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Tag: 2022 News

San Diego Pain Management Doctor and Office Manager Indicted

Dr. David J. Smith, a pain management physician, and his office manager, Julia Ann Oertle, are charged in a federal grand-jury indictment with perpetuating a long-running scheme to commit healthcare fraud and to manufacture and distribute adulterated fentanyl.

After his initial appearance in federal court, Smith’s bond was set at $1 million, secured by real property, with a limitation on his ability to practice medicine. Oertle was still at large.

According to allegations in the indictment, Smith purports to specialize in the installation and maintenance of intrathecal pain pumps which are surgically placed in a patient’s stomach with two catheters implanted on the spine; pain medicine is then infused into a reservoir in the pump periodically, and meted out directly into the spine.

Beginning in December 2017, Smith and Oertle began compounding fentanyl citrate into vials, in a room at Smith’s principal medical practice, San Diego Comprehensive Pain Management Center. According to the indictment, this compounding practice was grossly improper and resulted in the production of adulterated fentanyl. Smith nevertheless directed administration of this fentanyl to patients repeatedly.

The indictment alleges that beyond providing patients with adulterated fentanyl, Smith violated the applicable standards of care by, among other things, prescribing materially excessive quantities of fentanyl, prescribing unnecessary oral opioid medications in conjunction with pain-pump medication, and installing pain pumps in patients without proper assessments for patient need.

Smith then had false and fraudulent reimbursement claims submitted to Medicare for these administrations. Among other things, the claims were inflated by nearly 60 percent; they sought reimbursement for large volumes of unnecessarily manufactured fentanyl; they falsely represented that excess fentanyl had been discarded, when in fact it was used; and they did not disclose that the fentanyl was adulterated.

According to the indictment, Oertle illegally ordered fentanyl citrate for compounding; compounded fentanyl with Smith; and helped direct the illegal billing practices.

Smith has bad disciplinary charges brought against him by licensing authorities in both California and Nevada.

In June 2022 the Board of Medical Examiners of the state of Nevada, in disciplinary case 22-47823-1, alleged that Smith filed an application to practice medicine with them in September 2017. He was asked if he had ever been investigated by any other medical licensing board, and he answered “no” to that question. However, they claim he was “repeatedly” investigated by the California Medical Board prior to his application with them. Additionally he allegedly had malpractice cases pending against him that he did not disclose.

In proceedings before the California board, a final order and Decision dated August 25, 2020, in Case No. 800- 2015-013651, the California Board found that Smith committed acts of gross negligence, repeated negligent acts, failed to maintain adequate and accurate medical records, and unprofessional conduct in the care and treatment of multiple patients. The California Board found Smith incompetent in the care and treatment of a patient, and that he excessively prescribed controlled substances to three (3) patients.

Effective October 15, 2020, the California Board revoked Smith’s license to practice medicine in the State of California, with the order stayed, and he was placed on probation for seven (7) years subject to numerous terms and conditions.

In a subsequent California matter, a final order and Decision dated December 22, 2021, in Case No. 800-2018-042234, the California Board found that Smith committed acts of gross negligence in the care and treatment of three (3) patients, repeated negligent acts, excessively prescribed controlled substances, and failed to maintain adequate and accurate medical records in the care and treatment of two (2) patients, and unprofessional conduct.

Effective January 21, 2022, the California Board again revoked Respondent’s license to practice medicine in the State of California, with that order stayed, and was placed on probation for the duration of Respondent’s probation in the prior matter, Case No. 800-2015-013651, until the anticipated end date of October 14, 2027, subject to additional terms.

NLRB Reinstates Off-Duty Employee Rights to Access Employer’s Property

3-2 decision, in a closely followed employment law case, the National Labor Relations Board reinstated its prior 2011 standard, which applied a more expansive right of off-duty contractor employees to access publicly accessible areas of the primary employer’s workplace, for the purpose of engaging in organizing activity. The new decision overturns Bexar County I, 368 NLRB No. 46 (2019)

In this newest case, (Bexar County II) the San Antonio Symphony leases performance space from the Bexar County Performing Arts Center Foundation d/b/a Tobin Center for the Performing Arts.

On the evening of February 17, 2017, about a dozen Symphony employees sought to peacefully leaflet on the sidewalk in front of the main entrance to the Tobin Center. The Symphony employees had been distressed to learn that Ballet San Antonio had opted to use recorded music, rather than live music, for its production of Tchaikovsky’s Sleeping Beauty. The use of recorded music denies the Symphony employees the opportunity to work at the performance by playing the score. Because of financial difficulties, the Symphony had already had to furlough the Symphony employees for 3 weeks during the 2016–2017 season.

To raise awareness among Ballet San Antonio’s patrons about the use of recorded instead of live music, the Union decided to leaflet before the performances.

Event staff and San Antonio police officers at the Respondent’s direction immediately informed the Symphony employees that they could not distribute the leaflets anywhere on the Respondent’s property, including the sidewalks. The Symphony employees were forced to relocate across the street off the Tobin Center grounds onto a public sidewalk where there were fewer patrons.

This reaction lead to litigation before the NLRB, and two decisions, Bexar I – and after remand from an appellate court –  Bexar II.

Congress passed the National Labor Relations Act in 1935, during the New Deal era. Under section 7 of the NLRA employees’ rights include more than just the right to form a union. The NLRA protects any concerted employee activity undertaken for mutual aid. Employee actions have to meet several standards to deserve protection.

At issue in both Bexar I and II is the application of section 7. An underlying problem central to these two cases is that Section 7 only confers rights directly to employees, not to unions or their nonemployee organizers. The off-duty employees who work for a contractor of a property owner do not fit neatly into these categories.They are neither employees of the property owner nor are they nonemployees with no relationship to the property owner’s property where they work.

Precedent for the problem in the Bexar cases dates back to 2011, when the Board in New York New York considered whether off-duty food service employees had the right to engage in organizational leafleting of customers outside their employer’s place of business – not on their employer’s property, but in the public areas of a hotel-casino for which they and their employer provided services integral to the property owner’s business. (New York New York Hotel & Casino, 356 NLRB 907 (2011)).

In Bexar County I, the Board acknowledged that the New York New York test – which had been approved by the D.C. Circuit – controlled this case. Nonetheless, the Board overruled New York New York and announced a new standard to govern off-duty contractor employees’ access to the property where they regularly work (but that is not owned by their employer) to engage in Section 7 activity.

On appeal of Bexar I, the D.C. Circuit held that the Board’s new access standard was arbitrary. The court permitted the Board on remand to “decide whether to proceed with a version of the test it announced and sought to apply in this case or to develop a new test altogether.

On remand the NLRB noted its “agreement with the D.C. Circuit’s conclusion that the Bexar County I standard it established “is arbitrary in the way that it implements its new standard.” Part of the Board’s task in devising an access standard for off-duty contractor employees is to ensure that it only reaches those contractor employees with a sufficient connection to the property to merit Section 7 access rights.

The NLRB concluded in Bexar County II, that it would return to the New York New York Hotel & Casino, 356 NLRB 907 standard, which held that a “property owner may lawfully exclude [off duty contractor] employees only where the owner is able to demonstrate that their activity significantly interferes with his use of the property or where exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and discipline (as those terms have come to be defined in the Board’s case law).

Applying the New York New York test here, the NRLB affirmed the judge’s finding that Bexar County violated Section 8(a)(1) by excluding the Symphony employees from the Respondent’s property to distribute union leaflets to the Respondent’s patrons about an issue affecting the Symphony employees’ terms and conditions of employment, specifically their number of hours of work. “They had a Section 7 right to inform the public about Ballet San Antonio’s use of recorded instead of live music, which directly affected the Symphony employees’ working conditions.”

“In order to protect contractor employees’ Section 7 rights, we believe that it is appropriate for us to apply the New York New York test to this case and to all pending cases.”

Study Shows 7.4 Million Diagnostic Errors Annually in Emergency Rooms

The National Academy of Medicine (NAM) has called diagnostic error a “blind spot” for modern medicine and improving diagnosis a “moral, professional, and public health imperative.” Diagnostic errors – inaccurate or delayed diagnoses – “persist throughout all settings of care and continue to harm an unacceptable number of patients. It is likely that most people will experience at least one diagnostic error in their lifetime, sometimes with devastating consequences.”

And a new study released Thursday by the Agency for Healthcare Research and Quality, U.S. Department of Health and Human Services, with the assistance of Johns Hopkins University Evidence-based Practice Center in Baltimore, estimates that roughly 7.4 million people are inaccurately diagnosed of the 130 million annual visits to hospital emergency departments in the United States. Some 370,000 patients may suffer serious harm as a result.

The Agency for Healthcare Research and Quality (AHRQ), through its Evidence-based Practice Centers (EPCs), sponsors the development of systematic reviews to assist public- and private-sector organizations in their efforts to improve the quality of healthcare in the United States.

The literature review used for this study covered publication dates from January 2000 to September 2021, and identified 19,127 abstracts, screened 1,455 full text studies, and included 279 studies that addressed the key issues of the study.

The top 15 clinical conditions associated with serious misdiagnosis-related harms were (1) stroke, (2) myocardial infarction, (3) aortic aneurysm and dissection, (4) spinal cord compression and injury, (5) venous thromboembolism, (6) meningitis and encephalitis, (7) sepsis, (8) lung cancer, (9) traumatic brain injury and traumatic intracranial hemorrhage, (10) arterial thromboembolism, (11) spinal and intracranial abscess, (12) cardiac arrhythmia, (13) pneumonia, (14) gastrointestinal perforation and rupture, and (15) intestinal obstruction.

Average disease-specific error rates ranged from 1.5 percent (myocardial infarction) to 56 percent (spinal abscess), An estimated 5.7 percent of all ED visits had at least one diagnostic error.

If overall rates are generalizable to all U.S. ED visits, this would translate to 7.4 million ED diagnostic errors annually; 2.6 million diagnostic adverse events with preventable harms; and 371,000 serious misdiagnosis-related harms, including more than 100,000 permanent, high-severity disabilities and 250,000 deaths.

Key process failures were errors in diagnostic assessment, test ordering, and test interpretation. Most often these were attributed to inadequate knowledge, skills, or reasoning, particularly in “atypical” or otherwise subtle case presentations.

Although estimated ED error rates are low (and comparable to those found in other clinical settings), the number of patients potentially impacted is large. Not all diagnostic errors or harms are preventable, but wide variability in diagnostic error rates across diseases, symptoms, and hospitals suggests improvement is possible.

However, the New York Times reports that the study was met with criticism from the American College of Emergency Physicians, whose president called the conclusions “misleading, incomplete and erroneous,” and said the reliance on studies conducted outside of the U.S. may have led to overestimates of mistakes.

In a statement to the Times, the group’s president, Christopher Kang, MD, said, “The report conveys a tone that inaccurately characterizes and unnecessarily disparages the practice of emergency medicine in the United States,” and, “While most medical specialties have similar training in Western nations, emergency medicine does not.”

Health Net Loses $14.4M Jury Verdict Over Surgery Delay

A Los Angeles Superior Court Jury ordered Health Net to pay $14.42 million, including $6.92 million in compensatory damages and $7.5 million in punitive damages, to a woman who alleged the health care giant caused her to become addicted to opiate pain medication, which she was prescribed only after she had already unnecessarily waited months for Health Net to provide timely referrals to specialists.

The Los Angeles Superior Court jury reached its verdict on Monday, after only a few hours of deliberations.The case is Elaine Courtney v. Health Net, Los Angeles Superior Court, Case No. 18STCV05327.

“The fundamental defect in plaintiff’s claims is that Health Net Inc. was not responsible for providing or authorizing plaintiff’s care and, when plaintiff raised issues about her treatment through the grievance process of her health plan, Health Net … responded promptly and authorized the requested treatment,” the Health Net attorneys maintained.

But plaintiff’s attorney Travis Corby called the case an important one for the health insurance industry and for Medi-Cal recipients. According to a press release by her attorneys, Ms. Courtney needed urgent medical care for a pelvic prolapse issue that was causing her extreme pain.

In February 2017, Ms. Courtney received an urgent referral to a colorectal specialist for a surgical consult. According to the health plan, an appointment should have been made available within 96 hours. But she was told that the correct specialist was not available to her under her Health Net Medi-Cal plan and she was instead sent back to a general surgeon that she had already seen that was admittedly not specialized to fix her problem.

Meanwhile, Health Net had 25 colorectal surgeons available in its Southern California network but refused to allow access to any of them.

As a result, Ms. Courtney was made to wait until August 22, 2017 to see a qualified specialist. Even then, she experienced additional delays from the health plan. The specialist doctor’s surgical request were then denied on five separate occasions over four months, because of issues with the network. Again, Ms. Courtney repeatedly reached out to Health Net, pleading for help, but it did nothing to overturn the denials.

Ms. Courtney was not able to get in for surgery until December 13, 2017 – a ten-month delay. As a result, Ms. Courtney became dependent on opioid pain medication that was only first prescribed to her months into the delay while she waited to Health Net to arrange and provide access to specialists.

During that year, Ms. Courtney suffered immense pain and was given the runaround by Health Net’s bureaucracy. All the while, Health Net was on notice that she was unable to care for her four children, that her condition prevented her from using the bathroom without intervention, that she was in extreme pain, and that she had been prescribed the opioid pain medication to manage the pain while waiting for surgery.

“Hopefully this verdict sends a message to Health Net and other health plans,” Corby said.

Cal/OSHA Adopts COVID-19 Prevention Non-Emergency Regulations

The Occupational Safety and Health Standards Board today adopted the COVID-19 Prevention Non-Emergency Regulations. The COVID-19 Prevention Emergency Temporary Standards will continue to remain in effect while the Office of Administrative Law (OAL) reviews the proposed Non-Emergency COVID-19 Prevention Regulations. OAL has 30 working days to complete its review. If approved by OAL, the new regulations will remain in effect for two years.

Notable provisions include:

– – COVID workplace measures: Employers are legally obligated to provide and maintain a safe and healthy workplace for employees, including by taking measures to prevent COVID-19 exposure. Employers must maintain an effective written Injury and Illness Prevention Program (IIPP) that addresses COVID-19 as a workplace hazard and includes measures to prevent workplace transmission, employee training, and methods for responding to COVID-19 cases at the workplace. Employers may address COVID-19 workplace measures within their written IIPP or in a separate document.
– – COVID Testing: Employers must make COVID-19 testing available at no cost and during paid time to employees following a close contact, except for returned cases.
– – Ventilation: For all indoor locations regardless of size, employers must review applicable CDPH guidance and implement effective measures to prevent transmission through improved filtration and/or ventilation.

– – Close Contact Definition: Close contact is defined by the size of the workplace:
– – For indoor spaces of 400,000 or fewer cubic feet per floor, a close contact is defined as sharing the same indoor airspace as a COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the COVID-19 case’s infectious period, as defined in the regulations, regardless of the use of face coverings.
– – For indoor spaces of greater than 400,000 cubic feet per floor, a close contact is defined as being within six feet of the COVID-19 case for a cumulative total of 15 minutes or more over a 24-hour period during the COVID-19 case’s infectious period, as defined in the regulations, regardless of the use of face coverings.
– – Offices, suites, rooms, waiting areas, break or eating areas, bathrooms, or other spaces that are separated by floor-to-ceiling walls shall be considered distinct indoor spaces.

– – Infectious Period Definition: The regulations use the definition of “infectious period” found in the most recent California Department of Public Health (CDPH) State Public Health Officer Order.

Cal/OSHA is updating its resources to assist employers with understanding their obligations required by the COVID-19 Prevention Regulations. The COVID-19 Prevention Resources webpage contains an executive summary that describes the regulations. When the new regulation becomes effective, Cal/OSHA will publish an updated set of FAQs and model program.

The Occupational Safety and Health Standards Board (OSHSB), a seven-member body appointed by the Governor, is the standards-setting agency within the Cal/OSHA program. The Standards Board’s objective is to adopt reasonable and enforceable standards that are at least as effective as federal standards. The Standards Board also has the responsibility to grant or deny applications for permanent variances from adopted standards, and respond to petitions for new or revised standards.

The California Division of Occupational Safety and Health, or Cal/OSHA, is the division within the Department of Industrial Relations that helps protect California’s workers from health and safety hazards on the job in almost every workplace. Cal/OSHA’s Consultation Services Branch provides free and voluntary assistance to employers to improve their worker health and safety programs. Employers should call (800) 963-9424 for assistance from Cal/OSHA Consultation Services.

CMS Expected to Be More Aggressive With WC Payers in 2023

Under the Medicare Secondary Payer (MSP) law, first enacted in 1980 and updated many times since then, Medicare may not pay claims when another payment is available or reasonably expected to be available, such as workers’ compensation paid medical care for an industrial injury.

When a primary-payer plan doesn’t or can’t pay “promptly” – say, for instance, when it is contesting liability – Medicare can make a conditional payment on behalf of a beneficiary, for which it can later seek reimbursement from the primary plan. If revise 42 CFR section 405.980 and corresponding manual instructions Medicare pays and then seeks reimbursement, only to be refused, the United States can sue the primary plan (or a medical provider) to recover its payment.

The Centers for Medicare & Medicaid Services (CMS) must protect the fiscal integrity of Medicare trust funds. And the Office of the Inspector General (OIG) is responsible for the oversight of that process.

An OIG audit which took place more than a decade ago determined that CMS had not recovered $332 million of the $416 million of Medicare overpayments that it had identified in audit reports issued during the 30-month period ended March 31, 2009.

And now, a new OIG audit published this summer, reflects that CMS conditional payment collection results remain inadequate, even after a decade of efforts to improve its track record.

OIG verified that CMS collected $120 million of the $498 million in sustained Medicare overpayments identified in HHS-OIG audit reports issued during its audit period. Of this sustained amount, CMS reported that it had collected $272 million (55 percent) and that it had not collected $226 million (45 percent).

In addition, CMS did not take corrective action in response to all of the recommendations made in prior audit report published a decade ago. The Report concluded that the “combination of a substantial balance of uncollected overpayments, inadequate policies and procedures, and unimplemented recommendations increases the risk that CMS will not collect millions of dollars owed to the Medicare Trust funds.” Thus, in this 2022 report, a number of recommendations were again made.

CMS officials gave various reasons for not collecting sustained overpayments, such as provider appeals and CMS/MAC redeterminations of overpayment amounts.

One of the recommendations this year by OIG is for CMS to “revise 42 CFR section 405.980 and corresponding manual instructions” which is an invitation for a rulemaking process that will likely make changes to payer appeals of WCMSA settlement set-aside proposals.

Under this regulation as it is currently written, party may request that a CMS contractor reopen its initial determination or redetermination within 1 year from the date of the initial determination or redetermination for any reason, or within 4 years from the date of the initial determination or redetermination for good cause in accordance with § 405.986. Some industry experts expect that the time frame for appeals is likely to be shortened.

Additionally, CMC announced its intent to solicit applicants for a new Workers’ Compensation Review Contractor (WCRC) that will evaluate workers’ compensation Medicare set-aside arrangement (WCMSA) proposals and project the future medical costs, including prescription drugs, related to the workers’ compensation (WC) injury, illness, or disease that would be otherwise reimbursable by Medicare.

California Joins 17 States in Employment Definition Classification Battle

The California Attorney General joined a coalition of 17 attorneys general, as well as state and local labor agencies, in a comment letter in support of a U.S. Department of Labor (DOL) proposal to strengthen federal protections against worker misclassification.

In filing the comment letter this month, California joins the attorneys general of Massachusetts, New York, Pennsylvania, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, Rhode Island, and Washington, as well as the City of Philadelphia, the Pennsylvania Department of Labor and Industry, and the Washington Department of Labor and Industries.

Worker misclassification occurs when a firm inappropriately treats its employees as independent contractors, thereby evading legal obligations such as minimum wage, overtime, payroll taxes, and workers’ compensation insurance.

Over 26 States (including California after passing AB-5) employ variations of the “ABC” test, which generally provides that individuals who provide services in exchange for remuneration are employees unless all three of the following elements are proven: (A) such individual is free from control over the performance of such service; (B) such service is outside the putative employer’s usual business; and (C) such individual is customarily engaged in an independent trade, profession or business.

However, in 2019, the NLRB adopted a standard (SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019)) that allowed employers to classify workers as independent contractors if they can demonstrate, on balance, that the workers appear to have access to “entrepreneurial opportunity” similar to that of running an independent business.

The NLRB’s 2019 decision set aside a prior, more stringent test (FedEx Home Delivery, 361 NLRB 610, 611 (2014)), for classifying workers as independent contractors. That prior standard held that while multiple factors must be considered, a significant factor in any worker classification analysis was the extent to which an employer controls an individual’s work.

During President Trump’s administration, the DOL issued a final rule clarifying when workers are independent contractors versus employees. The rule applied an economic-reality test that primarily considers whether the worker operates his or her own business or is economically dependent on the hiring entity.

The standard was slated to take effect in March 2021, but President Joe Biden’s administration issued rules delaying and ultimately withdrawing the standard.

However, the Coalition for Workforce Innovation (a group that represents Uber, Lyft and other gig-economy businesses) and other similar business groups convinced Judge Marcia Crone of the U.S. District Court for the Eastern District of Texas to reinstated the Trump administration’s rule, which she did in a 43 page March 14 order, finding that the Biden administration’s actions violated the Administrative Procedure Act (APA).

In the Attorney General comment letter, the coalition urges DOL to act swiftly on its proposal to rescind and replace a Trump-era rule regarding independent contractor status, which they say put workers at increased risk of misclassification by unlawfully broadening the definition of an independent contractor and upending previous standards implemented under the federal Fair Labor Standards Act (FLSA).

The attorneys general, among other things, assert:

– – The proposed rule is consistent with the text and purpose of the FLSA, legal precedent, and prior DOL guidance;
– – Replacing the Trump-era rule, which (they say) was contrary to law, with the current proposal will restore clarity for workers, businesses, and the public;
– – Through the economic reality test, the proposed rule offers strong protections against workers being improperly classified;
– – DOL took appropriate steps to thoroughly analyze alternative potential regulatory approaches and the current proposal is necessary to achieve consistent application of the FLSA; and
– – DOL should act swiftly to adopt the proposed rule.

Thus, the rules defining what is and is not an “independent contractor” remain controversial and to some extent volatile and uncertain in many jurisdictions. The final rule by the DOJ in the current chapter of the classification battle continues, with now 17 Attorney Generals supporting a more liberal definition of employee status.

Timely Arbitration Request Required by Employer in Multiple Forums

Desert Regional Medical Center (DMRC) is an acute care hospital owned and operated by a subsidiary corporation of Tenet Healthcare Corporation. DRMC provides healthcare services and is engaged in interstate commerce within the meaning of the Federal Arbitration ACT (FAA). Nurses Leah Miller, Lynn Fontana, and Renita Romero have been employed by them pursuant to a collective bargaining agreement (CBA) negotiated between DRMC and the Union.

Article 11 of the CBA includes provisions governing RN rest breaks, meal periods, and payment of missed break premiums. Article 9 of the CBA sets forth mandatory grievance and arbitration procedures which must be followed when processing disputes involving interpretation or application of the CBA. Article 9E of the CBA states that individual RNs and DRMC may voluntarily agree to arbitrate “any dispute not otherwise arbitrable under the [CBA]” under the Tenet Fair Treatment Process (FTP), which provides dispute resolution procedures for employment related disputes.

Each of them signed a DRMC employment document, entitled “Acknowledgement,” which referred to an Employment Arbitration Agreement. Under the agreement, they agreed to submit non-CBA covered claims or disputes to final and binding arbitration before the American Arbitration Association (AAA).

In March 2015, the Union filed with DRMC, on behalf of DRMC’s RNs, a meal and rest break grievance. The Union group grievance alleges that DRMC was committing ongoing violations of the CBA and California state law. It was not resolved, so In May 2015, the Union sent DRMC a letter requesting arbitration of the unresolved meal and rest period grievance under the CBA.

The DRMC RNs in this case each filed their own claims with the Labor Commissioner, alleging violations of Labor Code sections 203, 226.7, and 517, and Wage Order 5.In February 2019, DRMC filed with the Labor Commissioner a brief entitled “Defendant’s Jurisdictional Objections,” arguing that the Labor Commissioner lacked jurisdiction to hear and decide Respondents’ individual claims because they had to be resolved in another forum.

However, in February and March 2019, the Labor Commissioner heard under Labor Code section 98, Respondents’ individual claims. During the hearing, which lasted several days, the hearing officer heard testimony and the parties presented documentary evidence and arguments. After submission, DRMC was ordered to pay Miller $64,120.64; Romero $58,835.87; and Fontana $51,156.97 for unpaid wages and interest.

On August 7, 2019, DRMC filed in the Riverside County Superior Court a notice of filing a de novo appeal of the Labor Commissioner’s order awarding unpaid wages. On August 26, 2019, DRMC filed notices of removal of DRMC’s action appealing the Labor Commissioner’s Order, to the federal district court, which later remanded the case back to state court. On July 23 and 24, 2020, DRMC filed petitions to compel arbitration of Respondents’ individual claims and stay the trial court action. At that point there were difficulties in proceeding due to the pandemic.

On August 12, 2020 the Union and Tenet, on behalf of DRMC, had agreed to arbitrate the Union group grievance regarding “Missed Meals-Time Sheets,” and appoint Michael Prihar as arbitrator.

The trial court denied DRMC’s petitions to compel arbitration on the individual nurses actions based on a finding DRMC waived the right to arbitrate. The Court of Appeal affirmed the order denying DRMC’s amended petitions to compel arbitration and request for a stay in the unpublished case of Desert Regional Medical Center v. Miller et. al – E076058 (December 2022.

The principal question on appeal is whether DRMC waived its contractual right, if any, to arbitrate the nurses individual claims.

The Court of Appeal concluded that, even assuming DRMC met its burden of establishing there was an applicable written contract requiring arbitration of Respondents’ individual claims, DRMC waived any such right by delaying filing the Petition to compel arbitration until July 23 and 24, 2020.

There is no single test under state or federal law that delineates the nature of the conduct that will constitute a waiver of arbitration. In the past, California courts have found a waiver of the right to demand arbitration in a variety of contexts, ranging from situations in which the party seeking to compel arbitration has previously taken steps inconsistent with an intent to invoke arbitration, to instances in which the petitioning party has unreasonably delayed in undertaking the procedure.

Here, DRMC did not timely raise its right to arbitrate Respondents’ individual claims or take affirmative steps to implement the process. DRMC delayed filing its Petition to compel arbitration for over four years, which included at least three years from when Respondents submitted their individual claims against DRMC with the Labor Commissioner, until the Labor Commissioner decided the claims in July 2019.

In August 2019, DRMC attempted to remove to federal court its state court action appealing the Labor Commissioner’s decision without success.

DRMC invoked the litigation machinery, including filing a de novo appeal of the Labor Commissioner’s decision in state court, and DRMC delayed petitioning to compel arbitration for a substantial period of time, which was prejudicial to Respondents. The trial court therefore did not err in ruling that DRMC waived any right DRMC may have had to arbitrate Respondents’ individual claims.

New California Law Mandating Bereavement Leave Starts January 1

In the United States, workers’ access to bereavement leave in the event of the tragic loss of a family member is inconsistent or nonexistent. The state of Oregon offers up to 2 weeks of bereavement leave for employees working for employers of a certain size under its unpaid but job-protected family leave law.

There is no federal law requiring that employers provide bereavement leave. This left it up to employers and employees to make informal arrangements.

Now in California, newly passed law, AB 1949 which added 12945.7 is added to the Government Code, takes effect on January 1, and requires private employers with five or more employees and public sector employers to provide employees with at least 30 days of service up to five unpaid days of bereavement leave upon the death of a family member.

The five days of bereavement leave must be provided in addition to the 12 weeks of family and medical leave permitted under the the California Family Rights Act (CFRA). The days of bereavement leave need not be consecutive.

“Family member” means a spouse or a child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law as defined in Section 12945.2.

The bereavement leave shall be completed within three months of the date of death of the family member.

The bereavement leave shall be taken pursuant to any existing bereavement leave policy of the employer.If there is no existing bereavement leave policy, the bereavement leave may be unpaid, except that an employee may use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee.

If an existing leave policy provides for less than five days of paid bereavement leave, the employee shall be entitled to no less than a total of five days of bereavement leave, consisting of the number of days of paid leave under the existing policy, and the remainder of days of leave may be unpaid, except that an employee may use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee.

If an existing leave policy provides for less than five days of unpaid bereavement leave, the employee shall be entitled to no less than five days of unpaid bereavement leave, except that an employee may use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee.

The employee, if requested by the employer, within 30 days of the first day of the leave, shall provide documentation of the death of the family member. As used in this subdivision, “documentation” includes, but is not limited to, a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or governmental agency.

The employer shall maintain the confidentiality of any employee requesting leave under this . Any documentation provided to the employer pursuant to this new law shall be maintained as confidential and shall not be disclosed except to internal personnel or counsel, as necessary, or as required by law.

The new law does not apply to an employee who is covered by a valid collective bargaining agreement if the agreement expressly provides for bereavement leave equivalent to that required by this section and for the wages, hours of work, and working conditions of the employees, and if the agreement provides premium wage rates for all overtime hours worked, where applicable, and a regular hourly rate of pay for those employees of not less than 30 percent above the state minimum wage.

NCCI Surveys Top WC Industry Concerns Heading Into 2023

The National Council on Compensation Insurance (NCCI) just published the results of its annual survey of top insurance executives. The summary of responses is intended to provide a general sense of the most frequently mentioned items in our survey and the underlying questions that these executives have regarding the future. The 100 respondents provided clear insight into the concerns that are front-of-mind for them as we head into 2023.

Rate adequacy – Rate adequacy is always a concern. Although premium rates and loss costs have been declining for years in most states, the workers comp line has retained an historically low combined ratio.Carriers expressed uncertainty about what the next five years will look like, including whether this downward trend will change and whether a change will result in loss cost/rate level increases.

Many factors are in play that affect a carrier’s ability to maintain underwriting profitability, such as medical cost concerns, labor market dynamics, emerging risks, reserving practices, and general inflation. Executives expressed concerns that when trends – which have driven rates down for many years – eventually turn, the industry may not be able to react quickly.

A related consideration was also raised: will the collective unfamiliarity of what an environment with rate level increases looks like affect the industry’s ability to adequately address rate level needs?

Medical inflation – Carriers noted concerns about the rising cost of medical treatments, especially continuous advancement in medical technology and treatments.

When carriers do not see an associated rise in premium rates it can be disconcerting, in the sense that rates and costs could get too far out of sync.

Trends in WC medical costs reflect changes in the mix of injuries and the types of services used to treat them, as well as changes in the prices of those services. And while medical prices contribute to general inflation, they do not grow at the same rate.

The economy – Uncertainty surrounding things like the labor market, an economic slowdown or recession, interest rates, and investment returns, all point to a challenging economic landscape for carriers. The possibility of a recession weighs on some respondents considering the impact that unemployment and stagnant job growth could have on industries they serve.

Shifting workforce/workplace – This topic can be characterized by two major trends that carriers are watching:

– – Worker shortages and inexperienced workers. The labor market continues to be tight, forcing some employers to hire inexperienced workers with less focus on safety training and pushing seasoned workers to work additional hours. Carriers are concerned with how this could affect the frequency and severity of on-the-job injuries.

– – Remote and hybrid workers. Changes in work patterns following the pandemic are creating work environments with which the industry has little experience. How much lower is injury frequency for employees who are working from home? What new WC risks are there when working from home? How might payroll and premiums be impacted, as well as classifications of workers? Carriers are waiting for new data to gain insight.

NCCI Chief Actuary Donna Glenn and NCCI Chief Customer Operations Officer Mark Mileusnic will take a deeper dive into the top concerns in an upcoming Virtual Carrier Education Series webinar Thursday, January 26, 2023, at 2:00 p.m. ET. You don’t need to be an insurance carrier to attend – the webinar is free and open to all. Registration details are coming soon to