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Tag: 2021 News

Cal/OSHA Abruptly Withdraws COVID Safety Standards Phase Out

On June 3rd, the Occupational Safety and Health Standards Board readopted Cal/OSHA’s revised COVID-19 prevention emergency temporary standards.

The changes adopted by the Board on June 3rd phased out physical distancing and make other adjustments to better align with the state’s June 15 goal to retire the Blueprint. Without these changes, the original standards, would be in place until at least October 2.

In a late night meeting on June 9, the Occupational Safety and Health Standards Board voted to withdraw the revisions to Cal/OSHA’s COVID-19 prevention emergency temporary standards that they had voted to approve on June 3, and that were sent to the Office of Administrative Law for review.

The vote was held during a special meeting on June 9 to consider the latest guidance regarding masking from the Centers for Disease Control and California Department of Public Health.

The meeting, attended by members of the public including workers, industry leaders, employers and other stakeholders shared their views on the matter in more than two and a half hours of public comment.

Those revised emergency standards were expected to go into effect no later than June 15 pending approval by the OAL within 10 calendar days after the Standards Board rulemaking package submission.

The Standards Board voted unanimously to withdraw the revisions approved on June 3 that are currently at OAL for review but have not yet become effective.

Cal/OSHA will review the new mask guidance and bring any recommended revisions to the board.

The Board could consider new revisions at a future meeting, perhaps as early as the regular meeting on June 17. In the meantime, the protections adopted in November of 2020 will remain in effect.

Consumer Interest in Telemedicine Increased From 11% to 76%

The Summer 2021 edition of RxInformer covers diverse topics such as the future of telemedicine and practical tips to make it effective in workers’ compensation.

Telemedicine use has increased in response to the COVID-19 pandemic and is gaining acceptance in workers’ comp. While some obstacles remain, telemedicine has the potential to expand care delivery options and speed recovery times.

According to a recent study by McKinsey, consumer interest in telemedicine rose from 11% to 76% during the pandemic, 57% of healthcare providers said they viewed telemedicine more favorably, and 64% of providers are comfortable using telemedicine. In the course of just a few months, telemedicine physician visits rose 50 – 175x, depending on geography and type of practice.

In workers’ comp, telemedicine also gained wider acceptance during the pandemic as many states relaxed restrictions regarding its use for injured worker patients. The types of changes made by the states (and CMS, which guides rules for some states) vary and include: allowing additional services to be delivered via tele technologies; relaxing provider licensing requirements; amending reimbursement rules (often reimbursing at the higher office visit rates to encourage telemedicine use); and allowing different modes of technology, such as audio-only calls.

Many of the legal and regulatory changes regarding telemedicine are temporary, and it remains to be seen which will become permanent and where. Workers’ comp stakeholders had hopes of cost reduction through telemedicine, both indirectly by speeding recovery times with better access to care, and directly through lower provider fees for virtual visits. To encourage the use of telemedicine during the pandemic, many states have allowed in-office reimbursement rates for virtual visits, which eliminates the direct savings incentive and makes the reimbursement question an important one going forward.

Exactly which medical services can be effectively delivered through telemedicine is also yet to be determined. Currently, fewer than 100 medical services are approved for telemedicine by CMS, which is a small fraction of the 8,000+ services covered by Medicare and Medicaid. The number of medical services we commonly see in workers’ comp are much fewer and, while some services will always require that the provider and patient be physically together, a significant portion of injured worker care could potentially be delivered virtually.

Telemedicine is not appropriate for all medical services. Serious injuries and illness demand in-person attention, and most diagnostic tests and all surgeries require physical contact with the patient. In addition to these obvious exceptions, some patients may feel that they are not getting proper care with a telemedicine visit and prefer to see their healthcare provider in person. There are also important privacy concerns and fear of fraud in both general healthcare and workers’ comp.

Jury Convicts Chiropractor for $2.2M Health Insurance Fraud

A former Orange County chiropractor was found guilty by a jury of federal criminal charges accusing her of defrauding health insurers by submitting $2.2 million in charges for chiropractic services never provided, bogus medical diagnoses, office visits that never occurred, and medical devices falsely prescribed.

56 year old Susan H. Poon, who lives in Dana Point, was found guilty of five counts of health care fraud, three counts of making false statements relating to health care matters, and one count of aggravated identity theft in the first criminal jury trial to occur in the Central District of California since March 2020.

According to the evidence presented at her five-day trial, from January 2015 to April 2018, Poon, whose office was located in Rancho Santa Margarita, schemed to defraud Anthem and Aetna by submitting false reimbursement claims for services that never occurred, false diagnoses and chiropractic services that were never performed.

Poon also submitted fraudulent prescriptions containing fabricated medical diagnoses of individuals that she had never met, including children, causing a medical device manufacturer to submit false claims for reimbursement to Blue Shield of California.

The patient-victims that Poon claimed to have met with and treated were dependents – such as the spouses and children – of Costco Wholesale Corp. and United Parcel Service Inc. employees, dependents whose personal identification information Poon unlawfully took and used in her reimbursement requests and prescriptions. Poon obtained the personal information of employee-dependents by attending health fairs at various UPS warehouses and Costco locations, and soliciting such information from employees.

In total, Poon billed approximately $2.2 million through her scheme.

Poon’s chiropractic license was revoked in July 2019, according to the California Department of Consumer Affairs.

An August 30 sentencing hearing has been scheduled, and Poon will face a statutory maximum sentence of 67 years in federal prison.

The following agencies investigated this matter: Amtrak – Office of the Inspector General, California Department of Insurance, U.S. Department of Labor – Employee Benefits Security Administration, U.S. Department of Labor – Office of the Inspector General, the FBI, and Office of Personnel Management – Office of the Inspector General.

Merck’s COVID-19 Treatment in Phase 3 Trials

Merck announced it has entered into a procurement agreement with the United States government for molnupiravir (MK-4482). Molnupiravir is currently being evaluated in a Phase 3 clinical trial, the MOVe-OUT study, for the treatment of non-hospitalized patients with laboratory-confirmed COVID-19 and at least one risk factor associated with poor disease outcomes. Merck is developing molnupiravir in collaboration with Ridgeback Biotherapeutics.

“Merck is pleased to collaborate with the U.S. government on this new agreement that will provide Americans with COVID-19 access to molnupiravir – an investigational oral therapy being studied for outpatient use early in the course of disease – if it is authorized or approved,’ said Rob Davis, president, Merck. ‘In addition to this agreement with the U.S. government, we are actively engaged in numerous efforts to make molnupiravir available globally to fulfill Merck’s commitment to widespread access.’

Through the agreement, if molnupiravir receives Emergency Use Authorization (EUA) or approval by the U.S. Food and Drug Administration (FDA), Merck will receive approximately $1.2 billion to supply approximately 1.7 million courses of molnupiravir to the United States government. Merck has been investing at risk to support development and scale-up production of molnupiravir and expects to have more than 10 million courses of therapy available by the end of 2021.

Merck also plans to submit applications for emergency use or approval to regulatory bodies outside of the U.S. and is currently in discussions with other countries interested in advance purchase agreements for molnupiravir. Merck is committed to providing timely access to molnupiravir globally and intends to implement a tiered pricing approach based on World Bank data that recognizes countries’ relative ability to finance their public health response to the pandemic.

As part of its access strategy, Merck has also entered into non-exclusive voluntary licensing agreements for molnupiravir with established generic manufacturers to accelerate availability of molnupiravir in 104 low- and middle-income countries following approvals or emergency authorization by local regulatory agencies.

In addition to developing molnupiravir, Merck is contributing to the pandemic response by collaborating with Johnson & Johnson to support the manufacture of its COVID-19 vaccine.

This procurement of molnupiravir will be supported in whole or in part with federal funds from the Department of Health and Human Services; Office of the Assistant Secretary for Preparedness and Response; Biomedical Advanced Research and Development Authority, in collaboration with the DOD Joint Program Executive Office for Chemical, Biological, Radiological and Nuclear Defense.

Psyche Symptoms Before Award Does Not Preclude Reopening

Maureen Ford suffered injuries while employed by Communication Action Board of Santa Cruz.

On April 22, 2014, the parties filed joint Stipulations with Request for Award, for injury to “upper extremity” and “hand” on 8/19/11 (ADJ8177678) and for cumulative injury ending 9/26/11, to “upper extremity,” “hand,” “neck” and “back” (ADJ8177385), while employed as a landscape worker by Community Action Board, insured by State Compensation Insurance Fund.

Applicant reported psychological symptoms to her doctors prior to entering into the 2014 Stipulations with Request for Award. Neither physician expressed an opinion on causation of the psychological symptoms or whether they caused disability.

On 9/10/15, applicant filed a Petition to Reopen in both cases, alleging a change of condition, increase in PD, need for further medical treatment and different vocational factors. On 10/2/17, an Amended Application for Adjudication was filed in ADJ8177385, adding “psyche” as an additional injured body part. The cases went to trial on the issues of injury to the psyche, good cause to reopen per applicant’s 9/13/15 Petition.

A 2018 report concluded, for the first time, that applicant met the requirements of Labor Code Sec. 3208.3, because she had a mental disorder per the DSM that was predominantly caused by the industrial injury in August of 2011.

The WCJ found psychiatric injury and good cause to reopen. The employer’s Petition for Reconsideration was denied in the panel decision of Maureen Ford v Communication Action Board of Santa Cruz, ADJ8177678-ADJ8177385.

The sole issue raised by defendant on reconsideration is that the WCJ erred in finding good cause to reopen the Award in Case No. ADJ8177385 for new and further psychiatric injury and disability where there was evidence of psychiatric injury at the time of the original Findings and Award. Defendant argues that, because the medical record documents that applicant expressed psychiatric symptoms prior to the April 22, 2014 Findings and Award, the psychiatric injury and disability found by the WCJ now is not “new and further.”

In this case, there are only brief mentions of psychiatric symptoms in the medical record. There is no evidence of any psychiatric condition causing either disability or a need for treatment nor is there evidence of a formal diagnosis. Therefore, there is no substantial medical evidence establishing industrial causation for the psychiatric injury pursuant to section 3208.3(a).

The Board concluded that a psychiatric injury does not fall within the ambit of the workers’ compensation system until it causes either disability or a need for medical treatment and it is diagnosed using the terminology and criteria of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.

In this case, the decision was said to be consistent the the outcomes in a number of Appeals Board panel decisions.

Traffic Stop Leads to Arrest of 24 Year Old for $600K EDD Fraud

On February 2, 2021, the Sacramento Police Department North Gang Enforcement Team conducted a traffic stop on 24-year-old Adrian Sykes and found him to be in possession of a fully automatic Glock handgun.

Officers conducted a probation search of his residence and seized drugs, body armor and five additional firearms. Those firearms included a loaded Masterpiece Arms Mac-9 with no serial number, an Anderson Manufacturing AR-15, and an unregistered loaded ABC Rifle AR-Pistol.

Officers also found six Employment Development Department (EDD) debit cards. At that time, Sykes was charged with six counts of being a felon in possession of a firearm, one count of possessing drugs with a firearm, and one count of being a felon in possession of ammunition. Sykes posted bail on these offenses and was released from custody.

The Sacramento County District Attorney’s Office, Sacramento Police Department, and EDD conducted a joint investigation into the six EDD cards that were located.

They found that Sykes and his girlfriend, 26-year-old Brittney Murchison, had filed multiple fraudulent EDD claims. In total, 35 different fraudulent claims were filed using the personal identifying information of victims from across the country and over $600,000 was illegally obtained.

The Sacramento Police Department North Gang Enforcement Team arrested Brittney Murchison on May 27, 2021 for committing EDD fraud. Murchison was charged with 16 counts of EDD fraud and one count of identity theft.

Sykes was located and arrested in Las Vegas, Nevada on June 7, 2021 by agents of the Las Vegas Metro Police Department and agents from the Federal Bureau of Alcohol Tobacco and Firearms. Sykes is currently in custody in Las Vegas pending extradition to Sacramento, California where he will face an additional 35 counts of EDD fraud and one count of identity theft.

According to District Attorney Anne Marie Schubert, “Law enforcement across the state has witnessed staggering EDD fraud committed by criminals and their accomplices. At the same time, we have witnessed an alarming increase of illegal firearms in our communities. This dangerous combination undoubtedly has fueled a dramatic increase in violent crime throughout the state. Sacramento’s law enforcement agencies will continue to partner together to investigate EDD fraud and the additional havoc it brings to our community.”

Cal/OSHA Phases Out COVID Safety Standards

On June 3rd, the Occupational Safety and Health Standards Board readopted Cal/OSHA’s revised COVID-19 prevention emergency temporary standards.

Last year, the Board adopted health and safety standards to protect workers from COVID-19. The standards did not consider vaccinations and required testing, quarantining, masking and more to protect workers from COVID-19.

The changes adopted by the Board phase out physical distancing and make other adjustments to better align with the state’s June 15 goal to retire the Blueprint. Without these changes, the original standards, would be in place until at least October 2. These restrictions are no longer required given today’s record low case rates and the fact that we’ve administered 37 million vaccines. The revised emergency standards are expected to go into effect no later than June 15 if approved by the Office of Administrative Law in the next 10 calendar days. Some provisions go into effect starting on July 31, 2021.

The revised standards are the first update to Cal/OSHA’s temporary COVID-19 prevention requirements adopted in November 2020.

The Board may further refine the regulations in the coming weeks to take into account changes in circumstances, especially as related to the availability of vaccines and low case rates across the state.

The standards apply to most workers in California not covered by Cal/OSHA’s Aerosol Transmissible Diseases standard. Notable revisions include:

– – Face Coverings: Fully vaccinated workers without COVID-19 symptoms do not need to wear face coverings in a room where everyone else is fully vaccinated and not showing symptoms. Fully vaccinated and unvaccinated workers without symptoms do not need to wear face coverings outdoors except when working at “outdoor mega events” with over 10,000 attendees, which may include events or theme parks. Indoors, all workers – regardless of vaccination status – will continue to be required to wear a face covering.
– – Physical Distancing: When the revised standards take effect, employers can eliminate physical distancing and partitions/barriers for employees working indoors and at outdoor mega events if they provide respirators, such as N95s, to unvaccinated employees for voluntary use. After July 31, physical distancing and barriers are no longer required (except during outbreaks), but employers must provide all unvaccinated employees with N95s for voluntary use. – – Prevention Program: Employers are still required to maintain a written COVID-19 Prevention Program but there are some key changes to requirements:
– – – – Employers must review the California Department of Public Health’s Interim guidance for Ventilation, Filtration, and Air Quality in Indoor Environments.
– – – – COVID-19 prevention training must now include information on how the vaccine is effective at preventing COVID-19 and protecting against both transmission and serious illness or death.
– – Exclusion from the Workplace: Fully vaccinated workers who do not have COVID-19 symptoms no longer need to be excluded from the workplace after a close contact. – – Special Protections for Housing and Transportation: Special COVID-19 prevention measures that apply to employer-provided housing and transportation no longer apply if all occupants are fully vaccinated.

The Standards Board will file the readoption rulemaking package with the Office of Administrative Law, which has 10 calendar days to review and approve the temporary workplace safety standards enforced by Cal/OSHA. Once approved and published, the full text of the revised emergency standards will appear in the Title 8 sections 3205 (COVID-19 Prevention), 3205.1 (Multiple COVID-19 Infections and COVID-19 Outbreaks), 3205.2 (Major COVID-19 Outbreaks) 3205.3 (COVID-19 Prevention in Employer-Provided Housing) and 3205.4 (COVID-19 Prevention in Employer-Provided Transportation) of the California Code of Regulations. Pursuant to the state’s emergency rulemaking process, this is the first of two opportunities to readopt the temporary standards after the initial effective period.

The Standards Board also convened a representative subcommittee to work with Cal/OSHA on a proposal for further updates to the standard, as part of the emergency rulemaking process. It is anticipated this newest proposal, once developed, will be heard at an upcoming Board meeting. The subcommittee will provide regular updates at the Standards Board monthly meetings.

Waiver Signed Injured Worker on Volunteer Job Limits Liability

In December 2015, Carolyn Mattson incurred a work-related injury that left her unable to perform the normal duties of her regular employment.

During her period of recovery, she was assigned by her employer to work as a volunteer at a food bank warehouse operated by Feeding America Riverside San Bernardino Counties, Inc. as part of a transitional work program. While there, Mattson incurred a second injury when she tripped over a wooden pallet on the floor of Feeding America’s warehouse.

Mattson filed a complaint against Feeding America that sought compensation for her injury based upon the theories of negligence and premises liability.

Among other things, defendant alleged as an affirmative defense that prior to participating in any activities with defendant, plaintiff had executed a written agreement entitled, “Waiver and Release of Liability,” which voluntarily released defendant from liability for any future personal injuries arising from defendant’s negligence.

The trial court granted summary judgment in favor of Feeding America based upon the affirmative defense of waiver due to a release executed by plaintiff prior to beginning her work, but denied summary judgment with respect to the workers’compensation exclusivity defense. The court of appeal affirmed in the unpublished case of Mattson v. Feeding America Riverside San Bernardino Counties.

The court of appeal deem the separate defense of workers’compensation exclusivity waived on appeal, and summarized only the evidence and law pertaining to the issue of waiver.

An exculpatory contract releasing a party from liability for future ordinary negligence is valid unless it is prohibited by statute or impairs the public interest. However, a release of liability for future ordinary negligence may be invalidated when the court determines that a particular release concerns a service that transcends a purely private agreement and affects the public interest. Additionally, a release of liability for future gross negligence . . . generally is unenforceable as a matter of public policy. There was no allegation in the complaint of gross negligence, thus the issue on appeal was essentially “public interest.”

In Tunkl v. Regents of University of Cal. (1963) 60 Cal.2d 92, the California Supreme Court set forth six factors used to determine if a contract affects the public interest.

None of the public interest factors are present in this case, the trial court did not err when it declined to hold the release per se unenforceable as a matter of public policy.

7 Defendants Face $330K SJDB Fraud and Kickback Indictments

A California Department of Insurance investigation has led to the issuance and filing of indictments against seven defendants by the Kern County Grand Jury. The indictments were issued after the defendants allegedly stole over $330,000 in benefits meant to help injured workers re-enter the workforce.

The defendants were employees and owners of a Bakersfield vocational school, Instituto Hispano Americano (IHA), as well as employees of two local law offices.

They allegedly misused Supplemental Job Displacement Benefit Vouchers, which provide injured workers with up to $6,000 for retraining at a post-secondary educational institution. The training helps the injured worker become more competitive in the job market when they are unable to return to their former employer due to being on total or temporary disability.

The Department’s investigation found the defendants conspired to defraud over 20 insurance companies out of more than $330,000. The defendants systematically sent false or misleading documentation to insurance carriers to prove the injured workers were eligible to obtain voucher money, but the students did not actually meet the minimum qualifications for the program. The defendants allegedly lied about dozens of test results for exams that were required for enrollment.

The investigation also found that injured workers were illegally directed to the school by employees of local law offices, who would be paid as much as $600 for each student they referred to the school.

“Like many types of programs that benefit the public at large, workers’ compensation laws can only help the people who need it most if they are protected from fraud and other schemes designed to misappropriate funds,” said Kern County District Attorney Cynthia Zimmer. “When evidence of abuse of the workers’ compensation system is identified, it will be investigated and prosecuted to hold wrongdoers accountable and ensure that benefits remain available for those genuinely qualified to receive them.”

Eighty-five charges have been filed against each defendant including conspiracy to commit insurance fraud, concealing facts affecting entitlement to insurance benefits, and offering or receiving money in exchange for referrals.

All seven defendants have been arraigned and are currently awaiting trial in the Kern County Superior Court. The defendants are Anna Ayala-Reyes, Sylvia Carrillo, Evelyn Cruz, Martin Cruz, Nelfido Rolando Cruz, Cynthia Ozaeta, and Sandra Paredez.

The Kern County District Attorney’s Office is prosecuting this case.

Nurse Practitioners and Physician Assistants Expand in California

Nurse Practitioners growth is expected to be 45%, and Physician Assistants 31% from 2019 to 2029, much faster than the average for all occupations (7%). according to the BLS (2019).

A Nurse Practitioner attends a nursing school, while a Physician Assistant attends a medical school or center of medicine.

Nurses follow a patient-centered model, in which they focus on disease prevention and health education. NPs also handle assessment, diagnosis and treatment. Physician assistants follow a disease-centered model, in which they focus on the biological and pathological components of health while also practicing assessment, diagnosis, and treatment.

NPs can specialize in several areas, including gerontology/geriatrics, mental health, pediatrics, and women’s health. PAs undergo a more generalized education, but can also specialize in areas like emergency medicine, orthopedics, and general surgery.

Both have good job outlooks in California’s future. By a recent count there were nearly 8,000 licensed physician assistants working in California, making an average annual salary of $101,880. Nurse practitioners are earning roughly the same.

The current trend in the healthcare industry is shifting to favor the employment of PAs and NPs as the number of more expensive doctors relatively shrinks. There are currently nine college and university campuses across the state that offer accredited PA degrees with that number expected to rise with the increasing demand for PAs.

The American Academy of PAs (AAPA) recently voted to change the name of their profession from physician assistant to physician associate. It was a decision several years in the making.

“The title physician associate will position PAs to successfully compete in the ever-changing healthcare marketplace by boosting the profession’s relevance and impact among stakeholder groups, especially patients,” AAPA CEO Lisa Gables told MedPage Today via email.

The name change process officially started in 2018. Over 100 possible new titles were considered. The investigation culminated in a final report presented to the AAPA on Nov. 20, 2020.

AAPA said that PAs should refrain from calling themselves “physician associates” until legislative and regulatory changes can be made. The AAPA website said that doing so prematurely could confuse patients, and may be interpreted as stepping beyond the scope of current PA licensure.

The California Department of Consumer Affairs, Physician Assistant Board posted an Alert on its website that warns “While the Physician Assistant Board is aware of the title change, it is inappropriate for PAs to hold themselves out as “physician associates” unless and until legislative and regulatory changes are made to incorporate the new title.