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Thursday, September 5, 2013

9th Circuit Vacates MSP Injunction Against CMS for Medicare Reimbursement

The 9th Circuit Court of Appeals has vacated a Federal District Court Order enjoying CMS from seeking reimbursement for Medicare Conditional Payments under the Medicare Secondary Payer Act (MSP).

The Court held that it lacked jurisdiction:

"... we conclude that the
beneficiaries' claim was not adequately presented to the
agency at the administrative level and therefore the district
court lacked subject matter jurisdiction pursuant to 42 U.S.C.§ 405(g) .
***
" Federal question jurisdiction does not extend to most
claims arising under the Medicare Act. The Medicare Act
incorporates 42 U.S .C. § 405(h) , which provides:
No findings of fact or decision of the
[Secretary] ... shall be reviewed by
any person, tribunal, or governmental
agency except as herein provided.
No action against the United States,
the [Secretary] ..., or any officer or
employee thereof shall be brought
under section 1331  ... of title 28  torecover on any claim arising under this
subchapter.
42 U.S.C. § 405(h) ; 42 U.S.C. § 1395ii .

****
 "We decline to adopt the extraordinarily broad reading of
Eldridge  that the beneficiaries invite. We conclude that the
named plaintiffs' reimbursement disputes did not provide an
opportunity for the Secretary to consider the claim that her
interpretation of the secondary payer provisions exceeded
her authority. Their requests for redetermination of their
respective amounts of reimbursement did not constitute
presentment of their policy challenge.
***
" We conclude that the beneficiaries' claim was
not presented to the agency. Because presentment is a
jurisdictional requirement under § 405(g) , the district court
lacked subject matter jurisdiction over the beneficiaries'
claim. 
Haro v Sebelius, ___F.3d____, No. 11-16606, 2013 WL 4734032, Decided Sept.4, 2013.

Read prior posting about this case:
Federal Court Enjoins CMS From MSP Recovery Procedures
May 18, 2011
Haro v. Sebelius, 2010 WL 1452942 (A. Ariz.) CV 09-134 TUC DCB, Decided April 12, 2010.The plaintiffs were permitted discovery beyond the administrative record. The class action is challenging the recovery procedures of ...
http://workers-compensation.blogspot.com/
Workers' Compensation: Halted: Medicare Secondary Payer ...
May 25, 2011
The MSPRC is still working cases, and the RAR and Demand letters will be mailed out once appropriate revisions have been made." This follows a recent US District Court ruling enjoining CMS's collection procedures. Haro v.
http://workers-compensation.blogspot.com/

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Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  have been representing injured workers and their families who have suffered occupational accidents and illnesses.

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Train Industry Allies in U.S. Senate Move to Delay Deadline for Crash-Prevention Technology

Today's post was shared by FairWarning and comes from www.fairwarning.org


Prodded by railroads, four lawmakers introduce bill to postpone deadline for installing high-tech safety systems.

The systems, known as Positive Train Control or PTC, aim to override human error and avert deadly collisions like the Chatsworth, Calif., commuter train crash that killed 25 people in 2008. Railroads are mandated to have PTC by the end of 2015 on trains carrying passengers or extremely hazardous materials such as chlorine. But, as FairWarning reported last year, the industry has pushed hard to relax the requirement and win more time to add the costly technology.

 Four senators who have received political contributions from the industry recently introduced a bill to extend the deadline another five to seven years, until at least 2020. The National Transportation Safety Board has called for the safety measures for more than two decades. Over the last decade, the agency has investigated 27 train crashes that killed 63 people that it says PTC could have prevented. The Associated Press

Federal poultry inspection proposal based on bad data, investigators say. The U.S. Department of Agriculture relied on incomplete and outdated data for its plan to extend a poultry inspection program to plants across the country, according to a report from the Government Accountability Office. The new procedures, piloted at 29 sites since 1998, let plants dramatically speed up processing lines and replace many government inspectors with poultry company employees, which...
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Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  have been representing injured workers and their families who have suffered occupational accidents and illnesses.

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Out of sight, out of mind: Carcinogenic chemical spreads beneath Michigan town

Today's post was shared by FairWarning and comes from www.environmentalhealthnews.org


When state and federal environmental officials visited the tucked-away town of Mancelona, Mich., 15 years ago, their presence surprised local residents.

“My heart and most of my life has been spent here in Antrim County,” said Gary Knapp, a long-time resident. “And I knew nothing of its environmental problems.”While removing metal contamination from local groundwater, officials had stumbled upon one of the nation’s largest plumes of an industrial solvent called trichloroethylene, or TCE.

Drinking-water wells tap into this aquifer, so the state asked the town’s help in preventing the chemical from flowing out of people’s taps.“People were helpless, frustrated and angry,” said Knapp, who was recruited by the state to start a regional water authority.Fifteen years later, the underground plume of the carcinogenic chemical is now six miles long and continues to grow.Over the past decade, new wells have been built and millions of dollars have been spent to ensure the 1,390 residents of Mancelona – known for its deer-hunting contests and bass festivals – aren’t drinking toxic water.

But the TCE swirling beneath this remote, low-income town continues to vex state officials and residents as it creeps toward new wells that Knapp and others dug to replace tainted ones. The plume is another industrial scar in Michigan – one that is seemingly not going away.“There’s no silver bullet to take care...
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Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  have been representing injured workers and their families who have suffered occupational accidents and illnesses.

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WOMEN'S SAFETY AND HEALTH ISSUES AT WORK

Today's post was shared by Safe Healthy Workers and comes from www.cdc.gov

Over half the children born in the United States are born to working mothers.1

Many NIOSH studies were done to learn whether women may have reproductive health hazards that may be related to their work environment.

NIOSH Publications

The Effects of Workplace Hazards on Female Reproductive Health
DHHS (NIOSH) Pub. No. 99-104 (1999)
EnEspañol

Related Resources

A longitudinal analysis of total workload and women's health after childbirth
This study involved employed women who were recruited while hospitalized for childbirth. Results included that the time spent on paid and unpaid work was associated with significantly poorer mental health and increased postpartum symptoms during the first year after childbirth.

Earlier age at menopause, work, and tobacco smoke exposure
Among women older than 25, earlier age at menopause was found among all smokers and among service and manufacturing industry sector workers. Women (particularly black women) age 25 to 50 had an increased risk of earlier age at menopause with both primary smoking and second-hand smoke (SHS) exposure. Control of SHS exposure in the workplace may decrease the risk of death and illness associated with earlier age at menopause in US women workers.

Workplace Safety and Women (Podcast) (Running time: 7:41)
This women's health podcast focuses on four important issues for women at work: job stress, work schedules, reproductive health,...
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Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  have been representing injured workers and their families who have suffered occupational accidents and illnesses.

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NIOSH Research on Work Schedules and Work-related Sleep Loss

Today's post was shared by Safe Healthy Workers and comes from blogs.cdc.gov



Yesterday, in honor of National Sleep Awareness Week, we blogged about sleep and work and the risks to workers, employers, and the public when workers’ hours and shifts do not allow for adequate sleep.   This blog provides a brief overview of some of the work that NIOSH intramural scientists are carrying out to better understand these risks and ways to prevent them.

Nurses/Reproduction Issues/Shift Work

NIOSH studies are examining shift work and physical demands with respect to adverse pregnancy outcome among nurses, specifically the association between work schedule and risk of spontaneous abortion, preterm birth, and menstrual function. 

This research was the first to look at shift work and pregnancy in U. S. nurses.  NIOSH researchers are collaborating with the Harvard Nurses’ Health Study, which is the largest, ongoing prospective study of nurses. Results have shown that an increased risk of several reproductive outcomes, including spontaneous abortion, early preterm birth, and menstrual cycle irregularities, are related to shift work, particularly working the night shift. In addition, results show independent effects on reproductive outcomes from long working hours. 

The study hopes to establish a cohort of over 100,000 female nurses of...
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Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  have been representing injured workers and their families who have suffered occupational accidents and illnesses.

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Confirmed: Fracking practices to blame for Ohio earthquakes

Today's post was shared by Mother Jones and comes from www.nbcnews.com


Wastewater from the controversial practice of fracking appears to be linked to all the earthquakes in a town in Ohio that had no known past quakes, research now reveals.

The practice of hydraulic fracturing, or fracking, involves injecting water, sand and other materials under high pressures into a well to fracture rock. This opens up fissures that help oil and natural gas flow out more freely. This process generates wastewater that is often pumped underground as well, in order to get rid of it.

A furious debate has erupted over the safety of the practice. Advocates claim fracking is a safe, economical source of clean energy, while critics argue that it can taint drinking water supplies, among other problems.

One of the most profitable areas for fracking lies over the geological formation known as the Marcellus Shale, which reaches deep underground from Ohio and West Virginia northeast into Pennsylvania and southern New York. The Marcellus Shale is rich in natural gas; geologists estimate it may contain up to 489 trillion cubic feet (13.8 trillion cubic meters) of natural gas, more than 440 times the amount New York State uses annually. Many of the rural communities living over the formation face economic challenges and want to attract money from the energy industry.

Youngstown quakesBefore January 2011, Youngstown, Ohio, which is located on the Marcellus Shale, had never experienced an earthquake, at least not since researchers began observations in 1776....
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Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  have been representing injured workers and their families who have suffered occupational accidents and illnesses.

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Domestic Workers Treaty Goes Into Force

Today's post was shared by Steven Greenhouse and comes from www.hrw.org


A groundbreaking global treaty on the rights of domestic workers goes into legal effect on September 5, 2013, offering vital protections to millions of workers around the world, Human Rights Watch said today. Governments should promptly act to ratify and enforce the Convention concerning Decent Work for Domestic Workers (the Domestic Workers Convention), Human Rights Watch said.

The Domestic Workers Convention, No. 189, adopted by International Labour Organization (ILO) members in 2011, sets standards for the estimated 50 to 100 million domestic workers worldwide – mostly women and girls – who perform essential household work in private homes. These workers cook, clean, and provide care for children and the elderly, but in many countries are excluded from basic labor law protections. Domestic workers face a wide range of human rights violations, including excessive working hours without rest, non-payment of wages, forced confinement, physical and sexual abuse, forced labor, and trafficking.

“Domestic workers are among the most abused and exploited workers in the world,” said Gauri van Gulik, women’s rights advocate at Human Rights Watch. “With the Domestic Workers Convention now coming into effect, millions of women and girls will have a chance for safer working conditions and better lives.”

Under the treaty, domestic workers are entitled to protections available to other workers, including weekly days off, limits...
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Jon L. Gelman of Wayne NJ is the author NJ Workers’ Compensation Law (West-Thompson) and co-author of the national treatise, Modern Workers’ Compensation Law (West-Thompson). For over 4 decades the Law Offices of Jon L Gelman  1.973.696.7900  jon@gelmans.com  have been representing injured workers and their families who have suffered occupational accidents and illnesses.

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