Monday, October 16, 2017

Run like hell…

Shockingly, compound drug fraudsters allegedly lied when they sold accounts receivable to investors.

Who’da thunk it?

Thanks to Greg Jones for his excellent investigative reporting on this; Greg reports today that:

Exhibits filed in the lawsuit by Shadow Tree Investment against Praxsyn Corp. reveals connections to three providers accused of accepting kickbacks from other compounding pharmacies. Praxsyn owns Mesa Pharmacy in Irvine, California.

Mesa was partnering with three providers who now face criminal charges for accepting kickbacks to prescribe compound drugs to injured workers.

The basis for the case appears to be Praxsyn allegedly didn’t tell Shadow Tree about pertinent details about the A/R deal…details such as the accusations about the source of the bills, the alleged nefarious activities of some of the parties involved, and relevant lien settlement information.

I was peripherally involved in something similar to this, when a compounding company was trying to sell its receivables a couple of potential buyers called me for my opinions.

Which, briefly summarized, were “run like hell.”

What does this mean for you?

That remains good advice for anyone approached by compounders, physician prescribing companies, and so-called “revenue cycle management firms” doing most of their work in these areas.


Article source:Managed Care Matters

Saturday, October 14, 2017

“A gift to the construction industry”: catchy quotes from Court of Appeals argument on OSHA’s silica standard

OSHA took the long road to adopt a standard to address respirable crystalline silica. Although the final rule was issued in March 2016, it is being challenged by both industry and labor groups. The first says OSHA went too far, the other says OSHA didn’t go far enough.

The long road, however may be coming close to end. The U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments last week from parties that are challenging the rule. Judges Merrick Garland, David Tatel and Karen LeCraft Henderson spent more than two hours listening to arguments from the National Stone, Sand and Gravel Association (NSSGA), the Brick Industry Association (BIA), the U.S Chamber of Commerce, the North America Building Trades, the United Steelworkers and others.  Attorneys with the Department of Labor’s Office of the Solicitor were there, too, to defend the OSHA rule.

I enjoyed listening (and relistening) to the court’s audio of the oral argument. What made it particularly enjoyable was listening to the judges—they did their homework!

Judges Garland and Tatel, in particular, probed, cajoled, and challenged the attorneys to clarify their arguments. The judges pressed the attorneys on issues concerning economic feasibility, health risks, and the legal standard for substantial evidence. There were plenty of references to prior litigation on OSHA health standards. They mentioned significant previous court decision on OSHA standards, such as for asbestos, lead and formaldehyde.  I felt a bit like an outsider, listening to the attorneys speak about those rulings. They described them as if they were old friends who remain relevant today. And like relationships with old friends, we don’t always agree about what she said or remember events in the same way.

There were times during the oral arguments that the presenting attorney rose to a judge’s challenge for a cogent response. But I cringe a few times when I heard nervous laughter from an industry attorney who knew he was stumped by the judge’s question.

Below are just some of my favorite quotes and exchanges. The text doesn’t capture the animation I heard in the audio from the courtroom or the commitment of the attorneys to their arguments. I’ve included a time stamp at each quote so you can listen for yourself. (I had difficulty distinguishing Judge Garland’s from Judge Tatel’s voice. If I incorrectly attribute the quotes, please leave a comment and I’ll correct it.)

NSSGA and BIA argue that OSHA overstates the risk of health harm caused by exposure to respirable crystalline silica. Their attorney, William L. Wehrum, said:

“We assert that OSHA had a thumb on the scale. We believe the record makes clear that OSHA came to this rulemaking with a determined goal of reducing the level of the standard. We believe it clouded OSHA’s judgement and caused it to lose objectivity, which we believe permeates the entire proceeding.” [00:02:36]

Judge Tatel chimed in:

“You say that OSHA had its thumb on the scale, which is a curious statement given our standard of review. The question is: is there significant evidence in the record to support OSHA’s position for what it did? You can certainly point to contrary evidence, but OSHA has explained all that. …You have to make your argument in terms of our specific standard of review, which is the substantial evidence question. Our case law is very specific about that.”

Sounding like a law professor Tatel added:

“What’s your best argument regarding the substantial evidence test?” [00:04:19]

Wehrum had difficulty providing a short and sweet and precise answer.

Judge Garland addressed the problem for the court of dueling scientists. William Wehrum tried to describe the evidence from his side’s experts, but Garland interrupted:

“We have scientists on both sides and the law here is quite clear. When there are scientists on both sides, OSHA is permitted to take the ones that are most likely to protect worker safety. There is supposed to be a thumb on the scale in terms of safety. …That’s what our own case says. It is perfectly appropriate for OSHA to weight in favor of worker safety. That’s right, isn’t it. [00:09:56]

William Wehrum: “Correct your honor to a point, but that dosen’t insulate OSHA from review.

Soundly a bit frustrated, Garland said:

“That’s what we doing here, but it is not enough to say there is a plausible mechanism. You have to be able to show that OSHA’s studies are not themselves substantial evidence.”

The attorney representing the U.S. Chamber of Commerce was also schooled by Judge Garland. This time it was a math problem.

Attorney Michael Connolly argued that there are so few deaths today is the U.S. from silicosis that OSHA has not met its burden of demonstrating that exposure to respirable silica poses a significant risk of harm to workers. Connolly pointed to the low number of silicosis deaths reported on death certificates and compared to the millions of workers in silica-related industries.

Judge Garland asked [00:18:50]:

“Is that the right division? Dividing the total number of deaths that are reported on the death certificates by the total number of workers in industry? Or is the right number the total number of deaths at a certain level of exposure? That is, in terms of the 1 in 1,000 test.

(The “1 in 1,000” comes from a 1980 Supreme Court ruling about OSHA’s benzene standard. The Supreme Court justices did not offer a specific ratio but indicated that the threshold likely fell somewhere between 1 death per 1 billion (which would not be considered significant) to 1 death per 1,000 (which would be significant.))

Judge Garland continued:

“It’s not supposed to be just 1 over the entire population of the United States, or 1 over everybody who works. It’s supposed to be 1 over 1,000 people who work at a certain exposure level, isn’t that right?”

Michael Connolly: “Sure. That’s correct.”

Judge Garland:

“Isn’t it exposed to silica at a certain exposure levels that matters? Not all people who may have been exposed to silica? [20:03]

Score one for the judge.

I wish I’d been in the courtroom for that exchange. I would have turned my head to see if Judge Garland’s remark brought a smile to the attorneys who were defending OSHA’s rule.

Labor Department attorney Kristen Lindberg was charged with responding to some of the arguments raised by the industry petitioners. Among her excellent synopsis was this:

[00:35:00] “It’s worthwhile to step back a little bit and review the support OSHA had in the record for its findings. Their risk assessment findings were supported by nearly all of the occupational health and medical organizations that commented on the rule, including NIOSH, the American Cancer Society, the American College of Occupational and Environmental Medicine, the American Thoracic Society, the Association of Occupational and Environmental Clinics, and the American Public Health Association.”

“… Industry petitioners want you to reject conclusions that have overwhelming support among scientists and that were supported by the independent peer reviewers who scrutinized OSHA’s risk assessment. They want you to reject this extensive body of scientific evidence on the flimsy basis that there are flaws in some of the studies that OSHA relied upon and that there is uncertainty in epidemiology. They want you to impose a legal burden on OSHA that the agency could never meet.”

[00:36:53] “The broad support for OSHA’s conclusions within the scientific community should increase the court’s confidence that OSHA’s analysis is sound. The courts understand that OSHA, in marshalling scientific evidence to support a risk assessment, cannot ever reach perfection because the science those risk assessments are based on is not perfect. There will be flaws in studies, there will be stronger and weaker studies, there may be some uncertainty, but what OSHA has done here, its extensive analysis based on a huge body of evidence conforms fully with the OSH Act and with the requirements of courts that have interpreted the OSH Act.”

Bradford Hammock argued the case on behalf of the National Association of Home Builders and other industry groups. He tried to convince the judges that OSHA’s requirements for the construction industry are not technological feasible.

Victoria Bor, the counsel for North America’s Building Trades Unions dismissed Mr. Hammock’s assertions. Her argument began with the following [00:67:40]

“By way of context, Table 1, which is the centerpiece of the construction standard, is a gift to the construction industry. Most OSHA standards set a permissible exposure limit and require employers to monitor their workplaces and devise their own strategies following the hierarchy of controls to bring exposures below the permissible exposure limit (PEL). The silica standard gives employers options. They can follow the traditional approach or they can follow Table 1, which is in effect is a manual that lists 19 of the 23 construction tasks that most commonly generate significant silica exposure, and specifies control strategies for each. Employers who fully and properly implement the controls listed on Table 1 are freed from monitoring their workplace and have a safe harbor for complying with the PEL.

“…OSHA assumes that most employers will follow table, which is a completely reason assumption because it tells employers exactly what they have to do, frees them from monitoring, and gives them a safe harbor for complying with the PEL.”

“Now rather than accepting this gift, as Mr. Hammock already explained to you, the industry petitioners point to Table 1 and argue that to the extent it requires the use of respirators….OSHA is conceding that the standard isn’t feasible. …The petitioners’ argument completely ignores that Table 1 does not require employers to comply with the PEL. What it requires is for employers to implement the listed controls. So whether the PEL can be reached without the use of respirators—the question that the industry petitioners focus on— is actually completely irrelevant.”

Victoria Bor continued:

“What is relevant, as Ms. Goodman [of the Labor Department] said, is that the typical employer can comply with Table 1 most of the time. On this question, the petitioners argument on feasibility rests on vague assertions that in certain circumstances, certain employers may not be able to use certain of the wet methods listed in Table 1 at some time. …Petitioners point to no evidence that undermines OSHA’s conclusions that most employers will be able to comply with Table 1 by utilizing those controls most of the time.”

There was dead silence after her rebuttal. None of the judges asked Victoria Bor to clarify or further defend her arguments. They seemed convinced.

The excerpts above are just some of memorable moments from the oral argument. Another was a lengthy argument by the unions and rebuttal by the Labor Department about OSHA’s provisions for medical surveillance and medical removal protections. It was the one time that the Labor Department’s case seemed on shaky ground.

If you  listen to the audio for yourself you’ll hear the word “grapple” used numerous times by attorneys for the unions. You’ll hear the Labor Department attorneys repeat the phrase”de minimis benefit.” You’ll hear one judge say to an industry attorney “it’s not your principle argument, it’s your only argument” and another judge mention “a shopping list.” You’ll hear all the parties claim that OSHA’s decisions are, or are not, “supported by the record.” Finally you’ll hear many references to previous Supreme Court and Appeals Court decisions on other OSHA standards.

It’s been many years since OSHA started down the road toward a comprehensive silica standard. People will disagree on when the agency actually hit the road, but they know that last week’s stop at the U.S. Court of Appeals means the road may soon be coming to an end.

Judges Garland, Henderson, and Tatel are now at the wheel. They will decide whether OSHA’s rule will stand as is, or whether the agency needs to make a U-turn.

I relished listening to the oral arguments. I’ll be eager to read the judge’s opinion when it’s issued.




Article source:Science Blogs

Friday, October 13, 2017

Trump’s ACA Orders – One’s big news, the other’s just political fluff

President Trump announced two major policy changes yesterday; one will do little to affect healthcare markets and insurance, the other will have a drastic and almost immediate impact.

Cost Sharing Reimbursement payments help those making less than 250% of the poverty level pay for deductibles and other costs.

Ending CSR payments will force health insurers to:

  • increase premiums by almost one-fifth to offset the loss of CSRs; this is already happening in many markets…many had already done this, but others are sure to do so immediately
  • and/or stop selling insurance immediately and cancel policies already in effect, ending coverage for poorer Americans.

Here’s the funny thing; ending CSRs will INCREASE costs to the taxpayers because people who no longer get the payments will get tax credits – and others will too..

The reaction from many in Congress was negative; CSRs had been funded in the Republicans’ bills to repeal the ACA, and several House and Senate Republicans expressed concern that the President’s move would harm their voters.

This may be an unwise political move as well;

Trump’s supporters (51%)…[and] eight in 10 Americans (78%) say President Trump and his administration should do what they can to make the current health care law work.

Trump’s other Executive order will have far less impact on insurance markets. In sum, the order allows insurance companies to sell policies across state lines and offer stripped down policies 

The first – selling across state lines:

  • is already allowed in 3 states, and no insurers participate because mandates do influence costs, but the underlying cost of insurance is the cost of care.
  • Contradicts Republican orthodoxy – and ACA repeal efforts – that keep states in control of insurance markets. The across-state-line sale of insurance guts state insurance regulatory authority.

As does the part of the order allowing sale of stripped down policies. These plans, known variously as association health plans, multiple employer welfare arrangements (MEWAs), and multiple employer plans (MEPs), have a pretty crappy history. Allowed years ago, many went belly-up leaving healthcare providers unpaid and members uncovered.

There’s a lot of detail to these, (see here) but the real issue is simple – policyholders often get screwed, and, like selling across state lines, MEWAs flout state regulation of insurance.

What does this mean for you?

These orders will further screw up the health insurance industry. The real effect will be to push us closer to single payer, a result unintended and with far more drastic consequences.

Article source:Managed Care Matters

Thursday, October 12, 2017

Henry’s HWR is Here!

Thanks to Hank Stern for his edition of HWR, with posts on ACA, funding thereof, and the revolving door that is US healthcare.

Read on!

Article source:Managed Care Matters

Failure is good.

Had a great conversation with an old friend yesterday; he runs a mid-sized work comp insurer and is one of the most forward-looking executives in this industry.

The discussion worked its way around a wide range of topics, as these conversations usually do, before settling on failure – there it took an interesting twist.

Put simply, failure is under-rated.

Athletes learn more from missing the ball, failing to score, blowing the assignment, over-training than they do from winning. If you win, there’s much less motivation – and reason – to look for things that can be improved.

If you don’t win, there’s lots of reasons to figure out why. Of course you can get too deep into this, spend too much time dwelling on the problems and become fatalistic and negative. If one avoids that trap, one can learn a lot and be much better prepared for the next contest.

As a case study, look at Kaiser.  The huge health plan invested $400 million in a new Electronic Health Record project which failed. Rather than fire the team, blow up the effort, and forget about it, then-CEO George Halvorson doubled down, and the final investment was $4 billion – roughly $444 per member.

One reason – the EHR stripped out a lot of unnecessary cost and streamlined patient interactions:

Just having an electronic health record that is connected with all the systems that have to do with delivery of care to a patient means you don’t have patients taking duplicate tests. In the United States, I believe the cost of duplicate testing is about 15 to 17 percent of the total health care spend. We [Kaiser] don’t have that cost.

In talking with my colleague, we both marveled at the fortitude of Kaiser; if someone in work comp made even a $4 million “mistake” in a systems implementation – or anything else for that matter – their head would be on the block.

That’s one reason innovation is so rare in workers’ comp – the tolerance for failure is low indeed. With that tolerance for failure is an inability to learn, to take risks, to get better faster.

What does that mean for you?

Risk has rewards, but rarely in workers’ comp.

Article source:Managed Care Matters

Wednesday, October 11, 2017

Supreme Court lets criminal conviction stand against coal executive Blankenship

The U.S. Supreme Court is not interested in hearing former Massey Energy CEO Don Blankenship’s claim that he didn’t get a fair trial. On October 10, the court denied Blankenship’s petition to review his criminal conviction. (here (see page 3))

In December 2015 a jury found Blankenship guilty of conspiring to violate mine safety standards. Massey Energy’s Upper Big Branch mine was the site of the worst coal mine disaster in 40 years when 29 miners were killed by a massive coal dust explosion. Blankenship micromanaged his coal mines so much so that he demanded production reports every hour.

Blankenship’s attorneys objected during the initial trial to many of federal district judge Irene Berger’s rulings. They appealed Blankenship’s case to the U.S. Court of Appeals for the 4th Circuit, but that court affirmed his conviction. That led to Blankenship’s last ditch effort to have the U.S. Supreme Court vindicate him. In denying his petition, the jury’s decision stands.

Blankenship received the maximum penalty allowed under federal mine safety laws. He already served the one year in federal prison (May 2016 to May 2017) and paid a $250,000 fine.

The Charleston Gazette-Mail’s Ken Ward Jr. provides Blankenship’s reaction to the Supreme Court’s decision. Blankeship said:

“Our court system is so tangled up trying to decide whether males can use female public restroom that they have no time to concern themselves with whether American citizens have received a fair trial.”

(The Supreme Court typically has about 70 cases on their docket. This year’s includes critically important cases on gerrymandering, Trump’s travel ban against Muslims, deference to the decisions of federal agencies, and sexual orientation as a protected class under the EEOC.)

At the time of Blankenship’s 2015 conviction, U.S. Attorney Booth Goodwin, who brought the successful case, said:

“The evidence overwhelmingly showed an enterprise that embraced safety crimes as a business strategy. It was reprehensible, and the jury saw it for what it was. Time and time again the defendant chose to put profits over safety. He got rich and the coal miners who worked for him paid the price.

Goodwin added:

“This is the first time that I am aware of that the chief executive officer of a major corporation has been convicted of a workplace safety crime.”

The Supreme Court’s decision this week makes sure that conviction stands.


Article source:Science Blogs

Occupational Health News Roundup

At Reveal, Amy Julia Harris and Shoshana Walter investigate an increasing criminal justice trend in which defendants are sent to rehab, instead of prison. On its face, the idea is a good one, especially for people struggling with addiction. However, the reporters find that many so-called rehab centers are little more than labor camps funneling unpaid workers into private industry.

The story focused on one particular center, Christian Alcoholics & Addicts in Recovery (CAAIR) in Oklahoma. Started by chicken company executives, CAAIR’s court-ordered residents work full-time at Simmons Foods Inc., a billion-dollar company that processes poultry for businesses like Walmart, KFC and PetSmart. CAAIR residents don’t get paid and aren’t covered by workers’ compensation; if they get injured on the job, they can be kicked out of CAAIR or sent back to prison. Harris and Walter write:

About 280 men are sent to CAAIR each year by courts throughout Oklahoma, as well as Arkansas, Texas and Missouri. Instead of paychecks, the men get bunk beds, meals and Alcoholics and Narcotics Anonymous meetings. If there’s time between work shifts, they can meet with a counselor or attend classes on anger management and parenting. Weekly Bible study is mandatory. For the first four months, so is church. Most days revolve around the work.

“Money is an obstacle for so many of these men,” said Janet Wilkerson, CAAIR’s founder and CEO. “We’re not going to charge them to come here, but they’re going to have to work. That’s a part of recovery, getting up like you and I do every day and going to a job.”

The program has become an invaluable labor source. Over the years, Simmons Foods repeatedly has laid off paid employees while expanding its use of CAAIR. Simmons now is so reliant on the program for some shifts that the plants likely would shut down if the men didn’t show up, according to former staff members and plant supervisors.

But Donny Epp, a spokesman for Simmons Foods, said the company does not depend on CAAIR to fill a labor shortage.

“It’s about building relationships with our community and supporting the opportunity to help people become productive citizens,” he said.

The arrangement also has paid off for CAAIR. In seven years, the program brought in more than $11 million in revenue, according to tax filings.

“They came up with a hell of an idea,” said Parker Grindstaff, who graduated earlier this year. “They’re making a killing off of us.”

Read the full story at Reveal.

In other news:

NPR: Kathleen Masterson reports that Ben & Jerry’s has a signed a deal to help improve working conditions on Vermont dairy farms that supply milk to the ice cream company. Representatives from Ben & Jerry’s and Migrant Justice, a farmworker advocacy group, signed the agreement, which commits the company to paying higher prices to dairy farms that join the Milk with Dignity program. The ultimate goal is to source all of the company’s milk through the program, which ensures workers get adequate breaks, time off, paid sick days, safe job conditions and fair housing. Masterson quoted Enrique Balcazar of Migrant Justice: “This is the first expansion that we’ve seen from the model of worker-driven social responsibly that was pioneered by the Coalition of Immokalee Workers in the Florida tomato fields. It is a great victory and an honor for us dairy workers to expand that model to the dairy industry of Vermont.”

Newsweek: Christianna Silva reports that “Trump’s anti-union Labor Department” has just released a study showing that nearly every union member — 94 percent — has access to employer-provided health coverage. On the flip side, 67 percent of nonunion workers don’t have access to employer-provided health care. The research, from the Bureau of Labor Statistics, found that among workers who have access to employer-provided care, more union workers take advantage of the option. Access the full statistics here.

MassLive: Shira Schoenberg reports that members of the Massachusetts Senate passed a bill to extend OSHA protections to all public-sector workers. In 2014, state lawmakers expanded OSHA protections to cover all executive branch workers, but the protections didn’t cover those working for cities, towns and higher education. The new bill, which still has to get through the state House, would also establish a new Municipal Occupational Health and Safety Subcommittee. The Massachusetts Department of Industrial Accidents reports that each week, about 28 municipal workers suffer injuries that keep them out of work for five days. Schoenberg quoted Massachusetts AFL-CIO President Steven Tolman: “When Massachusetts workers arrive on the job each day, their health and safety protections shouldn’t vary depending on whether they work in the public sector or private sector.”

USA Today: Kevin Johnson reports on the directive from Attorney General Jeff Sessions saying federal civil rights law does not protect transgender people from discrimination at work. Not surprisingly, the directive rolls back Obama-era protections that stated the “most straightforward reading” of the law also protected transgender workers. Johnson quoted James Esseks, director of the ACLU’s LGBT & HIV Project, who said: “Today marks another low point for a Department of Justice which has been cruelly consistent in its hostility towards the LGBT community and in particular, its inability to treat transgender people with basic dignity and respect.”

Kim Krisberg is a freelance public health writer living in Austin, Texas, and has been writing about public health for 15 years. Follow me on Twitter — @kkrisberg.

Article source:Science Blogs