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Tag: 2021 News

CWCI Says COVID Comp Claims Subsiding to Lowest Level

The wave of COVID-19 claims that hit the California workers’ compensation system at the end of 2020 has subsided for the time being as the number of claims reported to the state Division of Workers’ Compensation for February fell to the lowest level in a year, an analysis by the California Workers’ Compensation Institute Shows.

The CWCI report shows the projected ultimate claim count for February came in at 4,533 cases, down nearly 90% from the record 43,158 claims projected for December.

The figures from CWCI’s COVID-19/Non-COVID-19 Interactive Application show that after surging to an all-time high in December, the monthly COVID-19 claim count fell by more than 50% in January, a decrease that coincided with the steep drop in new coronavirus cases in the state.

“Claim counts from December through February are still incomplete as additional claims for those months are still being reported, but the COVID-19 claim totals reported as of March 8 show that the DWC has recorded 40,188 claims with December injury dates and 19,493 claims with January injury dates, but just 2,747 COVID-19 claims with February injury dates,” the CWCI report states.

The addition of the February figure pushed the number of virus claims reported to the DWC since the pandemic began to 135,566, including 751 death claims, and COVID-19 clams have accounted for just 9% of all claims reported thus far for February, though they have accounted for 18.8% of all claims since the first claims were reported in January of 2020, according to the CWCI.

The latest results are from the March 11 update to CWCI’s COVID-19/Non-COVID-19 Interactive Claim App, which integrates data from CWCI, DWC, and the Bureau of Labor and Statistics to provide current and historical data on California work injury claims.

The app includes COVID-19 data dating back to January 2020, as well as from the most recent 12 months, and is available to the public.

DWC Adjusts Hospital Outpatient and ASC OMFS Fees

The Division of Workers’ Compensation (DWC) 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:

April 2021 Quarterly Update

– – The CMS Medicare Hospital Outpatient Prospective Payment System (OPPS) April 2021 Addendum A quarterly update
– – The CMS Medicare OPPS April 2021 Addendum B quarterly update
– – The CMS Ambulatory Surgical Center Payment System, April 2021 ASC Approved HCPCS Code and Payment Rates – Column A entitled “HCPCS Code” of “Apr 2021 ASC AA” and Column A entitled “HCPCS Code” of “Apr 2021 ASC EE”
– – Certain sections of the CMS Medicare OPPS April 2021 Integrated Outpatient Code Editor (I/OCE), IOCE Quarterly Data Files V212.R0

The order adopting the OMFS adjustments is effective for services rendered on or after April 1, 2021 and is posted on the DWC website.

Amended DEU Regs Include 5% Commutation Increase

The Division of Workers’ Compensation has posted proposed changes to Disability Evaluation Unit (DEU) regulations to the online forum where members of the public may review and comment on the proposal. Comments will be accepted on the forum until 5 p.m. on April 7, 2021.

The proposed changes update commutation tables and delete references to services no longer provided by the DEU. Other proposed changes include updating two forms used for requesting consultative ratings and reconsideration of summary ratings.

The Labor Code provides for the determination and payment of permanent disability benefits and mandates life pensions for certain cases. Injured workers are allowed to petition the Workers’ Compensation Appeals Board (WCAB) for a commutation of future weekly permanent disability and life pension benefits in order to receive a lump sum amount.

The proposed changes update the commutation tables to reflect updated life tables which offer a more accurate present value of lifetime benefits. As life expectancy has increased, it is estimated that this update will provide a general 5% increase of commutations for life pensions and permanent total disability.

The Commutation Instructions provide examples to illustrate various methods of commuting permanent disability and life pension benefits. The most common commutation is for attorney fees when settling cases at the WCAB.

The DEU will continue to provide formal rating determinations, summary rating determinations and consultative rating determinations, but will no longer provide informal rating determinations.

The new proposed forms are:

– – Summary Rating by the Administrative Director – DWC-AD Form 103.
– – Request for Consultative Rating – DWC-AD Form 104 (DEU).

The forum can be found online on the DWC forums page under “current forums.”

Landscaper Faces Fraud Charges for Faked Symptoms

23 year old Angel Maces, who lives in San Jacinto, was arraigned for felony insurance fraud after allegedly misrepresenting symptoms following a work-related injury, in order to receive over $42,000 in fraudulently obtained workers’ compensation benefits.

On September 7, 2018, Maces, while working for a Temecula landscaping company, was laying artificial turf at a private residence in the City of Duarte, when a piece of turf slipped and struck his knee.

Maces filed a workers’ compensation claim with his employer’s insurance company that same day and immediately began receiving benefits.

On April 28, 2020, the California Department of Insurance began an investigation after his employer’s insurance company suspected fraud.

The investigation found Maces misrepresented the seriousness of his knee injury and his physical limitations in order to not return to work and collect $42,888 in workers’ compensation benefits.

Surveillance during the investigation showed Maces conducting activities that contradicted the physical limitations he described to his doctor and his employer.

On multiple occasions Maces was seen not using a cane or crutches, even though he claimed he had to use them 100 percent of the time because of the injury.

Maces self-surrendered and was arraigned on February 26, 2021.

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

Retailers Face Class Actions for Unpaid Worker Screenings

Last month, Walmart Inc. was hit with class allegations in California that it ran afoul of federal and state labor law by failing to pay workers for time spent on mandatory pre-shift COVID-19 screenings.

And this week, Arizona Walmart workers hit the retail giant with a $5 million proposed class action Monday, alleging Walmart required employees to arrive at their shifts early to undergo COVID-19 screenings but flouted the law by failing to fully compensate them for their time.

Workers filed the putative class action in Arizona federal court, claiming the Arkansas-based retail behemoth required them to arrive at their shifts 10 to 15 minutes early to undergo mandatory COVID-19 screening but didn’t compensate them for all that time.

Plaintiff attorneys say the screenings involved standing in line with co-workers to get temperature readings and answering questions about health conditions, recent travel and potential exposures to anyone with the virus. After passing the screening, workers were given masks and gloves. Only then were they allowed to clock in for the day, they allege.

Walmart, however, maintains that it has compensated its hourly retail associates for pre-shift time spent undergoing COVID-19 screenings. A Walmart spokesperson told Law360 on Monday that its workers have received compensation for the “extra time” they spent being screened for symptoms of the virus.

“All hourly associates have extra COVID screening time systematically added to their daily shifts and paychecks. This is in addition to our manual process for adding extra time if there ever is a reason this additional time is not sufficient. We will respond as appropriate with the court once we have been served with the complaint,” the Walmart spokesperson said.

Walmart workers aren’t the only ones seeking compensation for virus screenings.

Earlier this month, Apple was found to owe a class of California retail store workers for time they spent working off the clock undergoing bag checks. The amount of damages will be determined in a jury trial.

This March, a New Jersey federal judge ruled that Amazon warehouse workers seeking compensation for time spent in obligatory security screenings could amend their complaint to include a claim for compensation of pre-shift time spent undergoing COVID-19 screenings. The amended complaint alleges the tech giant should pay workers for the time they spend getting their temperatures taken and answering a COVID-19 questionnaire prior to their shifts.

That same month, workers sued a California tennis company seeking compensation for time they spent undergoing mandatory temperature checks as a precaution during the pandemic.

The Merchant of Tennis Inc., which operates retail tennis stores in the U.S., has been allegedly underpaying workers at its facility in San Bernardino, California, the overtime wages to which they’re entitled and made the workers undergo temperature checks while they were off the clock, according to the complaint filed earlier this month by one of its employees.

And back in June, Converse reached a $1.87 million settlement to resolve claims that it failed to pay workers for time they spent clearing post-shift security checks.

Demands for “Hero Pay” Rapidly Increasing Across Sectors

Grocery employees in dozens of cities from San Francisco to Santa Ana have successfully lobbied their council members to pass ordinances requiring employers to temporarily give hazard or “hero” pay, typically $3 to $5 an hour. Both proponents and opponents of the hazard pay movement expect more cities to adopt the policy. Similar ordinances may soon come up to a vote in cities from Fresno to Pasadena.

The movement is growing, labor leaders said, covering more workers affected by the pandemic. Coachella has already passed an ordinance giving hazard pay to farmworkers, the first in the nation to do so.

Companies boosted grocery workers’ pay at the peak of the pandemic last year. But most – with the exception of companies such as Save Mart and Trader Joe’s – had ended the practice by June, according to a report from the Brookings Institution.

Long Beach was the first to pass an ordinance, giving workers at large grocery stores an extra $4 per hour for at least 120 days. In response, the California Grocers Association filed a federal lawsuit saying such ordinances are unconstitutional, and Kroger closed two grocery stores in the city.

Though Sacramento has been the site of protests calling for higher wages and better safety conditions for workers, neither the county Board of Supervisors nor City Council has proposed hazard pay ordinances. But the policy has spread to nearly a dozen cities in Southern California and several more in Northern California.

Fresno so far is the only city in Central California to consider hazard pay, but Fresno City Council President Luis Chavez said he has gotten calls from officials in surrounding cities. Chavez has proposed extra pay of $3 an hour for 120 days for the city’s grocery workers.

Many businesses have come out against hazard pay, saying the policy will only lead to more closures and layoffs.

For unionized grocery workers, it should be collective bargaining agreements, not city ordinances, that decide their wages, said Ron Fong, president and CEO of the California Grocers Association.

Other workers are pushing for hazard pay as well.

Coachella in February approved “hero” pay for farmworkers and workers at grocery stores, pharmacy stores and restaurants. Only those who employ 300 or more workers nationally and more than five employees in the city would need to provide hazard pay.

Large fast-food chain restaurants have stayed open during the pandemic, with employees going to work every day, said Megan Beaman-Jacinto, a Coachella councilwoman and workers’ rights attorney. She also pushed to include farmworkers, saying they have often been excluded from the protections provided by labor laws.

Healthcare workers are also pushing for extra pay, through a bill introduced by Assemblyman Al Muratsuchi, D-Torrance.

Assembly Bill 650 would require private health care companies to provide a $10,000 bonus to a non-executive employee who is working during the pandemic and staying in the industry through 2022. Part-time employees would get up to $6,000.

SEIU Local 2015, which represents 400,000 long-term caregivers, is also calling for hazard pay as part of its campaign promoting mass vaccination and calling on local officials to improve working condition for the union’s members.

Workers could also get some help from the coronavirus relief package that President Joe Biden signed March 11. A provision in the bill allows states to give “premium pay” of up to $13 per hour on top of their typical wages to employees deemed essential. The money would come out of the $26 billion the law allocates to California state government.

27 States Suddenly Show Uptick in New COVID Infections

New cases of Covid-19 are once again on the rise across more than half of the United States as officials race to vaccinate additional people before highly contagious variants become prevalent in the country.

As of Sunday, the seven-day average of new cases rose by 5% or more in 27 states, according to a CNBC analysis of data compiled by Johns Hopkins University. Across the U.S., the nation logged an average of 54,308 new cases per day over the past week – a 1% rise from the prior week after months of rapidly declining case numbers, according to the data.

Even as the U.S. picks up the pace of vaccinations, giving about 2.5 million shots every day, some health officials have warned the country remains in a precarious spot. The lifting of restrictions in many states and the spread of more contagious variants in the U.S. threaten to undo the nation’s progress, which has seen cases, hospitalizations and deaths all fall dramatically since the peak earlier this year.

Lifting restrictions is a “serious threat to the progress we have made,” Dr. Rochelle Walensky, director of the Centers for Disease Control and Prevention, told reporters at a news briefing Monday. Walensky said she’s worried about an unavoidable surge in cases. “We are at a critical point in this pandemic, a fork in the road.”

Daily new deaths continue to fall, likely helped by the prioritization for vaccination of the elderly and those with comorbid conditions who are most likely to die of Covid-19. About 68.8% of those 65 and older have received at least one shot of a vaccine as of Sunday, according to the CDC. In total, more than 124.4 million doses have been administered, but most of those are for two-dose vaccines.

As optimism around the steady rise in vaccinations picks up, many states have begun to ease restrictions on businesses and gatherings, despite warnings from the CDC not to do so. Though some states, such as New Jersey, are beginning to consider holding off on further reopening as cases begin to rise.

White House Chief Medical Advisor Dr. Anthony Fauci urged states last week not to declare victory prematurely. Fauci said he was concerned about a number of states and cities that were pulling back on public health measures and dropping mask mandates.

Adding to the urgency of the need to get people vaccinated quickly is the looming threat of new variants, which appear to have already caused severe surges across much of Europe and other parts of the world. The CDC has projected that the more contagious and potentially more deadly B.1.1.7 variant, which was discovered in the United Kingdom, could become the dominant strain in the U.S. by the end of the month.

Some health officials have said that the B.1.1.7 variant could be what’s behind some particularly worrying surges seen in various states, including Michigan, where cases have risen dramatically in recent days. According to data from Johns Hopkins, Michigan is reporting an average of almost 3,000 new cases per day, up by about 50% from a week ago.

California/Washington Disclose as Oregon Hides EDD Fraud

According to a report in the Associated Press, Oregon officials continue to refuse to publicly disclose how much money the state has lost to unemployment insurance fraud during the pandemic, despite the fact that neighboring states Washington and California have reported huge sums of money wrongly paid after their systems were targeted by sophisticated hackers.

The Oregon Employment Department says it is not “comfortable” disclosing the information because it could provide criminals an opening to exploit their systems further.

“Although some other states have shared fraud-related data, the Oregon Employment Department is not sharing any dollar amounts – including broad estimates – for how much we have identified as fraud, or breakdowns of other numbers,” said Melanni Rosales, the communications director for the department.

Nationwide fraud has overwhelmed state unemployment agencies and antiquated benefit systems that are easy targets for persistent criminals. It has delayed legitimate payments and turned thousands of Americans into victims of identity theft. A review by The Associated Press found that many states have failed to adequately safeguard their systems.

California has been the biggest target, having distributed an estimated $11 billion in fraudulent payments and an additional $19 billion in suspect accounts. Other estimates, according to AP’s reporting across the states, range from several hundred thousand dollars in smaller states such as Alaska and Wyoming to $6.5 million in Colorado and to hundreds of millions in more populous states such as Massachusetts and Ohio.

Washington state was among the first hit with fraudulent unemployment claims believed to be tied to a West African scam ring using identities stolen in prior data breaches, such as the massive 2017 Equifax breach. More than 122,000 fraudulent claims made in the state siphoned $600 million. As of January, Washington was able to recover $357 million.

While officials from the Oregon Employment Department say the state is not facing the same scale of fraudulent claims as seen in Washington or California, in terms of dollar amounts or percentage, they refuse to disclose how much the state has lost, details about ongoing fraud prevention tactics, investigations, or the scope of potentially fraudulent activity.

Gov. Kate Brown agrees with the decision not to release the information, saying that the goal is to preserve the integrity of the unemployment insurance system and trust fund.

“This means, we must use every tool available to us to help prevent and combat fraud,” said Liz Merah, the governor’s press secretary. “At this point, we are not willing to jeopardize this foothold by disclosing information that would make it easier for bad actors to game the system.”

Bay Area Pair Indicted for $300M uBiome Healthcare Fraud

A federal grand jury handed down a 33-page indictment charging 36 year old Zachary Schulz Apte and 46 year old Jessica Sunshine Richman with multiple federal crimes including conspiracy to commit securities fraud, conspiracy to commit health care fraud, money laundering, and related offenses in connection with alleged schemes to defraud health insurance providers and investors.

According to the indictment, Apte and Richman, both of whom resided in San Francisco at the time, co-founded uBiome in October 2012. Initially, uBiome offered a direct-to-consumer service, called “Gut Explorer,” which allowed an individual to submit a fecal sample that uBiome would analyze in its laboratory and produce a report comparing the customer’s microbiome to the microbiomes of others who had submitted fecal samples to uBiome, all for less than $100.

The defendants eventually expanded uBiome’s business model to include development and marketing of “clinical” tests regarding the gut and vaginal microbiomes, which tests would ostensibly be used by medical professionals to make medical decisions and as to which uBiome would seek reimbursement from health insurance providers in amounts up to nearly $3,000. Apte’s and Richman’s efforts to have uBiome develop clinical tests that could be billed to insurance companies were intended to attract large-scale venture capital investment.

By late 2015, shortly before it raised millions of dollars in its “Series B” fundraising round, uBiome began to market a “clinical” version of a test.

Thereafter, the indictment alleges that Apte and Richman caused uBiome to employ various methods to secure health care provider orders for its clinical gut test and clinical vaginal test, including by having its Chief Medical Officer review test requests from customers and endeavoring to build a network of health care providers external to uBiome.

The defendants ultimately adopted several fraudulent practices with respect to its clinical tests. Specifically, the defendants developed, implemented, and oversaw practices designed to deceive approving health care providers and reimbursing insurance providers regarding tests that were not validated and not medically necessary.  The defendants falsified documents and lied about and concealed material facts when insurance providers asked questions to which truthful answers would reveal the fraudulent nature of uBiome’s billing model.

Such practices included fraudulently submitting reimbursement claims for re-tests or re-sequencings of archived samples (referred to internally at uBiome as “upgrades”) and utilizing a captive network of doctors and other health care providers who fraudulently were given partial and misleading information about the test requests they were reviewing. They are also accused of  fraudulently submitting reimbursement claims with respect to tests that had not been validated under applicable federal standards and/or for which patient test results had not yet been released.

Between 2015 and 2019, uBiome submitted more than $300 million in reimbursement claims to private and public health insurers. Of these reimbursement claims, uBiome was paid more than $35 million.

San Jose Physician Indicted for Illegally Prescribing Opiates

Donald Siao M.D. faces federal charges that he illegally distributed hydrocodone and oxycodone pills in his medical practice and committed health care fraud.

Siao, 55, of San Jose, is a medical doctor licensed by the state of California who conducted his practice in San Jose. His license authorized him to write prescriptions for Schedule II through V controlled substances for medical care.

A prescription monitoring system identified Siao was a high prescriber, exemplified by a recent year when Siao wrote 8,201 prescriptions for controlled substances, including large quantities of hydrocodone and oxycodone and many instances of the dangerous combination of opioid, muscle relaxant, and benzodiazepine known in the drug world as “the holy trinity.”

Undercover law enforcement agents posed as new patients and met with Siao at his medical practice.

During initial visits, the agents complained of pain in vague or general terms. Siao conducted little or no physical examinations. The initial and subsequent visits usually lasted approximately two minutes. In initial visits Siao prescribed hydrocodone or oxycodone, and in follow-up appointments Siao continued to prescribe the same medicine and increased the amounts.

In one example in the complaint, an uncover agent posing as a patient met with Siao at an initial appointment and complained of pain. Following an eight second physical examination, Siao wrote a prescription for 30 pills of Norco, a hydrocodone-acetaminophen combination.

In subsequent visits as short as 2 minutes and 10 seconds, the undercover agent requested larger prescriptions for reasons that included he had given away pills to his employees as work incentives and that he had ran out of pills when he went to a concert. Siao increased the size of the prescriptions, eventually writing a prescription for 90 Norco pills at his last visit.

In another example in the complaint, an undercover agent requested and received a larger prescription of Norco so he could pay back friends with the pills. The agent then requested a prescription for Marinol, explaining he would not take the Marinol but rather would display the prescription at work as a pretext for his positive drug tests, saying “that way it covers the dirty drug test.” Siao replied “gotcha” and wrote the prescription.

The complaint also charges Siao with health care fraud and alleges that on May 9, 2018, he wrote alprazolam and oxycodone prescriptions for a patient without any legitimate medical purpose.