Author: WorkCompAcademy

The Local Initiative Health Authority for Los Angeles County (L.A. Care) is a public agency that provides health insurance for low-income individuals in Los Angeles County through four health coverage programs including Medi-Cal.

Back in March 2022 LA Care was fined $55 million by the California Department of Managed Health Care and the California Department of Health Care Services for “deep-rooted, systemic failures that threaten the health and safety of its members.” The departments said their investigations were triggered by a September 2020 Los Angeles Times article that identified multiple county residents who died of their conditions following extensive delays for treatment.

And now – slightly more that one year later – the U.S. Department of Health and Human Services’ Office for Civil Rights (OCR) just announced a settlement of potential violations of the Health Insurance Portability and Accountability Act (HIPAA) Rules with L.A. Care, the nation’s largest publicly operated health plan that provides health care benefits and coverage through state, federal, and commercial programs.

OCR enforces the HIPAA Privacy, Security, and Breach Notification Rules that set the requirements that HIPAA-regulated entities must follow to protect the privacy and security of protected health information (PHI)

The settlement concludes two OCR investigations initiated from a large breach report and a media article regarding a separate security incident.  Under the agreement, LA Care agreed to pay $1,300,000 and to implement a corrective action plan, discussed in further detail below, which identifies steps LA Care will take to resolve these potential violations of the HIPAA Security Rule and protect the security of electronic protected health information (ePHI).

“Breaches of protected health information by a HIPAA-regulated entity often reveal systemic, noncompliance with the HIPAA Rules,” said OCR Director Melanie Fontes Rainer.  “HIPAA-regulated entities need to be proactive in ensuring their compliance with the HIPAA Rules, and not wait for OCR to reveal long-standing HIPAA deficiencies.  Entities such as LA Care must protect the health information of its insureds while providing health care for the most vulnerable residents of Los Angeles County through its coverage, which includes Medicaid, Medicare, and Affordable Care Act health plans.”

The potential violations in this case included:

– – Failure to conduct an accurate and thorough risk analysis to determine risks and vulnerabilities to ePHI across the organization,
– – Failure to implement security measures sufficient to reduce risks and vulnerabilities to ePHI to a reasonable and appropriate level,
– – Failure to implement sufficient procedures to regularly review records of information system activity,
– – Failure to perform a periodic technical and nontechnical evaluation in response to environmental or operational changes affecting the security of ePHI, and
– – Failure to implement hardware, software, and/or procedural mechanisms that record and examine activity in information systems that contain or use ePHI.

OCR’s investigation found evidence of potential noncompliance with the HIPAA Privacy and Security Rules across LA Care’s organization, a serious concern given the size of this covered entity. In addition to the monetary settlement, LA Care has agreed to take the following steps under a comprehensive corrective action plan that will be monitored for three years by OCR to ensure compliance with HIPAA:

– – Conduct an accurate and thorough risk analysis to determine risks and vulnerabilities to electronic patient/system data across the organization.
– – Develop and implement a risk management plan to address identified risks and vulnerabilities to the confidentiality, integrity, and availability of ePHI.
– – Develop, implement, and distribute policies and procedures for a risk analysis and risk management plan.
– – Report to HHS when it conducts an evaluation due to an environmental and operational change that affects the security of ePHI in LA Care’s possession or control.
– – Report to HHS within thirty (30) days when workforce members fail to comply with the HIPAA Rules.

The resolution agreement and corrective action plan may be found on the HHS website

A heartbreaking milestone haunts this year’s 9/11 anniversary. The NY Post and other media report that 341 FDNY members have now died of Ground Zero-related illnesses, nearly equaling the death toll for other fire fighters that perished in the 2001 terror attack at Ground Zero.

“Twenty-two years ago the loss of 343 firefighters was an unimaginable number and sadly the day we pass that milestone is quickly approaching,” Andrew Ansbro, president of the FDNY Uniformed Firefighters Association, said at a news conference Friday. “It is inevitable.”

“We’ve attended 40 or so funerals this year for the members that we lost and we know it’s not going to end. So for us it’s every day or every week – but for the general public we have this press conference to remind everyone that it is ongoing and that funding is still needed,” he said.

James Brosi, president of the FDNY Uniformed Fire Officers Association, warned that “we may exceed” the immediate 9/11 death toll “even before the anniversary.” In February, Brosi said he lost his own father, Joseph Brosi, who worked at Engine 88 in the Bronx and battled both lung and bladder cancers after 9/11.

“In the early anniversaries that immediately followed 9/11, our primary focus was on the people we had lost because that was our greatest concern,” Brosi said. “And as the years passed, and as the latency period passed for those illnesses that will now affect us, our concern is shifted not only with the people we lost, but the people we’ve lost since, and the people that are now struggling.”

Exposure to the enormous cloud of toxins, dust and debris that resulted from the terrorist attack on the World Trade Center in 2001 has been linked to an increased risk of cardiovascular disease among first-responder firefighters, according to a recent study published in the JAMA Network.

In this cohort study of 9796 firefighters, age-adjusted incident rates of cardiovascular disease were higher for firefighters with greater World Trade Center exposure. Both acute World Trade Center as well as repeated exposure during 6 or more months at the World Trade Center site appeared to be associated with long-term elevated cardiovascular disease risk.

“The findings of the study suggest a significant association between greater WTC exposure and long-term CVD risk. The findings appear to reinforce the importance of long-term monitoring of the health of survivors of disasters.”

Among the firefighters in the study, “the ones with the greatest exposure – those present in the morning of 9/11 – had a higher risk than those who showed up later in the week,” said Dr. David Prezant, chief medical officer for the Fire Department of the City of New York and a professor at the Albert Einstein College of Medicine, who was senior author of the new study.

“The exposure [among first responders] was really dramatic,” explains Dr. Michael Crane, a physician and environmental medicine professor at the Icahn School of Medicine at Mount Sinai, who also is the medical director of a clinic that delivers care to 9/11 first responders. “There were all kinds of carcinogens and combustion products,” Crane says.

The contents of two skyscrapers including concrete, pipes, computers, were pulverized into burning ash laden with lead and other heavy metals. The plume of smoke that could be seen from space. “It was a real witch’s brew,” Crane says.

And another study published in JNCI Cancer Specturm used a study population that consisted of 28 729 members of the General Responder Cohort. A restricted analyses identified 1072 cancers in 999 responders, with elevations in cancer incidence for all cancer sites combined  

The California Attorney General in partnership with six district attorneys, announced a settlement with Kaiser Foundation Health Plan, Inc., and Kaiser Foundation Hospitals resolving allegations that the healthcare provider unlawfully disposed of hazardous waste, medical waste, and protected health information at Kaiser facilities statewide. As part of the settlement, Kaiser will be liable for a total of $49 million and be required to take significant steps to prevent future unlawful disposals.

The settlement is the result of undercover inspections conducted by the district attorneys’ offices of dumpsters from 16 different Kaiser facilities. During those inspections, the district attorneys’ offices reviewed the contents of unsecured dumpsters destined for disposal at publicly accessible landfills, finding hundreds of items of hazardous and medical waste (aerosols, cleansers, sanitizers, batteries, electronic wastes, syringes, medical tubing with body fluids, and pharmaceuticals) and over 10,000 paper records containing the information of over 7,700 patients.

The California Department of Justice subsequently joined the district attorneys and expanded the investigation of Kaiser’s disposal practices further throughout the state. In response to this joint law enforcement investigation, Kaiser immediately hired a third-party consultant and conducted over 1,100 trash audits at its facilities in an effort to improve compliance. Kaiser also modified its operating procedures to improve its handling, storage, and disposal of waste.    

Kaiser is headquartered in Oakland, California and operates over 700 facilities statewide, making it the largest healthcare provider in California. Kaiser provides healthcare to approximately 8.8 million Californians, as well as members of the public who seek emergency care from Kaiser facilities. In announcing today’s settlement, Attorney General Bonta is joined by the district attorneys of Alameda, San Bernardino, San Francisco, San Joaquin, San Mateo, and Yolo counties.

As part of the settlement, Kaiser:

– – Will pay $47.250 million. That amount includes $37,513,000 in civil penalties; $4,832,000 in attorneys’ fees and costs; and $4,905,000 for supplemental environmental projects, primarily environmental prosecutor training.
– – Must pay an additional $1.75 million in civil penalties if, within 5 years of the entry of the final judgment, Kaiser has not spent $3.5 million at its California facilities to implement enhanced environmental compliance measures to ensure compliance with relevant provisions of the law that are alleged to have been violated.
– – Must retain an independent third-party auditor – approved by the Attorney General’s Office and the district attorneys – who will: perform no less than 520 trash compactor audits at Kaiser’s California facilities to help ensure that regulated wastes (including items containing protected health information) are not unlawfully disposed of; and conduct at least 40 programmatic field audits each year, for a period of five years after entry of the final judgment, to evaluate Kaiser’s compliance with policies and procedures designed to ensure compliance with applicable laws related to hazardous waste, medical waste, and protected health information.

Kaiser’s unlawful disposals are alleged to violate California’s Hazardous Waste Control Law, Medical Waste Management Act, Confidentiality of Medical Information Act, Customer Records Law, and Unfair Competition Law. The disposals are also alleged to violate the federal Health Insurance Portability and Accountability Act of 1996, known as HIPAA.

In 2014, the California Department of Justice filed a lawsuit against Kaiser after it delayed notifying its employees about an unencrypted USB drive that was discovered at a Santa Cruz thrift store. The USB drive contained over 20,000 employee records.

Kaiser paid $150,000 in penalties and attorneys’ fees, and agreed to comply with California’s data breach notification law in the future, provide notification of any future breach on a rolling basis, and implement additional training regarding the sensitive nature of employee records. In addition, Kaiser has been the subject of prior enforcement actions by local prosecutors for mismanagement of regulated wastes.

Terry Smith, a recently retired Worker’s Compensation Judge, has returned to the law firm of Floyd Skeren Manukian Langevin as a partner its Complex Litigation Unit.

He will also be assisting retired Workers Compensation Judge David O’Brien maintain and edit his treatise California Workers’ Compensation Claims and Benefits, Online Edition, and other special projects.

Judge Smith is a Certified Specialist in California Workers’ Compensation Law and has defended insurance carriers, private employers, public agencies, self-insured employers, administrators, school districts, and transit districts. He is a trial attorney litigating special investigation cases, serious willful misconduct claims, §132(a) claims and appellate work.

Judge Smith served as a Deputy Sheriff for the County of Ventura and has worked for the Ventura District Attorney’s office. He began his workers’ compensation career 30 years ago as an adjuster and then as an attorney working at a national insurance carrier specializing in Special Investigations Unit (SIU) cases.

He has lectured to insurance company’s claims units and employers in association with the Employer’s Fraud Task Force and the Los Angeles County, San Bernardino County, Orange County and Riverside County District Attorney’s Offices.

Judge Smith has also lectured to the International Association of Special Investigation Units and the Southern California Fraud Investigators Association.

After serving as a Workers’ Compensation Judge at the Marina Del Rey Board, he now has decided to return to his prior home with Floyd Skeren at its Westlake Village office where he was formerly a Partner and Manager of the attorneys in that office.

His colleagues at that facility and in other firm offices across the state are very excited to learn of his return to his former group. He spent seventeen years as a defense lawyer with the firm before being recruited as a Workers’ Compensation Judge by the WCAB.

Judge Smith said he was very pleased to return to the group of colleagues he has known and worked with for many years, and to work with the firm’s clients, many of which he has worked in the capacity as defense lawyer.

In addition to his work with Floyd Skeren, he enjoys traveling and vacationing with his wife of 30 years. On weekends he enjoys riding his Harley Davidson Street Glide Special with the local Harley Owners Group (HOG) and the local Blue Knights® International Law Enforcement Motorcycle Club – a non-profit fraternal organization consisting of active and retired law enforcement officers who enjoy riding motorcycles.

Historically, common law allowed contractual restraints on lawful business practices, so long as they were reasonable. However, in 1872, California opted to impose stricter limitations on such contractual restraints, instead opting to favor policy that would support competition in trade. This decision resulted in the enactment of Civil Code Section 1673, subsequently renumbered and moved to Business and Professions Code Section 16600.

Section 16600 states “Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” Subject to various statutory exceptions, the impact of this section is to invalidate any attempt at a noncompete agreement (or a contract in restraint of trade) that would improperly prohibit individuals from engaging in a lawful business.

There is extensive case law on this matter, but one case in particular has cemented the prohibition on noncompete clauses in California. In Edwards v. Arthur Andersen LLP, the California Supreme Court held that “[n]oncompetition agreements are invalid under section 16600 in California, even if narrowly drawn, unless they fall within the applicable statutory exceptions[.]” (Edwards v. Arthur Anderson LLP, 44 Cal. 4th 937, 955 (2008).)

On September 1, Governor Gavin Newsom signed S.B. 699, a new law that strengthens existing California law that voids contracts which restrain anyone from engaging in a lawful profession, trade, or business of any kind. The new provisions take effect on January 1, 2024.

Existing Law:

– – Provides that every contract that restrains anyone from engaging in a lawful profession, trade, or business of any kind is void, subject to limited exceptions. (Business & Professions Code Section 16600.)
– – Provides that any person who sells the goodwill of a business, or any owner of a business entity selling or otherwise disposing of all of his or her ownership interest in the business entity, or any owner of a business entity that sells specified assets or interests may agree with the buyer to refrain from carrying on a similar business within a specified geographic area in which the business is sold, or that of the business entity, division, or subsidiary has been carried on, so long as the buyer, or any person deriving title to the goodwill or ownership interest from the buyer, carries on a like business therein. (Business and Professions Code section 16601.)
– – Defines “ownership interest” to mean a partnership interest, a membership interest, or a capital stockholder, as specified. (Business and Professions Code section 16601.)
– – Establishes the Division of Labor Standards and Enforcement, of which the state Labor Commissioner is chief, to ensure that minimum labor standards are adequately enforced. (Labor Code Sections 82 and 90.5.)

New Law

S.B. 866 aims to strengthen and clarify existing restrictions on the use of noncompete agreements in four ways. First, it strengthens California’s restraint of trade prohibitions by making it clear that any contract that is void under California’s restraint of trade law is unenforceable, regardless of where and when the contract was signed.

Second, the new law prohibits an employer or former employer from attempting to enforce a contract that is void under California’s restraint of trade law.

Third, the new law prohibits an employer from entering into a contract with an employee or prospective employee that includes a provision that is void under restraint of trade law.

Fourth, the new law provides that an employer who enters into a contract that is void under California’s restraint of trade law or attempts to enforce a contract that is void under California’s restraint of trade law commits a civil violation.

The law provides robust mechanisms for the enforcement of these provisions. The bill allows an employee, former employee, or prospective employee may bring an action to enforce these provisions for injunctive relief or the recovery of actual damages, or both. A prevailing employee, former employee, or prospective employee is also entitled to recover reasonable attorney’s fees and costs.

The California Employment Lawyers Association, was in support of SB 699, as it explained that, “although noncompete clauses have been unlawful in California since 1872, our attorneys routinely see these clauses included in employment agreements with California employees.”

Dozens of law professors from law schools across the nation provided a letter of joint support for the bill.

There was no report of any opposition to the passage of S.B. 699.