May 2015, the County discovered that Zappas was engaging in CrossFit, and it was reported to OCDA Bureau of Investigations, who investigated this case.

On Dec. 1, 2015, while under oath during his deposition, Zappas allegedly denied lifting anything over 20 pounds since the date of his injury and claimed that he could not lift anything heavy, could not do squats, and could not run.

Between January 2016 and May 2016, Zappas is accused of continuing to engage in CrossFit and not disclosing his abilities to his medical physicians.

Deputy District Attorney Pamela Leitao of the Insurance Fraud Unit is prosecuting this case.

DA Will Not Forgive Liberty Mutual’s Forgiveness Program

Berskhire Hathawy has recently been under scrutiny by the California Insurance Commissioner for selling workers’ compensation insurance policies that have not been administratively approved for sale in California. It now seems that another major national carrier has resolved a claim filed by three Southern California district attorneys for nearly $1 million also for violating California law while advertising insurance policies.

Los Angeles County District Attorney Jackie Lacey announced a $925,000 settlement with Liberty Mutual Group, Inc., for advertising an accident forgiveness program that was not available in California.

The civil complaint was jointly filed in Riverside County Superior Court by district attorneys in Los Angeles, Riverside and San Diego counties and alleges unfair competition by Liberty Mutual. The settlement was signed by Riverside County Superior Court Judge John Molloy.

Starting in 2014, the Boston-based company launched a nationwide television ad campaign touting its “accident forgiveness” program that protects drivers from having their insurance rates increase if they are responsible for an accident.

However, California consumer protection laws prohibit accident forgiveness programs from being offered in California. Liberty Mutual estimates the ad campaign reached 70 to 80 percent of the households in California.

“California consumers rightfully expect clear and accurate advertising about what is and is not contained in the automobile insurance policies offered to them,” said District Attorney Lacey. Prosecutors also said the ads had a disclaimer that was obscured, used small type and was on the screen for no more than three to four seconds. California law requires all advertising must be clearly disclosed.

Under the terms of the judgment, which will be entered without admission of liability, Liberty Mutual will be subject to an injunction requiring full compliance with state law with its accident forgiveness advertising, including the disclosure of the fact that such programs are not available in California.

The $925,000 settlement will be split among the three counties. The case was handled for the Los Angeles County District Attorney’s Office by Ellen Aragon of the Consumer Protection Division.

Industry Complains AB 2883 Has “Unintended Effect”

Newly adopted AB 2883 provides that all business workers’ comp insurance policies will be required to cover certain officers and directors of private corporations and working members of partnerships and limited liability companies that may have been previously excluded from coverage beginning on Jan. 1, 2017.

Unfortunately, AB 2883 did not include any language exempting in-force policies or delaying its effective date so as not to impact in-force policies.

And the Insurance Journal reports that John Norwood, with lobbying firm Norwood & Associates, said not only does AB 2883 present implementation problems for insurers, it presents an errors and omissions issue for insurance agents and brokers, especially with those entities that today do not purchase a workers’ comp policy because only the owners are involved in the business.

“Literally everybody in the industry responsible for legislative issues missed the application issue relative to this bill, yours truly included in that list, and the same with all legislative and committee staff until after the governor signed the bill into law,” Norwood said. “There may be an opportunity to address the application issue early next legislative session but some coverage will be afforded to individuals with in-force policies if and until a fix-it bill can be passed through both houses of the Legislature and signed by the governor.

According to Insurance Commissioner Jones, the Department of Industrial Relations, the American Insurers Association, and the Association of California Insurance Companies, all agree that this change in law applies to in-force policies.

Prior to the passage of the law, officers, directors and working partners were not required to be covered under the business’s workers’ comp policy unless they opted to be covered and were not listed on a limiting and restricting endorsement.

Going forward officers, directors and partners are required to be covered under the employer’s workers’ comp policy unless they meet a narrower definition of excluded employee. Under this narrower definition, officers, directors, and partners can only opt out of coverage by signing a waiver under penalty of perjury and filing the waiver with their employer’s insurer.

Insurance companies are required to identify and provide notice to each employer that may have employees that were previously excluded from coverage and are affected by the new law, and they are required to report the premium and loss experience associated of those who have not chosen to opt of the coverage.

The Insurance Journal reports that Blake Longo, with Pasadena-based AJLongo Insurance Brokers, shot an email to his clients and business associates on Monday warning them of the changes. Longo said he’s already been talking to some of his clients about it. “They’re not happy about the change,” Longo said. “They don’t believe it adds any benefit to them and that it will certainly add extra costs.”

Longo said the changes will also make life tougher on brokers like him, because it will be brokers who businesses will first turn to if the new rules affect them.”You are delivering the bad news and you’re delivering the additional premium,” he said. “That does not bring smiles to people’s faces.”

According to Norwood, the bill was originally worded to be a bill authorizing a study on paperless systems for the approval of treatment requests in the workers’ comp system. However, that language was gutted and amended to address the issue of exemptions for officers and directors of corporations, partnerships and LLCs.

The bill’s new language was added because some insureds were allegedly abusing the exemption process under current law by listing everyone in their organization as an officer or director to avoid purchasing workers’ comp, Norwood explained.

The biggest issue with AB 2883 is that it applies to all workers’ comp insurance policies that will be in effect on or after Jan. 1, 2017, including those policies in force any time after the first of the year. Katie Pettibone, AIA’s vice president for state affairs, said her group is working with CDI and DIR to help address this.

“Publicly the bill was supposed apply to new policies and renewals after the effective date of January 1, 2017, thus there was no opposition,” Pettibone said. “However, there was ambiguity in the drafting and it appears the bill is going to be broader than just policies written after Jan. 1 or renewals ” it will be applicable to in-force policies. Stakeholders have been working with the California Department of Insurance and Department of Industrial Relations to help address this unintended effect.”

CDI Orders Carrier to “Cease and Desist” Operations

The California Department of Insurance moved to stop a central valley company from selling workers’ compensation and liability policies because it claims they are not properly registered with the Department of Insurance, which means those insured through the company may not have valid insurance coverage.

In the cease and desist order, served Monday, October 17, 2016, the department alleges Agricultural Contracting Services Association, Incorporated, doing business as American Labor Alliance and its affiliate CompOne USA, are soliciting, marketing, selling, and issuing to employers statewide what the company claims are valid workers’ compensation policies, when in fact the department’s Investigation Division found the company is not properly registered with the regulator and is allegedly transacting insurance without proper authority.

According to the allegations of the Order, “Respondents are not currently licensed or authorized by the Insurance Commissioner to act in any capacity regarding the transaction of insurance in California, and during relevant periods herein, did not hold any license, Certificate of Authority, or permit , issued by the Insurance Commissioner, to act in any capacity regarding the transaction of insurance in California.”

Insurance Code § 12921.8(a) authorizes the Insurance Commissioner to issue a Cease and Desist Order to a person who has acted in a capacity for which a license, registration, permit, or Certificate of Authority from the Insurance Commissioner was required but not possessed.

“Employers who purchased insurance from American Labor Alliance are likely at great financial risk,” said Insurance Commissioner Dave Jones. “Employers must protect themselves, their employees, and their business by checking with the Department of Insurance to verify the company and agent or broker’s license is valid and that the policy they purchased is also valid.”

CDI claims that “American Labor Alliance attracted customers by marketing low workers’ compensation premium rates, but the end result is employers holding worthless pieces of paper, as the policies are not valid, which means the employers have no coverage – leaving them and their employees at great risk.”

The order is effective immediately. Employers transacting business with Agricultural Contracting Services Association, Inc., American Labor Alliance, or affiliate CompOne USA, should contact the Department of Insurance Investigations Division at 661-253-7500 for assistance in determining the validity of their workers’ compensation coverage.

American Labor Alliance has requested an administrative hearing before an administrative law judge. The hearing is not yet scheduled. If American Labor Alliance continues marketing and selling the alleged illegal products, in defiance of the department’s cease and desist order, they face fines up to $5,000 per day for each day they do not comply.

CDI Approves Changes to WCIRB First Aid Reporting

The California Insurance Commissioner issued a decision regarding the WCIRB’s January 1, 2017 Regulatory Filing which was submitted to the California Department of Insurance (CDI) on June 28, 2016 and subject to a public comment period that ended on September 28, 2016. In the Decision, the Commissioner approved all of the WCIRB’s proposed changes effective January 1, 2017 to the California Workers’ Compensation Uniform Statistical Reporting Plan – 1995 (USRP), Miscellaneous Regulations for the Recording and Reporting of Data – 1995 (Miscellaneous Regulations), and California Workers’ Compensation Experience Rating Plan – 1995 (ERP) with one exception.

A number of clarifying changes to Classifications 5474(1)/5482(1), 5506, 6218(2)/6220(2), 5507 and 8227 were not approved due to a pending appeal before the CDI Administrative Hearing Bureau.

The proposed amendments would define first aid claims and require that they be included in insurer reporting. First aid claims have been a longstanding concern because some insurers do not report first aid claims as currently required under the USRP, which, according to the CDI, gives their policyholders an unfair advantage in the market.

The current regulations do not specifically mention first aid claims; thus, some insurers have interpreted the regulations to mean that they need not report medical payments for first aid claims. However, the USRP does not provide any exceptions that would enable insurers to refrain from reporting any medical loss, including first aid medical losses. The confusion may stem from the fact that first aid claims are treated differently than indemnity claims under the Labor Code in the workers’ compensation system. The proposed amendments clarify the existing obligations to report all claims and will enhance the WCIRB’s ability to properly account for first aid claims when determining appropriate statewide experience modifications.

The WCIRB’s planned study regarding whether to exempt a certain amount of medical loss from the reporting requirements may or may not come to fruition in 2019; thus, there is no basis to conclude that the market will benefit from delaying implementation. Also, the WCIRB’s inability to quantify the extent to which insurers underreport claims underscores the immediate need for the implementation of these amendments, which will clarify the regulations to all insurers and policyholders and foster the proper reporting of all claims, in furtherance of a fair and equitable system.

All the proposed amendments to the ERP including the WCIRB’s proposed 2017 rating values to be used in the computation of 2017 experience modifications in accordance with the variable split experience rating formula adopted by the Commissioner in 2015 to be effective January 1, 2017. The approved 2017 experience rating eligibility threshold is $10,100. (View the approved revised tables.)

The WCIRB is in the process of updating the USRP, Miscellaneous Regulations and ERP. Once complete, these documents will be posted to the Publications and Filings page of the WCIRB website. In the interim, the WCIRB has prepared the2017 Quick Reference Guide summarizing the approved changes to the Commissioner’s regulations.

The Decision pertains only to the WCIRB’s Regulatory Filing and does not include amendments to advisory pure premium rates. Changes to advisory pure premium rates were proposed in the WCIRB’s amended January 1, 2017 Pure Premium Rate Filing submitted on October 3, 2016.

DWC Launches MTUS Training for Physicians

Physicians treating in the California workers’ compensation system are required to follow the evidence-based recommendations in the DWC medical treatment utilization schedule (MTUS).

The Division of Workers’ Compensation (DWC) launched a free online education course for physicians treating patients in the California workers’ compensation system. This online one-hour course is for treating physicians, qualified medical examiners, physician reviewers, other health care providers, as well as anyone else interested in learning how to use the MTUS.

“Caring for California’s Injured Workers: Using California’s Medical Treatment Utilization Schedule (MTUS)” is the first entry in a planned series of education modules developed for medical doctors, chiropractors and nurses. The MTUS is the primary source of guidance for treating physicians and physician reviewers for the evaluation and treatment of injured workers.

“All medical providers who treat injured California workers are required to understand and follow the MTUS. The online course is a convenient tool for providers to learn how to use the treatment guidelines designed to improve medical outcomes for injured workers,” said DWC Executive Medical Director Dr. Raymond Meister.

The module is available on the DWC website and will be available by mobile app soon.

Medical doctors, chiropractors and nurses who take the course will receive one hour of free CME credit. Qualified medical evaluators (QMEs) may report up to one hour of credit for QME reappointment. The course is also available to anyone else wishing to learn about the MTUS, and a completion certificate is available.

The education module covers:

1) What the MTUS is and how to use it
2) How to navigate the MTUS treatment guidelines and apply recommendations via case scenarios
3) When to consider recommendations outside of the MTUS guidelines for the care of your patient
4) The role of utilization review (UR) and independent medical review (IMR) physicians

Access to the physician education module can be found on the DWC website.

Injured Sheriff Prevails in Medical Records Privacy Case

A Los Angeles County Sheriff’s Deputy (identified as John Doe) and the Association for Los Angeles Deputy Sheriffs (ALADS) filed a complaint against the County of Los Angeles and other parties alleging that the defendants unlawfully accessed Doe’s medical information, and later discriminated and retaliated against him for asserting his right to keep that information confidential.

Doe has been a Sheriff’s Deputy since 1997. In 2009, he suffered a work-related injury to his back for which a physician prescribed narcotic pain medication. Doe became physically dependent on the medication. He received workers’ compensation benefits for both the back injury and his dependency. He entered a drug dependency treatment program. He completed the program successfully in June and was released to return to full time, unrestricted duty. From June 2011 until February 2012, Doe worked full time as a deputy sheriff. He had back surgery in February, then took a leave of absence until July 6, 2012.

In May 2012, while on leave, Doe filled several prescriptions he obtained from different physicians for pain medications. In August 2012, the County’s workers’ compensation administrator noticed that the number of prescriptions was “unusual” and informed the sheriff’s department about the prescriptions. When confronted Doe stated that he had decided to quit taking the medication and destroyed the remaining pills. The last time he took narcotic pain medication was in June 2012.

From August 6, 2012 until June 13, 2013, Doe worked full time without restrictions or problems. The sheriff’s department nevertheless placed him on a performance mentoring program. Doe was required to attend quarterly performance reviews and submit to drug tests. From August 2012 until June 2013, Doe provided the required information and passed all drug tests.

On December 6, 2012, someone in the sheriff’s department accessed Doe’s records within the County’s Prescription Medication Drug Database (PMDD) for the purpose of discovering the medications Doe had been prescribed. Employees of the County and the sheriff’s department reviewed the information. Doe had not authorized access or review, and did not learn of it until November 2013.

Later, five supervisors attempted to get Doe to authorize access to his prescription information, telling him that it would “save [his] job.” And three sheriff’s department officers asked him to voluntarily submit to a psychological fitness for duty evaluation. Doe declined both requests. Later he was “ordered to engage in a fitness for duty psychological re-evaluation.” The defendants were allegedly aware that Doe would be required to release this information as part of the fitness for duty evaluation.

Doe consented to the evaluation, but refused to authorize the release of his medical records. The psychologist was therefore unable to conduct the evaluation. The next day Doe was ordered to take a medical leave of absence. He complied, even though he was ready, willing, and able to perform his duties. He has been on leave of absence since that time.

Doe filed a civil complaint against the County alleged nine causes of action involving invasion of privacy and retaliation. The defendants filed a special motion to strike the complaint under Code of Civil Procedure section 425.16, commonly referred to as an anti-SLAPP motion. The trial court granted the motion, dismissed the case and awarded $10,230 in attorneys’ fees to the defendants. The Court of Appeal reversed in the unpublished case of Assn. for Los Angeles Deputy Sheriffs v. County of Los Angeles.

Resolving an anti-SLAPP motion involves a two-part inquiry. First, the defendants must make a prima facie showing that the challenged cause of action arises from activity protected by the anti-SLAPP statute. If the defendants satisfy their burden of showing that the cause of action arises from protected activity, the burden shifts to the plaintiffs to make a prima facie showing of facts demonstrating a probability of prevailing on their claim.

The Court of Appeal determined that the plaintiff’s causes of action do not arise from activity protected under the anti-SLAPP statute, the trial court erred in granting defendants’ special motion to strike the complaint and in awarding defendants’ their attorneys’ fees. The order granting the defendants’ special motion to strike the complaint and the award of attorneys’ fees were reversed and his case will proceed.

Obamacare Now in “Death Spiral”

The Wall Street Journal reports that finalized rates for big health insurance plans around the country show the magnitude of the challenge facing the Obama administration as it seeks to stabilize the insurance market under the Affordable Care Act in its remaining weeks in office.

Market leaders that are continuing to sell coverage through or a state equivalent have been granted average premium increases of 30% or more in Alabama, Delaware, Hawaii, Kansas, Mississippi and Texas.

In states including Arizona, Illinois, Montana, Oklahoma, Pennsylvania and Tennessee, the approved rate increases for the market leader top 50%. In New Mexico, the Blue Cross Blue Shield plan agreed to resume selling plans through the online exchanges after sitting out last year, but has been allowed to increase rates 93% on their 2015 level.

Dominant insurers in Connecticut, Georgia, Indiana, Kentucky, Maine, Maryland and Oregon have been allowed to raise premiums by 20% or more, and rate increases from similarly situated carriers in Colorado, Florida and Idaho are brushing up against that threshold.

The Obama administration has characterized the year as one of “transition,” in part because insurers priced aggressively low in the opening enrollment periods for coverage under the law, and has pledged new efforts to encourage healthier people to sign up.

“The situation is serious,” said Alissa Fox, senior vice president of the Office of Policy and Representation for the Blue Cross Blue Shield Association. “The reason the premiums are where they are is that the people we are covering have serious conditions and they’re using a lot of medical services because of their chronic illnesses. That’s clear. And there’s not enough young, healthy people to balance out those costs.”

House Speaker Paul Ryan, a Wisconsin Republican, said the insurance markets are already in a “death spiral,’” and that “we’re going to have to change this thing.”

Insurers had warned of a turbulent year as they came to terms with the impact of sicker people rushing forward to buy insurance under new rules that required them to accept all buyers regardless of their medical history. A number of popular plans have folded, such as the “cooperative” startups funded by the law, sparking an exodus of their members onto the remaining insurers.

The danger for insurers and supporters of the law now is that high prices and limited choices further deter low-risk people from signing up, and that the increases continue and become irreversible.

New Law Effects Comp Policy Coverage in January

The California Department of Insurance notified all workers’ compensation insurers writing policies in California of the changes to definitions of and procedures related to excluded employees due to the Legislature’s enactment of Assembly Bill 2883 (Assembly Insurance Committee).

Beginning January 1, 2017 all business workers’ compensation insurance policies, including in-force policies, will be required to cover, among others, certain officers and directors of private corporations and working members of partnerships and limited liability companies that may have been previously excluded from coverage.

According to the legislative analysis “current law has resulted in abuses”. One proponent of the new law provided an example where an insurer found a company trying to exclude the “vice-president of dishwashing.” In another example, a company provided coverage for all of their employees, but during the post audit conducted by the insurer, the company retroactively declared that several employees with a tiny ownership share were exempt under the corporate officer statute and demanded a premium refund. The proponents argue that AB 2883 addresses these issues by removing the uncertainty found in existing law by clearly defining what constitutes an eligible employee for a policy exclusion.

“The existing election process to opt out of coverage is not very clear. Beyond one limited statutory reference and very little regulatory guidance, insurers and LLCs are left to figure it out for themselves.The Association of California Insurance Companies (ACIC), one of the supporters of this bill, argues that this lack of clarity has led to abuses that have hurt injured workers and driven fraudulent activity.”

To resolve this abuse, the new law creates an explicit process through which an officer or member of a board of directors or working members of a partnership or LLC may elect to be excluded from a workers’ compensation policy. Specifically, AB 2283 would: permit an officer or member of the board of directors to opt out of a workers’ compensation policy if he or she owns at least 15 percent of the issued and outstanding stock of the corporation and executes a written waiver of his or her rights under this chapter stating under penalty of perjury that the person is a qualifying officer or director. Permit an individual who is a general partner of a partnership or a managing member of a limited liability company to opt out of a workers’ compensation policy if he or she executes a written waiver of his or her rights under this chapter stating under penalty of perjury that the person is a qualifying general partner or managing member.

The Commissioner met with the American Insurance Association (AIA) and Association of California Insurance Companies (ACIC), who supported AB 2883, and the Department of Industrial Relations (DIR) to discuss its implementation.

“AB 2883 is going to cause significant disruption for workers’ compensation insurers and employers. We have issued a notice today to workers’ compensation insurers so that they know what the new law requires of them and we directed insurers to provide notice to employers so they are made aware of the new law,” said Commissioner Dave Jones. “Unfortunately, AB 2883 did not include any language exempting in-force policies or delaying its effective date so as not to impact in-force policies. The DIR, AIA and ACIC agree that this change in law applies to in-force policies.”

Insurance companies are required to identify and provide notice to each employer that may have employees that were previously excluded from coverage and are affected by the new law. Insurers are also required to determine and report the premium and loss experience associated of those who have not chosen to opt of the coverage. Employers who believe they may be affected by this change in law are encouraged to contact their workers’ compensation insurer or their workers’ compensation agent or broker.

Medicare Moves to Pay for Performance Model

The California workers’ compensation Official Medical Fee Schedule is based upon a “pay for procedure” model which encourages medical professionals to provide as many procedures as possible to increase income. The next evolution of payment for medical services is known as “pay for performance.” Under this new model medical professionals will be paid more money for better outcomes, rather than for procedures that have little or no effect on outcome.

Changing the way it does business, Medicare on Friday unveiled a far-reaching overhaul of how it pays doctors and other clinicians consistent with the “pay for performance” model.

The goal is to reward quality, penalize poor performance, and avoid paying piecemeal for services. Whether it succeeds or fails, it’s one of the biggest changes in Medicare’s 50-year history.

The complex regulation is nearly 2,400 pages long and will take years to fully implement. It’s meant to carry out bipartisan legislation passed by Congress and signed by President Barack Obama last year.

The concept of paying for quality has broad support, but the details have been a concern for some clinicians, who worry that the new system will force small practices and old-fashioned solo doctors to join big groups. Patients may soon start hearing about the changes from their physicians, but it’s still too early to discern the impacts.

The Obama administration sought to calm concerns Friday. “Transforming something of this size is something we have focused on with great care,” said Andy Slavitt, head of the federal Centers for Medicare and Medicaid Services.

Officials said they considered more than 4,000 formal comments and held meetings around the country attended by more than 100,000 people before issuing the final rule. It eases some timelines the administration initially proposed, and gives doctors more pathways for complying.

The American Medical Association said its first look suggests that the administration “has been responsive” to many concerns that doctors raised.

In Congress, staffers were poring over the details. Rep. Tom Price, R-Ga., who worries that Medicare’s new direction could damage the doctor-patient relationship, said he’s going to give the regulation “careful scrutiny.” Sen. Orrin Hatch, R-Utah, chairman of a panel that oversees Medicare, called it an “important step forward,” but said the administration needs to keep listening to concerns.

MACRA, the Medicare Access and CHIP Reauthorization Act, creates two new payment systems, or tracks, for clinicians. It affects more than 600,000 doctors, nurse practitioners, physician assistants and therapists, a majority of clinicians billing Medicare. Medical practices must decide next year what track they will take.

Starting in 2019, clinicians can earn higher reimbursements if they learn new ways of doing business, joining a leading-edge track that’s called Alternative Payment Models. That involves being willing to accept financial risk and reward for performance, reporting quality measures to the government, and using electronic medical records.