Category: Daily News

A federal grand jury handed down a 33-page indictment charging 36 year old Zachary Schulz Apte and 46 year old Jessica Sunshine Richman with multiple federal crimes including conspiracy to commit securities fraud, conspiracy to commit health care fraud, money laundering, and related offenses in connection with alleged schemes to defraud health insurance providers and investors.

According to the indictment, Apte and Richman, both of whom resided in San Francisco at the time, co-founded uBiome in October 2012. Initially, uBiome offered a direct-to-consumer service, called “Gut Explorer,” which allowed an individual to submit a fecal sample that uBiome would analyze in its laboratory and produce a report comparing the customer’s microbiome to the microbiomes of others who had submitted fecal samples to uBiome, all for less than $100.

The defendants eventually expanded uBiome’s business model to include development and marketing of “clinical” tests regarding the gut and vaginal microbiomes, which tests would ostensibly be used by medical professionals to make medical decisions and as to which uBiome would seek reimbursement from health insurance providers in amounts up to nearly $3,000. Apte’s and Richman’s efforts to have uBiome develop clinical tests that could be billed to insurance companies were intended to attract large-scale venture capital investment.

By late 2015, shortly before it raised millions of dollars in its “Series B” fundraising round, uBiome began to market a “clinical” version of a test.

Thereafter, the indictment alleges that Apte and Richman caused uBiome to employ various methods to secure health care provider orders for its clinical gut test and clinical vaginal test, including by having its Chief Medical Officer review test requests from customers and endeavoring to build a network of health care providers external to uBiome.

The defendants ultimately adopted several fraudulent practices with respect to its clinical tests. Specifically, the defendants developed, implemented, and oversaw practices designed to deceive approving health care providers and reimbursing insurance providers regarding tests that were not validated and not medically necessary.  The defendants falsified documents and lied about and concealed material facts when insurance providers asked questions to which truthful answers would reveal the fraudulent nature of uBiome’s billing model.

Such practices included fraudulently submitting reimbursement claims for re-tests or re-sequencings of archived samples (referred to internally at uBiome as “upgrades”) and utilizing a captive network of doctors and other health care providers who fraudulently were given partial and misleading information about the test requests they were reviewing. They are also accused of  fraudulently submitting reimbursement claims with respect to tests that had not been validated under applicable federal standards and/or for which patient test results had not yet been released.

Between 2015 and 2019, uBiome submitted more than $300 million in reimbursement claims to private and public health insurers. Of these reimbursement claims, uBiome was paid more than $35 million.

The Commission on Health and Safety and Workers’ Compensation (CHSWC) examines the health and safety and workers’ compensation systems in California and makes recommendations to improve their operation. CHSWC is composed of eight members appointed by the Governor, Senate and Assembly to represent employers and labor.

At the request of the Executive Branch, the Legislature and the Commission, CHSWC conducts research, releases public reports, presents findings, and provides information on the health and safety and workers’ compensation systems. They have just released the 247 page 2020 Annual Report.

Some of the highlights of the many topics covered in the Report include:

The Return-to-Work Supplemental Program administers a $120 million fund that makes supplemental payments to workers whose permanent disability benefits are disproportionately low in comparison to their earnings losses. A recent CHSWC study by RAND that evaluated the Return-to-Work Fund found a low rate of receipt of the RTWSP among eligible workers. CHSWC made a number of recommendations including increasing outreach and notification to help increase participation.

Research on the impact of the 2012 workers’ compensation reforms on earnings losses suggests that SB 863 has likely met its primary objective of restoring adequate wage replacement rates, although some inequities still exist in these rates across impairments.

The DWC recently adopted changes in its Physician Services/Non-Physician Practitioner Services Fee Schedule to encourage greater use of telehealth in light of the COVID-19 public health emergency. The Commission recommended that administrators monitor and study the use of telehealth and other medical care changes in WC in light of the COVID-19 pandemic.

In recent years, criminal indictments and prosecutions have highlighted the extent of medical provider fraud in the WC system. Estimates of the cost of this fraud to participants in the WC system are as high as $1 billion per year. They as that officials consider recommendations in the RAND report “Provider Fraud in California Workers’ Compensation” related to provider fraud.

A CHSWC study found that between $15 billion and $68 billion in payroll is underreported annually. A related study on split class codes found that 25 to 30 percent of low-wage payroll is underreported or misreported.

SB 1159 (2020) would require the Commission on Health and Safety and Workers’ Compensation to conduct a study of the impacts of COVID-19 and the specific presumptions created by this bill and report its findings to the Legislature and the Governor.

SB 1159 provides that a preliminary report from CHSWC is due to the Legislature and the Governor by December 31, 2021, and the final report must be delivered by April 30, 2022.

Two California district attorneys are teaming up to sue a home cleaning and repair gig company for allegedly misclassifying tens of thousands of workers as independent contractors.

The district attorneys of San Francisco and Los Angeles on Wednesday sued the New York-based company Handy, which operates an online application that allows customers to schedule home-cleaning and repair services.

Handy, a company started by Harvard Business School classmates Oisin Hanrahan and Umang Dua in 2012, has scheduled home-cleaning and repair gigs for tens of thousands of workers in California, according to the San Francisco DA’s office.

The lawsuit filed in San Francisco Superior Court accuses Handy of failing to pay minimum wage and overtime wages or reimburse job-related expenses such as cleaning supplies. It also claims the company denied workers sick leave and did not pay unemployment insurance or payroll taxes.

It further accuses the company of illegally imposing fines on workers and deducting pay from their wages. Additionally, it claims the company did not cover quarterly healthcare expenditures for workers in San Francisco as required by a city ordinance.

In an emailed statement, a Handy spokesperson said the lawsuit “has no merit” and is based on a “fundamental misunderstanding” of California law and the rights of Handy and its workers, which it calls “pros.”

“Handy complies with all laws and regulations in California and elsewhere, and we will vigorously defend ourselves in court,” the spokesperson said.

Assistant San Francisco DA Scott Stillman, who runs the office’s Economic Crimes Unit, said Handy cannot satisfy the three requirements necessary to classify workers as independent contractors under state law.

The California Supreme Court established a three-pronged standard, known as the “ABC test,” for determining a worker’s employment status in its 2018 ruling in Dynamex v. Superior Court. That standard was later written into state law with the passage of Assembly Bill 5 in 2019.

Stillman said Handy directly controls workers by monitoring them through an app for several hours before and after their scheduled shifts. The company allegedly fines workers if they show up to assignments late or leave early. Stillman argued that Handy’s gig workers also support the company’s core business function – providing home-cleaning and repair services.

Handy also requires its workers to sign arbitration agreements waiving their right to sue the company in court. Labor disputes, including ones involving employment status, must be resolved through a private arbitration process instead.

The district attorneys seek a court order requiring Handy to classify workers as employees, pay civil penalties and provide restitution to workers for unpaid wages and job expense reimbursement.

Last year, voters approved a ballot measure backed by Uber and Lyft that exempted app-based transportation and delivery workers from California’s labor law, allowing those companies to continue classifying their workers as independent contractors.

Juan Castro sustained injuries when he fell out of a tree he was trimming at an apartment complex owned by Kirby Manor Corporation and managed by Hallmark Realty.

Kirby and Hallmark had an agreement that identified Hallmark as both an independent contractor hired by Kirby and Kirby’s agent. Hallmark had hired Marcos Patino to provide landscaping services, including tree-trimming, and Patino, in turn, had hired Castro to help him trim the trees.

Castro filed this negligence action against Kirby and Hallmark. He alleged that he was an employee of the defendants, that he sustained his injuries in the course of his employment, and that during his employment the defendants “failed to secure any worker’s compensation insurance coverage whatsoever to cover any workplace injuries suffered by” him. Castro alleged the defendants’ failure to obtain a worker’s compensation policy entitled him to bring a civil action for negligence under Labor Code section 3706.

Hallmark and Kirby filed a motion for summary judgment. Hallmark conceded Castro was its employee, but contended that it had workers’ compensation insurance when he suffered his injury and that therefore Castro’s exclusive remedy was through the workers’ compensation system. Hallmark submitted a true and correct copy of Hallmark’s workers’ compensation insurance policy in effect at the time of Castro’s accident.

Castro argued, even assuming “there was a valid workers’ compensation policy,” Hallmark had not produced evidence Castro “met the minimum number of hours required to qualify for workers’ compensation coverage.”

The trial court granted the motion for summary judgment, and the Court of Appeal affirmed in the unpublished case of Castro v. Knowlton Manners Apartments.

The Exclusive Remedy rule ordinarily protects an employer from suits by an employee for injuries during the course of employment.

One exception to that rule appears in section 3706, which provides that an injured employee may bring a civil action for damages against “any employer [who] fails to secure the payment of compensation” under the Act, as required by section 3700. An employer complies with its obligation under section 3700 to secure the payment of compensation by either purchasing workers’ compensation insurance or self-insuring.

In a statutory action under section 3706 of the Labor Code, it is the ‘plaintiff’s obligation to plead and prove violation of section 3700 by his employer’s failure to carry workers’ compensation insurance.

The Court noted that “Castro cites several cases he suggests “indicate that a defendant must show a plaintiff received workers’ compensation benefits for the claimed injuries, before a plaintiff can be barred from pursuing a damages action for the same injuries.” None of those cases, however, says anything like that.”

National Emphasis Programs (NEPs) are temporary programs that focus OSHA’s resources on particular hazards and high-hazard industries.

Existing and potential new emphasis programs are evaluated using inspection data, injury and illness data, National Institute for Occupational Safety and Health (NIOSH) reports, peer-reviewed literature, analysis of inspection findings, and other available information sources.

On March 12, 2021, OSHA announced policies and procedures for implementing a National Emphasis Program to ensure that employees in high-hazard industries or work tasks are protected from the hazard of contracting COVID-19.

The newest NEP augments OSHA’s efforts addressing unprogrammed COVID-19-related activities, e.g., complaints, referrals, and severe incident reports, by adding a component to target specific high-hazard industries or activities where this hazard is prevalent.

The NEP targets establishments that have workers with increased potential exposure to this hazard, and that puts the largest number of workers at serious risk.

In addition, this NEP includes an added focus to ensure that workers are protected from retaliation, and are accomplishing this by preventing retaliation where possible, distributing anti-retaliation information during inspections, and outreach opportunities, as well as promptly referring allegations of retaliation to the Whistleblower Protection Program.

Also on March 12, 2021, OSHA issued an “Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19)” (ERP).

The ERP “provides new instructions and guidance to Area Offices and Compliance Safety and Health Officers (CSHOs) for handling COVID-19 related complaints, referrals, and severe illness reports.” It summarizes the NEP and details how CSHOs are to conduct inspections, and it makes on-site inspections the default method, with remote-only inspections to be conducted only with approval of the area director for CSHO safety reasons.