NO!!!!! The New York Freelance Law Now in Effect in NYC DOES NOT INCLUDE Therapists who are Independent Contractors

Lots of therapists sending me questions about  this new law in NYC  protecting Independent Contractors ( free lance workers)  that went into effect May 16, 2017, BUT IT DOES NOT PERTAIN to Independent Contractors who are licensed medical professionals. Here is the link to the bill. You will see that licensed medical professionals have been carved out and are not included in or protected by this new law.

http://www1.nyc.gov/assets/dca/downloads/pdf/about/Freelance-Law.pdf

Where are the Children??? A Letter to Congress and the White House from the Nation’s Children’s Hospital

Reprinted from April 23rd’s Sunday NY Times because it is just that important.

The health care debates for the past decade have focused on adults – their coverage, their benefits and how to pay for it. Medicaid, providing health care for over 70 million Americans, has been front and center of the Affordable Care Act and American Health Care Act debates. The fact that 30 million children receive their health care through Medicaid is almost never discussed. We are dismayed and alarmed national policy debates over Medicaid continue without the needs of nearly half of our country’s children considered first and foremost.
Children represent the future of the United States.

Where are kids in these discussions? Do Congress and the White House see safeguarding children’s health care as a national priority?  The reality is although children are 25 percent of the population, we spend less than 10 percent of the federal budget on them. And, kids can’t vote.

As the debate about health care for adults continues, the risk of collateral damage to children through inadvertent budget cuts is high and unrecognized. Our nation’s leaders should be protecting children, and the decisions you make now will impact their lifetime health. A child today has on average 60 or more years of productive life ahead if we choose wisely.

A stronger future for the United States depends on the health and well-being of today’s children. On behalf of the millions of children and families we serve, we call on Congress and the White House to make children the strong bipartisan priority they must become for our nation to have a brighter future.

Sincerely,
The Presidents, CEOs and Executive Directors of the nation’s children’s hospitals

Craig T. Albanese, M.D. NewYork-Presbyterian
Steve Allen, M.D. Nationwide Children’s Hospital
Michael R. Anderson, M.D. UCSF Benioff Children’s Hospitals
Meri B. Armour Le Bonheur Children’s Hospital
Michael D. Aubin Wolfson Children’s Hospital  of Jacksonville
Richard G. Azizkhan, M.D. Children’s Hospital &  Medical Center
David J. Bailey, M.D. Nemours Children’s Health System
Madeline Bell The Children’s Hospital  of Philadelphia
John Bishop Earl and Lorraine Miller Children’s Hospital
Robert I. Bonar, Dr. H.A. Children’s Minnesota
Patrick J. Cawley, M.D. Medical University of South Carolina Health and Children’s Hospital
Bob Connors, M.D. Helen DeVos Children’s Hospital
William H. Considine Akron Children’s Hospital
Kimberly Chavalas Cripe CHOC Children’s
James D. Dahling Children’s Hospital  of The King’s Daughters
Christopher G. Dawes Lucile Packard Children’s Hospital and Stanford Children’s Health
Susan Distefano Children’s Memorial  Hermann Hospital
Marcy Doderer Arkansas Children’s Hospital
Jonathan M. Ellen, M.D. Johns Hopkins  All Children’s Hospital
Luanne M. Thomas Ewald Children’s Hospital of Michigan
Mike Farrell Advocate Children’s Hospital
Deborah Feldman Dayton Children’s Hospital
Sandra L. Fenwick Boston Children’s Hospital
Michael Fisher Cincinnati Children’s Hospital  Medical Center
Christopher A. Gessner Children’s Hospital of Pittsburgh  of UPMC
Guy Giesecke Children’s of Mississippi University of Mississippi  Medical Center
Keith D. Goodwin East Tennessee Children’s Hospital
Luke Gregory Monroe Carell Jr. Children’s Hospital at Vanderbilt
Kimberly Guy St. Joseph’s Children’s Hospital
Jena Hausmann Children’s Hospital Colorado
Donna Hyland Children’s Healthcare of Atlanta
Barbara Walczyk Joers Gillette Children’s Specialty Healthcare Minnesota
Paul A. King University of Michigan C.S. Mott Children’s Hospital
Narendra Kini, M.D. Miami Children’s Health System
Thomas D. Kmetz Norton Children’s Hospital
Larry Levine Blythedale Children’s Hospital
Patrick M. Magoon Ann & Robert H. Lurie Children’s Hospital of Chicago
Joan Magruder St. Louis Children’s Hospital
Rick W. Merrill Cook Children’s Health Care System
Robert L. Meyer Phoenix Children’s Hospital
Donald Mueller Children’s Hospital at Erlanger
John D. Nash Franciscan Children’s
Elias J. Neujahr The Children’s Hospital of San Antonio
Kurt Newman, M.D. Children’s National Health System
Randall L. O’Donnell, Ph.D. Children’s Mercy Hospital  and Clinics Kansas City
Giovanni Piedimonte, M.D. Cleveland Clinic Children’s Cleveland Clinic Children’s Hospital for Rehabilitation
Jeff Poltawsky UW Health American Family Children’s Hospital
David L. Reich, M.D. The Mount Sinai Hospital/Kravis Children’s Hospital
Charles L. Schleien, M.D. Cohen Children’s Medical Center
Mark Shen, M.D. Dell Children’s Health
James E. Shmerling, DHA Connecticut Children’s  Medical Center
Edwin Simpser, M.D. St. Mary’s Healthcare System  for Children
Martha B. Smith Kapi’olani Medical Center  for Women and Children
Cynthia N. Sparer Yale New Haven Children’s Hospital
Jeff Sperring, M.D. Seattle Children’s
Johnese Spisso UCLA Health UCLA Mattel Children’s Hospital
Sheldon Stein Mt. Washington Pediatric Hospital
Todd A. Suntrapak Valley Children’s Healthcare
Peggy Troy, RN Children’s Hospital of Wisconsin
Paul S. Viviano Children’s Hospital Los Angeles
Mike Wagner, M.D. Floating Hospital for Children  at Tufts Medical Center
Mark A. Wallace Texas Children’s Hospital
William Michael Warren, Jr. Children’s of Alabama
Steve Woerner Driscoll Children’s Hospital
Brenda J. Wolf La Rabida Children’s Hospital
Mark Wietecha Children’s Hospital Association

The Independent Physical Therapists of CA Files Unfair Competition Lawsuit Against Unlicensed Workers’ Compensation Network Brokers, One Call Medical and Align Networks

A lawsuit filed with a California state court accuses One Call Medical Inc. of running an illegal patient referral scheme driven by improper financial inducements, interfering with the right of injured workers to choose a treating physician within an employer’s medical provider network and acting as a claims administrator without being certified to do so.

The Independent Physical Therapists of California (iPTCA), a non-profit association of California physical therapists dedicated to advocating for physical therapists and their patients, announced today that it has filed suit against One Call Medical, Inc, D/B/A One Call Care Management, and Align Networks in the Superior Court of the state of California, County of San Diego- North County, Case No. 37-2017-00008817-CU-BT-NC. Click here to view the formal complaint. (To Review the Complaint, Please Click Here).

The Complaint in this unfair competition lawsuit alleges that iPTCA and its non-contracted members have suffered injury and lost money or property as the result of numerous unlawful, unfair, and deceptive or fraudulent business acts and practices engaged in by the defendants, which operate as unlicensed ‘middlemen’ between Workers’ Compensation payers and injured workers and their rehabilitation providers.

Dr. Paul Gaspar, DPT, President of iPTCA summarized the Complaint. “The Complaint details numerous allegedly unlawful activities by the defendants, particularly a referral scheme where defendants demand that physical therapists accede to significant discounts or potentially lose the ability to provide physical therapy services to large numbers of injured workers.” The Complaint explains how such conduct potentially violates numerous state laws, including, but not limited to unauthorized claims administration and violation of laws that tighten restrictions on injured worker referrals by prohibiting companies from offering discounts or other forms of compensation as an inducement for increasing business referrals.

According to Doctor Gaspar, “California’s Legislature approved an appropriate medical fee schedule for the care of injured workers in 2012 by passing Senate Bill 863 (DeLeon). It is unlikely, in my opinion, that they intended a significant percentage of these payments might be diverted away from direct patient care services toward an out-of-state middleman. Injured workers deserve the benefit of the resources the Legislature directed toward their care.”

“iPTCA is confident it will prevail in the lawsuit,” said Dr. Gaspar, “because as the Complaint alleges, the unlawful, unfair, and deceptive or fraudulent business acts and practices detailed in the Complaint have potentially harmed the Association and many of its members, have the potential to result in increased harms to consumers, and are contrary to state law and the California Legislature’s intent in passage of this reform legislation.”

Vote for a Longtime NYC Occupational Therapist to be a 2017 National Local Hero!

Lori Rothman, OTR, a dedicated NYC Occupational Therapist for over 38 years, has been selected as one of five finalists from hundreds of nominations from around the country to receive the 2017 Child Mind Institute Local Hero Award.

This institute is a prestigious national organization dedicated to transforming the lives of children and families struggling with mental health and learning disorders. The winner will be decided as a result of online voting at https://childmind.org/campaign/2017-change-maker-awardsVoting ends April 4th so it would be great if  you will consider voting as soon as you get this email.

If you want, you can vote daily.

Thank you in advance!!!!

OTs and PTs – Support an Academic Therapy Program in Haiti

The Department of Rehabilitation of the Episcopal University of Haiti, Léogâne  needs the help and support of OTs and PTs in the USA.  There are many ways each and every one of us can help.
An overview of the program– The Faculty of Rehabilitation Sciences in Léogâne (FSRL) is a department of the Episcopal University of Haiti (UNEPH). Planning for FSRL began in 2011, when volunteers working at St Vincent’s Center for Handicapped Children realized how helpful it would be for St. Vincent’s to have Haitian therapists. The dream became a reality in Oct. 2015 when the first small class of students enrolled. First-year students take interdisciplinary courses at the FSIL nursing school in Léogâne, which is also a department of the Episcopal University. Second, third, and fourth year students specialize in OT or PT and graduate with a bachelor’s degree in Occupational or Physical Therapy.   The curriculum for the OT program has already been approved by the World Federation of OT, and the PT curriculum is now under review by the World Confederation of PT.  The Haiti Rehab Foundation (HRF), a 501c3,  was formed in 2014 to support the work of FSRL.

HOW CAN I HELP?
DONATE ONLINE: one-time or monthly, at  www.haitirehab.org
MAKE A GIFT BY CHECK made out to Haiti Rehabilitation Foundation.   Send to
Treasurer,  HRF, P.O. Box 183, Hamilton, NY 13346 USA.
WHAT CAN MY MONEY DO?
$25-pay for learning supplies
$100-pay for 1 course for 1 student
$250-pay all fees, 1 mo., 1 student
$1000-cover cost of 1 faculty vol.
$4000-per year: fund a scholarship that will cover 1 student’s fees, tuition, room & board

THE NEED FOR REHAB IN HAITI is very high.  It is estimated that 1.1 million Haitians have disabling physical and/or mental conditions. There are only about 50 Haitian PTs.  and 1 Haitian OT, who have a bachelor’s degree from overseas, mostly from the Dominican Republic.
There are good programs in Haiti for rehab technicians.  However, rehab technicians don’t practice independently.  They often depend for supervision on the many foreign OTs and PTs who come for short-term medical missions.

TEXTBOOKS Needed:
(1) Heurtelori, M. & Vilsaint, F. English/Haitian Creole Medical Dictionary/Diksyoné Medikal Anglé Kréyol. Coconut Creek, Florida, EducaVision, Inc.

(2) Netter, F.H. (2014). Atlas d’anatomie humaine, 6e ed. Philadelphia, Saunders Elsevier.

(3) Thompson, J.C. ( 2008). Netter. Précis d’anatomie clinique d’orthopedie. Issy-les-Moulineaux cedex, France, Elsevier Masson.

There is also a need for Visiting Professors and Adjuncts.
For more information
:

Contact:  Dr. Janet O’Flynn  Acting Dean of FSRL
(509)4397-2658  OR  (315)708-5820
janetoflynn@hotmail.com

 

Here’s a Business New Year’s Resolution Everyone Can Keep

Years of consulting with therapists in private practice  has meant helping hundreds of therapists make informed decisions about key aspects of their practice.  Therapists who are optimists, pessimists, ruminators, and procrastinators. Some are analytical, others instinctive. Many have (far too many)  projects and ideas being tossed around and often float from one idea or  to the next making it challenging to decide what to work on. Inherent in helping therapists  make decisions is showing them how evaluate the opportunity cost of proceeding with one option, while eliminating another.

Here’s a resolution – how  about instituting a  new decision-making process in 2017?  In every decision there’s a cost, but there’s also a hidden cost – the opportunity cost. That’s the lost opportunities of all the other options you could have taken instead. The concept of opportunity cost is a powerful one and can help you instill reason and pragmatism behind multifaceted decisions. Weigh not only the benefits, but the costs of every decision you make.

For example –
If you are considering offering a new service and do all the preparations to get it up and running, realize that the “cost” or trade off may be that you don’t have the funds, skills, the time or the “real estate” in your office to offer another service. This comes up frequently when therapists consider running a group versus offering individual services.

If you fail to keep abreast of  a current trend or a new modality  in delivering your service, the “cost” may be your inability to serve your target market as  these new technologies make inroads in improving the delivery of that service – and you may lose clients to the competition who may be embracing the trend.

If you decide to keep employing a staff member with “issues” from chronic absenteeism to poor people skills  the “cost” may be  the time spent doing damage control, which may drain resources, and  could cause others to quit in frustration.

If you spend your time doing the books and handling collections yourself, the “cost” may be the opportunity (and time) to get before prospective clients by networking, or building deeper relationships with your referral sources.

And examine the cost of doing nothing – Don’t fool yourself if you think doing nothing is  neither good nor bad but neutral.  There is indeed an opportunity cost of doing nothing, that is, the failure to reap the benefits of an effective intervention or the cost of inaction. Despite the fact that doing nothing can feel safe and comfortable, especially if you operate from a position of risk adversity or suffer from what some call organizational fatigue, for each new potential project in 2017, make a rule that the cost of doing nothing be quantified and considered. Once the cost of doing nothing  is established as a factor, therapists  often become more comfortable at approximating and considering it.

Every decision has a “cost” and each of these costs impacts either positively or negatively the processes and profitability of your practice.
When making decisions, you can control the quality of the decision, though not the ultimate outcome that occurs. But by understanding and examining the opportunity costs associated with important decisions, we can improve our odds of making good decisions.

Speaking of decisions, 2017 is looking like a year when we will all be challenged to learn  to make decisions together as a crucial element of getting along and getting things done with others. All the best to you, your families and your patients in the new year.  I am filled with gratitude for the opportunity to work and connect with so many of you.

Wondering about Whether to Seek out Yelp Reviews on Your Practice????

Many therapists and other medical professionals remain conflicted  when it comes to Yelp – should they encourage patients to review them on Yelp or stay with more controlled ( and possible  less credible) testimonials planted on their website. Clinicians and other professionals certainly have a right to be concerned about protecting their reputation as social media penetration continues at a rapid rate. As the shift in what people consider private and what they are willing to share on social media continues, it is more important than ever to keep up with what patients will find problematic and what they won’t. Having an open, amicable relationship with your patients is always the way to go while remaining, HIPAA compliant and maintaining professional boundaries. Check out a September 12th NY Times article on the topic by Aaron Carroll:

How Yelp Reviews Can Help Improve Patient Care

Hospitals and many insurance carriers care about patient satisfaction. It especially matters to hospitals because insurance payments can be influenced by how patients rate the care they receive, as well as by the health of the patient, which hospitals usually report. Many people in the health care profession are put off by this. They argue that patient satisfaction scores aren’t necessarily aligned with outcomes. Moreover, they say that trying to improve satisfaction is a waste of time.

It’s possible, however, that patient satisfaction is being rewarded already, and that the efforts we are making to highlight it aren’t helping as much as we think. Almost every study on patient satisfaction uses the Hospital Consumer Assessment of Healthcare Providers and Systems (H.C.A.H.P.S.) survey. Studies show it is correlated with clinical measures of quality, although some other studies dispute this.

Collecting such information is costly, but there may be other sources for quality assessments that don’t require investment from the health care system. In 2012, researchers in the Journal of General Internal Medicine examined online reviews from RateMDs.com and Yelp. They found that a majority of reviews were positive. They noted, however, that patients reported on aspects of care that extended beyond the patient-physician encounter. They were concerned about staff, access to the hospital and convenience. They also cared greatly about the bedside manner of the doctors they encountered.

 Dr. Naomi Bardach, associate professor of pediatrics and health policy at U.C.S.F. Benioff Children’s Hospital San Francisco, and her colleagues looked at Yelp to determine how consumer ratings compared with those of the hospital consumer assessment survey. Of the almost 3,800 hospitals with survey and other data, about 25 percent also had ratings on Yelp. The correlation between Yelp and the survey was quite strong. Moreover, high ratings at Yelp were correlated with lower mortality for myocardial infarctions and pneumonia — and fewer readmissions for those problems as well as heart failure.

A recent study in Health Affairs expanded on this work. Researchers compared the content of Yelp narrative reviews with the factors considered important in the hospital consumer assessment survey. They found that Yelp reviews did cover most things the survey tallied. But they also covered an additional 12 criteria not in the survey.

These included the cost of a visit; insurance and billing; scheduling; compassion of staff; family member care; and the quality of many staff members. All of these things were important to patients, and all might be correlated with outcomes. More important, nine of the 15 most prevalent criteria in reviews were not included in the survey. The use of metrics like the hospital consumer assessment survey assumes that those in the health care system have figured out how best to measure patient satisfaction. They also assume that all the information we need should come from patients or from the medical record.

That’s not how the real world works. In a more recent study, Dr. Bardach found that the perceptions of other family members matter and can also be powerful because they focus on safety in a way that patients may not be able to do. The same is true of those who help care for patients at home and help make medical decisions for them. Their opinions are ignored by the survey. Those publicly available data may even be more comprehensive than that gathered at the behest of payers. The next question is whether the health care system needs to measure satisfaction — maybe the publicly available data, like at Yelp, is sufficient. Could those data be used alone to incentivize providers?

A couple of weeks ago, my colleague Austin Frakt wrote a column on hospital quality and market share. He argued that people could improve their health by choosing a hospital that has a higher quality rating. He also underscored that patient satisfaction scores are often aligned with quality and with better outcomes.

He highlighted a paper published in The American Economic Review that looked at how performance of hospitals was related to market share. Conventional wisdom holds that patients lack information on quality and that they cannot tell, or favor, providers who seem better. But researchers found that hospitals that performed better, on both outcomes and process-based measures, tended to have greater market share, and experienced greater market growth.

Further, they found that as patients shifted to hospitals with higher performance, that change alone drove a significant amount in the improvements seen in overall survival rates for a number of conditions. Overall survival improved, in part, just because patients shifted from hospitals with lower quality to higher quality. If patients had the ability to choose between hospitals, they tended to gravitate to those with higher performance.

In other words, this may be an area of health care where the free market is working. When allowed to choose, patients seem able to discern quality — as they define it — and gravitate toward it. It’s not clear that we need to be forcing the issue with measurement and reimbursement. It’s important to recognize, though, that this was a study of Medicare patients, all of whom arguably have more flexibility in terms of hospitals and doctors than those with private insurance. Those with private insurance often are restricted by “narrow networks” and directed to a few facilities and offices.

Americans cry out for more choice in their health care. This sometimes gets translated to mean a choice of insurance companies. But Americans with government-provided Medicare, who have the least choice of insurers, have the most choices when it comes to providers. And they seem to use that freedom to choose providers who perform better. I asked Dr. Bardach about this. “It’s still unclear how people are getting the information to choose the hospitals, but the power of stories is likely an important part of why Yelp and other online reviews are compelling,” she said. “Stories add nuance and context to the otherwise somewhat sterile numbers that the H.C.A.H.P.S. produces.” Research shows that patients reward quality on their own — when they can. We might just need to make it easier for more of them to do so.

 

A NY Times Shout Out to Occupational Therapists as the Original Recylcers/Life Hackers/ Re-Puposers That We Are

Barbara Beskind, an Occupational Therapist going STRONG at age 92 gets a great mention in this week’s NY Times.

Hacks Can Ease the Trials of Aging

By
Marie Tae McDermott

When Barbara Beskind, 92, had trouble reaching foods in the back of her refrigerator, she installed a lazy susan on an inside shelf. The revolving tray makes items much easier to reach. Ms. Beskind, a former occupational therapist in the Army who has age-related macular degeneration, a disease that reduces her central vision, also attached small tactile bumps to the “Answer” button and the “2” and “8” keys on her phone, making it easier for her to respond to and make calls.
Many older people, like Ms. Beskind, are forgoing high-tech gadgetry in favor of common – and usually much cheaper – items from office supply and hardware stores, repurposing them to solve everyday problems. Sugru, a moldable putty that turns into rubber, can be used to round out sharp corners on furniture in order to prevent injuries. Rubber bands can be affixed to cups to make them easier to grip. A clothespin can be clipped to the rim of a cup with a drinking straw taped to it to hold the straw in place. A pants hanger can hold a cookbook open at eye level.

Glen Hougan, who teaches industrial design at the Nova Scotia College of Art and Design, calls creative and resourceful repurposers like Ms. Beskind hackers, a term often applied to computer programmers who develop creative workarounds, or hacks, to particular problems. He began researching hacks designed to ease the burdens of aging in the early 2000s, after finding that many of the store-bought items that were available to the elderly were sterile, generic and lacking in variety. One of his favorite hacks involves hanging an old stocking in a shower with a bar of soap tucked into the foot. As the soap gradually shrinks, it remains inside the stocking instead of a becoming a slipping hazard on the floor. The slightly abrasive nylon stocking material has the added benefit of exfoliating the skin.

As part of a fellowship at the Center for Innovation at the Mayo Clinic, Mr. Hougan interviewed residents at a nursing home and found that they hacked products for a variety of reasons. Some could not afford to buy new things on a fixed income. Others had a background in engineering or design and liked the challenge. For some who grew up during the Great Depression, resourcefulness was a lifelong habit.

The most common adaptations centered around making prescription medications easily accessible and trackable yet portable enough to carry to the doctor’s office, Mr. Hougan found. The organizational systems varied but generally consisted of a calendar tacked to the refrigerator, a spreadsheet recording the names and dosages of each medication, and dollar store bins or shoe boxes arranged in drawers.

A Pew research study found that many older people lack digital literacy and remain skeptical about the benefits of learning to use the latest technology, or find that off-the-shelf products fall short.

“When I’ve tried prescription management apps and entered multiple medications, I’ve found them to be quite a hassle,” said Dr. Leslie Kernisan, a 40-year-old geriatrician in San Francisco who writes about geriatrics and technology on her blog, GeriTech: In Search of Technology That Improves Geriatric Care. She finds that many of her older patients bring in written paper logs of their daily medication use, which can be easier for both doctors and patients to use. “In fact, I find that paid home caregivers and agencies also prefer paper records, even though their workers are clearly adept with smartphones,” she wrote in an email.

To help his design students better understand the challenges of aging, Mr. Hougan had them wear an “empathy suit” — a specially crafted suit that emulates the physical sensations the elderly go through on a daily basis. The suit includes shaded goggles that create a narrow field of vision. The suit’s legs are tethered together so the wearer has limited mobility and must shuffle instead of walk. Headphones muffle atmospheric sounds. Gloves limit the ability of fingers to manipulate objects, and the wearer breathes through a straw to simulate having diminished lung capacity.

Many of the students who donned the suit expressed how much they dreaded growing old. Mr. Hougan now calls it the “aging/ageist suit” and uses it in workshops as a tool to talk about the psychological effects of aging and to confront biases about growing old. The exercises helped him to revamp a number of home health care products for his design studio, BlueZone Design, including a redesigned, foldable bedside commode that can be easily squirreled away if visitors drop by.

Ms. Beskind, the 92-year-old who installed the lazy susan in her fridge, has put her resourcefulness to good use. Since 2013, she has worked as a designer at the global design firm Ideo, where she is developing an idea for eyeglasses equipped with a micro camera, earpiece and facial recognition software that would make it easier for those with central vision problems like hers to recognize others.

Ms. Beskind’s presence at a prestigious design firm provides a unique perspective. “Designers think they can put themselves in the shoes of the aging, but you don’t really know until you’ve lived with the realities,” she said. “Seniors are living longer and more productive lives. This community is an untapped resource for designers. We need more designers open to working on what works for us.”

Yes! What Happens with Uber Worker Classifications will have an impact on Heathcare!!

I have said this many times in my webinars on Independent Contractors vs. Employees – What You Need to Know – One of the best things UBER has done is not making cabs easier to get, but bringing the issue of independent contractors to the forefront.  As a new lawsuit in NYC brought against Uber was announced today, here are some recent articles about the issue that it pays to stay on top of.

Reprinted from the NYTimes Friday April 22, 2016
Uber Settles, But Drivers Will Remain Freelancers
Mike Isaac reported from San Francisco and Noam Scheiber from Washington.

SAN FRANCISCO — Uber has long been embroiled in a debate over the status of its drivers: Should they be independent contractors or full-time employees? Uber says that as independent contractors, its drivers get flexibility. Their freelancer status also lets the company sidestep the costs of full-time employees, including paying minimum wage and the employers’ share of Social Security. But labor groups and lawyers have argued that Uber drivers should be classified as employees to receive worker protections.

On Thursday, Uber moved a step closer to getting its way. The company reached a settlement in a pair of class-action lawsuits in California and Massachusetts that will let it continue to categorize drivers in those states as independent contractors — a landmark agreement that could have lasting implications for the long-term viability of the ride-hailing service. Under the settlement, filed in the United States District Court in the Northern District of California, Uber will pay as much as $100 million to the roughly 385,000 drivers represented in the cases. The company also agreed to several concessions to appease driver concerns, including giving more information on how and why drivers are barred from using the app, as well as aiding in creating new “drivers associations” in both states.

“Importantly, the case is being settled — not decided,” Shannon Liss-Riordan, the attorney representing the drivers in the suit, said in a statement. “This case, however, with this significant payment of money, and attention that has been drawn to this issue, stands as a stern warning to companies who play fast and loose with classifying their work force as independent contractors,” Ms. Liss-Riordan said.

The settlement is a significant victory for Uber on the matter of its drivers’ status. By keeping its drivers as contractors, the San Francisco-based company can keep its costs low. And while the settlement applies only to two states and is nonbinding elsewhere, the agreement and the changes that Uber is adopting may influence regulators in other places where the issue has surfaced. Drivers value their independence — the freedom to push a button rather than punch a clock, to use Uber and Lyft simultaneously, to drive most of the week or for just a few hours,” Travis Kalanick, chief executive of Uber, said in a company blog post announcing the settlement.

“That said, as Uber has grown — over 450,000 drivers use the app each month here in the U.S. — we haven’t always done a good job working with drivers,” he wrote. “It’s time to change.”

The agreement, which is subject to approval by Judge Edward M. Chen, who is presiding over the cases, says Uber must pay $84 million to the plaintiffs represented in the case. Uber will dispense an additional $16 million if the company holds an initial public offering and the average valuation of Uber increases to one and a half times that of its last financing round. In December 2015, Uber was valued at $62.5 billion, making it the most valuable private technology company in the world.

The class actions that are being settled were originally filed in 2013 and became the biggest suits in terms of the number of drivers represented. Uber still faces litigation about driver status in other states, including similar lawsuits in Florida, Arizona and Pennsylvania. Last June, the California Labor Commissioner’s Office said Barbara Ann Berwick, a former driver for Uber, should have been classified as an employee, not an independent contractor. That case, which does not apply to drivers other than Ms. Berwick, is being appealed by Uber.

The settlement’s changes are aimed at reducing points of contention for drivers. In the past, Uber has been able to boot drivers from its platform with little explanation, something that Uber said it would no longer be able to do. The company published a lengthy document detailing all the reasons a driver may be deactivated, from unsafe driving and carrying a firearm — which is prohibited — to using drugs and alcohol.

Uber said it would also provide drivers with more information about their ratings system — a measurement based upon individual scores from passengers — and how ratings were calculated. The company is exploring creating an appeals process for Uber drivers who have been deactivated because of a low rating. Uber also agreed not to deactivate drivers who regularly decline to accept requests for rides from passengers, a practice that previously would contribute negatively to a driver’s overall standing with the company. Instead, drivers may be temporarily logged out of the app and unable to accept new requests if they are “consistently not accepting trip requests.”

“We know that sometimes things come up that prevent you from accepting every trip request, but not accepting dispatches causes delays and degrades the reliability of the system,” the company said in its newly published driver deactivation policy.Uber penalizes drivers who accept trips from riders and then cancel them shortly thereafter. Each city will have a maximum cancellation rate based on the average cancellation rate of the drivers in the area, the company said. It could eventually deactivate those who persistently exceed the rate. Uber said many of the changes were a part of its overall maturation process, as it has grown from a small start-up to a global organization in roughly six years.

Yet many of the policy changes Uber announced as part of its settlement — particularly changes to its protocol on deactivating drivers over their cancellation and acceptance rates — appear designed to defuse the plaintiffs’ arguments that Uber drivers should be classified as employees rather than independent contractors, as the company maintains.

“This is Uber relinquishing a small amount of control in two areas where critics have argued that the Uber-driver relationship looks like hiring and firing,” said Seth Harris, a former deputy labor secretary in the Obama administration and co-author of a recent paper arguing that Uber drivers occupy an ambiguous middle ground between contractor and employee. “It’s a tweaking of the relationship to move the classification closer to the factors that define independent contractor and a little bit further away from factors that define employee.” Other legal experts said that Uber drivers would appear to retain many of the characteristics of employees even under the company’s proposed changes.

For example, the fact that drivers whose acceptance rates are too low could be shut out of the app for short periods of time, and that those with unacceptably high cancellation rates could eventually be deactivated from the platform, may suggest a level of control that is normally reserved for employees rather than contractors.

“Ultimately this is a deterrent to drivers actually refusing to accept trips,” said Rachel Bien, an employment lawyer at Outten & Golden LLP who has litigated similar cases. “If it’s the kind of business that needs a driver to be at a certain place at a certain time regularly, it’s not a business that’s suitable for independent contractors, who should have the freedom to choose which jobs they want to do and when they want to do them.”

Ms. Bien also points out that unlike what is frequently the case with true contractors, Uber drivers will not be able to negotiate the price of the service they provide customers. They will also continue to be deactivated if their ratings from customers are low and don’t improve. The proposal to create an association of drivers in California and Massachusetts that would meet with company officials quarterly to discuss issues of importance to drivers also raised eyebrows in some quarters.

“If Uber is going to be genuine about this, I think it’s a very, very good move forward,” said Joesph Sandoval DeWolf, president of the California App-based Drivers Association, an organization that claims to represent more than 2,500 ride-sharing drivers in Southern California. But he expressed skepticism that this would be the case, saying that whenever the association has asked to meet with Uber to discuss drivers’ concerns in recent years, it has been told that Uber will only meet with individual drivers, not any association representing them, which he said was not effective.

 

Reprinted from the NYTimes – Wednesday May 11, 2016
A Guild, Short of a Union for NY Uber Drivers – Noam Scheiber and Mike Isaac

Uber announced an agreement on Tuesday with a prominent union to create an association for drivers in New York that would establish a forum for regular dialogue and afford them some limited benefits and protections — but that would stop short of unionization. The association, which will be known as the Independent Drivers Guild and will be affiliated with a regional branch of the International Association of Machinists and Aerospace Workers union, is the first of its kind that Uber has officially blessed, although Uber drivers have formed a number of unsanctioned groups in cities across the country.

“We’re happy to announce that we’ve successfully come to agreement with Uber to represent the 35,000 drivers using Uber in New York City to enhance their earning ability and benefits,” said James Conigliaro Jr., the guild founder and assistant director and general counsel at the International Association of Machinists District 15, which represents workers in the Northeast. The agreement is Uber’s latest attempt to assuage mounting concerns from regulators and drivers’ groups about the company’s labor model, which treats drivers as independent contractors. That model helps Uber keep its labor costs low, but it excludes drivers from coverage by most labor and employment laws, such as those that require a minimum wage and overtime.

That has spurred public disagreements, and many drivers have organized in unofficial groups to gain more rights. The prospect of unionization has loomed at times; lawmakers in Seattle voted last year to approve a bill allowing drivers for Uber and other ride-hailing apps to form unions. In response, Uber, which is based in San Francisco, has been striking deals to tamp down the problems — with the proviso that the company be able to continue classifying its drivers as contractors and stop short of allowing drivers to unionize. Last month, for example, Uber reached a settlement in a prominent class-action lawsuit with drivers who had contested their contractor status. Under the settlement, the company agreed to pay as much as $100 million and put less pressure on drivers to accept all rides; drivers will, however, continue as freelancers.

Uber faces other labor-related hurdles. Along with Lyft, a competing ride-hailing service, the company this week withdrew operations from Austin, Tex., after losing a battle with the City Council over the nature of its background checks for drivers.

Under the terms of the deal in New York, which will be in effect for five years, a group of drivers who are guild members will hold monthly meetings with Uber management in the city, where they can raise issues of concern.

The drivers will be able to appeal decisions by Uber to bar them from its platform, and can have guild officials represent them in their appeals. In addition, they will be able to buy discounted legal services, discounted life and disability insurance and discounted roadside help for problems they encounter while driving.

Yet unlike a traditional union, which contractors typically cannot form, guild members will not be able to bargain over a contract with the company that would stipulate fares, benefits and protections. Uber will continue to determine most of these elements unilaterally, albeit with more input from drivers

The machinists union has also indicated that for the duration of the five-year agreement, it will refrain from trying to

The machinists union has also indicated that for the duration of the five-year agreement, it will refrain from trying to unionize drivers, from encouraging them to strike and from waging campaigns to have them recognized as employees rather than independent contractors.

“It’s important to have immediate assistance in the industry and this is the structure that provides that,” said Mr. Conigliaro.He emphasized, however, that drivers did not waive any labor rights by joining the guild, and that if Uber drivers were found to be employees at any point during the agreement, the union could try to unionize the drivers at their request.Uber said the agreement would help smooth relationships with drivers, whose frustrations have grown with recent fare cuts and policy changes .“Communication is important,” said David Plouffe, Uber’s chief adviser. “On price cuts, we haven’t always had the best forum to discuss and share data — how price cuts work, what we see afterward.”

Mr. Plouffe said that as a result of discussions with drivers in certain parts of the country, Uber had adopted a number of changes, like a pilot program to charge riders when a driver has to wait for more than two minutes. With the agreement, Uber also wins an ally in its effort to change the New York State law that levies a nearly 9 percent tax on black car rides but that does not apply to taxis. (There is a 50-cent surcharge on yellow taxi trips.) Uber says the law unfairly singles out parts of its service. Under the terms of the deal, the machinists union will help Uber lobby the State Legislature to treat all hired vehicles equally.

Mr. Plouffe said the money likely to be saved from changing the law would flow to drivers’ bottom lines, and some of it would be used to help set up a benefits fund that the guild would administer and whose scope it would determine. Among the potential new benefits is paid time off for drivers. Uber was not seeking to replicate the guild idea outside New York, which differs from other cities in that a much higher fraction of Uber drivers use the platform full time or close to full time, Mr. Plouffe added. Also on Tuesday, Uber said the Freelancers Union, which supports independent workers, will advise the company on how to create portable benefits for its drivers and other gig economy workers. Sara Horowitz, the group’s founder and executive director, praised the agreement as a bold step that would become “part of a larger strategy for this new work force.”

The agreement drew a mixed reaction from drivers. Eric Grant, a veteran Uber driver who recently served on a panel in Seattle that heard appeals from fellow drivers who had been deactivated — part of a special pilot program in that city — said Uber’s new appeals program was a much-needed change. “One of the issues they have had in the past is that they deactivate people willy-nilly, without any appeals process,” Mr. Grant said.

Others, particularly those involved in competing attempts to organize Uber drivers in New York, were skeptical. Abdoul Diallo, who helped found an association of drivers in New York, which is called the Uber Drivers Network and claims about 5,000 members, said that the new organization sounded “bogus” and that the guild was no substitute for an actual union.Mr. Diallo said deactivation was relatively far down the list of concerns for most drivers in his organization. “First and foremost, price cuts and commissions matter most to drivers,” he said.

The machinists union said no topic was off the table in the guild’s discussions with Uber, including fares and commissions.Mr. Diallo’s group, meanwhile, is encouraging drivers to sign cards that will allow the Amalgamated Transit Union to represent them; more than 5,000 drivers have signed.

Others, particularly those involved in competing attempts to organize Uber drivers in New York, were skeptical. Abdoul Diallo, who helped found an association of drivers in New York, which is called the Uber Drivers Network and claims about 5,000 members, said that the new organization sounded “bogus” and that the guild was no substitute for an actual union.

Mr. Diallo said deactivation was relatively far down the list of concerns for most drivers in his organization. “First and foremost, price cuts and commissions matter most to drivers,” he said. The machinists union said no topic was off the table in the guild’s discussions with Uber, including fares and commissions. Mr. Diallo’s group, meanwhile, is encouraging drivers to sign cards that will allow the Amalgamated Transit Union to represent them; more than 5,000 drivers have signed.

What Happened in Wisconsin is Good News for all Physical Therapists!

This is big news for all physical therapists, not just those practicing in Wisconsin. What happens in one part of the country tends to get rolled out in others, and this sets a precedent for other states to follow. It also supports the growing trend that I talk about frequently that involves all healthcare providers reaching to practice to the maximum of their licensure.

November 24, 2015 – Introduced by Representatives Sanfelippo, Ballweg,
Duchow, Edming, Horlacher, Kitchens, Knodl, Kremer, Krug, Macco, A.
Ott, Quinn, Rohrkaste, Swearingen, Tauchen, C. Taylor, Thiesfeldt, Tittl
and Weatherston, cosponsored by Senators Wanggaard, Vukmir, Gudex,
Kapenga, Nass and Stroebel. Referred to Committee on Health.
AB549,1,3 1An Act to renumber and amend 448.50 (4) (b); to amend 462.04; and to create
2448.56 (7) of the statutes; relating to: the authority of physical therapists to
3order X-rays and granting rule-making authority.
Analysis by the Legislative Reference Bureau
This bill allows for X-rays to be ordered by physical therapists who satisfy
certain criteria.
Under current law, X-rays may generally only be performed if authorized
pursuant to a prescription or order issued by one of several types of licensed medical
professionals specified under current law. This bill adds licensed physical therapists
to this list of licensed medical professionals authorized to prescribe or order the use
of diagnostic X-ray equipment. The bill provides, however, that a licensed physical
therapist may only order X-rays if the physical therapist satisfies one of certain
conditions specified in the bill. In addition, the bill provides that the physical
therapist must, when ordering X-rays, communicate with the patient’s primary care
physician or an appropriate health care provider to ensure coordination of care,
unless certain criteria that are specified in the bill apply.
For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB549,1


1Section 1. 448.50 (4) (b) of the statutes is renumbered 448.50 (4) (b) (intro.)
2and amended to read:

AB549,2,43 448.50 (4) (b) (intro.) “Physical therapy” does not include using any of the
4following:
AB549,2,8 51. Using roentgen rays or radium for any purpose, using except that “physical
6therapy” includes ordering X-rays to be performed by qualified persons, subject to
7s. 448.56 (7) (a), and using X-ray results to determine a course of care or to determine
8whether a referral to another health care provider is necessary.
AB549,2,10 92. Using electricity for surgical purposes, including cauterization, or
10prescribing.
AB549,2,11 113. Prescribing drugs or devices.
AB549,2 12Section 2. 448.56 (7) of the statutes is created to read:
AB549,2,1513 448.56 (7) Ordering X-rays.   (a) A physical therapist may order X-rays to be
14performed by qualified persons only if the physical therapist satisfies one of the
15following qualifications, as further specified by the examining board by rule:
AB549,2,1616 1. The physical therapist holds a clinical doctorate degree in physical therapy.
AB549,2,1817 2. The physical therapist has completed a nationally recognized specialty
18certification program.
AB549,2,2019 3. The physical therapist has completed a nationally recognized residency or
20fellowship certified by an organization recognized by the examining board.
AB549,2,2221 4. The physical therapist has completed a formal X-ray ordering training
22program with demonstrated physician involvement.
AB549,2,2523 (b) When a physical therapist orders an X-ray, the physical therapist shall
24communicate with the patient’s primary care physician or an appropriate health care
25practitioner to ensure coordination of care, unless all of the following apply:
AB549,3,1


11. A radiologist has read the X-ray and not identified a significant finding.

AB549,3,22 2. The patient does not have a primary care physician.
AB549,3,43 3. The patient was not referred to the physical therapist by another health care
4practitioner to receive care from the physical therapist.
AB549,3 5Section 3. 462.04 of the statutes is amended to read:
AB549,3,13 6462.04 Prescription or order required. A person who holds a license or
7limited X-ray machine operator permit under this chapter may not use diagnostic
8X-ray equipment on humans for diagnostic purposes unless authorized to do so by
9prescription or order of a physician licensed under s. 448.04 (1) (a), a dentist licensed
10under s. 447.04 (1), a podiatrist licensed under s. 448.63, a chiropractor licensed
11under s. 446.02, an advanced practice nurse certified under s. 441.16 (2), or a
12physician assistant licensed under s. 448.04 (1) (f), or, subject to s. 448.56 (7) (a), a
13physical therapist licensed under s. 448.53.