Courthouse News reports that a federal judge in San Francisco ruled that he nation’s largest health insurer can sue two pharmaceutical giants over claims that they colluded to drive up the price of life-saving HIV drugs in violation of multiple state laws. United HealthCare Services, which insures 70 million people in the U.S. through its affiliates and subsidiaries, sued Gilead Sciences and Teva Pharmaceuticals in federal court last year. The insurer, owned by parent company UnitedHealth Group, claims the drug makers entered into a series of unfair patent settlements that delayed generic versions of HIV drugs from hitting the market and shot up prices for consumers. UnitedHealth’s complaint against the pharma firms is part of a flurry of federal antitrust suits filed last year against the makers of HIV antiretroviral drugs. Major retailers and insurers, including Humana and Blue Cross Blue Shield, have also sued the pharmaceutical giants. The lawsuits claim Teva struck deals to settle patent suits with Gilead that delayed the introduction of a generic form of Viread until December 2017 and generic forms of Truvada and Atripla until September 2020. They say those deals enabled the drugmakers to charge hundreds of millions of dollars in higher prices for necessary medications that would have otherwise been cheaper in a truly competitive market. A separate suit filed against Gilead by Humana last year claims that most of the company’s HIV medications cost $10 to produce, but for nearly 20 years Gilead charged health plans thousands of dollars for a 30-day supply. HIV drugs earned Gilead nearly $17 billion in sales in 2020. Gilead makes three of the four top-selling HIV medications in addition to other drugs used in HIV combination antiretroviral therapy, or "cART." More than 80% of U.S. patients starting HIV treatment take one or more of Gilead's products each day, according to lawsuits filed by retailers. Teva and Gilead had asked U.S. District Judge Edward Chen to dismiss claims that the companies violated antitrust and consumer protection laws in Indiana, Louisiana, Mississippi, Pennsylvania and Utah. The two drugmakers argued laws in those states only allow a consumer who buys drugs for their own personal use to file suit. Chen rejected that argument in a 16-page ruling, but he dismissed some claims for other reasons. Judge Chen resolved a similar dispute back in March 2020 when he ruled that labor union insurers could sue drug makers for antitrust under the same state laws, even though those insurers were third-party payors. Gilead and Teva argued that situation was different because the plaintiffs were union health and welfare funds, not for-profit corporations like UnitedHealth. Chen found the argument unavailing. "Even though a union health and welfare fund is a nonprofit entity by nature, it functions like an insurer," Chen wrote. The judge denied Teva and Gilead’s motions to dismiss claims under Indiana, Louisiana and Pennsylvania consumer laws. He dismissed a claim under Mississippi law without prejudice because UnitedHealth did not try to resolve the dispute through required settlement process first. The judge refused to advance Utah state law claims on behalf of UnitedHealth’s insureds because only state residents can sue, but he allowed UnitedHealth to sue on behalf of its Utah-based subsidiary, finding the parent company would be "standing in the shoes” of its affiliate. Chen also dismissed Massachusetts, Kansas and Vermont state law claims based on his prior analysis of those laws in a separate March 2020 ruling. Additionally, Chen eliminated claims against Teva based on purchases made before Oct. 19, 2017, finding those claims are barred by a four-year statute of limitations ...

Remote appearances have saved lawyers and witnesses travel time, relieved court congestion, while offering clients the ability to watch the proceedings from home. With mask mandates in place, remote appearances allow an opportunity for many to evaluate facial expressions and hear clearly words that may otherwise be muffled. However attorneys who practice worker's compensation law in California received notification that the WCAB will be reopening for Trials, Lien Trials and Expedited Hearings beginning Monday, March 21. Conferences and walk throughs will continue to be remote only. The DWC Newsline will be released within the next few days. And state courts have started to move in the same direction. After Gov. Gavin Newsom lifted most of the state's indoor masking requirements Feb. 15, Chief Justice Tani Cantil-Sakauye issued an order last week withdrawing effective April 30, several court emergency orders she imposed in March 2020. One order allows judges in felony criminal cases to hold a preliminary hearing 30 days after a defendant is charged, instead of the previous 10-day deadline. At a preliminary hearing, the judge decides whether prosecutors have presented enough evidence to proceed with their case. Another order extended by 60 days the previous deadlines for starting trials in civil cases. Cantil-Sakauye also revoked orders that gave local courts broad authority to conduct proceedings remotely, and that allowed courts to adopt pandemic-related rules without 45 days of public comment, as previously required. Citing Newsom's orders, the chief justice said, "these events mark an important and hopeful change as the residents and government of our state transition to a semblance of pre-COVID-19 California" In a follow-up action, the state Judicial Council, chaired by Cantil-Sakauye, said it would meet Friday to consider repealing the remaining emergency court rules as of June 30. A few weeks into the COVID-19 pandemic, the Judicial Council adopted emergency rule 3, which became effective on April 6, 2020. This emergency rule authorized courts to hold proceedings remotely via videoconference or by phone. The council has now said it would consider sponsoring legislation that would preserve, by state law rather than regulations, the current system authorizing remote appearances. Cantil-Sakauye's order on Thursday does not mean the end of remote hearings in state courts other than the WCAB. The state's legislature in September passed a law that will allow courts to hold civil proceedings remotely until at least July 2023. Senate Bill 241 enacted the new Code of Civil Procedure section 367.75, which will be effective from January 1, 2022 through July 1, 2023, authorizes at least some litigants, witnesses, judges, lawyers and even jurors to voluntarily appear in a case by video. The judiciary recently upgraded 500 courtrooms to allow for video appearances. Los Angeles County Superior Court alone conducts about 5,000 remote proceedings a day, according to the Judicial Council. At a May legislative hearing, Alameda County Superior Court Presiding Judge Tara Desautels raved about remote appearances and trials, saying "our jurors love it." But interpreters and court reporters told a different story, one of video participants being accidentally shut out of hearings, sketchy technology dropping participants and one litigant’s image going dark after his cellphone minutes ran out. Employee groups thus negotiated a July 2023 sunset clause added to C.C.P. 367.75, meaning that remote civil proceedings will end 18 months after the bill takes effect unless lawmakers agree to extend its provisions ...

The Labor Commissioner’s Office has cited Terranea Resort in Rancho Palos Verdes $3.3 million for failing to offer job positions to 53 employees laid off during the COVID-19 pandemic once the resort re-opened, as required by law. The employees included housepersons, banquet servers and bartenders, junior sous chefs and massage therapists. The Labor Commissioner’s Office started its investigation in July 2021 after receiving Reports of Labor Law Violation from Unite Here Local 11 on behalf of 14 laid-off workers. The workers claimed they were not offered an opportunity to return to their jobs based on seniority when the hotel increased business operations in 2021. The investigation included interviews with former and current workers, depositions from Terranea’s Human Resources managers and an audit of payroll records from April 16 to December 31, 2021. The investigation determined that DH Long Point Management, LLC dba Terranea Resort had violated the Right to Recall law and cited the hotel $3,080,000 in liquidated damages, $5,300 in civil penalties, and $208,582 in assessed interest for a total of $3,293,882. The law entitles each worker whose rights are violated liquidated damages of $500 per day until the violation is cured and civil penalties against the employer of $100 for each employee whose rights are violated. Any employee suffering unlawful retaliation for asserting recall rights may also be awarded back pay, front pay benefits and reinstatement. In addition to issuance of the citation for liquidated damages payable to the employees and civil penalties payable to the State, a Notice to Discontinue Labor Violations was issued that directs Terranea to offer positions to employees who should have been returned to work, but still have not had that opportunity. The Right to Recall law went into effect on April 16, 2021 and runs through December 31, 2024. Covered workers include employees at hotels or private clubs with 50 or more guest rooms, airports, airport service providers, and event centers. Also included are laid-off employees engaged in building services such as janitorial, maintenance and security services at retail and commercial buildings ...

According to a report in the Modesto Bee, the battle against unemployment insurance scams - fraud that’s meant an estimated $20 billion in suspect payments in California - got powerful new tools from President Joe Biden in his State of the Union address. "We’re going after the criminals who stole billions in relief money meant for small business and millions of Americans. And tonight, I’m announcing that the Justice Department will soon name a chief prosecutor for pandemic fraud.," the president said. Members of Congress applauded the idea. Nancy Farias, director of California’s Employment Development Department, enthusiastically welcomed the news. EDD manages the state’s unemployment program. "California took aggressive and unprecedented action to block fraudsters who scammed the emergency federal benefit programs," she told The Sacramento Bee. "The president’s move to boost fraud fighting will help states continue to hold criminals accountable." A White House fact sheet explained how the already-existing Justice Fraud Enforcement Task Force would name the chief prosecutor. The prosecutor would focus on "the most egregious forms of pandemic fraud." The new appointee would "lead teams of specialized prosecutors and agents focusing on major targets of pandemic fraud, such as those committing large-scale identity theft, including foreign-based actors." These strike force teams, it said, would use analytics to "to connect the dots on identity theft and other complex fraud schemes committed across state lines or transnationally, as well as investigate major cases of criminal fraud in programs like the Paycheck Protection Program and Unemployment Insurance." The White House plan will need Congress to approve more funds and increase penalties for criminals who commit pandemic-related fraud. Biden also pledged an executive order to help prevent identity theft in public benefit programs. The White House offered no details, saying the order would aim to "prevent and detect identity theft involving public benefits, while protecting privacy and civil liberties and preventing bias that results in disparate outcomes." In California, a team of state and local prosecutors has been working with the Justice Department and others to investigate unemployment insurance fraud. They’ve been eyeing suspected organized crime efforts in addition to individuals who are simply trying to deceive the government ...

A new California Workers’ Compensation Institute study finds that overall, injured workers’ access to medical care for their initial treatment remained relatively consistent between 2010 and 2020, though average and median wait times for the first doctor visit varied by type of care, and as in group health and other systems, rural residents have the farthest to travel and access to fewer providers, especially specialists. For its access study, CWCI used data from more than 1.5 million job injury claims from accident year (AY) 2010 -AY 2020 to measure changes in the amount of time that elapsed between an employer’s notice of injury and the first treatment, and the average distance that injured workers traveled to receive their initial care. The average wait time from employer notice to the initial treatment showed some variation across the 11-year span, ranging from a low of 3.3 days for AY 2011 claims to 4.4 days for claims from AY 2020 - the first year of the pandemic, but the median number of days to first treatment showed no change, as the median values across all 11 years indicated initial care rendered on the same day that the employer was notified of the injury. The average time from the employer’s notice to the first E&M visit also rose slightly over the 11-year span, ranging from 4.1 days for AY 2011 claims to 5.2 days for AY 2020 claims, but again the median values for all years indicated that the initial E&M visit occurred on the same day that the employer was notified of the injury. On the other hand, the average wait time for some specialty services showed greater variation over time. For example, the average wait time to a first PM visit increased from 31.8 days for AY 2010 claims to 37.5 days for AY 2015 claims, but then trended back down to 31.2 days by AY 2020. The median number of days to first PM visit showed a similar pattern, climbing from 15 days to 20 days between AY 2010 and AY 2015, then falling back to 15 days by AY 2020. Notably, most of the increase in the number of days to the first PM visit began in 2013, coinciding with legislative reforms and emergency regulations impacting workers’ comp Medical Provider Networks (MPNs) and the Utilization Review (UR) process - including a mandate that treating physicians use a new Request for Authorization form effective January 1, 2013, and a requirement that disputes over medical necessity of a requested treatment be resolved through a new Independent Medical Review (IMR) process. CWCI notes that the subsequent declines in the average and median days to the first PM visit may have resulted from improved processes by physicians and payers as they became familiar with these new requirements. In addition to measuring changes in the wait times for various treatment services, the Institute also calculated the average distance from each injured worker’s residence to the location of their initial treatment, with results broken out by year. This analysis found that the average distance traveled by California injured workers to their initial treatment was remarkably stable across the 11-year study period, ranging between 5.3 and 5.7 miles. Segmenting the results into geographic subcategories (urban, suburban, and rural) the study found that the average distances that injured workers living in the more densely populated urban and suburban regions traveled to receive their initial care was about one-third to one-half of the average for those living in less densely populated rural parts of the state. But even among rural residents, who in AY 2020 accounted for 8.8 percent of all California injured workers, the average distance traveled showed only minor variations during the study period, ranging from 11.0 miles in 2010 to 13.1 miles in 2017. Notably, in all cases, the average distances injured workers had to travel were well within the medical access standards set by the state for MPNs, which provide nearly 92 percent of all workers’ compensation treatment in the state. Those standards require that injured workers have a choice of 3 primary care providers within 30 minutes or 15 miles of their home or workplace; a choice of 3 medical specialty providers within 60 minutes or 30 miles; and a hospital emergency room or non-hospital provider of all emergency healthcare services within 30 minutes or 15 miles. The latest proximity to care findings also track with results of CWCI’s April 2021 research which found that 99 percent of claims in which treatment was rendered by an MPN provider, and 98 percent of non-MPN claims met the state’s access standards ...

A sleep doctor was acquitted of conspiring to defraud insurance companies of about $7 million in workers' compensation claims, in a case that took about a decade to finally go to trial. In May 2011, Sim Carlisle Hoffman M.D. was indicted on 884 felony counts alleging healthcare insurance fraud in violation of section 550. Hoffman was the owner of Advanced Professional Imaging (API), Advanced Management Services (AMS), and Better Sleeping Medical Center (BSMC) in Buena Park, and prosecutors accused him of running a "medical mill" for the sole purpose of insurance over-billing without providing any legitimate treatment to patients. Orange County District Attorney at the time, Tony Rackauckas, and then California Insurance Commissioner Dave Jones originally announced the hundreds and hundreds of charges against Hoffman, BSMC neurologist Dr. Michael Heric of Malibu, Hoffman’s administrator Beverly Mitchell of Westlake Village and API billing collector Louis Santillan of Chino Hills. The 2011 indictment was ultimately dismissed in 2013 on the ground that the prosecution had failed to provide exculpatory evidence to the grand jury. Rather than proceed by indictment, in January 2014, the prosecutors filed a felony complaint against Hoffman. The complaint alleged 159 counts of insurance fraud. One year and one-half later - after four amendments and two demurrers - the people filed a fifth amended complaint, alleging violations of section 550, subdivision (a)(5) (33 counts), subdivision (a)(6) (135 counts), and subdivision (a)(7) (one count). The preliminary hearing began on September 1, 2015, and ended on November 23 of that year. The resulting transcript spanned over 2,300 pages. Over 53,000 pages of documentary evidence was submitted. During the preliminary hearing, the complaint was amended again. This final amendment contained 102 counts alleging a violation of section 550, subdivision (a)(6), and one count alleging a violation of subdivision (a)(5). Defendant was held to answer on all 103 counts. Following the 2015 preliminary hearing, prosecutors filed an amended information containing 121 counts: 120 counts of violating section 550, subdivision (a)(6), and one count of violating subdivision (a)(5). the amended information, for each count, included both patient names and references to the preliminary hearing exhibit numbers containing the evidence relevant to the particular offense. In 2017 The case was reviewed by the court of appeal in the published case of Sim Carlisle Hoffman v The Superior Court of Orange County 16 Cal.App.5th 1086, 224 Cal.Rptr.3d 818. Hoffman lost his appeal at this point. Moving on to this year, following weeks of testimony, Orange County Superior Court Judge Richard King granted a motion in February 2022 dumping all but one of the 121 felony charges in the case. After completion of the testimony Jurors deliberated for about a day before acquitting Dr. Sim Carlisle Hoffman of the last single count of conspiracy to commit insurance fraud ...

The California Attorney General announced a $6 billion settlement with Purdue Pharma and the Sackler family over their role in the opioid epidemic. California is estimated to receive approximately $486 million from the settlement to fund opioid addiction treatment and prevention. If approved, the settlement will keep intact provisions of the Purdue bankruptcy plan forcing the company to be dissolved or sold by 2024 and banning the Sacklers from the opioid business. The initial bankruptcy plan required Purdue and the Sacklers to make public over 30 million documents. The settlement forces disclosure of additional records previously withheld as privileged legal advice. Neither this agreement nor the prior bankruptcy plan releases the Sacklers from any potential future criminal liability. Highlights from the proposed settlement include: - - The Sackler family must pay up to $6 billion to the bankruptcy estate - $1.7 billion above the initial bankruptcy plan. The payments will be spread over 18 years, with larger payments frontloaded so states receive more money, sooner as compared to the previous bankruptcy plan. - - If it is confirmed, the enhanced bankruptcy plan will provide California with nearly half a billion dollars that will be used to fund opioid addiction treatment and prevention. - - The Sackler family must allow institutions to remove the family name from buildings, scholarships, and fellowships. - - Responding to state requests, mediator Judge Shelley C. Chapman urged the Bankruptcy Court to require members of the Sackler family to participate in a public hearing where victims and their survivors would be given an opportunity to directly address the family. - - Purdue must make public additional documents previously withheld as privileged legal advice, including legal advice regarding advocacy before Congress, the promotion, sale, and distribution of Purdue opioids, structure of the Purdue Compliance Department and its monitoring and abuse deterrence systems, and documents regarding recommendations from McKinsey & Company, Razorfish, and Publicis related to the sale and marketing of opioids. These documents will be held in a repository co-hosted by the University of California San Francisco, which also hosts an archive of tobacco industry documents. - - States reserve the right to object to nonconsensual third-party releases, including advising the court that agreement to the settlement does not indicate belief that those releases that remain in the Purdue bankruptcy plan are legal. The settlement also preserves the right of the states to file amicus briefs arguing against nonconsensual third-party releases if the case makes it to the U.S. Supreme Court. The Attorney General’s Office filed a lawsuit against Purdue and members of the Sackler family in 2019, for unlawful practices in the promotion and sale of opioids. The lawsuit alleged that Purdue’s misleading marketing and sales practices, which the Sackler family approved, played a major role in contributing to the nationwide opioid crisis. The deceptive sales and marketing practices, which misled healthcare providers and patients about the addictive nature of opioids, contributed to an over-supply of opioids in the market and helped create the crisis the country faces today. Purdue Pharma filed for bankruptcy in September 2019. In 2021, the bankruptcy court approved an inadequate Purdue bankruptcy plan that unlawfully blocked states like California from pursuing claims against the family, even though the Sackler family members had never themselves declared bankruptcy. The plan required the Sackler family to pay $4.3 billion over nine years to the states, municipalities, and others. California, Connecticut, Delaware, Maryland, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia objected to and ultimately appealed the plan. The United States Trustee, an arm of the U.S. Department of Justice, also appealed. In December 2021, the U.S. District Court vacated the Purdue bankruptcy order, agreeing with the non-consenting states that the bankruptcy court lacked authority to force states to release their claims against the Sackler family. In the wake of this victory by the states, the Sacklers have agreed to pay more than $1 billion to obtain releases from the ten states that objected to the bankruptcy plan. Purdue has appealed to the United States Court of Appeals for the Second Circuit, and that appeal will proceed ...

The Workers’ Compensation Insurance Rating Bureau of California has released a new report, Medical Treatments and Costs of COVID-19 Claims and An Early Look at Long COVID in the California Workers’ Compensation System. The primary objective of this study is to provide a better understanding of the medical cost and treatment patterns of COVID-19 claims in the California workers’ compensation system, including a very early look at the potential prevalence and cost impacts of long COVID. In addition, the authors compared the treatment patterns of COVID-19 claims in the workers’ compensation system to those of COVID-19 patients covered by group health insurance in California to validate some of the findings. The WCIRB studied a sample of almost 6,000 insured COVID-19 workers’ compensation claims in the study database with an accident date between March 2020 and March 2021 that incurred medical payments. The vast majority (90%) of these claims were for mild illness and did not require hospitalization. Additionally, 4% of these claims were for severe illness that required hospitalization without an ICU stay, 4% required ICU care for critical conditions, and 2% were death claims. Sequelae after an acute COVID-19 infections ("long COVID") have been widely reported and have become a growing concern for health care providers and individuals who have had COVID-19. The potential long-term cost impacts of long COVID on healthcare systems and disability insurance programs are also increasingly concerning. For workers who contracted COVID-19, the possibility of having persistent long-term health complications from COVID-19 may mean longer recovery time before returning to work or some level of impairment that affects their ability to perform their pre-illness job tasks. Other highlights of the report include: - - The average medical payments on COVID-19 claims increase significantly as infections become more severe, and for those COVID-19 claims with severe and critical infections, the payments for hospital admissions were the main cost driver. - - For claims with medical payments during the first six months of medical treatment, the average medical payments per COVID-19 claim were almost two times higher than those of non-COVID-19 claims. - - Cumulatively over a four-month post-acute care period, about 11 percent of workers with mild infections received medical treatments for long COVID symptoms in the workers’ compensation system, while the share was higher for workers with severe or critical infections. The WCIRB will host a free webinar to discuss the Medical Treatments and Costs of COVID-19 Claims and An Early Look at Long COVID in the California Workers’ Compensation System report. on Thursday, March 10, 2022, from 10:30 AM to 11:30 AM PT. Learn the patterns of medical treatment and cost of COVID-19 claims, how they are different from typical workers' compensation claims and what are the key cost drivers. WCIRB presenters will also share an early analysis of long COVID, including prevalence and potential cost impacts on the California workers' compensation system. Registration is required. A recording will also be posted in the Research section of the WCIRB website following the event ...

The National Association of Insurance Commissioners (NAIC) released data on life/fraternal and property/casualty insurers. The reports provide market share information and identify leading insurance writers in several key lines of business. The reports reflect data filed by insurers as of March 1 and will be refreshed daily through March 4 and then each Monday throughout March. The 2021 market share data include countrywide direct written premiums for the top 25 groups and companies as reported on the state page of the annual financial statement for insurers that report to the NAIC. The Property/Casualty Market Share report contains cumulative market share data for the following lines of business: personal auto, commercial auto, workers' compensation, medical professional liability, homeowners, and other liability (excluding auto liability) insurance. Highlights from the report include: - - With 67.36% of property and casualty insurance companies reporting so far, direct premiums written for all lines of business are $574,678,926,948. - - The Top 10 property and casualty companies reporting so far have a cumulative market share of 51.84%. - - Total private passenger auto insurance has the largest amount of direct premiums written reported as of March 1st, 2022, at $179,440,143,179, which is about 31% of all written premiums. The top ten workers' compensation carriers who have the cumulative market share of 48.92% of the market are: - - 1) TRAVELERS GRP - 9.46% - - 2) HARTFORD FIRE & CAS GRP - 8.79% - - 3) CHUBB LTD GRP - 5.88 - - 4) AMTRUST FINANCIAL SERV GRP - 5.00% - - 5) STATE INS FUND - 4.62% - - 6) OLD REPUBLIC GRP - 3.45% - - 7) STATE COMPENSATION INS FUND - 3.30% - - 8) WR BERKLEY CORP GRP - 3.04% - - 9) BERKSHIRE HATHAWAY GRP - 2.76% - - 10) AMERICAN FINANCIAL GRP - 2.62% The Life/Fraternal Market Share report contains cumulative market share data for life insurance, annuity considerations, and an aggregate total of life insurance, annuity considerations, deposit-type contract funds, other considerations, and accident/health insurance. Highlights from the report include: - - With 67.95% percent of life and accident/health insurance companies reporting, direct premiums written for life insurance are $159,735,690,559. - - The Top 10 life insurance companies reporting so far have a cumulative market share of 54.69%. - - Total reported premiums for life insurance, including annuity considerations, deposit-type contract funds, other considerations, and accident and health are $818,022,824,054 as of March 1. The full 2021 Market Share Reports for Life/Fraternal Groups and Companies and 2021 Market Share Reports for Property/Casualty Groups and Companies will be available this summer and will contain more in-depth information ...

Alvaro Munoz claimed injury to various body parts, including his right wrist and right upper extremity, while employed by Cascade Drilling as a driller helper. On March 9, 2021, QME Stuart Rubin, MD, MPH served an initial report. On that same day, applicant objected to the late report, and on March 11 filed a request for a new QME panel. On December 2, 2021, the parties proceeded to trial. The disputed issue was identified as: whether applicant is entitled to a replacement QME panel per Rule 31.5(a)(12). The WCJ ordered a replacement QME panel in the Specialty of Pain Medicine. The employer filed a Petition for Removal to reverse this order. The WCAB panel treated the Petition as one for reconsideration, granted reconsideration, and rescinded the F&O in the case of Munoz v Cascade-Drilling ADJ13545767 (Feb 2022). The issue is whether Labor Code section 4062.5 precludes the application of Rule 31.5(a)(12) or whether the Labor Code and Administrative Director’s Rules can be harmonized, as applied to the facts of this case. Both Labor Code section 139.2(j)(1)(A) and QME Rule 38 require the initial medical evaluations to be prepared and submitted no more than 30 days after the evaluator has seen the employee or otherwise commenced the medical evaluation procedure. L.C. 4062.5 provides that if a panel QME fails to complete the formal medical evaluation within the time frames established by the administrative director, a new evaluation may be obtained upon the request of either party, But Rule 31.5(a)(12) adds the requirement that the party requesting the replacement objected to the report on the grounds of lateness prior to the date the evaluator served the report. Previous panel decisions have held that a party may not wait until after an adverse report issues to raise an irregularity but must do so at the earliest opportunity. In Fajardo v. Workers’ Comp. Appeals Bd. (2007) 72 Cal.Comp.Cases 1158 (writ den.), an Appeals Board panel adopted and incorporated a WCJ’s report which held that a party may only object to the untimeliness of a report prior to the receipt of the report. The WCJ in Fajardo stated that "To allow the parties to review an unfavorable report and object for the sole reason of untimely service would wreak havoc in the system and would summarily endorse doctor shopping." In County of Sonoma v. Workers’ Comp. Appeals Bd. (Smith) (2008) 73 Cal.Comp.Cases 268 (writ den.), an Appeals Board panel affirmed the WCJ’s denial of a new QME panel due to the untimeliness of a QME’s initial report. The WCJ in Smith noted that Labor Code section 4062.5 was "designed to promote expeditious litigation so that injured workers may receive workers’ compensation benefits to which they are entitled in a timely manner," and that ordering a new panel after the QME had served his report would be contrary to that goal. It is well established that a party must object to an untimely QME report under section 4062.5 and Rule 38 prior to the service of the report. Here, applicant failed to object to Dr. Rubin’s report prior to the date it was served upon the parties ...

The study, "A Systematic Review of Long-term Clinical and Radiological Outcomes of Arthroscopic and Open/Mini-open Rotator Cuff Repairs," was published online on February 18, 2022 in The American Journal of Sports Medicine. In a comparison of long-term outcomes of arthroscopic and open/mini-open rotator cuff repair, a new study shows that both techniques lead to similar long-term outcomes. "Arthroscopic rotator cuff repair has shown similar midterm functional results and retear rates as open/mini-open rotator cuff repair. A pooled analysis of long-term results of both techniques is yet missing," the researchers wrote. The team conducted a systematic review using the CENTRAL (Cochrane), MEDLINE (PubMed), and Embase databases. All studies that reported long-term clinical and radiographic outcomes of full-thickness arthroscopic rotator cuff repair and open/mini-open rotator cuff repair with a minimum follow-up of nine years were included. Overall, 11 studies met the inclusion criteria: 5 studies on arthroscopic rotator cuff repair and 6 studies on open/mini-open rotator cuff repair. Five hundred and thirty-nine patients with 550 shoulders were analyzed in the review. Mean patient age was 56.3 years (range, 25-77). The researchers reported that the mean preoperative absolute Constant Score and American Shoulder and Elbow Surgeons (ASES) shoulder score were significant improved postoperatively. The retear rate was 41% (141 of 342 shoulders) without any between-group difference (arthroscopic Rotator Cuff Repair, 43%; open/mini-open rotator cuff repair, 39%; p = .364). A retear was associated with reduced absolute Constant Score as compared with a healed repair (p = .004). "No significant differences were found in postoperative functional scores, complications, and retear rates after failed cuff repairs between the arthroscopic and open/mini-open repair groups," the researchers wrote. "Pooled analysis of arthroscopic and open rotator cuff repairs demonstrated sustained improvement in long-term shoulder scores and pain with a substantial retear rate in both groups, which was associated with inferior shoulder function. There were no significant differences in long-term functional outcomes, retear rates, and complications. Both surgical techniques may be used on the basis of factors such as patient or surgeon preference and cost. Further studies using a more robust randomized controlled trial or larger cohort design are recommended to ascertain whether one surgical repair technique is superior to the other." ...

Following the California Department of Public Health’s release of new indoor masking guidance, Governor Gavin Newsom just signed an executive order that updates the Division of Occupational Safety and Health (Cal/OSHA) COVID-19 Emergency Temporary Standard (ETS) in keeping with the current guidance. In California, starting March 1, masks will no longer be required for unvaccinated workers indoors, consistent with the updated CDPH guidance, but will be strongly recommended for all individuals in most indoor settings. Employers must still provide a face covering upon request of an employee. According to the Order "California Code of Regulations, title 8, section 3205(c) (6) (A) is suspended." This section of the regulation stated "(6) Face coverings. (A) For all employees who are not fully vaccinated, employers shall provide face coverings and ensure they are worn when indoors or in vehicles." The order also extends the current Emergency Temporary Standard through May 5, 2022 to ensure the Occupational Safety and Health Standards Board has time to review the new guidance in anticipation of the next readoption of the ETS. Gavin Newsom’s office also announced Monday that California will end its statewide mask mandate for K-12 schools at the stroke of midnight March 12, while passing to local districts and health officials the contentious question of whether to maintain tougher face-covering rules than the state. Los Angeles County health officials on Monday said they will align with the state’s move to end indoor school masking requirements after March 11, giving officials in the county’s 80 schools districts - including L.A. Unified - the ability to make their own decision about whether to continue with local mandates. The decision sets up a likely conflict in L.A. Unified between those who favor indoor masking rules and those who don’t. The teachers union on Monday said it would be premature to end the mandate. Monday’s announcement comes amid a rapidly shifting pandemic and political landscape, as case rates have fallen rapidly from a January peak driven by the highly contagious omicron variant and polling has suggested the public is tiring of ongoing pandemic restrictions. And the White House told federal agencies late on Monday they can drop COVID-19 requirements that employees and visitors wear masks in federal buildings in much of the country, according to a document seen by Reuters. The White House-led Safer Federal Workforce Task Force said in new guidance that the mask requirement could be ended by federal facilities in counties with low or medium COVID-19 community levels, regardless of vaccination status. About 70% of U.S. counties covering 72% of the U.S. population are listed as having low or medium levels. The White House directed agencies to revise federal employee masking and testing rules no later than March 4, according to the previously unreported document. The new guidance covers about 3.5 million employees at federal agencies. In counties with low community levels, federal agencies also do not need to regularly screen unvaccinated employees for COVID-19, the guidance says ...

The San Diego Union Tribune reports that the American College of Surgeons has named Scripps Memorial Hospital La Jolla San Diego’s fourth Level 1 trauma center, formally recognizing the medical center’s efforts around medical education and research. According to college guidelines, a top-tier rating is reserved for those facilities that can prove they admit at least 1,200 trauma patients per year, at least 240 of which have high injury severity scores as those numbers are "the minimum volume that is believed to be adequate to support the education and research requirements of a Level 1 trauma center." During site visits that include reviewing patient charts and other documents, inspectors verify a wide range of factors, including that centers train surgical residents, conduct education and other outreach activities for their communities and participate in ongoing research. In terms of the range of treatment capabilities they offer, Level 1 and Level 2 centers are identical. Both are required to provide “total care for every aspect of injury, from prevention through rehabilitation.” Some services, such as the reattachment of severed extremities, might only be found at Level 1. Each must prove through regular inspections that they staff a 24/7 trauma team, including the presence of an attending surgeon round the clock. Both levels must demonstrate that their trauma teams can be fully activated in no more than 15 minutes for the most severe cases that include patients with respiratory difficulties and injuries ranging from penetrating wounds and skull fractures to amputations and “crushed or mangled” extremities. Scripps La Jolla began working toward Level 1 designation in 2018, hiring Dr. Walter Biffl, previously at Queen’s Medical Center in Honolulu, to serve as its trauma medical director. Biffl oversaw the gradual introduction of medical residents from Navy Medical Center San Diego. The Navy already had an existing relationship with Scripps Mercy Hospital in Hillcrest, previously the health system’s lone Level 1 center. Already known for trauma research before coming to San Diego, Biffl has worked to expand La Jolla’s scholarly activity. San Diego County’s trauma system, one of the first and most developed in the nation, assigns specific territories called "catchment areas" to each adult trauma center, with Scripps La Jolla receiving all severe traumatic injuries from the northern shore of Mission Bay north all the way to the Orange County Border. Palomar Medical Center Escondido, a Level 2 facility, handles cases throughout non-coastal North County east to the Imperial County border with Sharp Memorial Hospital, also Level 2, receiving cases in a wide swath that generally follows Interstate 8. Scripps Mercy and UC San Diego Medical Center, both Level 1, split responsibility for cases from downtown San Diego and Hillcrest south to the border. Rady Children’s Hospital in San Diego, also Level 1, handles all pediatric trauma cases countywide ...

Sacramento-based Sutter Health is a large regional healthcare provider serving about 3 million Californians. The Sidibe v. Sutter Health class action lawsuit claims Sutter violated antitrust and unfair competition laws, which caused certain individuals and employers in certain parts of Northern California to overpay for health insurance premiums for health insurance purchased from Aetna, Anthem Blue Cross, Blue Shield of California, Health Net or United HealthCare. The organization is accused of imposing pricing and contractual terms on fully insured health plans in violation of federal antitrust and unfair competition laws. Specifically, Sutter is accused of demanding "all-or-nothing" terms that require insurers to include in their provider networks the services that Sutter supplies, at prices that Sutter dictates. The case mirrors the allegations that Sutter agreed to pay $575 million to settle in a separate case brought by the California Attorney General in 2018, which was finalized last year. That lawsuit accused Sutter of using its dominance of the Northern California health care market to force insurers into costly contracts. And it also follows a California state court approval of a $575 million settlement against Sutter to settle price-gouging allegations in the UFCW lawsuit, avoiding a trial in that case. Sutter was accused of wielding its market power to pressure employers and insurers during contract negotiations involving self-insured healthcare policies. Sutter denies that it has done anything wrong or that its conduct caused any increase in the price of premiums that individuals and employers paid for health insurance from those Health Plans. The Court has not yet determined whether Plaintiffs or Sutter are/is correct. The tSidibe class action was originally filed in 2012, and the trial finally got underway this month in a federal court in San Francisco. California’s antitrust law allows plaintiffs to try to recover three times the amount of initial damages, which means Sutter could end up paying more than $1.2 billion if it loses the case. CourtHouse News has been closely following the trial since it began. Sutter executives took the stand in the Sidibe case in Friday to defend Sutter’s practices and their so-called pro-competitive benefits, touting the hospital system’s quality and efficiency. Sarah Krevans, who recently retired as CEO, testified that Sutter was under tremendous financial pressure as more Californians joined the Medi-Cal rolls after the passage of the Affordable Care Act. The government reimburses Sutter for some of the costs, but it’s hardly enough to cover it all. The rest comes from revenue generated by insured patients, whose numbers Krevans testified are dropping as Californians leave the system for cheaper care at Kaiser Permanente. Still, she said the rate of Sutter’s price increases to health plans slowed during her tenure, dropping from 6.2% in 2010 to 3% in 2016. But attorney Matthew Cantor, counsel for a class of more than three million, presented a chart showing that while Sutter reduced its in-patient price increases year over year, it still charged health insurers more than the cost of inflation. For example, the rates it charged insurers went up 5% in 2013, but the Consumer Price Index was 3% that year. In 2015 its rate went up 3.7% while the CPI was only 1.2% James Conforti, Sutter’s former Chief Operating Officer and interim CEO also testified about Sutter’s financial challenges, saying Sutter lost 42% of its commercial patients in Modesto when Kaiser built a new hospital just a few miles away. But on cross examination, plaintiffs’ counsel David Goldstein presented conflicting evidence of Sutter’s financial health, noting that Sutter was able to defer paying $209 million in payroll taxes to the federal government, and benefited from a $13 minion payroll tax credit. It also received approximately $812 million in federal Covid-19 relief funds, and got a $990 million advance from the Centers for Medicare & Medicaid Services. Sutter Health’s cash assets also doubled from 2019 to 2020, from $505 million to $1.169 billion. All that revenue is essential to provide quality healthcare, Dr. William Isenberg, Sutter’s Chief Medical Officer told the jury ...

Drugmaker Johnson & Johnson and three major distributors finalized nationwide settlements over their role in the opioid addiction crisis Friday, an announcement that clears the way for $26 billion to flow to nearly every state and local government in the U.S. According to the story published by Fox Business, taken together, the settlements are the largest to date among the many opioid-related cases that have been playing out across the country. They’re expected to provide a significant boost to efforts aimed at reversing the crisis in places that have been devastated by it, including many parts of rural America. Friday was the deadline for the companies to announce whether they felt enough governments had committed to participate in the settlement and relinquish the right to sue. The four companies notified lawyers for the governments in the case that their thresholds were met. While none of the settlement money will go directly to victims of opioid addiction or their survivors, the vast majority of it is required to be used to deal with the epidemic. The requirement that most of the money be used to address the opioid crisis contrasts with a series of public health settlements in the 1990s with tobacco companies. In those cases, states used big chunks of the settlement money to fill budget gaps and fund other priorities. The amount sent to each state under the opioid settlement depends on a formula that takes into account the severity of the crisis and the population. County and local governments also get shares of the money. A handful of states - Alabama, New Hampshire, Oklahoma, Washington and West Virginia - have not joined all or part of the settlement, mostly because they have their own deals or are preparing for trial. Other companies, including business consultant McKinsey and drugmakers Endo, Mallinckrodt and Teva, have reached national settlements or a series of local ones. OxyContin maker Purdue Pharma and a group of states are in mediation through U.S. Bankruptcy Court to try to reach a nationwide settlement. California Gov. Gavin Newsom’s proposed budget calls for using $50 million of the state’s expected $86 million share this year for youth opioid education and to train treatment providers, improve data collection and distribute naloxone, a drug that reverses overdoses. In Florida’s Broward County, home to Fort Lauderdale, the number of beds in a county-run detoxification facility could be expanded from 50 to 70 or 75, said Danielle Wang French, a lawyer for the county. "It’s not enough, but it’s a good start," she said of the settlement. With fatal overdoses continuing to rage across the U.S., largely because of the spread of fentanyl and other illicitly produced synthetic opioids, public health experts are urging governments to use the money to ensure access to drug treatment for people with addictions. They also emphasize the need to fund programs that are proven to work, collect data on their efforts and launch prevention efforts aimed at young people, all while focusing on racial equity. "It shouldn’t be: ready, set spend," said Joshua Sharfstein, a former secretary of the Maryland Department of Health who is now a vice dean of public health at Johns Hopkins University. "It should be: think, strategize, spend." In a separate deal that also is included in the $26 billion, the four companies reached a $590 million settlement with the nation’s federally recognized Native American tribes. About $2 billion is being set aside for fees and expenses for the lawyers who have spent years working on the case. The companies are not admitting wrongdoing and are continuing to defend themselves against claims that they helped cause the opioid crisis that were brought by entities that are not involved in the settlements ...

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JPMorgan Chase has sued the state of California on Thursday for $5.9 million in legal fees, resulting from the bank’s intervention to save the state from a dubious purchase of N95 face masks early in the Covid-19 pandemic. According to the report in Courthouse News, the suit, filed in a Sacramento state court, claims the bank was involved in litigation by the medical supply company purportedly selling the face masks to California, after JPMorgan Chase raised concerns about the more than $456 million transaction. JPMorgan Chase seeks to recover the legal fees generated defending itself from the medical supplier’s lawsuit. According to the allegations of the complaint, John Thomas introduced himself to high- level California officials, including the State Controller, and said that his company, Blue Flame Medical LLC, could deliver 100,000,000 N95 masks.Over the next few days, the State Controller's Office (SCO), the Governor's Office of Emergency Services (OES), and California Department of General Services (DGS) corresponded with Blue Flame about a potential transaction. DGS prepared a purchase order for 100,000,000 N95 masks, and Blue Flame prepared an invoice. The total purchase price was $609,161,000 and 75% prepayment was required. It then tried to issue a $456,888,600 wire (constituting approximately 75% prepayment) to Blue Flame on March 25. During its "diligence in reviewing the transaction," the bank alerted the state to concerns stemming from its internal investigation of the wire transfer. The complaint claims that JPMorgan Chase learned from Blue Flame’s bank that "Blue Flame’s account was new, that the account had been opened by a political lobbyist and that the size of the wire was unusual for this client." Made aware of the concerns about Blue Flame, California reversed course on the wire transfer. JPMorgan Chase claims the funds were returned to the state the same day the wire was initially approved. The complaint cites multiple statements from the involved state officials at a California Assembly oversight hearing in May 2020 in which they credited JPMorgan Chase for helping retrieve the funds and alerting them to some of the concerns regarding Blue Flame. In September 2021, a federal judge in Virginia granted summary judgment to Blue Flame’s bank, compelling JPMorgan Chase to indemnify the bank for their losses in the transaction between Blue Flame and California. JPMorgan Chase settled with the bank, agreeing to pay $5.9 million in attorneys’ fees and expenses. It now seeks to recover that sum from the State of California after the state declined to reimburse the bank. Blue Flame has faced multiple probes into its financial dealings, including allegations that it failed to deliver products to state governments who purchased masks and other personal protective equipment. These include a criminal inquiry by the U.S. Department of Justice and a congressional committee investigation ...

Single-payer health care didn’t stand a chance in California this year. Democratic lawmakers shied away from legislation that would have put state government in charge of health care and taxed Californians heavily to do so - a massive transformation that would have forced them to take on the powerful health care industry. Gov. Gavin Newsom, who had promised to spearhead single-payer when he ran for governor four years ago, dashed its chances this year when he declined to publicly support it. Instead he is pushing for "universal health care," which aims to provide all Californians with coverage but, unlike single-payer, would keep private health insurance intact. And according to a report by CaliforniaHealthline.org. the death of single-payer in the nation’s most populous state also deals a major blow to similar campaigns elsewhere in the nation - which had looked to California for inspiration and leadership - casting doubt on their ability to succeed. "We’re also fighting in New York, but just like in California, there’s not 100% Democratic consensus among legislators," said Ursula Rozum, co-director of the Campaign for New York Health, which is working to pass single-payer legislation. "It feels like a constant question of ‘Can we win this?’" Health policy experts agree that California’s failure to adopt single-payer dampens momentum across the country. "California, given its size and politics, has always been a bellwether for progressive policy, so this certainly sends a signal to other states about how hard this is," said Larry Levitt, executive vice president for health policy at KFF. But Rozum and single-payer activists in Colorado, Washington state, and elsewhere say that rather than giving up, they are taking key lessons from California’s failure: It is essential to win - and keep - support from the governor. Groups pushing single-payer must unite Democrats, bringing in business-friendly moderates and broader support from organized labor. And they say they must learn how to counter intense lobbying by doctors, hospitals, and health insurance companies fighting to preserve the status quo. So far, single-payer proponents haven’t been able to broaden their movement beyond liberal activists or convince people that they should pay higher taxes in exchange for scrapping health care premiums, deductibles, and copays. The only state that has passed single-payer, Vermont, didn’t implement it. Vermont adopted a single-payer plan in 2011 with unequivocal support from its then-governor, Democrat Peter Shumlin. But he abandoned the effort in 2014 amid growing concerns about tax increases and runaway health care costs. But progressive dreams for single-payer didn’t die when Vermont retreated. "Medicare for All" became a liberal rallying cry for Democrats nationally when Vermont Sen. Bernie Sanders stumped for it during his presidential campaigns. After President Joe Biden was elected, the movement shifted to the states, in part because Biden has opposed Medicare for All. Activists in Colorado are mobilizing for another single-payer campaign after the overwhelming defeat of a 2016 ballot initiative that failed partly because of intense health care industry opposition. Organizers in Washington state are pushing legislation and trying to get a single-payer initiative on the ballot next year ...

On February 7, 2018, Steven Brow, sustained industrial injury to his left thumb while employed as a machinist by Sepragen Corporation, insured by The Hartford. Mr. Brow's case-in-chief was never the subject of a Stipulated Award or Compromise and Release, and the case was administratively closed by The Hartford. Medical treatment and a surgery was provided by the United States Department of Veterans Affairs. The hearing was initiated by the V.A. for reimbursement of treatment provided for the injured employee’s left thumb injury, including for an outpatient nerve repair procedure. The defendant partially reimbursed the V.A., the V.A. claimed additional reimbursement. The WCJ found that an extensive body of federal or state case law, and statutory law, supports preemption of Labor Code section 5307.1 and the California Official Medical Fee Schedule (OMFS) with respect to the V.A.’s billings. And that section 5307.1 and the OMFS are preempted by federal law, and that the applicable federal billing schedules, and not the OMFS, apply to the V.A.’s billings in this case. The Hartford petition for reconsideration of the Findings, Award and Order. Reconsideration was denied in the panel decision of Brow v. Sepragen Corporation (Feb 2022 - ADJ12210104). Defendant contends, in substance, that there is nothing to trigger federal preemption of state law because there is no conflict between state and federal law, which both hold that a standard of reasonableness applies to the medical treatment charges incurred by the V.A. The panel noted that "although defendant states it does not contend that the California OMFS applies to the V.A.’s billings for medical treatment, defendant nevertheless contends that the V.A.’s billings are subject to a standard of reasonableness under California state law." ...."As such, defendant’s contention indirectly attacks part of the WCJ’s seventh Finding, wherein the WCJ found that 'applicable federal billing schedules' apply to the V.A.’s billings in this case." The WCJ stated on page five of his Opinion on Decision that federal law expressly preempts state law on the question of the extent of the V.A.’s entitlement to reasonable reimbursement. That is, there are various kinds of preemption, but here defendant erroneously relies upon conflict preemption, which is not on point given the facts of this case. (See People v. Hamilton (2018) 30 Cal.App.5th 673 [The four species of preemption include express, conflict, obstacle, and field preemption].) The V.A. still has the burden of establishing the reasonableness of its charges in accordance with the billing applicable to V.A. cases, as well as establishing all other applicable elements justifying the payment sought. In conclusion the panel "affirm[ed] the WCJ’s finding that the V.A.’s medical treatment charges are not governed by California state law, but rather are subject to the 'applicable federal billing schedules.' " ...

ID.me was touted by Gov. Gavin Newsom as a crucial tool in combating unemployment insurance fraud, and the system was credited with being a huge help in doing just that. Newsom touted ID.me at a September, 2020, news conference where he detailed the findings of his strike team, a blue-ribbon group he created to recommend ways to make EDD more efficient.ID.me can verify someone’s identity by having them take a photo or video of themselves. That is then digitally compared to the documents in their application. He said the program would allow people "to do selfies, to provide additional verification in ways that we think could substantially, not exclusively, no one’s naive, but substantially mitigate fraud." But now, SecurityInfoWatch.com reports that California’s nonpartisan Legislative Analyst’s Office is urging lawmakers to take another look at ID.me. And ID.me, under pressure from Washington lawmakers and others, is saying it will offer alternatives to the controversial facial recognition system. The analysts said Newsom and his unemployment insurance strike team’s use of ID.me was warranted during the height of the COVID-19 pandemic in 2020 and 2021, "when the magnitude of the claims backlog called for prompt and decisive action." In California, ID.me has proven an important way of reducing fraud and making the overwhelmed unemployment system more effective, the analyst’s report found. "Setting up automated identity verification substantially sped up EDD processes so benefits could be paid promptly during the pandemic," the Legislative Analyst’s Office said in its report. The system "likely also reduced fraud in the temporary federal programs." But, the analyst’s report said, "Now that this critical period has passed, we recommend the Legislature pause and carefully consider the implications of requiring third-party biometric scanning -in this case, facial recognition performed by artificial intelligence." The state’s Employment Development Department, which manages the unemployment program, declined to comment. Assemblywoman Wendy Carrillo, D- Los Angeles, who chairs a budget subcommittee on state administration that plans a hearing on EDD Tuesday, did not respond to a request for comment. And key members of Congress have expressed concern. "Facial recognition should not be a prerequisite for accessing unemployment insurance or any other essential government services," wrote Senate Finance Committee Chairman Ron Wyden, D- Oregon, and Sens. Sherrod Brown, D- Ohio, and Elizabeth Warren, D- Mass., in a letter this week to Labor Secretary Martin Walsh. "It is particularly concerning that one of the most prominent vendors in the space, ID.me, not only uses facial recognition and lacks transparency about its processes and results," they said, "but frequently has unacceptably long wait times for users to be screened by humans after being rejected by the company’s automated scanning system." ...