Issue 52-June 2016
Storms rage in the world of risk, bringing difficulty and hardship and imposing real costs for public agencies and the communities they serve. For three days in October, the California JPIA is calling you away to its 21st Annual Risk Management Educational Forum.
Register for the California JPIA’s 21st Annual Risk Management Educational Forum: Weathering the Storm
Storms rage in the world of risk, bringing difficulty and hardship, and imposing real costs for public agencies and the communities they serve. For three days in October,the California JPIA is calling you away to its 21st Annual Risk Management Educational Forum. Entitled “Weathering the Storm,” safe harbor will be provided at the Hyatt Regency Indian Wells Resort & Spa on October 12 – 14, 2016.
Relevant Content for Today’s Public Climate
Wednesday’s opening session will address the complications of the workers’ compensation benefit delivery system and how a team approach is required to be successful. A variety of subject matter experts will explain their role in moving a claim toward the most effective resolution. Topics will include claim investigation, medical management, and return to work. The session will also illustrate the legal process through the presentation of a mock workers’ compensation trial.
Thursday’s keynote speaker is Lt. General Russel L. Honoré, USA (Ret.), Commander of Joint Task Force Katrina & Global Preparedness Authority. A genuine American hero, he managed the city of New Orleans’ recovery in 2005, post-Hurricane Katrina by taking charge of the military relief efforts. He offers rare, valuable insight on success in the “New Normal,” where preparedness, innovation and an entrepreneurial approach are crucial to address future challenges. His bold, no-nonsense approach to leadership engages and motivates audiences in all industry sectors. Review the full agenda here.
Registration is limited to public agency officials and employees, and the Authority’s business partners. Registration is free to California JPIA members. Non-member registration fee is $475. Lodging is not included in your Forum registration. The Authority’s room block sells out early, so make your hotel reservations now.
For more information and to register for the Forum, click here.
8th Annual Workers’ Compensation Defense Attorney Symposium
The California JPIA is pleased to announce that the 8th Annual Workers’ Compensation Defense Attorney Symposium will be taking place on Thursday, August 18, at the Authority campus in La Palma. The day will provide an opportunity for members to meet with the Authority’s panel attorneys and the York claims team, and learn about a variety of topics.
The Symposium begins at 9:30 a.m. and concludes at 2:30 p.m. Lunch will be served.
The program will feature the following presentations:
|9:45 a.m. – 10:30 a.m.||Dealing with Psychiatric Claims in Workers’ Compensation
Presented by Dr. David Hall
|10:30 a.m. – 11:15 a.m.||Using Structured Settlements to Get Cases Resolved
Presented by Noah Schwartz, Ringler Associates
|11:15 a.m. – noon||Obtaining Apportionment for Pre-existing Orthopedic Impairments
Presented by Dr. Bruce Fishman
|12:00 p.m. – 12:45 p.m.||Lunch|
|12:45 p.m. – 1:30 p.m.||The Appropriate Use of Fit-for-Duty Evaluations
Presented by Kelly Trainer, Burke, Williams & Sorenson, LLP
|1:30 p.m. – 2:30 p.m.:||Workers’ Compensation Case Law Update
Presented by Catherine McWhorter of Hayford & Felchlin, Daryn Diaz from the Law Offices of Robert Robin, and Demetra Johal of Laughlin, Falbo, Levy and Moresi
To register for the above event, please go to cjpia.org and log into myJPIA. Once logged in, locate the date on the training calendar. Click on the title from the date chosen, and then click “Register Now.” If you are a Registrar, please click “Register Others.” If you do not have a log in, click on “Registration,” and complete the request form online, from the log-in page.
For registration questions, contact:
Michelle Aguayo, Training Coordinator
For event questions, contact:
Jeff Rush, Workers’ Compensation Program Manager
The California JPIA introduced “Authority Live!” last year to present current topics involving risk management to member agencies in a different and interesting way. Informative discussion is at the heart of the Authority Live!
Authority Live! will return this summer with new programs covering hot topics. The first program will cover body-worn cameras and will provide an overview of the benefits and challenges associated with instituting a law enforcement body camera program.
• Deciding when and how cameras should be activated
• Retention of recorded video
• Dealing with Public Records Act (PRA) requests for recorded video
• Key elements of a successful written program
Look for future programs to feature topics such as active shooter, medical marijuana, and special events. These programs will offer takeaways and insights useful for members.
You won’t find these topics on Netflix or Hulu: this entertaining and informative content can only be found on Authority Live! Stay tuned and look for further information regarding additional Authority Live! content on www.cjpia.org.
Service Animals and the Americans with Disabilities Act
by Alex Mellor, Risk Manager
Service animals play an important role in the lives of many people with disabilities. These animals perform specific functions that the disabled person cannot perform themselves. Examples include providing stability for someone who has difficulty walking, or alerting a sight-impaired individual to a person or vehicle approaching from behind.
Under the Americans with Disabilities Act (ADA), local government agencies are required to allow service animals into their facilities. This includes modification of a “no pets” policy, if one exists.
While the vast majority of individuals seeking to bring their animals into public facilities are legitimately disabled and have legitimate service animals, some individuals have taken to disguising their pet as a service animal in order to skirt “no pets” policies. Members should be aware that in order to be considered a service animal under the ADA, the following requirements must be met:
- The animal must be a dog, or in some cases a miniature horse
- The animal must be individually trained to do work or perform tasks for an individual with a disability
- The task(s) performed by the animal must be directly related to the person’s disability
It is also important to note that the ADA distinguishes between service animals, which are covered under the ADA, and emotional support animals, which are not. Emotional support animals provide comfort simply by being with a person, and are not typically trained to perform a specific task for a person with a disability.
Unfortunately, ascertaining whether an animal that enters your facility meets the above criteria can be difficult. The ADA limits the questions that may be asked of a disabled person with a service animal to the following:
- Is the animal a service animal required because of a disability?
- What work or task has the animal been trained to perform?
Further, the ADA also prohibits staff from requesting any documentation that the animal is indeed a service animal, requiring that the animal demonstrate its task, or inquiring about the nature of the person’s disability.
Since the law is clear regarding inquiries that can be made by staff, it is recommended that the animal be assumed to be a service animal if the owner responds appropriately to the above two questions. This recommendation remains even if everything else points to the animal in fact being a pet. Training employees on this approach and applying it evenly will reduce the likelihood that your agency will be the subject of an ADA disability discrimination claim.
If staff determines with a high level of confidence that the animal is a pet, and not a service animal, it is reasonable to require the individual to remove their pet from the premises. Individuals with service animals can also be asked to remove the animal if it is out of control (and the owner fails to take steps to control it), or if the animal is not housebroken.
For further information on this topic, please contact your assigned Risk Manager, or refer to the following publications from the Department of Justice and California Department of Fair Employment & Housing:
by Ryan Thomas, Training and Loss Control Specialist
For 20 years, there has been a consistent voice echoing in California JPIA training sessions across the state of California. It is a voice that has given countless anecdotes, shared thousands of stories, and dispensed information regarding leadership, management skills, and team-building to thousands of employees who have attended the Authority’s instructor-led training courses and Academies. It is the voice of the one and only Forrest Story.
Forrest Story is the principal consultant for Public Sector Excellence (PSE), an organizational development and training firm founded in 1991 that specializes in helping public sector employees, supervisors, managers, and leaders build excellence in their organizations and in the services they provide. He helps clients address the unique opportunities and challenges that public sector organizations face. Prior to founding PSE, Story spent 23 years working in the public sector, 20 of which were in managerial and supervisory positions.
Forrest Story holds a Bachelor’s degree in Criminology from California State University, Long Beach and a Master’s degree in Public Administration from the University of Southern California. He also serves on the adjunct faculty at Santa Ana Community College.
Teaching is in Story’s blood. If you have not had the opportunity to see him as an instructor, the Authority’s Management Academy is a wonderful way to see him in action. His long-time training partner, John Perry, forms the other half of an experienced and insightful tandem that is as entertaining as it is informative. At the heart of Story’s teaching style is a strong sense of humor with a healthy dose of humility mixed in. “There are too many public organizations that are over-managed and under-led,” explains Story. “It has been said, and I strongly agree, that efficiency and effectiveness are by-products of 1) competence, 2) cooperation, and 3) commitment. Everything I teach has those three components, and all three involve leadership at all levels of the organization.” Story gains much motivation from, and is inspired by, Warren Bennis and the following passage he shares from the book, Managing the Dream:
“A dream can offer incomparable power to draw others alongside a leader, especially when they can find their own home within it. A dream need not be immense in scale, but it must be large enough to house a multitude. Indeed, a person will generally not leave a mark as a leader if he or she fails to manage a dream that makes room for other humans’ essential need to belong, to contribute and to create.
Overnight, I learned that a leader is not simply someone who experiences the personal exhilaration of being in charge; a leader is someone whose actions have the most profound consequences on other’s people’s lives, for better or for worse, sometimes forever and ever.”
A man as principled as he is interesting, Story’s varied life experiences include his service in the United States Navy during the Vietnam War, a prison guard stationed in a watchtower, and over 20 years in various management positions in the public sector, including the County of Orange. He resides in Long Beach, California with Lynn, his wife of 45 years, whom he met as a pen pal through a mutual friend during his military service. They have two children, a son and daughter, and one grandchild, with whom he shares his love of horses whenever his busy schedule allows.
Photo: Forrest Story
Indio Police Department Recognized by White House for Community Policing
(Reprinted from KMIR.com, May 23, 2016)
The Indio Police Department’s participation in a national policing initiative focused on community involvement and departmental reform was recognized today at a White House event attended by city leaders.
The Indio Police Department is among 15 law enforcement agencies nationwide tasked with implementing recommendations set forth by a presidential task force on policing.
The President’s Task Force on 21st Century Policing, created in 2014 by President Barack Obama, gathered input from community stakeholders regarding how local law enforcement agencies could strengthen their relationship with the public.
Beginning this month, Indio’s police force will be assessed on its ability to implement the task force’s 59 recommendations. The year-long Advancing 21st Century Policing Initiative addresses such areas as building trust with the community, departmental policy and oversight, emphasizing effective officer training, and using technology to improve policing.
The results of the project will also be used to produce guiding materials for other agencies seeking to implement the task force’s guidelines.
According to the IPD, implementation of the task force policies has already resulted in the establishment of a body-worn camera program; creation of a Professional Standards Unit and Office of Community Safety; and the establishment of a community outreach resource program that reaches out to chronic offenders with mental health disorders.
Indio Mayor Glenn Miller, City Manager Dan Martinez, IPD Chief Richard Twiss and Coachella Valley Rescue Mission Program Director Tom Cox traveled to Washington to take part in today’s program with Attorney General Loretta Lynch and members of the 14 other participating agencies.
“This is another exciting opportunity and acknowledgment of the outstanding work the Indio Police Department has conducted in the area of community outreach and engagement,” Miller said. “As a city, we take great pride in this prestigious recognition and I personally recommend Chief Twiss’ leadership.”
The Indio Police Department is the only California law enforcement agency taking part in the program.
The Court Report
Settlement with Philadelphia Area YMCA to Ensure Equal Opportunities for Children with Diabetes in Summer Camp and After-Care Programs
(Press Release, United States Department of Justice, May 19, 2016)
The Justice Department reached a settlement agreement today with the Philadelphia Freedom Valley YMCA – Rocky Run Branch to resolve allegations that it violated the Americans with Disabilities Act (ADA) by denying a child the opportunity to participate in after-school and summer camp programs because of her type 1 diabetes.
Title III of the ADA prohibits discrimination on the basis of disability by public accommodations, including private camps and childcare programs. Under the ADA, such entities must make reasonable modifications to their policies, practices or procedures when necessary to provide equal access to a child with a disability, unless a modification would fundamentally alter the nature of the goods and services. When a parent and a child’s physician determine that it is appropriate for a trained layperson to assist a child with diabetes care, a camp or childcare program must provide this as a reasonable modification under the ADA, unless doing so would fundamentally alter the program.
The Philadelphia Freedom Valley YMCA – Rocky Run Branch refused to perform diabetes related tasks, including administering glucagon in the event of a low blood glucose level emergency and supervising the child to self-administer insulin. YMCA also limited the child’s participation in the after-school program by allowing her to attend only until 4:00 p.m., even though the program ran until 6:00 p.m. Finally, YMCA asked the child’s parents to supply an aide to monitor the child in the summer day camp program.
“After-school and camp programs enable children to learn and socialize with their friends, and enable parents to ensure that their children are well-cared for, and YMCAs are one of the key providers parents turn to for that care,” said Principal Deputy Assistant Attorney General Vanita Gupta, head of the Justice Department’s Civil Rights Division. “Such providers may not exclude children with disabilities, and the Department of Justice will continue to aggressively fight all forms of discrimination that deny children with disabilities the protections and opportunities they deserve.”
Under the terms of the agreement, the YMCA will:
- adopt a non-discrimination policy;
- develop a sample diabetes medical management plan;
- remove unnecessary inquiries from its application materials that tend to screen out individuals with disabilities;
- train its staff on the ADA and diabetes management;
- provide information for parents on how to request modifications for children with disabilities;
- designate an ADA compliance officer who will monitor compliance with the agreement and review requests for reasonable modifications, among other duties; and
- report annually to the United States on its compliance.
ADA enforcement is a top priority of the Justice Department’s Civil Rights Division. Those interested in finding out more about this settlement or the obligations of camps and child care programs under the ADA may call the Justice Department’s toll-free ADA information line at 800-514-0301 or 800-514-0383 (TDD), or access its ADA website at www.ada.gov. ADA complaints may be filed online at http://www.ada.gov/complaint/.
Credit Card Fraud Liability Has Shifted To You
by Jim Thyden, Insurance Programs Manager
Members who accept credit cards now have more liability for fraud committed at the point of sale. EMV technology (also known as chip and signature, or chip and pin) is gradually replacing magnetic strips for processing credit cards. Effective October 1, 2015, liability for some credit card fraud shifted from the credit card issuer (Visa, MasterCard, Discover, etc.) to the merchant processing the transaction. All merchants who accept these and other cards issued by supporting organizations are required to follow the rules and guidelines outlined by EMVCo. This shift in liability is a required part of accepting these credit cards.
In order to shift fraud liability back to the card issuer, your agency needs to replace your outdated credit card terminals (including some versions of the popular “Square”) with chip card terminals and require credit card users to use the chip technology when their credit cards have chips.
BRIT, the Authority’s Cyber Liability insurance carrier, has provided a poster for members to use to remind staff to use chip and pin for transactions. This poster can be printed and put up anywhere staff takes credit card transactions.
More Chip-Card Headaches, This Time for Merchants: Costs of ‘chargebacks’ from counterfeit credit cards are starting to pile up at retailers that didn’t shift to chip cards
(Reprinted from the Wall Street Journal, May 7, 2016)
As of last October, retailers who didn’t make the transition to chip cards are on the hook for counterfeit transactions that used to be covered by card-issuing banks. The costs of the fraud, known in the industry as chargebacks, are starting to stack up.
A few weeks ago, a woman used a counterfeit card to buy $400 worth of gift cards at a Harps grocery store—and then hit nine more stores in quick succession after the first attempt worked, sticking the regional grocer with a tab for $4,000 that previously would have been absorbed by the card-issuing bank.
“We’ve seen a significant uptick,” says Mike Thurow, vice president of store systems for Harps Food Stores, referring to counterfeit-card costs. The chain, which operates 80 stores in Arkansas, Oklahoma, Missouri and Kansas, aims to start processing chip transactions within the next couple of months.
Chargebacks among small and medium-size merchants rose 15% in the fourth quarter from a year earlier, according to a recent survey by The Strawhecker Group, a payments consulting firm. The industry believes the volume of chargebacks has likely risen since then, because the fourth quarter included only a few weeks under the new rules and it often takes a while for the costs to flow through to merchants.
Strawhecker, which surveyed 3.5 million small-and-medium-size card-accepting merchants, didn’t put a dollar figure on the chargebacks. Other experts said the total was probably in the tens-of-millions of dollars and will likely continue to rise.
The fraud losses are likely far higher for big merchants. Hannah Walker, who handles payment issues for the Food Marketing Institute, said one member of the trade group was hit with $30,000 in fraud costs over a number of days when a counterfeit card was used “dozens” of times in a store.
The credit-card industry and retailers battled for a decade over rolling out chip cards, which are more secure but also require new payment terminals and take more time at checkout. The balance tipped against retailers after a spate of cyberattacks hit major chains such as Target Corp. and Home Depot Inc. and compromised millions of cards.
Target, Home Depot and some other large merchants, including Wal-Mart Stores Inc., are now processing chip transactions, but there are still plenty that haven’t installed the new equipment and are for the first time facing sizable costs for counterfeit transactions.
Financial institutions have been issuing the new cards to customers for more than a year, but just 22% of retailers are able to process them, according to a survey released last month by Boston Retail Partners. Another 53% of the merchants in the survey planned to install the systems within the next 12 months.
Some of them didn’t want to install the new equipment before the busy holiday shopping season and have been surprised to discover that there is a long wait to get it certified, according to payments executives and merchants.
TJX Cos., which was the victim of a huge credit-card data breach in 2007, is “actively working toward processing chip-based cards,” said Debra McConnell, a spokeswoman for the discount retailer that owns TJ Maxx and Marshalls. She wouldn’t comment on when the chains will start accepting chip cards or whether the company is seeing a higher level of chargebacks.
J.C. Penney Co. plans to start activating chip-payment terminals this month, a spokesman said. The company didn’t respond to a question about chargeback rates.
Other large merchants, such as animal retailer Petco and department-store chain Kohl’s Corp., have just recently started accepting chip cards. Representatives of the companies declined to comment on chargeback levels.
“Unfortunately, there are so many that have yet to make the switch, but we have told them and even preached that this is going to be the result when you don’t adopt EMV in time,” said Stuart Tryon, special agent-in-charge of the criminal investigative division of the U.S. Secret Service, which probes payment-related crimes. EMV is an industry acronym for chip cards.
Mr. Tryon says there is little evidence so far that criminals are targeting non-chip- compliant merchants in an organized way that is leading to higher chargeback levels. Instead, he attributes most merchants’ losses to the liability shift.
Merchants who sell electronics, clothing, liquor, tobacco, baby formula and jewelry are considered among the most vulnerable to counterfeit fraud, because those products can easily be resold.
George Knightly planned on being chip-compliant when the liability shift took hold last fall, but a glitch in debit-card processing from the vendor that provided the system prompted him to yank it from his five liquor stores in Florida.
In November, two customers spent more than $800 on four bottles of Johnnie Walker Blue scotch that were purchased with three counterfeit credit cards. Mr. Knightly found himself on the hook for the charges.
“I was pretty irate,” he said. He is challenging the chargeback with the vendor because, he said, “it’s not my fault.”< Back to Full Issue Print Article