State News : Texas

Alexis C. Norman, from Midlothian, Texas, and her co-conspirator, Karen Jones, created a fake business in Tyler, Texas and used stolen identities of licensed counselors and Medicaid recipients to submit false claims to Medicaid. 
 
Norman pleaded guilty and went to prison in April 2016.  Apparently, she and her cohort, Jones, didn’t stop there.  They created another fake company in Waco, and Norman supplied Jones with more stolen counselor and Medicaid patient identities from prisonby hiding pieces of paper in her shoe to give to Jones during visits.   Her motivation for continuing the criminal activity?  She needed to pay her criminal defense lawyer.
 
Meanwhile, in Dallas, Texas workers’ compensation claimants’ lawyer, Royce Bicklein, is scheduled for trial in federal court on February 19, 2019.  Bicklein was named in a federal court indictment concerning the Forest Park Medical Center and allegations against 21 people and involving over $40 million in alleged bribes and kickbacks.

-  Copyright 2018, Stone Loughlin & Swanson, LLP.

DWC announced this month that eligible spouses of first responders remain eligible for death benefits for life after remarrying (if they remarry on or after 9/1/17), if the first responder died in the course and scope of employment or while providing volunteer services, regardless of the date on which the death of the first responder occurred. If you weren't married to a first responder, you still shouldn't get remarried.
 
DWC also published its annual report of work-related deaths in Texas.  There were 534 fatal occupational injuries in 2017, which is a 2% decrease from 2016.  Trade, transportation and utilities was the category with the highest number of fatal work injuries (148), while construction ranked second (133).  The full report can be found at the following link:  TDI website.

-  Copyright 2018, Stone Loughlin & Swanson, LLP.

A woman who visited a chiropractor for neck manipulation intended to treat her headaches wound up with damage to her right eye. Immediately after the visit she began seeing spots which were symptoms of ruptures in the eye’s blood vessels known as preretinal hemorrhages.

The technique used by the chiropractor, known as high-velocity, low-amplitude spinal manipulation, involves the application of short, quick thrusts to the back of the patient’s neck. Those manipulations caused the woman’s retinal hemorrhages According to findings published in the September issue of theAmerican Journal of Ophthalmology Case Reports.

-  Copyright 2018,David L. Swanson, Stone Loughlin & Swanson, LLP

The Texas Supreme Court announced this month that it has set a workers’ compensation death benefits case for oral argument.  InChicas v. Texas Mutual Insurance Company, the issue is whether a court lacks jurisdiction to review the DWC’s decision in a death benefits case if the claimant files the appeal in a probate court and does not file it in a district court until after expiration of the 45-day deadline in Labor Code section 410.252(a).

Santiago Chicas was cleaning rain gutters at the home of his employer’s president when he fell from a ladder and died. His widow, Bertilla, filed a claim for death benefits and, when Texas Mutual denied the claim, she initiated a proceeding at the DWC to resolve the issue. She also filed a wrongful death action in Harris County Probate Court Number 2.

An Administrative Law Judge at DWC found that Santiago was not in the course and scope of his employment and denied Bertilla’s claim for benefits and the DWC Appeals Panel allowed the decision to become final. Within the 45-day time limit for filing a petition for judicial review, Bertilla amended her petition in the probate court to include her claim for judicial review of the DWC’s decision. Five months later, Texas Mutual filed a plea to the jurisdiction which the probate court granted. Bertilla then filed a petition for judicial review in the Harris County District Court. Texas Mutual filed a plea to the jurisdiction which the district court granted. The Houston Court of Appeals (1^st. Dist.) reversed the trial court judgment and Texas Mutual appealed to the Texas Supreme Court.

The outcome of the case turns on whether the 45-day deadline in section 410.252(a) is jurisdictional or merely mandatory. The courts of appeal are divided on this issue – at least one court has said that it is jurisdictional while others have said that it is not. Hopefully the Texas Supreme Court will resolve the conflict.

Oral argument is set for January 22, 2019.

-  Copyright 2018,David L. Swanson, Stone Loughlin & Swanson, LLP.

Two office administrators at medical clinics in Ft. Worth, Waco and Temple that treated workers’ compensation patients were arrested this month and charged with federal healthcare fraud. Melissa Sumerour and Latosha Morgan are alleged to have submitted more than $5.9 million in claims from 2011 to 2017 for services, including physical therapy, that were never performed.

For example, Sumerour is alleged to have billed for physical therapy sessions that were not provided – always billing five units of therapeutic activities, five units of therapeutic exercises, and four units of manual therapy.  This became known as the “5-5-4” rule of billing.

By maximizing billing amounts, Sumerour and Morgan allegedly received more money for themselves in monthly bonuses from the physician that operated the clinics. The complaint does not identify the physician, but media outlets identify him as Leslie Benson, M.D. Dr. Benson, who played football for the Dallas Cowboys in the 1970s, was indicted for healthcare fraud in 2017 and has relinquished his license to practice medicine in Texas.

-  Copyright 2018,David L. Swanson, Stone Loughlin & Swanson, LLP

Neal Wade Barker, M.D., a prominent bariatric surgeon in Dallas, is the seventh defendant to admit his role in an alleged $200 million scheme of health insurance fraud involving the former Forest Park Medical Center. Barker was one of 21 defendants indicted in late 2016 for what prosecutors described as a massive bribery and kickback scheme to steer business to Forest Park’s luxury hospitals at insurers’ expense. He is the seventh defendant to enter a plea of guilty. The remaining fourteen defendants await trial, currently scheduled for early 2019.

According to the indictment, Forest Park executives paid surgeons, primary care doctors, lawyers and others to refer patients to their high-end hospitals. The hospitals were designed as out-of-network facilities, enabling Forest Park to set its own prices instead of agreeing to payment rates negotiated with insurers.

While patients who treat in out-of-network facilities typically pay a higher portion of a procedure’s cost, Forest Park did not attempt to collect money from patients for those higher costs. Instead, it allegedly wrote off those payments as bad debt and made up for them by collecting exorbitant reimbursement rates from insurers. “Thousands of patients chose to have the exact same procedure performed by the exact same doctor at a facility where, absent the scheme, the costs likely would have been financially prohibitive,” the indictment said.

Federal officials have said that Barker faces five to seven years in prison. A sentencing date has not been set.

Until his indictment, Barker apparently was doing very well. Property tax records show that his home in Highland Park has an appraised value of $12,487,540.

-  Copyright 2018, David L. Swanson, Stone Loughlin & Swanson, LLP.

All work hardening and work conditioning services now require preauthorization.

The DWC has amended Rule 134.600, the preauthorization rule, to require preauthorization for all work hardening and work conditioning services, regardless of the facility where they are performed. The amendment was adopted on October 11 and became effective that date.

Prior to the amendment the preauthorization rule exempted work hardening and work conditioning services from the preauthorization requirement if they were performed at facilities accredited by the Commission on Accreditation for Rehabilitation Facilities (CARF) for which the DWC had granted an exemption. The amendment to the rule eliminates exemptions for such facilities.  The change was prompted by the results of a study by the Workers’ Compensation Research and Evaluation Group (REG) which concluded that there is no statistically significant difference between accredited and non-accredited programs in disability duration outcomes. 

-  Copyright 2018, David L. Swanson, Stone Loughlin & Swanson, LLP.

Speaking of hats, our hat is off to the DWC for revamping its much-maligned Designated Doctor program. This month it amended rules in chapter 127 and promulgated a newRequest for Designated Doctor Examination (Form DWC-32) and a new Designated Doctor Examination Data Report (Form DWC-68). The changes become effective December 6, 2018.

One goal of the changes is to increase participation of medical doctors and doctors of osteopathy. To that end, the DWC has changed the manner in which it assigns examinations. It will maintain two independent lists for each county from which the next designated doctor will be selected. One list will consist of doctors qualified to perform examinations under Rule 127.130(b)(1) –(4). These examinations involve musculoskeletal injuries for which medical doctors, doctors of osteopathy, and chiropractors are qualified to perform an exam. The other list will consist of doctors qualified to perform examinations under Rule 127.130(b)(5) – (9). These examinations involve specialized injuries for which medical doctors, doctors of osteopathy, doctor of optometry, and doctors of dental surgery  are qualified to perform an exam.  Those injuries include, but are not limited to, mental and behavioral disorders and injuries of the feet, teeth, eyes and internal systems. A qualified doctor can be on both lists. The DWC hopes that this change will result in more opportunities for medical doctors and doctors of osteopathy to receive assignments for multiple examinations in the same location on the same day, thereby making the examinations more profitable for the doctors.

These changes are sorely needed. Data released by the DWC this month shows that of the 509 available DDs, 345 are chiropractors and only 163 are medical doctors or doctors of osteopathy.

The rule amendments also will give the DWC more tools to weed out DDs that are just plain bad. Specifically, the Division now will be able to deny certification as a DD for a number of newly-specified reasons including, but not limited to, (1) the quality of the doctor’s past DD reports, (2) demonstrated lack of ability to properly apply the  Guides to the Evaluation of Permanent Impairment, and (3) a pattern of reports overturned by the DWC.

-  Copyright 2018,David L. Swanson, Stone Loughlin & Swanson, LLP.

Effective 10/01/18 through 09/30/19, the Division of Workers’ Compensation has increased the maximum weekly benefit rate to $938, and increased the minimum weekly benefit rate to $141.

The discount rate and interest rate provided in the Texas Workers’ Compensation Act have likewise increased effective 10/01/18. For the fourth quarter of 2018, 10/01/18 through 12/31/18, the rates will be 6.06 percent.

Independent contractor Selena Scola was a content moderator for Facebook. Her job was to review content flagged as “inappropriate” by a Facebook user and determine whether the flagged content should be removed from the platform. The job was difficult and stressful, requiring Ms. Scola and her fellow content moderators to review, among other things, photos and videos of “rapes, suicides, beheadings and other killings.” The job took its toll and, according to a lawsuit filed by Ms. Scola in California, caused PTSD. The lawsuit asks Facebook to provide treatment for the content moderators, including the independent contractors.See New York Times article here.

Placing aside the question of whether Ms. Scola’s PTSD-type claim would be a compensable injury under the Texas Workers’ Compensation Act, after reviewing unhinged political Facebook posts from crazy family and friends, don’t we all feel a little traumatized?

-  Copyright 2018, Stone Loughlin & Swanson, LLP.