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California Bar Examination Pass Rate Hits All Time Low

The California State Bar Examination is administered twice a year, in July and in February. The February 2020 results were released this May.

The percentage of would-be lawyers who passed California’s February bar exam plummeted to a historic low with fewer than 3 in 10 test-takers posting a passing score, according to figures released by the State Bar. Just 26.8% of the 4,205 applicants who completed the test passed. That’s the lowest success rate recorded in California since at least 1951, the oldest figures provided by the Bar.

The mean scaled Multistate Bar Examination score on the February 2020 bar exam in California was 1357, down from 1370 last year. The national mean score was 1326, down from the previous year’s mean of 1328 and an all-time low.

This year’s dismal pass rate, recorded just two years after the February 2018 exam set a record low, will shine a spotlight yet again on the Bar’s efforts to revamp a controversial test that a majority of applicants regularly flunk. The Bar has completed four studies related to the exam, and trustees will consider possible next steps at a teleconference meeting.

The figures are striking, but the trend is nothing new: pass rates have generally declined in California and nationwide since 2008.

In 2017, the Supreme Court of California commissioned several studies to investigate the bar pass problem in an effort to determine, among other things, if the exam content should be changed or the cut score modified. Perhaps not surprisingly, they concluded that the content was appropriate and that the cut score should not be changed.

The report concluded that changes in credentials for entering law students – primarily LSAT and, to a lesser extent, undergraduate GPA-contributed to 20 to 50 percent of the decline in bar performance.

In a classic glass half-full/half-empty split, critics of law schools use this to claim that weaker students are primarily the explanation, and decry proposals to make it easier for them to pass; while defenders will no doubt insist that we need to focus on whatever accounts for the other 50 to 80 percent of the decline.

Interestingly, the study found little impact on bar pass rates based on which substantive courses law students take, or whether they participate in externships, clinics, or the like.

Palo Alto Cardiologist Indicted

United States Attorney David L. Anderson, Special Agent in Charge James K. Wahleithner of the U.S. Department of Veterans Affairs’ Office of Inspector General, Criminal Investigations Division (“VA OIG”), and Chief of Police Martin Sizemore of the Veterans Affairs Police Service, Palo Alto Health Care Division announced that a federal grand jury in San Jose indicted Dr. John Giacomini for Abusive Sexual Contact,

According to the indictment, Giacomini, 71, of Atherton, is alleged to have subjected the victim, a subordinate doctor under Giacomini’s supervision, to unwanted and nonconsensual sexual contact in December of 2017 while both were on duty at the Veterans Affairs Hospital in Palo Alto, Calif.

At the time, Giacomini was the Chief of the Palo Alto VA’s Cardiology Department. He had served in this position for over 30 years and also served on the medical faculty at Stanford University.

Since the alleged sexual battery happened on federal property, the VA OIG referred the matter to the U.S. Attorney’s Office for federal prosecution. Giacomini no longer works at the Palo Alto VA Hospital or Stanford University.

Giacomini made his initial appearance by telephone on May 14, 2020. Giacomini is currently released on a $200,000 bond under the supervision of the United States Pretrial Services Office in San Jose. Giacomini’s next court appearance is scheduled for July 7, 2020, for a status conference before the Hon. Beth L. Freeman, United States District Judge.

If convicted, Giacomini faces a maximum sentence of two years of imprisonment, a fine of $250,000, restitution, supervised release, and a special assessment. However, any sentence following conviction would be imposed by the court only after consideration of the U.S. Sentencing Guidelines and the federal statute governing the imposition of a sentence, 18 U.S.C. § 3553.

An indictment merely alleges that crimes have been committed, and all defendants are presumed innocent until proven guilty beyond a reasonable doubt.

Assistant U.S. Attorneys Jeffrey Nedrow and Marissa Harris are prosecuting the case with the assistance of Jessica Leung and Susan Kreider. The prosecution is the result of an investigation by the VA OIG and the Veterans Affairs Police Service.

DWC Cancels Educational Conference in Los Angeles

The Governor Newsom’s March 19, 2020 Executive Order and the ongoing COVID-19 public health emergency requires the California Division of Workers’ Compensation to cancel the Annual DWC Educational Conference in Los Angeles until next year.

The conference, which had been originally scheduled for March 26-27 at the Marriott LAX Hotel, was rescheduled for June 22-23.

Instead, the conference will take place in March 2021 in both Oakland and Los Angeles.

Please save the following dates for the 28th Annual DWC Educational Conference: March 4-5, 2021 at the Oakland Marriott and March 25-26 at the Marriott LAX Hotel in Los Angeles.

Registration fees paid to attend or exhibit at the Los Angeles conference will be refunded in full by the International Workers’ Compensation Foundation (IWCF) in the coming weeks.

May 11, 2020 – News Podcast


Rene Thomas Folse, JD, Ph.D. is the host for this edition which reports on the following news stories: Wave of COVID-19 Lawsuits Hit State and Federal Courts, California Sues Uber and Lyft to Enforce AB-5, Court Order Halts Sale of $45M Counterfeit N95 Masks, Scams and Fraud Involving CARES Act Economic Payments, Scams and Fraud Involving Fake COVID-19 Cures, Executive Order Creates COVID-19 Compensability Presumption, California Legislature Re-Convenes With Major Comp Issues, COVID-19 Triggers Increase in Opioid Deaths.

SBA Payroll Loan Fraud Rates Estimated at 10 – 12%

Early last month, a Rhode Island bank received an application for a $144,050 loan under the Paycheck Protection Program, the massive federal effort to assist small businesses hurt by the coronavirus crisis.

The application purported to be on behalf of the owners of Remington House, a restaurant on Post Road in Warwick, R.I. It listed 18 employees and an average monthly payroll of $46,000.

But when a bank official drove past the building, there were indications that the restaurant had been shut down before the pandemic. There were dumpsters on the property and notices ordering the stoppage of work were posted on the door and windows.

The once-popular restaurant had been closed since November 2018, according to federal prosecutors, who this week charged two men with conspiracy to commit bank fraud.

The case is the first criminal fraud prosecution in connection with the paycheck program. Industry officials warn that it will not be the last – not by a long shot. In fact, individuals who are working with banks to combat misconduct in the $660 billion program – including former California banking commissioner Walter Mix – estimate that fraud rates could be as high as 10% to 12%.

Those estimates, which are based on initial reviews of loan files at dozens of banks, are roughly consistent with what has happened after other disasters. In the aftermath of Hurricane Rita and Hurricane Katrina, a government audit found that around 16% of applicants for federal disaster assistance used invalid information. If 10% of the PPP’s funding went to fraudsters, taxpayers would be defrauded by tens of billions of dollars.

Assistant Attorney General Brian Benczkowskil told The Wall Street Journal earlier this week that prosecutors are mounting a broad search for fraud, and that they will apply scrutiny to the conduct of banks, in addition to the actions of borrowers.

Treasury Secretary Steven Mnuchin and SBA Administrator Jovita Carranza have pledged to review all PPP loans of $2 million or more.

Also in recent weeks, many banks have begun accepting applications from new small-business customers, which has left them more vulnerable to fraud.

Existing small-business customers are generally seen as safer, because bankers have already satisfied rules that require them to know those customers. Often, they have met the business owner face-to-face and shaken hands.

“The risk of fraud in the first round was probably not very significant because everybody was cherry-picking their customers,” said Adam Jiwan, chairman and CEO of Spring Labs, a Los Angeles technology company that offers tools to ferret out fraud. “The likelihood of fraud in phase two is high, as banks move beyond their existing relationships.”

The relatively late addition of online lenders to the program may have also increased the risk of fraud, since those companies are less likely than traditional banks to have a personal relationship with their customers. On the other hand, online lenders may have relatively sophisticated risk management procedures.

COVID-19 Tests Now Available for Workplaces

Diagnostic services provider LabCorp said it would make its COVID-19 tests available at workplaces, as employers across the United States look to bring people back to work safely.

The company said it would provide customized services for workplaces including temperature checks, COVID-19 test collection at offices, access to its at-home sample collection kit, antibody test, as well as flu vaccinations in the fall.

With millions of Americans out of work in a coronavirus-battered economy, a growing number of states are relaxing the restrictions put in place to slow the outbreak even as the number of infections continues to rise.

Public health experts have warned that rushing to relax the restrictions, without having vastly expanded testing and other precautions firmly in place would risk the resurgence of the virus.

LabCorp currently provides lab tests, antibody blood tests that can tell whether a person has ever been infected, as well as kits that allow people to mail in their own nasal swab samples, reducing risks of further transmission.

Earlier this week, the company expanded delivery of the at-home collection kits to all customers, after having limited availability to healthcare workers during the launch last month.

LabCorp said its “return to work” offerings would also include wellness services such as biometric screening.

CVS Subsidiary Pays $15.3M for Illegal Opioid Dispensing

Omnicare, Inc., a subsidiary of CVS Health and a provider of pharmacy services to long-term care facilities, has agreed to pay the United States a $15.3 million civil penalty to resolve allegations that it violated federal law by, among other things, allowing opioids and other controlled substances to be dispensed without a valid prescription, United States Attorney Nicola T. Hanna announced today.

The Cincinnati-based Omnicare operates “closed door” pharmacies – meaning they were not open to the public – that deliver controlled substances to nursing homes and other long-term care facilities (LTCFs).

Omnicare makes daily deliveries of prescription medications to residents of LTCFs, and it also pre-positions limited stockpiles of controlled substances at LTCFs in “emergency kits,” which are to be dispensed to patients on an emergency basis. These emergency kits, which often include opioids and other controlled substances that are commonly abused and diverted, remain part of Omnicare’s inventory and must be tightly controlled and tracked. The controlled substances may be dispensed only pursuant to a valid prescription.

The United States alleged that Omnicare violated the federal Controlled Substances Act in its handling of emergency prescriptions, its controls over the emergency kits, and its processing of written prescriptions that lacked required elements such as the prescriber’s signature or DEA number.

The federal investigation found that Omnicare failed to control emergency kits by improperly permitting LTCFs to remove opioids and other controlled substances from emergency kits days before doctors provided a valid prescription. The investigation also revealed that Omnicare had repeated failures in its documentation and reporting of oral emergency prescriptions of Schedule II controlled substances.

As part of the settlement agreement announced today, Omnicare agreed to pay the $15.3 million civil penalty and entered into a Memorandum of Agreement with the Drug Enforcement Administration that will require Omnicare to increase its auditing and monitoring of emergency kits placed at LTCFs.

Omnicare dispensed powerful opioids without valid prescriptions and failed to inform federal authorities of significant losses of opioids and other drugs,” United States Attorney Hanna stated. “With the opioid crisis still a very real concern, every entity that handles dangerous drugs will be held accountable to ensure powerful narcotics are properly dispensed and not diverted to the black market.”

“Omnicare failed in its responsibility to ensure proper controls of medications used to treat some of the most vulnerable among us,” said DEA Acting Administrator Uttam Dhillon. “DEA is committed to keeping our communities safe by holding companies like Omnicare accountable for such failures, while ensuring continuity of care and necessary access to emergency prescription drug supplies.”

DWC Updates OMFS for Telehealth Services

The Division of Workers’ Compensation has posted an order dated May 7, 2020, adjusting the Physician and Non-Physician Practitioner Services section of the Official Medical Fee Schedule (OMFS) to conform to additional Medicare fee schedule changes pursuant to Labor Code section 5307.1. The order includes technical updates and provisions to support expanded access to telehealth services.

The Centers for Medicare and Medicaid Services (CMS) has issued an Interim Final Rule to adopt additional temporary modifications to the Medicare Physician Fee Schedule to improve access to medical care through telehealth during the public health emergency.

The Interim Final Rule adopts an expanded list of medical services (“Covered Telehealth Services for PHE for the COVID-19 pandemic effective March 1 2020-updated April 30 2020“) that may be billed for telehealth using video and audio technology, and includes identification of services that could be provided through audio-only where medically appropriate. DWC has retroactively adopted the revised telehealth list for services rendered on or after March 1, 2020, and has also adopted a retroactive revision to the Place of Service Code, which may result in an increase in fees for telehealth services if the physician provides the service in a “non-facility” setting.

The CMS Interim Final Rule temporarily increases fees for three telephone evaluation and management codes (CPT codes 99441, 99442, 99443) retroactive to March 1, 2020 to provide parity between these codes and evaluation and management codes for services rendered in person or by audio/video telehealth. DWC has adopted the retroactive increases for these three codes, which will support the provision of medical care for injured workers and further the goal of maintaining social distancing.

The Administrative Director order also adopts the CMS revised 2020 Relative Value Unit file, “RVU20B (Updated 05/01/2020),” which replaces the initial quarter two RVU20B file. The revised file is substantially identical to the original file. The significant change for workers’ compensation services is the increase of the relative values for CPT codes 99441 through 99443 discussed above.

Workers’ compensation claims administrators should adjust payment systems in light of the retroactive changes, and set up a process to reevaluate claims for services rendered on or after March 1, 2020 that may have additional payment due so that the balance owing is remitted to the provider. If a provider believes that the revised fee schedule would result in an increased payment for services rendered, they may submit a corrected bill or request for second review as appropriate.

The order adopting the updated Physician and Non-Physician Practitioner fee schedule can be found on the DWC fee schedule web page.

WCAB Panel Says 5814 Penalties Inapplicable to Timely UR

Angelique Diaz sustained injury to her bilateral upper extremities, psyche, and in the form of hypertension while working for the Southern California Gas Company.

On July 11, 2017, the UR physician denied a treatment request for an EMG, which was overturned by a MAXIMUS IMR Final Determination Letter dated September 12, 2017.

On October, 2, 2017, the UR physician denied a treatment request for Norco, which was overturned by a MAXIMUS IMR Final Determination Letter dated November 8, 2017.

On January 24, 2018, the UR. physician denied a treatment request for Norco and chiropractic treatment, which was overturned by a MAXIMUS IMR Final Determination Letter dated March 26, 2018.

On March 15, 2018, the UR physician denied a treatment request for bilateral upper extremity nerve conduction studies, which was overturned by a MAXIMUS IMR Final Determination Letter dated April 24, 2018.

Applicant’s attorney filed a petition for LC5814 penalties for the four UR denials that IMR overturned. The issues went to trial and the WCJ found that the UR doctors had used inappropriate guidelines.

The WCJ found that there was no wrongdoing by the defendant employer/carrier and that the UR doctors are not agents of the defendant and are not parties. Thus, there is no LC5 814 penalty.

The applicant’s petition for reconsideration was denied in the panel decision of Diaz v Southern California Gas Company.

Labor Code section 4610.1 provides as relevant herein: An employee shall not be entitled to an increase in compensation under Section 5814 for unreasonable delay in the provision of medical treatment for periods of time necessary to complete the utilization review process in compliance with Section 4610. (§ 4610.1 )

The WCAB panel agreed with the WCJ that, since applicant argues that she is entitled to penalties for delay that occurred while the utilization review was in the process of completion-i.e., while the UR physicians failed to properly address the requests of her treating physician-applicant is barred by section 4610.1 from recovering section 5814 penalties.

Accordingly, it concluded that the WCJ correctly determined that defendant is not liable for section 5 814 penalties based upon alleged delay occurring during the UR process.

Tesla CEO Musk Defies Lockdown Order

Tesla CEO Elon Musk is restarting the company’s California factory in defiance of local government efforts to contain the coronavirus. In a tweet Monday, Musk practically dared authorities to arrest him, writing that he would be on the assembly line and if anyone is taken into custody, it should be him.

State law allows a fine of up to $1,000 a day or up to 90 days in jail for operating in violation of health orders. The plant in Fremont, a city of more than 230,000 people south of San Francisco, had been closed since March 23.

KCRA reports that early Monday, the parking lot was nearly full at the massive factory, which employs 10,000 workers, and semis were driving off loaded with vehicles that may have been produced before the shutdown.

The restart defied orders from the Alameda County Public Health Department, which has deemed the factory a nonessential business that can’t open under virus restrictions. The department said Monday it warned the company was operating in violation of the county health order, and hoped Tesla will “comply without further enforcement measures” until the county approves a site-specific plan required by the state.

The department said it expects Tesla to submit such a plan by 5 p.m. Monday. “We look forward to reviewing Tesla’s plan and coming to agreement on protocol and a timeline to reopen safely,” the statement read.

No agency appeared ready to enforce the order against Tesla. County Sheriff Sgt. Ray Kelly said any enforcement would come from Fremont police. Geneva Bosques, Fremont police spokeswoman, said officers would take action at the direction of the county health officer.

County Supervisor Scott Haggerty, who represents Fremont, said he’s been working on the issue for weeks trying to find a way for Tesla to reopen in a way that satisfies the health officer. He said officials were moving toward allowing Tesla to restart May 18, but he suspects Musk wanted to restart stamping operations to make body parts needed to resume assembling electric vehicles.

Tesla planned to maintain worker safety, including the wearing of gloves and masks and social distancing. Haggerty said the company initially pushed back on checking employee temperatures before boarding a company bus to get to work. But Tesla relented, he said, and agreed to check workers.

“I’m seeing emails going back and forth between the plant and our public health department so I’m encouraged by that, and that’s what I mean by cooler heads,” he said. “There’s a lot of people whose lives depend on that plant opening safely.”

The restart came two days after Tesla sued the county health department seeking to overturn its order, and Musk threatened to move Tesla’s manufacturing operations and headquarters from the state.

Frankly, this is the final straw,” Musk wrote in a now-deleted Saturday tweet. “Tesla will now move its HQ and future programs to Texas/Nevada immediately.”