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Tag: 2020 News

WCIRB Responds to COVID-19 Rating Issues

The Workers’ Compensation Insurance Rating Bureau of California (WCIRB) Governing Committee recently met to review the WCIRB Actuarial Committee’s analysis of December 31, 2019 California workers’ compensation experience.

The indicated average July 1, 2020 advisory pure premium rate based on December 31, 2019 experience and the methodologies recommended by the Actuarial Committee was $1.53 per $100 of payroll, which is $0.01 above the average approved January 1, 2020 advisory pure premium rate of $1.52.

Given the minor indicated change in advisory pure premium rates and the exceptionally high level of uncertainty of the potential effects of the COVID-19 pandemic related to the impacts of the impending economic downturn on payrolls and claims costs, the potential slowdown in claims activity resulting from the statewide stay-at-home order and emerging claims arising from COVID-19 diagnoses, the Committee unanimously decided not to submit a July 1, 2020 filing.

The Committee also agreed that the potential impacts of the COVID-19 pandemic and payroll and claim cost level should be considered as part of the WCIRB’s January 1, 2021 pure premium rate filing, which is anticipated to be submitted to the Insurance Commissioner in August.

The Actuarial Committee’s analysis of December 31, 2019 experience is publicly available to all stakeholders as are the documents from the Committee meeting, including the agenda and materials presented at the meeting, on the Committee Documents page of the WCIRB website.

Also, on April 14, 2020, the Workers’ Compensation Insurance Rating Bureau of California’s Classification and Rating Committee will consider three rule changes that WCIRB staff are recommending in response to the impact of the coronavirus disease 2019 (COVID-19) pandemic on California employers and workers. The Committee will consider changes that, if approved by the Insurance Commissioner, would:

— Exclude Payments to Employees Who Continue to Be Paid While Not Working
— Allow Assignment of Classification 8810 for Temporary Change in Duties
— Exclude COVID-19 Claims from Experience Rating

Details regarding the proposed changes and the full agenda, including the teleconference login information, are available on the Committee Documents page in the Filings and Plans section of the WCIRB’s website.

Medicare Sues Lawfirm to Challenge Jurisdictional Issues

Attorneys representing parties in litigation have not had a clear understanding about possible liability for settling a workers’ compensation or personal injury case without adequately dealing with Medicare issues. However, a new case filed by the United States against a plaintiff lawfirm in Texas may help to clear up any misunderstandings about attorney liability exposure.

Franco Signor reports that a lawsuit filed in in the United States District Court for the Southern District of Texas by the U.S. alleges that the plaintiff attorney in a personal injury action (Carrigan & Anderson, PLLC and Attorney Stephen P. Carrigan individually) failed to reimburse Medicare’s demand for conditional payments in full.

It is not unusual for U.S. Attorneys to file litigation against personal injury law firms for failure to comply with the Medicare Secondary Payer (MSP) act requirement to reimburse conditional payments. The instant case is different.

Here the personal injury attorney Defendants corresponded often with the Benefits Coordination & Recovery Contractor (BCRC) regarding Medicare conditional payments owed on behalf of their Medicare beneficiary client, Tomas R. Tijerina prior to settling the claim. Defendants did not agree with the amount demanded and sought state court protection in an Order that reduced Medicare’s conditional payments rather than undertake the administrative appeals process to dispute the conditional payment amount owed.

As alleged by the U.S. Attorney in the Complaint, on April 14, 2016, Defendants first notified the BCRC about Tijerina’s car accident on April 13, 2014. Additionally, on March 30, 2017, Defendants notified BCRC that Tijerina had settled his lawsuit with the responsible parties for $70,000.00. On April 10, 2017, BCRC sought to recover the Conditional Payments and sent Defendants an Initial Determination demanding reimbursement of $46,244.74 that the Medicare program paid for Tijerina’s medical expenses related to his lawsuit.

On April 19, 2017, Defendants filed a motion with the 278th Judicial District Court in Waller County, Texas, that challenged the Initial Determination by the Medicare program. The Defendants sent BCRC copies of their motion. On July 20, 2017, BCRC renewed its demand on behalf of Medicare for the full amount of $47,343.05, ignoring the State Court ruling.

On August 3, 2017, the Defendants without responding to BCRC’s Initial Determination or Demand Letter, sent BCRC a copy of an order issued by the 278th Judicial District Court in Waller County, Texas, that reduced the recovery of Medicare’s Conditional Payments by 90% to $4,700.00 and a check for $4,700.00. The District Court agreed with the Defendants assertion that the U.S. Supreme Court’s decision in Arkansas Dept. of Health v. Ahlborn applied, and that Medicare or the Centers for Medicare & Medicaid Services (CMS) is only entitled to the portion of the settlement that actually constitutes reimbursement for payments made. However, the District Court seemed to fail to realize the distinction between Medicaid and Medicare’s recovery rights, and that the underlying recovery in the Ahlborn decision pertained to Medicaid, and not Medicare (two distinct programs with distinct third-party recovery rights).

The lawsuit alleges that that to date, Medicare had not received additional payments to reimburse Medicare’s full conditional payment demand, and that the 278th Judicial District Court lacked subject matter jurisdiction to adjudicate a challenge to Medicare’s recovery of conditional payments. Further, the District Court’s order reducing or otherwise limiting Medicare’s recovery is void and unenforceable per the United States’ sovereign immunity. Lastly, the current amount alleged owed by Defendants to Medicare for its Conditional Payments is $53,445.93 ($42,643.05 principal, $10,802.88 interest).

Attorneys at Franco Signor claim that it is likely the U.S. Attorney will prevail in its lawsuit against Defendants and recover not only its full amount owed, plus interest.  Historical case law has clearly established that responsible parties under the Medicare Secondary Payer Act (MSP) cannot avoid exhausting administrative remedies and go straight to Court to adjudicate conditional payment amounts. Further, the District Court’s application of Albhorn, a Medicaid decision to a Medicare claim for reimbursement, will likely be questioned upon further analysis by the Court in this lawsuit. What is surprising is that the U.S. Attorney’s office is seemingly refraining from seeking twice the amount claimed from the plaintiff attorney firm, although it could potentially amend its lawsuit.

The takeaway here is to always address conditional payments before settlement takes place. Disputing unrelated charges to the underlying case is easier before a determination in the form of a Demand is made by Medicare. Allowing plaintiff or their attorney to manage the matter creates exposure for the responsible party to potential claims.

U.S. Plans to “Ease” Back to Normal

Reuters reports that U.S. health officials are planning ways for the country to return to normal activities if distancing and other steps to mitigate COVID-19 this month prove successful in curbing the outbreak, the top U.S. infectious disease official said on Wednesday.

The Trump administration has called for 30 days of measures, including staying at least six feet away from other people, that have upended American life as most people stay isolated at home, shuttering schools and closing businesses through at least the end of April, with some states continuing certain closures through May and June.

Dr. Anthony Fauci, the head of the National Institute of Allergy and Infectious Diseases, said such steps must continue but that there are hopeful signs they are working.

“If in fact we are successful, it makes sense to at least plan what a re-entry into normality would look like. That doesn’t mean we’re going to do it right now, but it means we need to be prepared to ease into that,” Fauci, a member of the White House coronavirus task force, told Fox News in an interview.

Fauci and other public health experts have said the strict measures are needed to control the fast-spreading and potentially fatal disease that has already led to about 400,000 confirmed COVID-19 U.S. cases and nearly 13,000 deaths, even as the shutdowns have roiled the U.S. economy.

Dr. Deborah Birx, another task force member, said isolation measures must continue for now or else the country could risk a repeated spike despite the allure of warmer spring weather.

“What’s really important is that people don’t turn these early signs of hope into releasing from the 30 days to stop the spread. It’s really critical,” she told NBC News’ “Today” program. “If people start going out again and socially interacting, we could see a really acute second wave.”

Asked if 30-day distancing practices would be enough or that steps might have to continue longer, she said officials were looking at each area of the country differently as they weigh the data.

“Clearly, there are metro areas that are struggling,” Birx said.

WCAB Orders Additional Emergency Filing Rules En Banc

The WCAB just issued its second En Banc decision modifying the rules that apply to litigation management.

WCAB Rule 10940(b) states in relevant part: “No documents sent directly to the Appeals Board by fax or e-mail will be accepted for filing, unless otherwise ordered by the Appeals Board.” (Cal. Code Regs., tit. 8, former § 10845(c), now § 10940(b) (eff. Jan. 1, 2020), emphasis added.) To the extent that WCAB Rule 10940(b) prohibits sending documents directly to the Appeals Board by email, we order that documents may be emailed directly to the Appeals Board. Documents that may be emailed include, but are not limited to, correspondence relating to a petition for reconsideration that has been granted for further study by the Appeals Board.

Documents sent by email should include the information required for pleadings by WCAB Rule 10520 and an email address for the sending party. (Cal. Code Regs., tit. 8, former § 10498, now § 10520 (eff. Jan. 1, 2020).) Documents sent by email should otherwise comply with the WCAB’s Rules. Documents may be sent by email to WCABEmergencyBox@dir.ca.gov and will be responded to per the Appeals Board’s normal operating procedures.

Petitions for reconsideration, removal, or disqualification and answers should still be filed in EAMS or with the district office having venue pursuant to WCAB Rule 10940(a). (See Cal. Code Regs., tit. 8, former § 10840(a), now § 10940(a) (eff. Jan. 1, 2020).)

Administrative Director (AD) Rule 10205.7(c) provides that “No document shall be sent by electronic mail or by fax directly to the district office or the appeals board. If a document is sent by electronic mail or fax directly to the district office, it shall not be accepted for filing or deemed filed, shall not be acknowledged, and may be discarded unless otherwise ordered by the workers’ compensation administrative law judge or the appeals board“. (Cal. Code Regs., tit. 8, § 10205.7(c), emphasis added.)

Although ordinarily prohibited by the AD’s Rules, the Appeals Board hereby orders that specific documents may be by sent by email directly to the district offices. The district offices may accept by email solely documents subject to a statutory time limit where the filing party could not otherwise e-file, JET file or file the document by mail. Information regarding email addresses for filing documents by email with the district offices is available on the DWC’s webpage: https://www.dir.ca.gov/dwc/dir2.htm.

All parties are reminded that ex parte communications are prohibited per WCAB Rule 10410 and any document sent to the district offices or the Appeals Board by email or any other method must also be served on all parties to the matter. (Cal. Code Regs., tit. 8, former § 10324, now § 10410 (eff. Jan. 1, 2020).)

These orders will remain in effect until further notice.

Newsom Say California Has Adequate COVID-19 Resources

As the total number of coronavirus cases in California topped 16,000, Gov. Gavin Newsom said Monday he is confident the state is building up its number of ventilators, hospital beds and workforce to meet the demand of a still-to-come surge in patients that he projects won’t peak until May.

Newsom is so confident, in fact, that he announced the state was donating 500 ventilators to the Strategic National Stockpile to deploy in states that need them more, like New York, which has already received ventilators from Oregon, Washington and from China.

The Mercury News story reports that as of Monday evening, California had recorded 16,309 positive COVID-19 tests – a 46% increase since Friday, and 387 deaths, according to data compiled by this news organization.

The University of Washington’s Institute for Health Metrics and Evaluation now anticipates that California will reach its peak use of resources – total beds, ICU beds and ventilators – on April 14. That’s almost two weeks earlier than what it forecast a week ago, based on a larger sampling of data and lower ratios of hospital admissions to deaths.

The good news: Given the state’s current resources, that model predicts that California will have a surplus of all the necessary resources to meet the surge in coronavirus patients.

Newsom and his team of health professionals repeated on Monday they are still preparing for the state to reach its capacity of permanent hospital beds – 50,000 – in mid-May.

John E. Swartzberg, a professor of infectious diseases at the University of California Berkeley, said his “best guess” was that the Bay Area will see peaks in hospital patients in about two and a half weeks – or toward the end of April. But he admitted, no one can be certain.

During a news conference on Monday, Newsom said that the number of people hospitalized due to coronavirus had increased 4.9% overnight to 2,509 and the number of patients in ICU beds has increased by 4.3% to 1,085.

But so far, the state has room for more. There are 7,345 ICU beds in California, of which 1,498 are in the Bay Area, according to a recent analysis by Kaiser Health News.

Newsom has declared a goal of identifying 50,000 additional hospital beds to complement the 70,000 licensed beds that already exist. The state has asked hospitals to identify 30,000 beds that could be repurposed to serve a surge in COVID-19 patients and is working with partners to find another 20,000.

And the rush to add more medical equipment to face a surge is continuing. The state has increased its number of ventilators from about 7,600 to more than 11,000 in recent weeks. It has also secured 4,316 additional hospital beds – a fourth of the overall goal – by transforming the Kings’ former arena and the Santa Clara Convention Center into temporary medical facilities for acute patients and taking over Seton Hospital in Daly City.

WCAB Updates Modified Calendar and Filing Procedures

The Division of Workers’ Compensation (DWC) and the Workers’ Compensation Appeals Board (WCAB) has announced an update to the modified calendar and filing procedures announced on March 16, 2020. This update to the procedures continues to prioritize the health and safety of staff and the public to help prevent the spread of COVID-19.

The updated hearing and filing procedures are detailed below:

Hearing Procedures April 6 through April 10

— DWC will continue to hear expedited hearings for parties that appear at the district offices.
— DWC will also hear status conferences, mandatory settlement conferences and priority conferences via CourtCall only. If all parties do not appear via CourtCall, the case will be continued and notice will be given.
— All other hearings will be continued. No trials or lien conferences will be heard during this time.
— Parties are required to adhere to social distancing guidelines when visiting DWC district offices.

Filing Procedures April 6 through April 10

— District offices will remain closed for filing purposes. Accordingly, all filing deadlines are extended to Monday, April 13.
— DWC will not accept walk-through documents, walk-in filings, or in-person requests.
— Parties may utilize the Electronic Adjudication Management System (EAMS) to file documents online. Parties may also mail settlement documents or petitions to the district office where the case is filed.
— Refer to the district office page for e-mail and other contact information.
— Additional information will be posted on the DWC website to assist parties with filing settlement documents in EAMS. Hearing Procedures Effective April 13
— DWC conferences including mandatory settlement conferences, priority conferences, status conferences and all expedited hearings will be heard telephonically.
— All DWC judges in California will hear cases by an individually assigned conference line. These conference lines are available toll-free. A list of all conference line numbers will be posted on DWC’s website prior to the effective date.
— Parties should call the conference line for the judge in front of whom the case is set, at the designated hearing time listed on the hearing notice. When prompted, parties should enter the access code assigned to that line. DWC staff will instruct participants as to the procedure to follow during the call.
— All trials and lien conferences will be continued until further notice. District offices will hold no in-person hearings.

Filing Procedures Effective April 13

— DWC will reopen for filing purposes.
— DWC will only accept filing by e-filing via EAMS, JET file or by mail.
— DWC will not accept walk-in filings, walk-through documents or in-person requests at this time. Injured workers who are unable to file
utilizing these options or need assistance may contact DWC’s call center at 909-383-4522.

Effective Immediately

— Until otherwise notified, DWC will accept an electronic signature on any settlement documents, applications, pleadings, petitions or motions that are sent to the district offices or filed in EAMS. For all e-forms, parties should utilize “S signature” as shown in the E-forms Filing Reference Guide and the JET File Business Rules.

The WCAB Commissioners’ office is closed to the public for in-person inquiries and requests until further notice.

OSHA Issues Respirator Interim Guidance

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has issued interim enforcement guidance to help combat supply shortages of disposable N95 filtering face piece respirators (N95 FFRs). The action marks the department’s latest step to ensure the availability of respirators and follows President Donald J. Trump’s Memorandum on Making General Use Respirators Available.

Due to the impact on workplace conditions caused by limited supplies of N95 FFRs, employers should reassess their engineering controls, work practices and administrative controls to identify any changes they can make to decrease the need for N95 respirators.

If respiratory protection must be used, employers may consider use of alternative classes of respirators that provide equal or greater protection compared to an N95 FFR, such as National Institute for Occupational Safety and Health (NIOSH)-approved, non-disposable, elastomeric respirators or powered, air-purifying respirators.

When these alternatives are not available, or where their use creates additional safety or health hazards, employers may consider the extended use or reuse of N95 FFRs, or use of N95 FFRs that were approved but have since passed the manufacturer’s recommended shelf life, under specified conditions.

This interim guidance will take effect immediately and remain in effect until further notice. This guidance is intended to be time-limited to the current public health crisis. Visit OSHA’s Coronavirus webpage regularly for updates.

For further information about COVID-19, please visit the U.S. Department of Health and Human Services’ Centers for Disease Control and Prevention.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit www.osha.gov.

Thousands of Payroll Bail Out Loans Fund on First Day

President Donald Trump’s Paycheck Protection Program (PPP) through the Department of Treasury and Small Business Administration has already on its first day pushed out more than $757 million to small businesses nationwide mostly through community banks.

The Paycheck Protection Program is part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act. This is a nearly $350-billion program intended to provide American small businesses with eight weeks of cash-flow assistance through 100 percent federally guaranteed loans.

A senior Treasury Department official reported that as of 11:00 a.m. eastern time, a total of 1,926 loans were given out through 245 different banks for a total of 756,985,76.

Most of the big banks like JP Morgan Chase, Wells Fargo, and Citigroup did not have programs online – only Bank of America did – by this time, so this means community banks nationwide are the ones stepping up to push the money out to small businesses affected by the coronavirus crisis.

“When the unprecedented PPP loan program for America’s small businesses went live in the early morning hours of April 3, the community banks were the ones ready to go,” the senior Treasury Department official told Breitbart News. “Unlike the big banks that are coming online later in the day, the community banks were up and running and ready to serve their small businesses. America’s community banks are the real heroes.”

As community banks are the ones stepping up to help small businesses at such a rapid pace on the first day of the program, this fact counters the narrative from some on the left and in establishment media that somehow the efforts of Trump, Treasury Secretary Steven Mnuchin, and the broader administration were designed to only help big corporate cronies.

Friday, as Mnuchin and Small Business Administration administrator Jovita Carranza announced at the White House Coronavirus Task Force briefing on Thursday night, is the first day these funds are going out to small businesses nationwide through banks across the country. The Paycheck Protection Program, or PPP, passed as part of the $2.2 trillion phase three coronavirus relief package that Congress passed last week.

Since this money is going directly to small businesses across the country, and since it is mostly flowing through small community banks, it is significantly boosting communities and main street across the country rather than Wall Street. “This is the Main Street rescue, not a Wall Street bailout” the senior Treasury Department official added.

DWC Adjusts DMEPOS and ASC Sections of Fee Schedule

The Division of Workers’ Compensation has posted an order adjusting the Hospital Outpatient Departments and Ambulatory Surgical Centers section of the Official Medical Fee Schedule (OMFS) to conform to changes in the Medicare payment system as required by Labor Code section 5307.1.

The Hospital Outpatient Departments and Ambulatory Surgical Centers fee schedule update order adopts the following Centers for Medicare & Medicaid Services (CMS) Medicare changes:

— The CMS Medicare Hospital Outpatient Prospective Payment System (OPPS) April 2020 Addendum A quarterly update
— The CMS Medicare OPPS April 2020 Addendum B quarterly update
— The CMS Ambulatory Surgical Center Payment System, April 2020 ASC Approved HCPCS Code and Payment Rates, Column A entitled “HCPCS Code” of “Apr 2020 ASC AA” and Column A entitled “HCPCS Code” of “Apr 2020 ASC EE”
— Certain sections of the CMS Medicare OPPS April 2020 Integrated Outpatient Code Editor (I/OCE), IOCE Quarterly Data Files V21.1 R1 Apr 2020 quarterly update
— CMS April 2020 Update of the Hospital Outpatient Prospective Payment System (OPPS), Change Request (CR) 11691 (March 25, 2020), Transmittal R10013CP

The Division of Workers’ Compensation (DWC) has also posted an order adjusting the Durable Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS) section of the Official Medical Fee Schedule.

The orders adopting the OMFS adjustments is effective for services rendered on or after April 1, 2020 and is posted on the DWC website.

OSHA Declares Coronavirus to be a Recordable Event

Earlier this month, the Occupational Safety and Health Administration declared that coronavirus was a recordable injury – meaning an employer would have to notify the federal safety agency when a worker caught the disease at work- and issued guidance to that effect.

OSHA recordkeeping requirements at 29 CFR Part 1904 mandate covered employers record certain work-related injuries and illnesses on their OSHA 300 log.

COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties. However, employers are only responsible for recording cases of COVID-19 if all of the following are met:

— The case is a confirmed case of COVID-19 (see CDC information on persons under investigation and presumptive positive and laboratory-confirmed cases of COVID-19);
The case is work-related, as defined by 29 CFR 1904.5; and
— The case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g. medical treatment beyond first-aid, days away from work).

Bloomberg news reports that safety attorneys said the guidance left confusion about how to prove whether a worker actually contracted the virus on the job.

Health-care workers and emergency responders will benefit from rules eased in some states around workers’ compensation that will allow them to collect benefits if they can prove they caught Covid-19 on the job. Some say essential workers like grocery store employees and delivery workers also should qualify.

But employers need to be aware of the changing rules, and be prepared for the likely end result – skyrocketing premiums.

State workers’ compensation boards around the country are amending rules for benefits payouts to include health-care workers exposed to the virus and then quarantined.

Attorneys are keeping a close eye on the questions, such as who should be eligible to receive benefits, how does a worker prove they caught Covid-19 on the job, and how will an influx of successful claims affect businesses’ premiums to insurance carriers.

“If everybody who gets sick on the job is able to file a compensation claim and everyone is successful, it may bankrupt a company,” said Michael Duff, a workers’ compensation professor at the University of Wyoming.