Category: Daily News

According to the Association of Air Medical Services, more than a half a million individuals are transported via air ambulance services each year. The majority of these transports are via helicopter in emergency situations; the remainder are fixed-wing transports for longer distances. Air ambulance companies successfully claimed that they were exempt from state fee schedules in litigation for more than a decade.

At one time, California Administrative Director Rule 9789.70(a) regulated ambulance services fees. The ambulance fee schedule as applied to air ambulance services was challenged by those providers in California.

Ultimately, the WCAB issued an en banc decision in 2013 ( Luis Enriquez (deceased) v Couto Dairy and Zenith Insurance Company ) conceding the preemption of federal law over Official Medial Fee Schedule limits if the air ambulance provider could establish that they were an “air carrier” that provides air transportation within the meaning of the Airline Deregulation Act, and that this Act would then preempt any California law.

This more or less ended the controversy in California workers’ compensation. And decisions in other jurisdictions had a similar result until a recent Texas Supreme Court Decision.

Excessive helicopter transport bills were the crux of the lawsuit in PHI Air Medical, LLC v. Texas Mutual Insurance Company, et al. A trial court rendered judgment in favor of eight plaintiff insurers, which included Texas Mutual Insurance Company and Hartford Underwriters Insurance Company, who disagreed with PHI’s per-trip charge for medically transporting injured workers.

In Split June 26, 2020 Opinion, the Supreme Court of Texas Rejected the Preemption Argument in Worker’s Compensation Disputes in the case of Tex. Mut. Ins. Co. v. PHI Air Med., LLC, 610 S.W.3d 839 (Tex. 2020), cert. denied, _ S. Ct. _, 2021 WL 1602647 (Apr. 26, 2021).

However, a similar case made its way into the Federal court system in Texas, on the same issue. Air Evac EMS, Inc., is an air ambulance provider that offers medical transport services to a wide variety of patients. That includes patients who are injured at their workplace. The price that Air Evac may charge for such transportation is accordingly subject to conflicting regulatory regimes.

Two of the Fifth Circuit sister circuits have unanimously held that the ADA preempts price controls on air ambulance services set by state workers’ compensation regulations. See Air Evac EMS, Inc. v. Cheatham, 910 F.3d 751 (4th Cir. 2018); EagleMed LLC v. Cox, 868 F.3d 893 (10th Cir. 2017).

Now the Fifth Circuit Court of Appeal agreed, and reversed the Texas Supreme Court position. In Air Evac EMS, Incorporated v Texas Commissioner of Insurance (2021).

“In doing so, we agree with our sister courts of appeals, which have unanimously held that the ADA preempts state price caps on air ambulance reimbursements, and that those state price caps are not saved by the McCarran- Ferguson Act. And we disagree with the Texas Supreme Court, which has reached contrary conclusions by a divided vote.”

A string of victories by plaintiffs in the several Monsanto Roundup cancer cases may be paving the way for workers’ compensation subrogation, should those cases be filed by California farm workers as industrial injuries. A new published opinion in California continues to be favoring plaintiffs.

Alberta Pilliod and her husband, Alva Pilliod, each developed non-Hodgkin’s lymphoma after years of spraying Roundup herbicide on their property.

The Pilliods sued Monsanto Company, the manufacturer of Roundup, for damages based on claims of design defect and failure to warn. After a six-week trial, the jury found for the Pilliods, awarded Alberta over $37 million in compensatory damages, awarded Alva over $18 million in compensatory damages, and awarded each of them $1 billion in punitive damages.

The trial court conditionally denied Monsanto’s motion for new trial, contingent on the Pilliods’ acceptance of substantially reduced compensatory and punitive damages, resulting in a total award to Alberta of about $56 million (including about $45 million in punitive damages) and a total award to Alva of about $31 million (including about $25 million in punitive damages). The Pilliods accepted the reductions.

On appeal, Monsanto argues that the Pilliods’ claims are preempted by federal law, the jury’s liability findings are not supported by substantial evidence, the jury was improperly instructed as to the Pilliods’ design defect claim, the jury’s causation findings are legally and factually flawed, the trial court abused its discretion by admitting certain evidence, and the verdict is the product of attorney misconduct.

Monsanto also argues that the punitive damages awards should be stricken or further reduced because they are unsupported by evidence and constitutionally excessive.

In their cross- appeal, the Pilliods argue that the trial court erred in reducing the jury’s awards for compensatory and punitive damages.

The trial court was affirmed in the published option of Pilliod v Monsanto.

The 84 page decision carefully reviewed the scientific evidence, and the history of the plaintiffs’ use of the evidence, and found that it supported the final result.

Monsanto argued that the Pilliods’ claims, which are brought under California common law, are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA, 7 U.S.C. § 136 et seq.), which governs the use, sale, and labeling of pesticides, including herbicides. On that basis, Monsanto contends that the Court of Appeal should reverse the judgment and direct the trial court to enter judgment for Monsanto.

The Court was not persuaded by their argument. The supremacy clause of the United States Constitution “makes federal law paramount, and vests Congress with the power to preempt state law.” However, California common law does not impose any requirements that are different from or in addition to the requirements of FIFRA.

The San Francisco Sheriff’s Association, the union representing officers in the San Francisco Sheriff’s Department, said that many sheriff’s deputies would resign if the department sought to enforce a new coronavirus vaccine mandate.

In a Facebook post on Friday, the union wrote that the city’s mandate, which threatens termination for noncompliance, was out of step with Gov. Gavin Newsom’s own mandate, which at least offered regular testing as an alternative:

– – The SFDSA has always promoted Covid-19 Safety and has given out masks as well as face shields to first responders and the public during the peak of the pandemic. We believe the data and science speaks for itself and that masking works.
– – The problem we are faced with now is the strict San Francisco Mandate which is vaccinate or be terminated. If deputy sheriffs are forced to vaccinate a percentage of them will retire early or seek employment elsewhere.
– – The majority of Deputy Sheriffs are vaccinated. Approximately 160 out 700 Deputy Sheriffs are not vaccinated prefer to mask and test weekly instead of being vaccinated due to religious and other beliefs. Currently, the staffing at the SFSO is at the lowest it has ever been due to the past 9-month applicant testing restriction placed on the Sheriff’s Office by the Mayor.
– – San Francisco cannot afford to lose any more deputy sheriffs or any first responders. If they retire early or quit this will affect public safety even more. We would like San Francisco to be in alignment with the state guidelines which are require vaccination or test weekly.

San Francisco already faces a crisis in law enforcement, with petty crime soaring and Mayor London Breed proposing to redistribute $120 million from law enforcement to social programs (the final budget increased police funding, using the city’s general fund to provide the money for alternatives to policing, rather than cutting police funding directly)

And other California employers are facing similar headwinds. Disney revealed its new policy last week requiring employees to be vaccinated. That, however, only applied to salaried, and non-union cast members and not the 38,000 union members who make the bulk of the workforce.

The president of Local 362, which represents many cast members, including those in attractions and custodial, says the six unions making up the Service Trades Council have been negotiating with Disney all week and plan to continue doing so.

And union opposition appears in other states as well. The New York State United Teachers union voiced opposition after Gov. Andrew Cuomo encouraged schools to adopt such requirements.

The Physicians Foundation released the 2021 Survey of America’s Physicians, COVID-19 Impact Edition: A Year Later, that examines how COVID-19 has affected the nation’s physicians more than a year since the start of the pandemic, from increased burnout rates to the continued epidemic of physician suicide.

Over the past year, COVID-19 has greatly impacted physician wellbeing and mental health, with over 6 in 10 physicians (61%) reporting they experienced feelings of burnout.

This is a significant increase from the 40% of reported physicians in 2018. Yet only 14% of physicians reported they sought medical attention for their mental health symptoms.

Additionally, 8% of physicians indicated they have increased their use of medications, alcohol or illicit drugs weekly as a result of COVID-19’s effects on their practice or employment situation.

A total of 46% of physicians said they have isolated or withdrawn from other people in the last year, more than one in three said they felt hopeless or without a purpose, and 57% reported experiencing “inappropriate episodes of anger, tearfulness, or anxiety.”

The report stated that “difficult working conditions such as a lack of personal protective equipment (PPE) and caring for patients who may be seriously ill for weeks — along with burdensome administrative tasks, long hours, and grief over losing patients — have become the norm, but little has been done to alleviate the heavy mental health toll on physicians.”

Additional findings from the 2021 Survey include:

– – A significantly larger proportion of younger (64%) and female (69%) physicians reported frequently feeling burnout as compared to older (59%) and male (57%) physicians.
– – Physicians who were employed by hospitals or health systems experienced more frequent feelings of burnout (64%) as compared to independent physicians (56%).
– – Nearly 8 in 10 physicians indicated they experienced changes to their practice or employment as a result of COVID-19.
– – Almost half of physicians (49%) reported a reduction in income while 32% reported a reduction in staff as a result of the pandemic.
– – Nearly 70% of physicians indicated they anticipate continuing the use of telehealth in their ongoing practice.
– – Despite the high rates of burnout, nearly half (46%) of physicians said they would still recommend medicine as a career option to young people.

A total of 23% of physicians, across a range of demographics, said they want to retire in the next year, a drop from the 38% who reported wanting to retire in 2020.

The U.S. Department of Justice just published its 124 page Annual Report of the Departments of Health and Human Services and Justice – Health Care Fraud and Abuse Control Program FY 2020.

The Annual Report of the Attorney General and the Secretary detailing expenditures and revenues under the Health Care Fraud and Abuse Control Program for fiscal year 2020 is provided as required by the Social Security Act.

During Fiscal Year 2020, the Federal Government won or negotiated more than $1.8 billion in health care fraud judgments and settlements, in addition to other health care administrative impositions.

Because of these efforts, as well as those of preceding years, almost $3.1 billion was returned to the Federal Government or paid to private persons in 2020. Of this $3.1 billion, the Medicare Trust Funds received transfers of approximately $2.1 billion during this period, in addition to the $128.2 million in Federal Medicaid money that was similarly transferred separately to the Treasury due to these efforts.

In 2020, the Department of Justice opened 1,148 new criminal health care fraud investigations. Federal prosecutors filed criminal charges in 412 cases involving 679 defendants. A total of 440 defendants were convicted of health care fraud related crimes during the year.

Also, in 2020, DOJ opened 1,079 new civil health care fraud investigations and had 1,498 civil health care fraud matters pending at the end of the fiscal year.

Federal Bureau of Investigation (FBI) investigative efforts resulted in over 407 operational disruptions of criminal fraud organizations and the dismantlement of the criminal hierarchy of more than 101 health care fraud criminal enterprises.

In 2020, investigations conducted by HHS’s Office of Inspector General resulted in 578 criminal actions against individuals or entities that engaged in crimes related to Medicare and Medicaid, and 781 civil actions, which include false claims and unjust-enrichment lawsuits filed in federal district court, civil monetary penalties settlements, and administrative recoveries related to provider self-disclosure matters.

The Report highlights many of the major prosecutions starting on page 15 of the report. Many of them involved California companies.

The first ever kickback action against an EHR developer for receipt of remuneration from a pharmaceutical company involved Practice Fusion Inc., a health information technology developer based in San Francisco.

In 2020, it agreed to pay $145.0 million to resolve criminal and civil liability based on its solicitation and receipt of kickbacks from a major opioid company in exchange for implementing clinical decision support alerts in its EHR software that were designed to increase prescriptions for the drug company’s products, and agreed to pay over $26.0 million in criminal fines and forfeiture.