Tag: 2022 News

Two Minnesota workers’ compensation cases have been elevated to the Supreme Court of the United States, that may determine the outcome of controversy over conflicting state and federal law on the use of medical cannabis in workers’ compensation claims.

The Minnesota Supreme Court ruled late last year that both workers comp claims were invalid because of marijuana’s Schedule I status under the federal Controlled Substances Act.

In the first case, Susan Musta filed a petition with the U.S. Supreme Court in November after her state’s highest court determined that the CSA did, indeed, mean her employer did not need to provide reimbursement for medical cannabis after she was injured at her place of work, a dental center. Her case before SCOTUS is Susan K. Musta, Petitioner v.Mendota Heights Dental Center, et al. (No. 21-676).

And the Minnesota Supreme Court made the same judgment in another case where Daniel Bierbach was injured at his job working for an all-terrain vehicle company and sought compensation for medical marijuana. His case is Daniel Bierbach, Petitioner v. Digger’s Polaris, et al. (No. 21-998).

The issue presented in both cases is whether the Controlled Substances Act preempts an order under a state workers’ compensation law requiring an employer to reimburse an injured employee for the cost of medical marijuana used to treat a work-related injury.

Filings in both cases were distributed on February 2 for a Supreme Court conference that was scheduled on February 18. The justices are now seeking input on the issue from the Biden administration, as the February 22, 2022 entry on the both dockets reads “The Solicitor General is invited to file a brief in this case expressing the views of the United States.”

Congress recently has prohibited the U. S. Department of Justice from impeding state medical marijuana programs. Specifically, in appropriations bills since 2014, Congress consistently has barred DOJ from expending funds to “prevent” States “from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” E.g., Consolidated Appropriations Ac t, 2021, Pub. L. No. 116- 260, § 531, 134 Stat. 1182, 1282-83 (2020) (App. 109a).

Minnesota authorized the use of marijuana for medical purposes in 2014 with the Medical Cannabis Therapeutic Research Act. Under the Cannabis Act, the Minnesota Department of Health administers a program that permits certain registered patients to possess marijuana for medical purposes.

The Minnesota Supreme Court reasoned in both cases that the CSA preempted an order obligating an employer to reimburse an employee for the cost of medical cannabis because compliance with that order would expose the employer to criminal liability under federal law for aiding and abetting unlawful possession of cannabis.

State supreme courts are divided  on whether the CSA preempts an order under a state workers’ compensation law requiring an employer to reimburse an injured employee for the cost of medical marijuana used to treat a work-related injury.

The supreme courts of Maine and Minnesota have held that the CSA preempts an order under their States’ workers’ compensation laws requiring reimbursement for medical marijuana. See Bourgoin v. Twin Rivers Paper Co. , 187 A.3d 10, 12 (Me. 2018); and Musta v. Mendota Heights Dental Ctr. , 965 N.W.2d 312, 327 (Minn. 2021); and Bierbach v. Digger’s Polaris, 965 N.W.2d 281, 282 (Minn. 2021)

But the supreme courts of New Hampshire and New Jersey have reached the opposite conclusion with respect to their States’ medical marijuana laws. See Appeal of Panaggio, 260 A.3d 825, 835, 837 (N.H. 2021); and Hager v. M&K Constr., 247 A.3d 864, 887, 889 (N.J. 2021).

These decisions manifest a mature split of authority that typically warrants review by the U.S. Supreme Court.

U.S. Supreme Court Justice Clarence Thomas recently took issue with the government’s inconsistent stance on cannabis. In a statement issued in June, after the court declined to take up a tax case centered on cannabis, Thomas criticized the government’s approach as “contradictory” and “unstable.”.

“Once comprehensive, the Federal Government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana,” he wrote.

Delivery of healthcare services is a critical factor in the administration of workers’ compensation claims. However, a recent poll shows that there might be trouble ahead, and staffing challenges to deliver quality care.

New USA Today-Ipsos research finds that workers in the American healthcare sector are resilient in the face of two years of the pandemic.

However, this survey also finds numerous warning signs of the ongoing strain these workers are experiencing, with half reporting they are burned out and almost a quarter thinking about leaving the field in the near future.

Additionally, optimism among these workers has declined relative to Spring 2021 – as the vaccine was rolling out – as people in the healthcare field widely disapprove of how the rest of the country has handled the pandemic.

The large majority of healthcare workers report being satisfied with their jobs, only slightly down from findings in a Spring 2021 KFF/WP poll.

– – Four in five (80%) of healthcare workers report being somewhat or very satisfied with their current job, down slightly from the 89% saying the same in a Spring 2021 Kaiser Family Foundation/Washington Post poll.
– – Three quarters (73%) agree with the statement “I love working in healthcare”.
– – A majority report feeling “hopeful” (59%), “motivated” (59%), or “optimistic” (56%) about going to work. However, the number saying hopeful (to 59% from 76%) or optimistic (to 56% from 67%) is down compared to last year.

However, there are warning signs about the resiliency of workers in the healthcare sector after two years of the pandemic.

– – About half (52%) report feeling “burned out”, on par with the 2021 numbers (55%).
– – Over a third (39%) report agreeing with the statement “the American healthcare system is on the verge of collapse”.
– – A third either disagree (16%) or don’t know how they feel (18%) regarding if they could pick a career over again, “I would still decide to go into health care”.
– – A quarter of healthcare workers (23%) say they are likely to leave the field in the near future.

These are some of the findings of an Ipsos poll conducted between February 9-16, 2022 based on a nationally representative probability sample of 1,170 healthcare workers ages 18 or older.

And the American Nurses Association reports that by 2022, there will be far more registered nurse jobs available than any other profession, at more than 100,000 per year. With more than 500,000 seasoned RNs anticipated to retire by 2022, the U.S. Bureau of Labor Statistics projects the need for 1.1 million new RNs for expansion and replacement of retirees, and to avoid a nursing shortage.

The Guardian reports that a sheriff’s department in southern California is encouraging law enforcement officers who oppose vaccine mandates to “take back [their] freedom” and apply for jobs with the department.

The Kern county sheriff’s office released a video last week inviting applications from deputies within Los Angeles county, where officials passed an order that could lead to the termination of thousands of county workers who haven’t received the Covid-19 vaccine or provided a religious or medical exemption.

“Drive north, we have a place for you – Kern county is a community that backs the blue,” the minute-long ad says as country singer George Strait sings The Weight of the Badge, a song paying tribute to police.

Covid-19 vaccination rates inside the LA sheriff’s department have lagged far below that of the public with just 54% of workers fully vaccinated, despite a vaccination mandate for county employees. Last week the county board of supervisors moved to shift vaccine mandate enforcement power away from LA county Sheriff Alex Villanueva. Villanueva, who has criticized mask orders and said he will not fire workers who refuse the vaccine, said such an act could lead to more than 4,000 unvaccinated deputies losing their jobs.

The sheriff’s office in Kern county, a deeply conservative expanse located immediately to the north of Los Angeles, responded with its video the next day. “So take back your freedom, and APPLY today to work at the Kern county sheriff’s office. You deserve a job that welcomes you and your values, with open arms.”

The battle over vaccine mandates for law enforcement in southern California highlights the divide over Covid health rules across the state. Vaccination rates continue to lag in more rural and conservative regions of California, where 70% of all residents are vaccinated.

Kern county doesn’t require vaccinations for its workers. Its sheriff, Donny Youngblood, said in a press conference on Friday that he doesn’t know how many of his department’s deputies are vaccinated. Just 52% of Kern county residents are vaccinated, compared to 70% of LA county residents, according to the New York Times.

“There’s a substantial number of deputies that already work here that aren’t vaccinated,” he said. “I have no idea [how many] and don’t care,” Youngblood said at the press conference.

Though vaccination rates among law enforcement across the state have trailed behind the statewide rate, Youngblood said Kern county specifically wanted to target LA deputies. “The reason we reached out specifically to LA is there will be 4,000 deputy sheriffs if this were to happen that have real families have real children have real bills that could be unemployed because they refuse to take the vaccination.“

As Los Angeles County residents face rising crime and rising numbers of homelessness, Sheriff Alex Villanueva is speaking out against what he describes as a political push fueled by police activists to lay off 4,000 department employees of the sheriff who have not been vaccinated against the coronavirus.

“This is nothing but a power grab by the board. And it’s shameful, and it’s going to harm public safety,”

Hogan Lovellls published a synopsis of federal enforcement activity that lead to their conclusion that “the implementation of electronic health records (EHR) and rapid expansion of telemedicine has caught the attention of the Department of Justice (DOJ) and the qui tam relators’ bar, prompting rigorous enforcement actions and increasing False Claims Act (FCA) cases.”

DOJ has traditionally been wary of telemedicine. Even before the COVID-19 pandemic and the accompanying rapid expansion of telehealth, enforcement in the telemedicine industry was on the rise. In 2019, DOJ pursued enforcement actions in the telehealth space that involved claims for durable medical equipment (DME) and for compound medicines.

Through “Operation Brace Yourself,” DOJ targeted an alleged fraud and kickback scheme through which DME companies paid illegal kickbacks and bribes to medical professionals working for fraudulent telemedicine companies. In exchange, the medical professionals referred Medicare beneficiaries to the conspiring DME companies for back, shoulder, wrist, and knee braces that were medically unnecessary.

The DOJ investigation resulted in enforcement actions against 24 defendants associated with five telemedicine companies, as well as the owners of dozens of durable medical equipment companies and three licensed medical professionals. According to DOJ, the fraud schemes involved more than $1.2 billion in loss.

Traditionally, Medicare’s coverage of telemedicine has been extremely limited. As a result of the pandemic, telehealth service providers were granted broad flexibility to provide telemedicine services and this flexibility remains today. The easing of restrictions stemming from the COVID-19 pandemic has prompted a dramatic increase in the use of telehealth.

It seems unlikely that the federal government will reinstate pre-pandemic restrictions on telehealth services given the increased popularity and reliance on telehealth services. Indeed, Congress has introduced several bipartisan bills to address post-pandemic telehealth services, signaling that utilization of telehealth services will likely remain prevalent.

In October of 2020, DOJ announced a telehealth enforcement action for a fraudulent DME billings scheme dubbed “Operation Rubber Stamp.” The scheme involved allegedly paying medical professionals to order DME, genetic and other diagnostic testing, and pain medications without sufficient patient diagnostic interaction, resulting in $1.5 billion in fraudulent billings to government health care insurance programs.

False Claims Act (FCA) violations have been alleged and resolved in an ongoing investigation dubbed Operation “Happy Clickers,” which involves allegations that physicians “approved orders for medically unnecessary braces and cancer genetic testing despite many red flags that these items and services were illegitimate.”

In recent years, DOJ has pursued several FCA cases related to Electronic Health Records (EHR) that have led to large settlements and highlight various FCA risks.

For example, in 2020, Practice Fusion Inc, a health information technology developer, paid $145 million to resolve criminal and civil investigations relating to its EHR software, including a $118.6 million FCA settlement. The resolution addressed allegations that Practice Fusion “extracted unlawful kickbacks from pharmaceutical companies in exchange for implementing clinical decision support (CDS) alerts in its EHR software designed to increase prescriptions for their drug products.”

FCA and other fraud investigations relating to telehealth fraud and EHR are expected to continue. Brian M. Boynton, Acting Assistant Attorney General for the Civil Division at the Department of Justice, recently stated that he expects “a continued focus on telehealth schemes, particularly given the expansion of telehealth during the pandemic.” He also identified fraud relating to EHR as another area that is likely to be a focal point of future enforcement efforts.

The Department of Health and Human Services Office of Inspector General (OIG) has also made clear that it is “conducting significant oversight work assessing telehealth services during the public health emergency.”

Telemedicine and EHR technologies have rapidly changed patient care, introducing opportunities for potential fraud and abuse and exposing gaps in oversight. Claims administrators should expect increased fraudulent activities in these areas going forward and take steps to minimize their risk.

Two California Democratic lawmakers took separate aim Tuesday at pandemic disinformation they argue receives a broad audience and misplaced credibility through social media platforms – rejecting concerns that their legislation might carry free speech or business privacy considerations.

Assemblyman Evan Low said his bill would label doctors’ promoting of misinformation or disinformation about COVID-19 to the public as unprofessional conduct that could draw disciplinary action from the California Medical Board. Disinformation is generally considered to be intentional or deliberate falsehoods, while misinformation can be inadvertent.

The California Medical Association hasn’t taken a position on Low’s bill. But the association’s president, Dr. Robert E. Wailes, said in a statement that misinformation has prolonged the pandemic, “making the work of our frontline health care workers more difficult and dangerous while harming community health.”

The legislation differs from efforts in some other states like Florida and Tennessee, where Republican lawmakers have resisted doctor discipline proposals.

Tennessee’s Board of Medical Examiners unanimously adopted in September a statement that said doctors spreading Covid misinformation – such as suggesting that vaccines contain microchips – could jeopardize their license to practice.

But before any physicians could be reprimanded for spreading falsehoods about covid-19 vaccines or treatments, Republican lawmakers threatened to disband the medical board.

The growing tension in Tennessee between conservative lawmakers and the state’s medical board may be the most prominent example in the country. But the Federation of State Medical Boards, which created language adopted by at least 15 state boards, is tracking legislation introduced by Republicans in at least 14 states that would restrict a medical board’s authority to discipline doctors for their advice on Covid.

In Florida, a Republican-sponsored bill making its way through the state legislature proposes to ban medical boards from revoking or threatening to revoke doctors’ licenses for what they say unless “direct physical harm” of a patient occurred. If the publicized complaint can’t be proved, the board could owe a doctor up to $1.5 million in damages.

Some medical boards have opted against taking a public stand against misinformation. The Alabama Board of Medical Examiners discussed signing on to the federation’s statement, according to the minutes from an October meeting. But after debating the potential legal ramifications in a private executive session, the board opted not to act.

A few physician groups are resisting attempts to root out misinformation, including the Association of American Physicians and Surgeons, known for its stands against government regulation.

And Sen. Richard Pan’s proposal, which still is being finalized, would require online platforms like Facebook to publicly disclose how their algorithms work and how they promote user content, including which data sets are used and how they rank the prominence of user posts.  The platforms would also be required to confidentially share more detailed information with researchers, with the goal of creating more responsible algorithms.

Congress is considering a Platform Transparency and Accountability Act with a similar goal at the federal level, Pan said, but he wants California to take the lead.