Tag Archives: doj

Will Your Website Get You Sued?

Plaintiffs’ attorneys have discovered a new, rich litigation vein to exploit, potentially yielding a treasure of targets to sue. Using Title III of the Americans with Disabilities Act (ADA) and applying it to a modern societal institution (the internet) that was not in existence or contemplated when that law was enacted, lawyers may have hit pay dirt again by claiming that websites are not accessible to the disabled.

Title III of the ADA requires places that are open to the public to not discriminate against individuals due to their disability or otherwise deny them “the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.” These rules apply to any company that permits “entry” by the public. Although traditionally Title III of the ADA has been applied to physical structures, recent cases have raised issues as to whether these rules may apply to websites, as well.

To date, the case law addressing these issues is very limited and has been mixed. Case law from the Seventh Circuit has applied the ADA to websites, and the First, Second and Eleventh Circuits have applied the ADA beyond physical structures, providing ground for plaintiffs to argue that the ADA can extend to a virtual space such as websites. Meanwhile, the Third, Fifth and Ninth Circuits have applied the ADA provisions to physical locations only.

See also: Broad Array of Roles for Disability Coverage  

The Department of Justice, which is responsible for interpreting and enforcing Title III of the ADA, says that Title III does apply to websites. However, in typical government fashion, the DOJ has delayed releasing its “accessibility” guidelines for webpages, with an anticipated release date in 2018.

While the regulations and laws on website accessibility may be unclear, a few law firms are nonetheless sending out demand letters targeting specific industry sectors nationwide (for example, private universities and real estate brokerage firms) and demanding compliance with onerous website standards. The letters ask the recipient to hire the plaintiff’s law firm (or their preferred vendor) to help reach an “acceptable level” of compliance. In addition, several national retailers, including Patagonia, Ace Hardware, Aeropostale and Bed Bath & Beyond have been named in lawsuits regarding accessibility to their sites. According to Bloomberg’s BNA reports, 45 of these type of lawsuits were launched in 2015. That number is expected to increase substantially in 2016.

With the law so unclear on this topic, how should businesses navigate these murky waters? First, if you receive one of these demand letters, you should consider contacting an attorney and should avoid engaging in discussions with the plaintiff or their law firm without representation. Then, along with your attorney and an IT representative (in-house or a vendor), develop a strategy to bring your webpage into accessibility compliance. Although there is no “one-size fits all” approach to move toward compliance, depending on what is on your website, businesses can consider providing audible text on each webpage and providing audible captions for pictures. Ultimately, to play it safe you may want to take all reasonable steps to improve navigation and access on your website.

See also: New Products and Combined Approaches

Takeaway

Lawsuits related to website accessibility could likely be next cash cow for plaintiffs’ attorneys. As the early case law on this issue is so mixed, there is little guidance as to who has to be compliant and what exactly compliance would look like. Until the DOJ gets around to issuing guidelines (assuming they provide much guidance), businesses should consider reviewing their websites and documenting reasonable efforts to make the sites accessible to the disabled. Further, companies should consider purchasing a robust employment practices liability (EPL) policy with broad third-party coverage that can potentially pick up the defense of claims related to website access claims.

This article was co-written by Marty Heller.

The ‘CURES’ for Work Comp Claims

When an injured worker submits a claim, it initiates processes aimed at returning the injured worker to gainful and sustainable work at the earliest possible time. In this journey, checkpoints and milestones are the best means to monitor progress. Checkpoints generally relate to visits with a medical practitioner where medical conditions are checked against expectations and, if necessary, treatments are adjusted. Milestones are associated with reaching a goal.

At the first medical appointment, the physician is required to prepare a report for the claims administrator based on a comprehensive medical examination of the injured person, including a review of the medical history. At the same time, the physician can access CURES (Controlled Substance Utilization Review and Evaluation System) to check whether the patient has received any scheduled controlled substances in the prior 12 months. Through this access, the physician can identify an at-risk patient and accordingly establish a treatment plan that considers both medications and adjunctive treatments. Also, if a patient is identified as an addict, he can be referred for rehabilitation and social re-integration. With subsequent medical appointments, the physician can again use CURES to check for any changes to the patient’s scheduled controlled substances usage since his last visit.

The importance of a physician using CURES to check a patient’s use of scheduled controlled substances cannot be overemphasized, especially in workers’ compensation, where a patient may not be forthcoming in sharing comorbidity information because of a lack of trust. Not knowing if a patient is currently taking scheduled controlled substances, the physician could jeopardize the patient by prescribing inappropriate medications.

In addition to the medical profession, CURES is available to Department of Justice investigators and law enforcement agencies to identify persons who visit a number of physicians to obtain supplies of scheduled controlled substances for abuse and diversion (i.e. physician shopping). Pharmacists and numerous regulatory boards from the medical board to the veterinary board also have access to CURES, providing them with the opportunity to monitor the medical profession for aberrant prescribing of scheduled controlled substances.

While states like Florida implemented a PDMP (prescription drug monitoring program) as late as 2011, California has monitored Schedule II controlled substances since 1940 and with the introduction of CURES in 1996 extended its monitoring to include Schedule III and IV controlled substances. Online access to CURES has also been available to the medical profession since 2009. Consequently, California has not experienced the abuse and diversion that Florida has with its “pill mills.”

Access to CURES by claims administrators or their representatives (i.e. third party payers) will not deliver improved quality of care or reduce prescription drug fraud and abuse and will add unnecessary costs through duplication of efforts already being performed by others using CURES. Close monitoring of checkpoints, however, by the claims administrator will provide benefits. Monitoring is accomplished through what is commonly referred to as “encounter data” and includes diagnoses, services performed and medications dispensed along with amounts charged and paid. Diagnoses, medical procedures and pharmaceuticals translated into coding systems such as ICD-10 (International Classification of Disease, 10th revision), HCPCS (HeathCare Common Procedure Coding System) and NDC (National Drug Code) provide excellent opportunities to automate the monitoring of encounter data.

Have claims administrators been able to implement technology solutions to automate the monitoring of encounter data and achieve outstanding results? Over the past two decades, many claims administrators have opted to outsource the management and control of critically important functions such as utilization review, medical bill review and pharmacy monitoring. Many of the outsource organizations only focus on that part of the encounter data that directly applies to their function — for example, pharmacy benefit managers only monitor the pharmacy. But using all the encounter data can promote a vibrant synergy very capable of achieving outstanding outcomes and results for the injured worker.

Losing control of encounter data eliminates the claims administrator’s ability to establish and monitor adherence to best evidence-based practices. When physicians have not adhered to their proposed treatment plans, opportunities to trigger yellow and red flags for investigation are lost.

Claims administrators who have automated the monitoring of their encounter data can assist states in reducing abuse and diversion by monitoring the quantities of medications being dispensed in a progressive or step therapy pain management plan, for example, and encouraging unused supplies to be returned to the physician at the next appointment. This can be achieved at no additional cost to the claims administrator and reduces the quantities of unused or unneeded prescription medications in circulation, which has been the focus of the DEA’s (U.S. Drug Enforcement Agency) “take back” initiatives. To date, the DEA has collected in excess of 1,400 tons of unused medications, which could otherwise have found their way into the illicit drug market.

For as long as the U.S. remains the biggest licit and illicit drug market in the world, claims administrators will remain challenged to deliver on their workers’ compensation claims handling obligations.

With a changing workforce, claims administrators will need to move more and more toward a biopsychosocial approach to managing medical conditions. They must provide quality care at the lowest possible cost, which can only be achieved through the fine analytics of consolidated encounter data.

Capturing encounter data through the claims administrator’s processes and fine analytics will consistently yield the best claims outcomes, from earlier return-to-work to lower costs associated with medical treatment through to automated overseeing of a claim, including provider performance monitoring and evaluation. All of these are the essence of superior workers’ compensation claims management.

Smarter, Faster Trades — and Without Fraud

New York Times senior economic correspondent Neil Irwin did great public service in his Upshot column provocatively titled, “Why Can’t the Banking Industry Solve Its Ethics Problems?

While Irwin addressed the issue for investors in general, his column should hold particular interest for those in the insurance business because insurers are such large investors and generate such a high percentage of their operating profit from investments. In terms of commercial and multifamily real estate mortgages alone, insurers hold more than $900 billion of investments, according to the Mortgage Bankers Association’s Q4 2013 report. (That’s $343 billion in commercial and multifamily mortgage debt plus $567 billion in commercial mortgage-backed securities, collateralized debt obligations and asset-backed securities.) The Federal Reserve tallies life insurance companies’ holdings of residential mortgage-backed securities (RMBS) at $365 billion as of the end of the first quarter, 2014. Insurers need the investment industry to clean up its problems if they are to get maximum value from these huge investments.

Why does fraud occur so repeatedly? Irwin ponders.

The answer: gamed markets.

Since the Great Depression, investments systems have relied on enforcement after the fact. If companies were investigated, prosecuted and found to have done something wrong, they were punished. Typically, this is now done through fines and stricter monitoring, meaning that current and future staff – not those in place at the time of the fraud – and shareholders bear the costs. Sometimes, individual perpetrators are forced to retire (with pensions). Only in the past few years have the Department of Justice, Federal Housing Finance Administration and Securities and Exchange Commission begun extracting hefty fines and settlements with the largest banks, such as: Citigroup’s $7 billion, JPMorgan Chase’s $13 billion and Bank of America’s $6.3 billion with FHFA and the reported $17 billion with DOJ in connection with residential mortgage-backed securities.

As Irwin notes, fraud continues to occur despite extensive efforts to address the problems that led to the near-collapse of the financial system that spawned the Great Recession.

Gaming the system through high-speed trading remains legal. As long as there is no insider trading, traders can greatly increase the speed of their transactions with network equipment, software and advantageous location of their computers.

Insider trading is illegal but hard to root out. Successful prosecution almost always entails a whistleblower coming forward to provide regulators with precise information. And coming forward as a whistleblower entails consequential career risks.

Two innovations address these systemic challenges by providing better information for the market in real time and creating a feedback loop that improves that information – rather than waiting until after the fact to police bad guys. The innovations are interactive finance and confidence accounting.

First, Interactive finance rewards institutions and individuals with financial or strategic advantage for revealing information that details risk. That information could be, for instance, about the changing value of a house, about the payment history of the mortgagee, other financial information about the borrower, etc. That information would stay with the mortgage even if it became part of a pool that was sliced and diced into mortgage-backed securities, so that a potential buyer could probe and could track changes in real time, rather than rely on a single-point-in-time evaluation by a ratings agency. Interactive finance – not enforcement – would keep agencies from giving their highest ratings to securities whose underlying assets were suspect, as happened with sub-prime mortgages in the buildup to the Great Recession.

Marketcore, an intellectual property firm I advise, offers such interactive finance technology. It supports the determination of risk for financial products, continuous revaluation and analysis of components of pooled securities, among other capabilities that make markets and clear them.

Its technology diminishes incentives for fraud by making opacity and concealment anachronistic and replacing them with transparency. The IP also charts effective pathways to employ crowd data and meta data for timely detection of risk, building on the growing availability of information in a “big data” world and allowing for a generational improvement in detecting risk and rating credit.

Second, confidence accounting yields greater transparency and accuracy than traditional, prudential valuation. In confidence accounting, you don’t just set a value for an asset. You say there is an xx% chance that the valuation will fall within a certain range. You then roll up all the assessments and have a probability-based understanding of the likely range of total value. You can also use the estimations as a feedback loop and identify people or institutions that consistently overstate value – if someone says asset values will fall within a certain range 95% of the time, do those values, in fact, fall within that range 95% of the time?

As risk expert David M. Rowe explains in a current Risk blog (citing work by Ian Harris, Michael Mainelli and Jan-Peter Onstwedder) confidence accounting can illuminate “the degree of uncertainty around valuation estimates…including how to partition uncertainty surrounding current valuation from the more familiar concept of risk from uncertain future events, and the messy issue of how to aggregate valuation uncertainty for specific positions into the implied uncertainty of net worth.”

Through these two innovations, interactive finance and confidence accounting, banks would have much easier times detecting rogues and suppressing rascals. In the process, banks would not only increase their own wellbeing but that of their shareholders, employees and the investing public, including insurance companies.

Going forward is now a simple business decision for us all. We must pick up the pieces of what we have learned and refashion and rebuild data-refreshing business models in which everyone can participate as an information merchant. We must deliver a common architecture in which data is consistently revalued, in a system that continually rewards disclosures about risks and values.

Interactive finance and confidence accounting are emergent technologies poised to  play key roles shaping and defining smarter, faster, ethical trades in 21st century finance.

California SB 863, a Guide to Building and Monitoring Networks with Intelligence, Part 3

This is Part 3 of a multi-part series on building and monitoring networks with intelligence. Part 1 can be found here and Part 2 can be found here.

California has defined how medical networks in Workers’ Compensation should be structured and managed. Part 1 and Part 2 of this series described how California’s SB 863 LC 4616 (b) (2) and LC 4616 (b)(3) takes medical provider network directives to a new level. The key imperative is, “Every MPN must establish and follow procedures continuously to review the quality of care, performance of medical personnel, utilization of services, facilities, and costs. However, a few additional key points should be considered when selecting and monitoring medical providers for the California MPN or any network.

Beyond legislation
Escalating problems in the industry with Opioid overuse and abuse, as well as physicians who are dispensing medications from their offices are additional factors that must be considered. While the California SB 863 legislation does not address these issues, the data should be scrutinized to identify physicians who demonstrate unfavorable prescriptive practices. Analyzing the data to evaluate physician performance in that regard is essential to vetting physicians for membership in a network. It is also crucial to monitoring networks going forward.

Opioid Over-Prescribers
Workers’ Compensation literature is replete with information about Opioid overuse and abuse with its disastrous human and resource waste. Unfortunately, measures taken to curb inappropriate prescribing behavior are few and vary widely across the country.

Simply stated, the best way to reduce Opioid abuse is to avoid Opioid over-prescribers. Analysis of the data will identify the perpetrators. They should never be a part of a Workers’ Compensation medical network.

Back to California – CURES
California has a program that approaches the problem by monitoring patient utilization of prescribed Schedule II drugs and making that information available to authorized prescribers and distributors (pharmacies) of controlled drugs.

California’s program is called CURES (Controlled Substance Utilization Review and Evaluation System, and PDMP (California Prescription Drug Monitoring Program).1 The California Department of Justice, has a Prescription Drug Monitoring Program (PDMP) system which “allows pre-registered users including licensed healthcare prescribers eligible to prescribe controlled substances, pharmacists authorized to dispense controlled substances, law enforcement, and regulatory boards to access timely patient controlled substance history.

The California Attorney General's Office said that if doctors and pharmacies have access to controlled substance history information at the point of care it will help them make better prescribing decisions and cut down on prescription drug abuse in California. The role of the CURES/PDMP ensures that well-informed prescribers and pharmacists can and will use their professional expertise to evaluate their patients’ care and assist those patients who may be abusing controlled substances.

The state’s database known as the Controlled Substance Utilization Review and Evaluation System (C.U.R.E.S) contains over 100 million entries of controlled substance drugs that were dispensed in California. Each year the CURES program responds to more than 60,000 requests from practitioners and pharmacists. The online CURES/PDMP system will make it much easier for authorized prescribers and pharmacists to quickly review controlled substance information via the automated Patient Activity Report (PAR) in an effort to identify and deter drug abuse and diversion through accurate and rapid tracking of Schedule II through IV controlled substances.”

Submission Of Controlled Substance Data
Pursuant to Health & Safety Code Section 11190, and Business & Professions Code Section 1170, all licensees who dispense Schedule II through IV controlled substances must provide the dispensing information to the Department of Justice on a weekly basis in a format approved and accepted by the Atlantic Associates Inc. (AAI) and the Department of Justice (DOJ). Similarly, pursuant to California Health and Safety Code Section 11165(d), dispensing pharmacies and clinics must provide weekly dispensing reports to the DOJ on Schedule II, III, and IV prescription drugs.

For purposes of creating an intelligent MPN, ensure any physician under consideration for an MPN in California is a member of CURES/PDMP. That notwithstanding, the data should be monitored continuously to determine actual performance.

Physician-Dispensed Medications
Another prescription abuse issue not addressed by the California legislation is physician-dispensed medications. While it is portrayed as a patient convenience, and probably is, the medications are prepackaged and extraordinarily costly. Once again, this practice can be monitored in the data. Bills reflecting drugs dispensed by the treating doctor are not monitored by Pharmacy Benefits Managers (PBM). Rather, they appear in normal provider billing.

Networks With Intelligence
All medical provider networks serving any jurisdiction should analyze integrated data, meaning all data associated with claims. Integrated data is sourced from claims level systems, bill review systems, PBM systems, and other sources such as utilization review to understand the broad spectrum of claims and all individuals, organizations, and events touching them. The goal is to select best-in-class doctors by objectively identifying excellent provider performance.

Authors
Karen Wolfe collaborated with Margaret Wagner to write this article. Ms. Wagner is President and CEO of  Signature Networks Plus. She is considered an expert in network selection, monitoring and management, thereby creating Networks with Intelligence™ for clients.

1 http://oag.ca.gov/cures-pdmp