The California Flats Solar Project is a large solar power plant built on part of a former cattle ranch in the southeastern corner of Monterey County. Granite Construction was involved as a subcontractor in the construction of this project. The Monterey County Planning Department required the primary project contractor to prepare and implement a worker training program about Valley fever before any grading activity. Consistent with these requirements, the owner of the project site created a Valley fever fact sheet, a Valley fever training program, and a Valley fever management plan for the project. The project general contractor, in turn, created a safety plan that identified Valley fever as a potential risk and described methods for mitigating this risk. Granite Construction also discussed Valley fever in safety instructions to its employees. In May 2017, Cal/OSHA began an inspection of the project worksite, which ultimately centered on the potential exposure of Granite Construction’s employees to Coccidioides, the fungus which causes Valley fever. During their site visits, Cal/OSHA staff did not wear respiratory protection to prevent their own potential exposure to Coccidioides. Nor did they test the site for Coccidioides, though staff assumed that tests were available to determine the presence of the fungus. No evidence in the record shows that any Granite Construction employee contracted Valley fever. Nor does any testimony show that any person who visited the worksite contracted Valley fever. Cal/OSHA issued a citation to Granite Construction for allegedly violating three regulations. It alleged Granite Construction violated one regulation because it required its employees to wear masks without first providing a medical evaluation to determine their fitness to wear them. And it alleged the company violated two other regulations because it exposed its employees to dust containing a harmful fungus - namely, Coccidioides, the fungus that causes Valley fever - and failed to implement adequate measures to limit this exposure. After Granite Construction disputed these allegations, an ALJ rejected the Division’s claims. The ALJ reasoned that no credible evidence showed that Granite Construction required its employees to wear masks and no reliable evidence showed that Coccidioides was present at the worksite. But after the Cal/OSHA petitioned for reconsideration, the Occupational Safety and Health Appeals Board reversed on these issues and ruled for Cal/OSHA. The trial court later denied Granite Construction’s petition for writ of administrative mandate seeking to set aside the Board’s decision. On appeal from the trial court, the Court of Appeal reversed in the unpublished case of Granite Construction Co. v. Occupational Safety and Health Appeals Bd. - C096704 (September 2023). It agreed with Granite Construction’s claim that insufficient evidence shows its employees were exposed to Coccidioides. But it ejected its additional claim that it allowed (rather than required) its employees to wear masks, finding sufficient evidence supports the Board’s contrary ruling on this point. Granite Construction challenged the Board’s finding that it violated California Code of Regulations, title 8, section 5144(a)(1) - a finding that was largely premised on the Board’s conclusion that the company exposed its employees to Coccidioides because no evidence showed Coccidioides was present at the worksite. Over the years, the Board has discussed two competing standards for evaluating whether an employee has been exposed to an atmospheric contaminant within the meaning of this regulation. It established the first standard - the “harmful exposure” standard - decades ago. Under this standard, the Division must show “ ‘[a]n exposure to dusts, fumes, mists, vapors, or gases . . . [o]f such a nature by inhalation as to result in, or have a probability to result in, injury, illness, disease, impairment, or loss of function.’ ” The Board has since suggested that an alternative standard - the “zone of danger” standard - might be more appropriate in evaluating alleged violations of section 5144(a)(1). Under this alternative standard, the Division must show either that the employees have been or are in the zone of danger or ‘that it is reasonably predictable by operational necessity or otherwise, including inadvertence, that employees have been, are, or will be in the zone of danger. To date, the Division has yet to decide which of these two standards - the “harmful exposure” standard or the “zone of danger” standard - is the appropriate one in cases involving alleged violations of section 5144(a)(1). It has instead, in each case it has considered these standards, found it unnecessary to decide between the two standards because it concluded that both favor the same result. In its decision here, the Board noted that the “harmful exposure” standard is the one it has applied in past decisions involving section 5144(a)(1). But at the same time, it noted it might have reason to “overrule” this approach and apply the “zone of danger” standard - which it characterized as its “typical exposure analysis.” The Court of Appeal concluded that under either standard, the Board’s finding that employees were exposed to dusts containing Coccidioides lacks evidentiary support. "Here, however, nothing we have found in the record shows that any part of the worksite “present[ed] [a] danger to employees.” The CDC, to be sure, has said Coccidioides is endemic in California. But that does not mean that the fungus is present everywhere in the state (or for that matter, everywhere in Monterey County) - which even Division staff conceded." "The Department of Industrial Relations, moreover, has indicated that Monterey County and seven other counties have relatively high rates of Valley fever, with rates over 10 per 100,000 people. But that does not mean that Coccidioides was present (or even likely present) at the worksite here. Nor does it even show a meaningful probability that the fungus was present." And although Monterey County and even Granite Construction demonstrated concerns about Valley fever and took steps to limit potential exposure, that too does not show that Coccidioides was actually present. All this evidence instead only shows, with no degree of certainty, that the worksite might have presented a danger to employees because Coccidioides might have been present in the soil. That, however, is insufficient to support the Board’s finding that the worksite was in fact a zone of danger." ...

More than three years into the pandemic, millions of people claim to have suffered from Long COVID. For those who have claimed workers' compensation benefits, Long COVID cases are the most costly. According to a new study, there soon may be scientific methods to confirm their condition. According to a report by NBC News,scientists may have found clear differences in the blood of people with Long COVID — a key first step in the development of a test to diagnose the illness. Researchers from Yale School of Medicine and the Icahn School of Medicine at Mount Sinai, with contributions from Stanford University, were able to identify a range of biomarkers and predict with 94% accuracy who had long COVID. The research is among the first to prove that "Long COVID is, in fact, a biological illness," said David Putrino, principal investigator of the new study and a professor of rehabilitation and human performance at the Icahn School of Medicine at Mount Sinai in New York. Post-acute infection syndromes (PAIS) may develop after acute viral disease. Infection with SARS-CoV-2 can result in the development of a PAIS known as “Long COVID.” Individuals with Long COVID frequently report unremitting fatigue, post-exertional malaise, and a variety of cognitive and autonomic dysfunctions, however, the biological processes associated with the development and persistence of these symptoms are unclear. In the new study published this month in Nature, 273 individuals with or without Long COVID were enrolled in a cross-sectional study that included multi-dimensional immune phenotyping and unbiased machine learning methods to identify biological features associated with Long COVID. Several differences in the blood of people with Long COVID stood out from the other groups. The activity of immune system cells called T cells and B cells — which help fight off germs — was "irregular" in Long COVID patients, Putrino.said. He also said that one of the strongest findings was that Long COVID patients tended to have significantly lower levels of a hormone called cortisol. "It was one of the findings that most definitively separated the folks with Long COVID from the people without Long COVID," Putrino said. The finding likely signals that the brain is having trouble regulating hormones. The research team plans to dig deeper into the role cortisol may play in Long COVID in future studies. A major function of the hormone is to make people feel alert and awake. Low cortisol could help explain why many people with Long COVID experience profound fatigue, he said. Meanwhile simply boosting a person's cortisol levels in an attempt to "fix" the problem is not yet recommended. Dr. Marc Sala, co-director of the Northwestern Medicine Comprehensive COVID-19 Center in Chicago, called the findings "important." He was not involved with the new research. "This will need to be investigated with more research, but at least it's something because, quite frankly, right now we don't have any blood tests" either to diagnose Long COVID or help doctors understand why it's occurring, he said ...

A new California Workers’ Compensation Institute study finds that average paid losses on California workers’ compensation lost-time claims fell immediately after legislative reforms (SB 863) took effect a decade ago, but then gradually increased up until the pandemic hit. Currently, average paid losses on claims at all valuation points within 60 months of injury are above their post-reform lows, with only the most developed data on older claims -- 72-month data on accident year (AY) 2016 claims -- still showing declines in loss payments in the wake of the 2012 reforms. Using data from CWCI’s Claims Monitoring Application on nearly 570,000 indemnity claims for injuries that occurred during the 10-year span ending in December 2022, the study tracks average paid losses at 6, 12, 24, 36, 48, 60 and 72 months post injury, breaking out the results by accident year to identify growth trends. In addition to average total losses, the study notes the average medical and indemnity payments at each level of development and compares the loss payments for claims from 5 key industry sectors and from different regions of the state. Average total paid losses within the first year of injury fell immediately after the 2012 reforms took effect but bottomed out in AY 2014 and started to trend up in AY 2015, continuing to increase through AY 2020. Average 24-month loss payments bottomed out in AY 2016, then trended up through AY 2019, the latest year for which 24-month data are available. For the first time in 7 years, the 6- and 12-month average paid losses fell slightly in AY 2021 (the second year of the pandemic) while the 6-month payments on AY 2022 claims edged up slightly, so average total losses in the initial months after injury have changed little since the pandemic began. Unlike the 6-, 12- and 24-month data, there are no COVID claims in the 36-, 48-, 60- and 72-month results as data at those levels of development is not available beyond AY 2019 and the pandemic began in AY 2020. More developed data on older claims show average total losses declined through AY 2016, but beginning with AY 2017 claims, paid losses at 36, 48, and 60 months began to rise, so the 72-month trendline, which now runs through AY 2016, is the only one that is still declining from the post-SB 863 level. A review of average 24-month paid medical losses shows they declined from AY 2013 through AY 2016, but between AY 2017 and AY 2020 they jumped by 16.6%, which helped fuel the increase in the 24-month total loss trend. Much of that increase occurred in AY 2019 (+4.5%) and AY 2020 (+6.2%), and notably, 24-month data on claims from both those years included payments for medical services delivered during the pandemic. Temporary disability comprises most of the indemnity paid in the first 2 years after a job injury, and despite some year-to-year fluctuations, the average indemnity paid at 6 months increased 40.6% from AY 2013 to AY 2022, the average indemnity paid at 12 months rose 27.7% from AY 2013 to AY 2021; and the average indemnity paid at 24 months fluctuated from AY 2013 to AY 2017 but increased for AY 2018, AY 2019, and AY 2020 claims, resulting in a 22.7% net increase between AY 2013 and AY 2020. In the first few years after SB 863 took effect, the 36-month trendline for indemnity payments tracked with those at the shorter development periods, first fluctuating in a narrow range then gradually trending up to a peak in AY 2019. Average indemnity payments at the longer-term valuations, which are more affected by PD, were flatter, with a net increase of 3.4% in the 48-month payments from AY 2013 to AY 2018; a net decrease of 1.3% in the 60-month payments from AY 2013 to AY 2017; and a net decrease of 1.8% in the 72-month payments between AY 2013 and AY 2016. The Institute study also examines differences in 24-month total loss trends for AY 2013 to AY 2022 indemnity claims from 5 industry sectors (construction; health care; clerical; food service; and agriculture); and for claims from injured workers living in 7 distinct regions of the state (San Diego, the Inland Empire/Orange County; Los Angeles County; the Central Coast; the Central Valley, the Bay Area, and the North Counties/Sierras), as well as for claims from out-of-state workers. CWCI has published its study in a Research Update report, “California Workers’ Compensation Claims Monitoring: Medical & Indemnity Development, AY 2013 – AY 2022.” ...

The 3M earplug litigation represents the largest mass tort in U.S. history. There have been more than 300,000 claims in which veterans accuse 3M and Aearo Technologies, a company acquired by 3M in 2008, of producing faulty earplugs that failed to protect their hearing from noise damage when they received them from the U.S. military. 3M manufactured, marketed and sold its Combat Arms Earplugs, Version 2 (CAEv2) from 1999 to 2015,with an alleged design defect which hampered their effectiveness. 3M announced that it has reached an agreement with the court-appointed negotiating plaintiffs' counsel to resolve the Combat Arms Earplug litigation against Aearo Technologies (Aearo) and 3M. The settlement comes after 3M failed to move the lawsuits into bankruptcy court in hope of limiting its liability. Under the agreement, 3M will contribute a total amount of $6.0 billion between 2023 and 2029, which is structured under the agreement to include $5.0 billion in cash and $1.0 billion in 3M common stock. “This settlement is a tremendous outcome for veterans of Iraq and Afghanistan who put their lives on the line for our freedom,” said Duane Sarmiento, the Veterans of Foreign Wars (VFW) national commander. “For those who came home with hearing damage due to 3M’s faulty earplugs, this is not only compensation, it’s a statement that their sacrifices won’t be ignored.” Last summer, Aearo Technologies filed for bankruptcy as a separate company, accepting responsibility for all the liability claims. The move was intended to give Aearo leverage in bankruptcy court to reach a settlement with the plaintiffs. 3M said it would pay for any settlement Aearo reached. U.S. Bankruptcy Court Judge Jeffrey Graham in Indianapolis dismissed Aearo’s bankruptcy filing in June. The judge said Aearo did not qualify for bankruptcy protections as a distressed company since it had 3M’s promise to pay for a settlement. Aearo plans to appeal the ruling, as reported in The Wall Street Journal. In February, VFW filed an Amicus Curiae brief to the Seventh Circuit Court of Appeals in support of claimants seeking relief from 3M for defective ear protection. 3M had tried to shift the blame to its subsidiary Aearo Technologies, who it said was responsible for the defective earplugs and who had filed Chapter 11 bankruptcy, to avoid paying claimants. The bankruptcy appeal is being held in abeyance pending finalization of the settlement. This agreement, reached through the mediation process that 3M has previously disclosed, is structured to promote participation by claimants and is intended to resolve all claims associated with the Combat Arms Earplug products. The agreement includes all claims in the multi-district litigation in Florida and in the coordinated state court action in Minnesota, as well as potential future claims. The Florida and Minnesota courts are entering orders to support implementation of the agreement. 3M also added to its announcement that this "agreement is not an admission of liability. The products at issue in this litigation are safe and effective when used properly. 3M is prepared to continue to defend itself in the litigation if certain agreed terms of the settlement agreement are not fulfilled." Aearo and 3M are actively engaged in insurance recovery activities to offset a portion of the settlement payments, and Aearo initiated insurance recovery litigation against its carriers in June related to the litigation. According to Fox Business News, the settlement amount is significantly less than the $10 billion to $15 billion that some analysts predicted the case would cost the company. Still, the settlement will impact financial results. 3M will record a $4.2 million pre-tax charge in the third quarter, which "represents the $5.3 billion pre-tax present value of contributions under the agreement net of 3M's existing accrual of approximately $1.1 billion related to this matter," the company detailed. More information about the settlement is available at 3m-earplugsettlement.com ...

National Nurses United, with nearly 225,000 members nationwide, is the largest union and professional association of registered nurses in U.S. history. In 2009, California Nurses Association/National Nurses Organizing Committee played a lead role in bringing state nursing associations across the nation together into one national organization, National Nurses United (NNU). At its founding convention, NNU adopted a call for action to counter what it called “the national assault by the healthcare industry on patient care conditions and standards for nurses,” and to promote a unified vision of collective action for nurses. This legislative year, nurses across California were instrumental in the introduction of A.B. 1156, authored by Assemblymember Mia Bonta (D-Oakland) and sponsored by California Nurses Association (CNA). The organization held a press conference about the proposed law on April 5 at the Kaiser Permanente Oakland Medical Center. This bill would define “injury,” for a hospital employee who provides direct patient care in an acute care hospital, to include infectious diseases, cancer, musculoskeletal injuries, post-traumatic stress disorder, and respiratory diseases. The bill would include the 2019 novel coronavirus disease (COVID-19) from SARS-CoV-2 and its variants, among other conditions, in the definitions of infectious and respiratory diseases. The bill would create rebuttable presumptions that these injuries that develop or manifest in a hospital employee who provides direct patient care in an acute care hospital arose out of and in the course of the employment. The bill would extend these presumptions for specified time periods after the hospital employee’s termination of employment. Fortunately for California employers, A.B. 1156 was last found In the Assembly Insurance Committee as of March 2023. It failed deadline the deadline to move from policy committee to fiscal committee as of April 28, 2023. Thus the measure did not proceed to be passed by the Legislature in the current session, but technically is still alive for 2024 consideration. The California Chamber of Commerce, and a number of other business organizations opposed A.B. 1156. It pointed out that in 2019, SB 567 (Caballero) included presumptions for a very similar, more narrow list of illnesses and injuries. The Senate Committee on Labor, Public Employment and Retirement issued an analysis concluding that there was no evidence supporting the need for this presumption. It also warned that “the creation of presumptive injuries is an exceptional deviation that uncomfortably exists within the space of the normal operation of the California workers’ compensation system,” and to not limit them “would essentially consume and undermine the entire system”. Two of the most recent iterations of this bill, SB 893 (Caballero) and SB 567 (Caballero) received 0 and 1 Aye votes in committee, respectively. SB 213 (Cortese) did not receive a motion in Assembly Insurance last year. In 2014, AB 2616 (Skinner), the only version to make it to the Governor’s desk, was vetoed by Governor Edmund G. Brown, Jr. In his veto message he stated, “This bill would create a first of its kind private employer workers' compensation presumption for a specific staph infection -- methicillin-resistant Staphylococcus aureus (MRSA) -- for certain hospital employees. California's no-fault system of worker's compensation insurance requires that claims must be ‘liberally construed’ to extend benefits to injured workers whenever possible. The determination that an illness is work-related should be decided by the rules of that system and on the specific facts of each employee's situation. While I am aware that statutory presumptions have steadily expanded for certain public employees, I am not inclined to further this trend or to introduce it into the private sector.” ...

In 2002 the Mexico Pilot Program, was established in California by AB 1045. It was designed to bring physicians and dentists from Mexico with rural experience, who speak the language, understand the culture, and know how to apply this knowledge in serving the large Latino communities in rural areas who have limited or no access to primary health care services. Proponents of the measure were concerned about addressing primary care physician and dentist shortages while maintaining a high quality of care. The bill authorized up to 30 licensed physicians specializing in family practice, internal medicine, pediatrics, and obstetrics and gynecology and up to 30 licensed dentists from Mexico to practice medicine or dentistry in California for up to three years, and required the individuals to meet certain requirements related to training and education. The bill specified that any funding necessary for the implementation of the program, including the evaluation and oversight functions, was to be secured from nonprofit philanthropic entities and further stated that implementation of the program could not move forward unless appropriate funding was secured from nonprofit philanthropic entities. The Medical Board of California (MBC) received the necessary philanthropic funding in 2018 to initiate the program and began taking the necessary steps for implementation. As of April 2019, MBC began accepting applications for the Mexico Pilot Program. MBC received the required funding commitments necessary for program implementation in December 2020. MBC reports that as of September 2022, MBC had issued 21 licenses to qualified Mexico Pilot Program applicants. The Board anticipates approving a cohort of eight additional applicants (for a total of 30, the maximum under the law) in spring 2023. Mexico Pilot Program physicians are authorized to practice in the following MBC-approved community health clinics: Clinica de Salud del Valle de Salinas in Monterey County; San Benito Health Foundation in San Benito County; Altura Centers for Health in Tulare County and; AltaMed Health Services Corporation. In August 2022, the Center for Reducing Health Disparities (CRHD) at the University of California, Davis released its first annual progress report of the Mexico Pilot Program. The Medical Board of California and the Dental Board of California requires a licensee, at the time of issuance of a license, to provide specified federal taxpayer information, including the applicant’s social security number or individual taxpayer identification number. The licensing board is prohibited from processing an application for an initial license unless the applicant provides that information where requested on the application. Governor Newsom has signed A.B. 1395 into law. For purposes of the Pilot Program, the boards are now authorized to issue a 3-year nonrenewable license to an applicant who has not provided an individual taxpayer identification number or social security number if the applicant meets specified conditions. The applicant would be required to immediately seek an appropriate 3-year visa and social security number from the federal government within 14 days of being issued the medical license and immediately provide the medical board with their social security number within 10 days of issuance of that card by the federal government. The bill would prohibit the applicant from engaging in the practice of medicine until the board determines that these conditions have been met. There was no opposition to this new law shown in the Legislative History ...

Elaine Estrada, was a former employee of the City of La Habra Heights. On April 28, 2016, the Los Angeles County District Attorney’s Office filed a felony complaint against Estrada that charged her with one count of misappropriation of public funds in violation of Penal Code section 424, subdivision (a), (count 1), and one count of embezzlement by a public officer in violation of Penal Code section 504 (count 2). As to both counts, it was alleged that, between April 1, 2007 and July 31, 2009, Estrada removed payroll deductions, and as a result, did not pay the required employee share for dependents covered on her plan. The City did not discover the alleged conduct until an audit in 2012 because Estrada was responsible for the payroll and timekeeping of all City employees. Estrada pled no contest to a felony that arose out of the performance of her official duties. Under the terms of Estrada’s plea agreement, the conviction was later reduced to a misdemeanor under Penal Code section 17 and then dismissed under Penal Code section 1203.4. Government Code section 7522.72 provides that if a public employee is convicted of a felony for conduct arising out of or in the performance of his or her official duties, the employee forfeits certain accrued retirement benefits, which "shall remain forfeited notwithstanding any reduction in sentence or expungement of the conviction." Thus California Public Employees’ Retirement System (CalPERS) determined that Estrada forfeited a portion of her retirement benefits as a result of her felony conviction. Estrada appealed the forfeiture action. The ALJ found CalPERS was correct in its determination that Estrada was convicted of a felony arising out of her official duties as an employee of the City. As a result, the ALJ concluded that Estrada forfeited her right to retirement benefits for the period from September 1, 2007, the earliest date of the commission of the felony, through June 28, 2017, the date of her felony conviction. On August 6, 2019, after the ALJ issued the proposed decision but before the Board adopted it, Estrada returned to criminal court. Following an off the-record conference with Estrada’s counsel and a deputy district attorney, the court stated that it was granting a request to issue a nunc pro tunc order. The court then found "nunc pro tunc that on June 28th, 2017, the defendant pleaded to the felony but was not convicted." The court further found that "on January 3rd, 2018, the defendant was convicted of a misdemeanor and sentenced to a misdemeanor." At the request of Estrada’s counsel, the court added that "[t]he record will so reflect that the defendant did not suffer a felony conviction in this case." Estrada filed a petition for writ of administrative mandate in Los Angeles County Superior Court seeking an order directing CalPERS to set aside its forfeiture decision and to reinstate her retirement benefits. Estrada argued that she was entitled to retain her retirement benefits because she was convicted of a misdemeanor, not a felony, and the criminal case against her was dismissed. The trial court denied Estrada’s petition. The Court of Appeal affirmed the denial in the published case of Estrada v. Public Employees' Retirement System -B317848 (September 2023). On Appeal Estrada contends that her retirement benefits were not subject to forfeiture under section 7522.72 because she withdrew her plea to the felony and entered a new plea to a misdemeanor, and the criminal case was later dismissed. The Court of Appeal Disagreed. "Under the plain language of section 7522.72, a public employee’s accrued retirement benefits are subject to forfeiture upon his or her conviction of a job-related felony. While section 7522.72 does not define the terms "convicted" or "conviction," the general rule in California is that " '[a] plea of guilty constitutes a conviction.' " (People v. Banks (1959) 53 Cal.2d 370, 390 - 391; accord, People v. Laino (2004) 32 Cal.4th 878, 895.) "A guilty plea 'admits every element of the crime charged' [citation] and 'is the "legal equivalent" of a "verdict" [citation] and is "tantamount" to a "finding" [citations]' " (People v. Wallace (2004) 33 Cal.4th 738, 749.) "This interpretation of section 7522.72 is also consistent with the legislative purpose of statute. ... section 7522.72 is part of PEPRA (of the California Public Employees’ Pension Reform Act of 2013) , which was enacted to close loopholes and to curb abusive practices that existed in California’s public pension system." "Our conclusion in this case is further supported by Danser v. Public Employees’ Retirement System (2015) 240 Cal.App.4th 885, in which the Court of Appeal considered section 75526, a benefit forfeiture statute applicable to judges." The order denying the petition for writ of administrative mandate was affirmed ...

The Federal Trade Commission sued U.S. Anesthesia Partners, Inc. (USAP), the dominant provider of anesthesia services in Texas, and private equity firm Welsh, Carson, Anderson & Stowe, alleging the two executed a multi-year anticompetitive scheme to consolidate anesthesiology practices in Texas, drive up the price of anesthesia services provided to Texas patients, and boost their own profits. The FTC’s complaint, filed in federal district court, alleges that USAP and Welsh Carson, which created USAP, engaged in a three-part strategy to consolidate and monopolize the anesthesiology market in Texas. First, they executed a roll-up scheme, systematically buying up nearly every large anesthesia practice in Texas to create a single dominant provider with the power to demand higher prices. Second, USAP and Welsh Carson further drove up anesthesia prices through price-setting agreements with remaining independent practices. Third, USAP sidelined a significant competitor by striking a deal to keep it out of USAP’s territory. The FTC alleges that USAP’s multi-pronged anticompetitive strategy and resulting dominance has cost Texans tens of millions of dollars more each year in anesthesia services than before USAP was created. "Private equity firm Welsh Carson spearheaded a roll-up strategy and created USAP to buy out nearly every large anesthesiology practice in Texas. Along with a set of unlawful agreements to set prices and allocate markets, these tactics enabled USAP and Welsh Carson to raise prices for anesthesia services-raking in tens of millions of extra dollars for these executives at the expense of Texas patients and businesses," said FTC Chair Lina M. Khan. "The FTC will continue to scrutinize and challenge serial acquisitions, roll-ups, and other stealth consolidation schemes that unlawfully undermine fair competition and harm the American public." As the FTC’s complaint states, New York-based Welsh Carson created USAP in 2012 after observing that anesthesiology in Texas was made up of small practices competing against one another, which allowed insurers to negotiate lower prices for themselves, for their clients, and ultimately for patients. Welsh Carson saw a chance to profit by eliminating this competition. Since its creation, USAP has acquired more than a dozen anesthesiology practices in Texas. As it bought each one, the FTC says, USAP raised the acquired group’s rates to USAP’s higher rates - resulting in a substantial mark-up for the same doctors as before. This roll-up strategy has made it the dominant provider of anesthesia services in Texas and in many of the state’s metropolitan areas, including Houston and Dallas. USAP’s size and prices now dwarf those of its rivals. The FTC’s complaint also alleges that USAP sought to further drive-up prices by: - - Entering or maintaining price-setting arrangements: USAP entered into or maintained arrangements that allowed USAP to charge its own market-leading prices for services that were provided by independent anesthesia groups at key hospitals in Houston and Dallas. - - Forming a market allocation arrangement: USAP and Welsh Carson secured a promise from another large anesthesia services provider to stay out of USAP’s territory. The FTC alleges that USAP and Welsh Carson’s conduct amounts to unlawful monopolization, unlawful acquisitions, a conspiracy to monopolize, unfair methods of competition, and unlawful restraints of trade. Such conduct violates the FTC Act and the Clayton Act. The FTC is seeking equitable relief necessary to remedy the impact of USAP and Welsh Carson’s anticompetitive conduct and to prevent the recurrence of such conduct. The Commission vote to authorize staff to file for a permanent injunction and other equitable relief in the U.S. District Court for the Southern District of Texas was 3-0 ...

In December 2017 the Long Beach Memorial Medical Center treated Vernon Barnes for injuries he received in a car accident. Afterward Barnes submitted a personal injury claim to Allstate, which insured the driver Barnes claimed was at fault in the accident. The Medical Center informed Allstate by letter that Barnes had incurred $116,714.67 in expenses for his treatment at the Medical Center and that the Medical Center was asserting a lien for that amount under the Hospital Lien Act (HLA). Under the Hospital Lien Act (HLA) (Civ. Code, §§ 3045.1-3045.6), "when a hospital provides care for a patient, the hospital has a statutory lien against any . . . settlement received by the patient from a third person responsible for his or her injuries, or the third person’s insurer, if the hospital has notified the third person or insurer of the lien." (Mercy Hospital & Medical Center v. Farmers Ins. Group of Companies (1997) 15 Cal.4th 213, 215 (Mercy Hospital).) The HLA prohibits an insurer from paying a patient without paying the hospital the amount of its lien, or as much as can be satisfied from 50 percent of the patient’s recovery from the tortfeasor or insurer. In February 2020 Barnes and Allstate settled his claim for $300,000. The settlement agreement provided Allstate would pay this amount by sending Barnes’s attorneys three checks: one made payable to Medicare for $24,230.93, one made payable to Barnes and his attorneys for $159,054.40, and one made payable to Barnes and the Medical Center for $116,714.67, the amount of the lien. The settlement agreement also provided Barnes and his attorneys would indemnify, defend, and hold harmless Allstate and its insured against claims by the Medical Center or anyone else with a statutory right of recovery against Allstate and its insured. Later in February 2020 Allstate sent Barnes’s attorneys a check for $116,714.67 made payable to Barnes and the Medical Center. That check, however, was never deposited, and by March 2021 it had expired. At that time Allstate sent Barnes’s attorneys a second check for the same amount made payable to the same parties (the March 2021 check). To Allstate’s knowledge, that check was never cashed. In May 2021 the Medical Center filed this action against Allstate, asserting a single cause of action for violating the HLA. The Medical Center alleged that Allstate, having received written notice of the Medical Center’s lien regarding Barnes’s medical treatment, violated the HLA by paying Barnes to settle his personal injury claim without paying the Medical Center the amount of its lien. Allstate filed a motion for summary judgment which the the trial court granted, ruling Allstate’s two-payee check, which was never cashed, satisfied its obligation under the HLA. The Court of Appeal reached the opposite conclusion and reversed in the published case of Long Beach Memorial Medical Center v. Allstate Ins. Co. -B321876 (September 2023). Allstate argues that giving Barnes’s attorneys a check for $116,714.67 made payable to Barnes and the Medical Center constituted a payment to the Medical Center for the amount of its lien. As in the trial court, Allstate declines to specify which check made payable to the Medical Center as co-payee—the February 2020 check or the March 2021 check—Allstate claims satisfied its payment obligation to the Medical Center. Citing Crystaplex Plastics, Ltd. v. Redevelopment Agency (2000) 77 Cal.App.4th 990 (Crystaplex), Allstate argues the check(s) in question constituted payment to the Medical Center because a "check issued to multiple payees, delivered to one payee, is delivery of a check." However "Allstate may have constructively delivered the check(s) to the Medical Center does not mean Allstate made a 'payment' to the Medical Center." On the contrary, as a general rule - a check of itself is not payment until cashed . . . .(Hale v. Bohannon (1952) 38 Cal.2d 458, 467; accord, Cornwell v. Bank of America (1990) 224 Cal.App.3d 995, 1000; see Navrides v. Zurich Ins. Co. (1971) 5 Cal.3d 698, 706 [a "check is never a payment of the debt for which it is given until the check itself is paid or otherwise discharged’"]; Hale, at p. 467 [the "mere giving of a check does not constitute payment’"]; Mendiondo v. Greitman (1949) 93 Cal.App.2d 765, 767 [same]; Art Frost of Glendale v. Hooper (1955) 130 Cal.App.2d Supp. 903, 906 ["[u]ntil the check involved here was cashed, . . . the obligation of the drawer remained in existence"]; Bas s v. Olson (9th Cir. 1967) 378 F.2d 818, 820 ["under governing California law, mere possession of an uncashed check is not equivalent to payment," and therefore, "prior to the actual presentation of the check at the bank," the defendant, who physically possessed the check,"was never ‘paid’"].) The Court of Appeal then concluded that there "is no evidence either check Allstate made out to the Medical Center as a co-payee was ever cashed. In fact, it appears undisputed that neither was." "And Allstate’s argument the Medical Center suffered no harm because it could 'resolve' its lien with Barnes seems disingenuous: The obvious point of including Barnes as co-payee was to empower him to negotiate keeping some portion of the amount of the Medical Center’s lien for himself." ...

The California Attorney General announced a $925,000 settlement agreement with LASR Enterprises, a Southern California pharmacy accused of defrauding California’s Medicaid program, Medi-Cal. The agreement resolves allegations that the Palm Springs-based pharmacy and its owners unlawfully sought and received reimbursement from Medi-Cal for drugs that it over-dispensed, or that it dispensed drugs without receiving a valid prescription. The California Department of Justice’s Division of Medi-Cal Fraud and Elder Abuse (DMFEA) investigated the case and negotiated the settlement, which recovers more than five times the amount lost by Medi-Cal. DMFEA began its investigation in this case after being alerted by the California Department of Health Care Services to LASR’s pattern of allegedly unlawful billing. Investigators found that between January 2015 and December 2017, LASR and its owners sought and received a total of $155,709 in reimbursement from Medi-Cal for drugs dispensed without a valid prescription, and a total of $22,177 in reimbursement for drugs that were over-dispensed per an authorized prescription. Their actions allegedly violated the California False Claims Act. The settlement negotiated by DMFEA amounts to a total of $925,000 and recovers over five times the damages to the Medi-Cal program. Of the total settlement, California will receive $555,000 and the United States will receive $370,000, as Medi-Cal is funded jointly by state and federal governments. DMFEA receives 75% of its funding from HHS under a grant award totaling $53,792,132 for federal fiscal year 2022-2023. The remaining 25% is funded by the State of California. The federal fiscal year is defined as through September 30, 2023. The claims resolved by the settlement are allegations only, and there has been no determination of liability ...

In 2017, A-Brite Blind and Drapery Cleaning initiated an action with the Department’s administrative hearing bureau against State Compensation Insurance Fund regarding State Fund’s policy premiums. Following an evidentiary hearing, an administrative law judge issued a proposed decision to the Commissioner, who declined to adopt it. Instead, the Commissioner issued his own decision and order on November 16, 2018 , finding that State Fund violated the Insurance Code by, among other things, including an unlawful rating tier modifier during the 2015 and 2016 policy periods. The Commissioner further designated the A-Brite order as precedential under Government Code section 11425.60, subdivision (b). State Fund filed a motion for reconsideration, which was deemed denied when the Commissioner failed to respond. On January 28, 2019, more than a month before the deadline for State Fund to challenge the A-Brite order in the trial court by petition for writ of mandate (Cal. Code Regs., tit. 10, § 2509.76, subd. (a)), State Fund’s general counsel sent a letter to the Department, asking the Commissioner to "rescind the designation of the [A-Brite] Decision as precedential," as the decision contained "clear errors of facts and law." In response to the letter, the Department’s attorney, Bryant Henley, contacted State Fund to discuss settlement. State Fund and the Department ultimately signed a settlement agreement which said "State Fund agrees, further, not to file a Writ Petition challenging, in whole or in part, the A-Brite Order. The Department agrees to remove the precedential designation from the A-Brite Order, rendering the decision non-precedential." On March 15, 2019, State Fund’s deadline for filing a writ petition challenging the A-Brite order expired. Ten days later, after noting "several legal and factual issues in common" between the A-Brite matter and another administrative action brought against State Fund, an ALJ for the Department took official notice of the A-Brite order, the A-Brite settlement agreement, and various other A-Brite documents in In the Matter of the Appeal of Sessions Payroll Management, Inc. (File: AHB-WCA-18-47, July 18, 2019) (the Sessions matter). The ALJ also ordered the parties to brief whether the "doctrines of exhaustion of judicial remedies and collateral estoppel preclude relitigation of factual and/or legal issues decided by the Commissioner in A-Brite." After reviewing the briefs, the ALJ disagreed with State Fund, instead adopting Sessions’s position that both doctrines applied and issuing an order finding that State Fund was precluded from relitigating the factual and legal issues decided in A-Brite. On June 10, 2019, State Fund filed a petition for a peremptory writ of administrative mandate challenging the merits of the 2018 A-Brite order. Aware that the petition was filed after the limitations period had run, State Fund alleged that equitable estoppel and equitable tolling applied to render the petition timely. Among other things SCIF alleged "that the Commissioner intentionally misled State Fund by representing that the settlement agreement would preclude any use of the A-Brite order in subsequent proceedings." On November 19, 2020, in response to State Fund’s effort to reopen the A-Brite matter by filing this writ, the ALJ in Sessions issued an order vacating its ruling finding the A-Brite order preclusive in that case, as the A-Brite order was no longer final for purposes of collateral estoppel and judicial exhaustion. The same day, the Department filed a motion for summary judgment in the trial court, arguing that State Fund’s petition was time-barred as a matter of law. The court granted the motion, finding that neither equitable estoppel nor equitable tolling applied to extend the period of limitations. In doing so, it found that the settlement agreement only required the Department to "de-designate" the A-Brite order as precedent under the applicable Government Code section, and it did not preclude the Department from binding State Fund to the A-Brite order through other means, such as nonmutual offensive collateral estoppel. The Court of Appeal affirmed the trial court dismissal in the unpublished decision of State Compensation Ins. Fund v. Dept. of Insurance -C093897 (September 2023). A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful. (Civ. Code, § 1636.). The "Department’s interpretation suggests that State Fund agreed not to pursue the writ, while also agreeing to be bound by the A-Brite order with respect to every company raising the same issues in all future administrative actions against State Fund.This reading of the agreement would render the contract largely illusory, granting no benefit to State Fund." "Here, the plain language of the contract controls, and does not support the narrow reading advanced by the Department. ... State Fund agreed to be bound by the order with respect to A-Brite. It did not agree to be bound by the A-Brite order with respect to any other party. " ... "The contractual language supports State Fund’s interpretation." However the Court went on to say "While we agree with State Fund’s interpretation of the settlement agreement, we conclude that State Fund fails to raise a question of material fact as to whether equitable estoppel or equitable tolling applies in this case." A defendant may be estopped from asserting the statute of limitations as a defense if four elements are present:: (1) the party to be estopped must be apprised of the facts; (2) he [or she] must intend that his [or her] conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the other party must be ignorant of the true state of facts; and (4) he [or she] must rely upon the conduct to his [or her] injury. (Honeywell v. Workers’ Comp. Appeals Bd. (2005) 35 Cal.4th 24, 37, quoting City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 489.). "Here, the doctrine is inapplicable to the facts before us. There is no misrepresentation, or nondisclosure of facts, which caused State Fund to refrain from filing the writ." The dispute was over interpretation of the agreement. "However, State Fund is not necessarily without further remedy. It still may challenge the ALJ’s application of collateral estoppel in Sessions if that order is reinstated." ...

Timoteo Alejandro Martinez Ildefonso worked at a Whole Foods store in Venice, California. While on a 15-minute break, he left the store and was hit by a pickup truck while using a crosswalk at a nearby intersection. The driver stopped, spoke with him, then returned to the car and drove away. Ildefonso walked back to the store where he told his supervisors that he was injured and wanted to go home. A store employee later drove him home. He died a few hours later. An administrative law judge and the California Workers’ Compensation Appeals Board determined that the decedent’s injuries arose out of his employment and occurred in the course of that employment. The decedent was survived by his wife, Martha Eve Jimenez, and three children. Plaintiffs filed this wrongful death action against several parties including the decedent’s employer, Mrs. Gooch’s. Plaintiffs rely on two narrow exceptions to the general principle that workers’ compensation is the exclusive remedy for workplace injury: dual capacity and fraudulent concealment (Lab. Code, § 3602, subd. (b)(2)). As to the dual capacity exception, plaintiffs allege that in addition to its role as the decedent’s employer, Mrs. Gooch’s acted as an emergency first aid responder after the decedent was injured in the crosswalk. In that capacity, Mrs. Gooch’s caused a second injury for which it is liable. As to the fraudulent concealment exception, plaintiffs allege that store employees knew the decedent was injured but failed to disclose to him that his injury was connected to his employment. Plaintiffs allege that if the other employees had both disclosed that the injury was work related and treated it as such, they would have called an ambulance and instructed the decedent to wait to receive an examination by a paramedic. Mrs. Gooch’s demurred The court found neither exception applied and sustained the demurrer without leave to amend. The Court of Appeal affirmed the dismissal in the published case of Jimenez v. Mrs. Gooch's Natural Food Markets, Inc. -B322732 (September 2023). Plaintiffs attempt to analogize the present case to the California Supreme Court decision in Duprey v. Shane (1952) 39 Cal.2d 781 and similar cases in which an injured employee was allowed to pursue a medical malpractice claim against an employer who was also a treating medical professional. "But this case is plainly distinguishable from those cases because plaintiffs do not allege that either Mrs. Gooch’s or the store employees who rendered first-aid assistance were medical professionals. Instead, plaintiffs apparently seek to expand the dual capacity doctrine to include a negligent undertaking theory. Plaintiffs cite no case holding that a negligent undertaking theory is viable in these circumstances nor do they offer any legal support for their suggestion that we expand the scope of the dual capacity exception." The fraudulent concealment exception is found in Labor Code section 3602, subdivision (b)(2). To withstand a demurrer, an employee must "in general terms" plead facts that if found true by the trier of fact, establish the existence of three essential elements: (1) the employer knew that the plaintiff had suffered a work-related injury; (2) the employer concealed that knowledge from the plaintiff; and (3) the injury was aggravated as a result of such concealment. However, the opinion concluded that "[t]he exception does not apply where the employee was aware of the injury at all times.This point is fatal to plaintiffs' argument. The complaint does not allege that the decedent was unaware of his injury." (Silas v. Arden (2012) 213 Cal.App.4th 75, 91.) ...

Anonymously named Jane Doe sued her former employer Na Hoku, Inc. and former manager Ysmith Montoya asserting multiple claims arising from Montoya’s alleged sexual harassment and assault of Doe. The employer successfully moved to compel arbitration, and the court ordered the case to binding arbitration. September 1, 2022 was the "due date" for real parties to pay certain arbitration fees and costs to the arbitrator. On Friday, September 30, Na Hoku mailed a check for $23,250 to the Texas address provided. On Monday, October 3, counsel for real parties informed AAA that payment had been mailed. On October 5, AAA received real parties’ payment and applied it to the case. Doe moved to vacate the trial court’s order compelling arbitration on the grounds that real parties had failed to pay their arbitration fees and costs within 30 days of the due date as required by statute. She argued their late payment was a material breach of the arbitration agreement and waived their right to compel arbitration. The trial court denied the motion. It noted that that "the provider’s demand was for payment remitted by October 3," the court ruled that real parties "indisputably complied" with the date "having remitted (i.e., sent) the sum in by that date." The court recognized the possible "ambiguity as to whether a 'due' date meant the day the sum had to be remitted or received by the provider" but concluded AAA’s second communication "clarified this: The date was for the remitting of the sum." In the trial court’s view, because real parties’ remittance of payment by October 3 "satisfied the due date imposed by the provider." The Court of Appeal reversed the trial court order in the published case of Doe v Superior Court (Na Hoku Inc) - A167105 (September 2023). Doe argues the trial court misinterpreted Code of Civil Procedure section 1281.98 in allowing real parties more than 30 days to pay arbitration fees and costs. Here, the statutory language is not clear. While some terms in the statutory scheme are defined, there is no definition for the term "paid" in the clause "if the fees or costs required to continue the arbitration proceeding are not paid within 30 days after the due date." (§ 1281.98, subd. (a)(1).) Webster provides a number of definitions for "pay" (including "to make due return to for services rendered or property delivered," "to give in return for goods or service," and "to make a disposal or transfer of (money)") and "paid" as "marked by the receipt of pay," or "being or having been paid or paid for." Black’s Law Dictionary has no separate entry for “paid” but offers multiple definitions of “pay”: “1. To give money for a good or service that one buys . . . . 2. To transfer money that one owes to a person, company, etc. . . . 3. To give (someone) money for the job that he or she does . . .” After reviewing the statutory language and dictionary definitions it said "while we acknowledge that most service providers would not consider themselves “paid” until they received payment, the term “paid” is reasonably subject to more than one interpretation." Thus the Court of Appeal reviewed the legislative purpose of the statute and concluded that "Here, the construction offered by petitioner, i.e., payment made and received within 30 days of the due date, best effectuates this legislative purpose." "This construction provides a clear, bright-line rule for determining compliance with the 30-day statutory grace period as the arbitrator can readily and definitively determine whether funds have been received to satisfy any outstanding fees or costs owed for a pending arbitration. If such fees are not received by the conclusion of the statutory grace period, an employee may immediately elect to pursue options for relief." ...

When common medical procedures were performed in a hospital outpatient department (HOPD) rather than a doctor’s office, costs were substantially higher according to a national analysis of tens of millions of claims. The analysis, released by the Blue Cross Blue Shield Association (BCBSA), shows the costs for prevalent procedures like mammograms or colonoscopies were consistently higher — as much as 58% more expensive — when performed in HOPD settings. These higher hospital prices mean higher costs to consumers.  To examine the cost disparities at different health care locations, Blue Health Intelligence® analyzed deidentified claims data for six common, everyday outpatient procedures, covering 133 million Blue Cross and Blue Shield members from 2017 through 2022.  Findings show that not only were HOPDs charging more for the exact same service, but prices also increased faster each year compared to charges at physician offices and ambulatory surgery centers (ASCs), where patients receive outpatient diagnostic procedures as well as outpatient surgical care.   Price differences in 2022 for common procedures based on setting were:   - - Mammograms cost 32% more in an HOPD than in a doctor’s office.  - - Colonoscopy screenings cost 32% more in an HOPD than in an ASC and double the cost compared to when performed in a doctor’s office.  - - Diagnostic colonoscopies cost 58% more in an HOPD than in an ASC and more than double the cost compared to when performed in a doctor’s office.  - - Cataract surgery costs 56% more in an HOPD than in an ASC.  - - Ear tympanostomies cost 52% more in an HOPD than when performed in an ASC.  - - Clinical visits cost 31% more in an HOPD setting than in a doctor’s office.  With roughly 40 million mammograms and more than 15 million colonoscopy screenings performed in 2022, implementing site-neutral payment policies would lead to significant savings. This data is consistent with previous research. A study by University of California-Berkeley found that the prices paid in 2019 by Blue Cross Blue Shield Plans in HOPDs were double those paid in doctors’ offices for biologics, chemotherapies and other infused cancer drugs — 99% to 104% higher — and 68% higher for infused hormonal therapies.  Furthermore, a 2016 study in the American Journal of Managed Care showed prices for seven common services were significantly higher at an HOPD than a physician’s office, ranging from 21% more for an office visit to 258% more for a chest radiography.  “The cost of a procedure shouldn’t be determined by the setting where the care is delivered,” said BCBSA Senior Vice President of Policy and Advocacy, David Merritt. “Lowering the cost of care, regardless of the site, is common sense. Our analysis shows site-neutral legislation could save our patients, businesses and taxpayers nearly $500 billion over 10 years. We look forward to continuing our work with Congress to protect patients from these higher costs.”  One key driver of these cost differences is the acquisition of physician practices by corporate health systems over the past 20 years, which has resulted in those physician practices being converted into HOPDs, thereby generating additional facility fees and higher prices overall. Furthermore, Medicare pays more for services provided in HOPDs than it does when the same services are provided in other care settings outside of the hospital, costing both patients and Medicare hundreds of millions of dollars. BCBSA supports bipartisan legislation in the U.S. House of Representatives and the U.S. Senate to enact fair hospital billing policies, including Reps. Kevin Hern (R-OK) and Annie Kuster’s (D-NH) FAIR Act and Sens. Maggie Hassan (D-NH) and Mike Braun’s (R-IN) SITE Act. Additionally, earlier this year, BCBSA released Affordability Solutions for the Health of America, a comprehensive set of proposals that could reduce health care costs for patients, consumers and taxpayers by $767 billion over 10 years. This can be achieved by expanding site-neutral payments for outpatient services, improving competition, increasing access to lower-cost prescription drugs, and ensuring patients receive high-quality care at the right place and time ...

As a backstory to the new decision just published by the 9th Circuit Court of Appeals, a civil case, was filed April 11, 2022 in San Francisco Superior Court by the San Francisco and Los Angeles District Attorneys, alleging that the Potter Handy LLP San Francisco lawfirm and 15 of its lawyers -- including name partners Mark Potter and Russell Handy -- of violating California's Unfair Competition Law by bringing fraudulent and deceitful litigation under the Americans with Disabilities Act against small businesses. The district attorneys asked the court to enjoin the law firm from further violations and make it repay thousands of small businesses that settled claims over the last four years. In dismissing the district attorneys' case in August 2022, San Francisco Superior Court Judge Curtis Karnow found that the conduct of Potter Handy attorneys was covered by California's "litigation privilege" that attaches to court filings and communications related thereto. The judge found that the privilege applied "irrespective of the communication's maliciousness or untruthfulness." On October 20,2022 the San Francisco District Attorney announced that they would appeal the dismissal of their case against Potter Handy LLP. The outcome of that appeal is not yet known. Meanwhile, on October 2, 2020, Orlando Garcia - who is currently represented in this case by Potter Handy LLP - filed a complaint in the California state court challenging Gateway Hotel’s "reservation policies and practices," specifically "the lack of information provided on [Gateway’s] website that would permit [Garcia] to determine if there are rooms" that would accommodate his disability. Garcia contended that Gateway’s failure to provide this information violated the ADA and California law. Gateway removed the case to federal court, and Garcia subsequently amended his complaint, dropping his claim based on California law. Gateway then moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), and the district court granted the motion after concluding that the information on Gateway’s website complied with the ADA’s requirements. Gateway then sought an award of attorney’s fees, which the court denied because it could not "conclude on the record before it that [Garcia]’s case was frivolous or unreasonable" and because there was no "clear indication that [Garcia]’s lawsuit was vexatious." Gateway then filed an application for costs, which the court awarded. After filing two motions to retax costs that the court denied on procedural grounds, Garcia filed a third motion to retax costs, arguing that costs may be awarded to defendants under the ADA only if the action was frivolous, unreasonable, or without foundation. The court denied this motion after concluding that Brown v. Lucky Stores, Inc., 246 F.3d 1182 (9th Cir. 2001) - the legal authority cited in support of Garcia’s position - was irreconcilable with the Supreme Court’s intervening decision in Marx v. General Revenue Corp., 458 U.S. 371 (2013). The district court followed "the Supreme Court’s intervening decision in Marx rather than the Ninth Circuit’s earlier precedent" in Brown, and determined that Rule 54(d)(1) governed the award of costs in ADA actions. And because Rule 54(d)(1) provides that costs may be awarded to a prevailing party at the district court’s discretion, the court concluded that Gateway properly received its costs in the action and denied Garcia’s motion to retax costs. These orders were followed by a timely appeal. The 9th Circuit Court of Appeals reviewed the case, and affirmed the award of costs to the Hotel in the published case of Garcia v Gateway Hotel - 21-55926 (September 2023). This case required the 9th Circuit Court of Appeals to clarify the circumstances under which a defendant may be awarded its costs in an action brought under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq. Gateway contends that the standard for awarding costs to ADA defendants is governed by Federal Rule of Civil Procedure 54(d)(1), which allows courts the discretion to award costs to prevailing parties "[u]nless a federal statute . . . provides otherwise." Appellant Orlando Garcia contends that the ADA’s fee- and cost-shifting statute "provides otherwise" because it permits ADA defendants to receive their costs only where there is a showing that the action was frivolous, unreasonable, or groundless. He relied on Brown v. Lucky Stores, Inc., supra. Therefore, he contends that the district court should have granted his motion to retax costs, which would have, in effect, denied Gateway’s application for costs. The majority opinion agreed with the district court and concluded that its decision in Brown cannot be reconciled with the Supreme Court’s decision in Marx, and therefore it has been effectively overruled. Accordingly, it held that Rule 54(d)(1) governs the award of costs to a prevailing ADA defendant, and such costs may be awarded in the district court’s discretion. Circuit Judge Hurwitz wrote the dissenting opinion. He agreed with the majority that after Marx Rule 54(d)(1) controls the award of costs to a prevailing defendant in an ADA action. He also agreed with the majority that prior caselaw holding that the ADA "provides otherwise" than Rule 54(d)(1) cannot be reconciled with Marx. But, he parted company with his colleagues on whether our three-judge panel is free to reach these conclusions. "The proper course - even when the eventual outcome is, as today, seemingly preordained - is to require an en banc court to inter our previous decisions unless an intervening Supreme Court abrogates them." ...

Travis Gober, 44, of Hanford, pleaded guilty to health care fraud and aggravated identity theft charges for submitting over $1 million in fraudulent claims for sleep studies to Medicare, U.S. Attorney Phillip A. Talbert announced. According to court records, Gober owned the VIP Sleep Center, which operated sleep clinics in Fresno and Tulare Counties. Sleep clinics perform diagnostic sleep studies on patients to identify disorders like sleep apnea and narcolepsy. From October 2019 through September 2021, Gober caused the VIP Sleep Center to submit thousands of claims to Medicare, which is a federally funded health care insurance program, for sleep studies that were not actually performed on patients. The claims also falsely stated that the patients had been referred for the sleep studies by physicians with whom Gober had previously worked. This was done because Medicare will not pay for a sleep study unless the patient was referred by a physician. Gober committed this fraud, at least in part, to try to pay debts and address other financial difficulties that his brother, Jeremy Gober, had caused the VIP Sleep Center and him to incur without his knowledge or consent. This case is the product of an investigation by the U.S. Department of Health and Human Services Office of Inspector General, the Federal Bureau of Investigation, and the California Department of Health Care Services. Assistant U.S. Attorney Joseph Barton is prosecuting the case. Travis Gober is scheduled to be sentenced by Jennifer L. Thurston on Jan. 16, 2024. Gober faces a maximum statutory penalty of 10 years in prison for the health care fraud conviction, and an additional, mandatory two years in prison for the identity theft conviction. His actual sentence, however, will be determined at the discretion of the court after consideration of any applicable statutory factors and the Federal Sentencing Guidelines, which take into account a number of variables. Travis Gober’s brother, Jeremy Gober, was previously charged with health care fraud and identity theft related to other sleep clinics in the Central Valley in December 2022. The charges are only allegations. Jeremy Gober is presumed innocent until and unless proven guilty beyond a reasonable doubt ...

Late Thursday night the California Legislature finished its 2023 session, but not before frantic lobbying by advocacy groups, some controversy and last-minute deal-making. The most tumultuous legislative deal made earlier this month is aimed at the fast food industry in California. The backstory begins with the passage of the Fast Food Standards and Accountability Recovery Act in 2022 - Assembly Bill 257 - giving the state’s 550,000 fast food workers a seat at the table and bargaining power. This 2022 law would have established the Fast Food Council within the Department of Industrial Relations until January 1, 2029. It would have been composed of 10 members who would to establish sectorwide minimum standards on wages, working hours, and other working conditions related to the health, safety, and welfare of, and supplying the necessary cost of proper living to, fast food restaurant workers. The law was opposed by franchise owners, fast food companies and the California Restaurant Association. Joe Erlinger, the President of McDonald’s posted an open letter which opposed the law, and he claimed "Economists say it could drive up the cost of eating at a quick service restaurant in California by 20% at a time when Americans already face soaring costs in supermarkets and at gas pumps." In response to this Act, California small business owners, restaurateurs, franchisees, employees, consumers, and community-based organizations announced the formation of a coalition to refer the FAST Act back to voters and suspend its implementation until they have a say in November 2024. The coalition’s effort is co-chaired jointly by the National Restaurant Association, the U.S. Chamber of Commerce and the International Franchise Association. On December 5, 2022, the Save Local Restaurants coalition announced it submitted to county elections officials over one million signatures from Californians in order to prevent AB 257 from taking effect until voters have their say on the November 2024 ballot. Next, Katrina S. Hagen Director, California Department of Industrial Relations, sent the coalition a letter on December 27, 2022 stating that it intended to implement AB 257 - the FAST Act - on January 1, 2023. The Local Restaurants coalition therefore filed a lawsuit on December 29, 2022, claiming that the state’s Constitution dictates that, as part of the referendum process, laws cannot go into effect until voters have an opportunity to exercise their voice and vote on the proposed legislation. A request for a preliminary injunction was granted in that case in January 2023 by Sacramento County Superior Court Judge Shelleyanne W.L. Chang. The Department of Industrial Relations was prohibited from implementing AB 257 until it was either disqualified from the Ballot by the Secretary of State, or the Voters had their say at the scheduled election. Moving into 2023, the Secretary of State determined that the the referendum petition filed against AB 257 contains more than the minimum number of required signatures. In response to the referendum, the SEIU backed another bill, AB 1228 which was introduced on February 16, 2023. The bill would impose joint-employer liability on franchised businesses - including the very restaurant chains that loudly decried AB 257 AB 1228 bill would have required that a fast food restaurant franchisor share with its fast food restaurant franchisee all civil legal responsibility and civil liability for the franchisee’s violations of prescribed laws and orders or their implementing rules or regulations. The bill would authorize enforcement of those provisions against a franchisor, including administratively or by civil action, to the same extent that they may be enforced against the franchisee. The bill would provide that a waiver of the bill’s provisions, or any agreement by a franchisee to indemnify its franchisor for liability, is contrary to public policy and is void and unenforceable. In September 2023, deal was made between fast food companies, unions and lawmakers, detailed in an amendment to AB 1228. The agreement would give a $20 minimum wage to fast food workers starting next April. And fast food companies would not face potential liability for labor violations at their franchises, if the ballot referendum to undo the controversial Fast Food Standards and Accountability Recovery Act is withdrawn, saving both sides the time and money on the campaign. The amendment also prohibits any city, county, or city and county from enacting or enforcing any ordinance or regulation applicable to fast food restaurant employees that sets the amount of wages or salaries for fast food restaurant employees, . According to a summary by CalMatters, lawmakers sent the following bills which are of interest to California employers and the insurance industry, to Governor Gavin Newsom for his signature, or possible veto. - - Health care employees: An agreement to eventually raise the minimum wage to $25 an hour for tens of thousands of health care workers. In exchange, under SB 525, hospitals and other medical employers get a 10-year moratorium on local measures to increase compensation. Workers at larger hospitals and dialysis clinics would be the first to see the increase, starting in 2026, followed by community clinics and other health facilities. Employees at smaller and rural hospitals will have to wait until 2033 to see the $25 bump. - - Striking workers: A bill that is one of the California Labor Federation’s top priorities, to allow striking workers to collect unemployment benefits after two weeks on the picket line, is especially notable this summer, when labor disputes involving California screenwriters, hotel workers, restaurant employees and others are leaving many without pay as they strike for better working conditions. But business groups oppose Senate Bill 799, arguing that the state’s unemployment program is already over strained. Not every bill made it, however. For instance, AB 518, by Assemblymember Buffy Wicks, would have extended who can take paid family leave to "chosen family" who don’t have a legal or biological relationship. The measure was held in the Senate ...

Back in September 2020, the Los Angeles County District Attorney’s Office announced that a Los Angeles County sheriff’s deputy has been arrested and charged with workers’ compensation fraud. 50 year old Kevin Adams, who lives in Covina, faced one count of workers’ compensation insurance fraud in Superior Court case BA489895. Adams was assigned to the Twin Towers Correctional Facility, Custody Services Division. The terse announcement by the district attorney’s office simply says that he is accused of filing a false workplace injury claim for which he was receiving disability benefits. The alleged fraud began in 2015. Adams faced a possible maximum sentence of five years in county jail if convicted as charged. MyNewsLa just reported that on September 13, 2023 Adams was acquitted of the charges pending against him after Jurors deliberated about two hours before returning their verdict in the case according to defense attorney Jacob Glucksman. The prosecution alleged that Adams had filed a false workplace injury claim for which he received disability benefits, while the defense countered that there was an error in medical records about the cause of Adams’ March 2015 knee injury. Adams has been on unpaid leave since charges were filed against him. according to his attorney.Glucksman said he intends to file a petition seeking to have his client declared factually innocent of the charge. "He has wanted his job back from day 1," Glucksman said. "He is optimistic that he will be able to return." ...

Sutter Health is a not-for-profit integrated health delivery system headquartered in Sacramento, California. It operates 24 acute care hospitals and over 200 clinics in Northern California. Sutter Hospital Association was founded in 1921 as a response to the 1918 flu pandemic. Named for nearby Sutter's Fort, its first hospital opened in 1923. The a Report by Becker's Hospital Review said that California State Board of Pharmacy documented "major deficiencies" related to staff training and knowledge in 2019 at Sutter Coast Hospital's compounding pharmacy, which was recently placed on a three-year probation. Sutter Coast Hospital is a community-based, not-for-profit hospital serving residents of Del Norte County, California, and Curry County, Oregon. According to an Accusation made on November 6, 2021 by the Board of Pharmacy, Department of Consumer Affairs,during a routine inspection in January 2019, an investigator noted "major deficiencies" related to compounding training among staff, according to documents on the probation agreement. The pharmacist in charge and her staff "had not conducted most of the training required prior to commencing compounding," the investigator found. When asked to demonstrate knowledge of "aseptic hand washing, garbing, cleaning of a controlled environment and the ability to accurately document each documented drug compound," inspectors found "major deficiencies" in employees' knowledge of these regulations. The investigator also found the only sink available was in a restroom, despite pharmacy law requiring a sink with running water is within the "parenteral solution compounding area or adjacent to it." During the inspection, the Board investigator observed that compounding staff failed to wear appropriate clothing. Specifically, compounding staff: failed to wear non-shedding gowns, and wore isolation gowns instead; failed to don personal protective equipment immediately outside the segregated compounding area; did not dry hands with a low-lint towel prior to donning a non-shedding gown; and wore visible jewelry. The facility documented sterile compounding with a system called EPIC and did not ensure the records kept included all the required elements. Specifically, records for completed compounded drug products for vancomycin, ketamine, and Remicade did not contain all ingredients used to compound the products, did not contain the beyond use date of the final compounded products, and did not contain final volumes. During the inspection, the Board investigator observed unsanitary conditions, including that the Pharmacy did not clean the hoods, all surfaces and floors with a germicidal detergent and sterile water. Respondent Pharmacy’s policies and procedures stated that cleaning must be conducted with a detergent, but the pharmacy only used isopropyl alcohol and water for cleaning. In May 2023, Sutter Coast Hospital Pharmacy entered into a Stipulated Settlement and admitted all of the accusations made against it. A probation began July 23 for the Crescent City, Calif.-based hospital's compounding facility. During the probation, the hospital will be subjected to unannounced visits from the pharmacy board and will be required to provide quarterly updates to the state, provide five hours of compounding education for pharmacy technicians and pay an undisclosed fine. The pharmacy has since worked with the state pharmacy board and violations have been corrected, a spokesperson for Sacramento-based Sutter Health previously told Becker's. "We have partnered with the California Board of Pharmacy and have made significant investments at Sutter Coast's compounding facility," a spokesperson said. "These recent upgrades exceed all sterile compounding standards for hazardous drugs, which provide protections for employees and patients. Sutter Health remains committed to providing our patients excellent and quality care and supporting overall community health." ...

The Department of Veterans Affairs said Wednesday it may resume agency-wide adoption of its new electronic health records system next summer, after it was placed on hold in April due to problems involving patient health and safety and frustration among users. VA officials told members of Congress that introduction of the Oracle Cerner system across 166 additional hospitals could resume in 2024 if the department makes progress on several goals, including a successful rollout in March at the Captain James A. Lovell Federal Health Care Center in Illinois. The House Veterans Affairs Committee and a House Appropriations subcommittee scheduled hearings this week to receive updates on what originally was supposed to be a $10 billion Oracle Cerner Millennium records system, now used at just five VA sites in the Pacific Northwest and Ohio. The department is aiming to build a system that is user-friendly to staff members and veterans, has no negative impact on operations, and performs 100% of the time, Dr. Neil Evans, acting program executive director at the VA Electronic Health Record Modernization Integration Office, told members of the House Appropriations Military Construction, Veterans Affairs and Related Agencies subcommittee. "The path to restarting is to sustain a positive trajectory. We do not need to get to perfection," Evans said. "On those metrics to exit the reset, we need to see a positive trend improvement in productivity, improvement in user adoption and satisfaction, and improvement in the right direction with regards to technical reliability, which by the way, we're already starting to see." The system was first introduced in October 2020 at the Mann-Grandstaff VA Medical Center in Spokane, Washington, and its affiliated clinics. Almost immediately, it drew criticism from medical providers for its complexity, but also led to delays in care and safety risks for patients. Its use was expanded to the VA Walla Walla Health Care System in Washington, as well as medical centers in Columbus, Ohio, and Oregon in 2022. In November 2022, lawmakers raised concerns that two veterans may have died as a result of the system's complexities -- one who never received a needed medication because of issues with prescription tracking in the system and another who missed a medical appointment but received no follow-up because the system didn't properly record the skipped appointment. Following reviews by the Government Accountability Office and the VA inspector general that found hundreds of issues with the system, VA leadership decided to halt further deployment until the problems were resolved. The VA is working with Oracle Cerner, which also provides the electronic health records system MHS Genesis to the Defense Department, to improve operations at the sites where it is being used and to streamline the system to make it more user-friendly and not as complicated to learn. Among the problems that must be addressed before the system goes live elsewhere, according to VA and Oracle leaders, is "change management" -- alleviating the system's frustration and complexity among users who have spent careers utilizing the VA's current electronic medical record system, Vista. "They can almost do [Vista] in their sleep," Evans said. "Moving to a different system is a change, a significant change, and that change management, I think, has been one of the larger challenges." Nonetheless, the system is being tweaked, including 270 changes to make it easier to use, according to officials. "The feedback around the training, the metrics, were unacceptable and frankly embarrassing," Oracle Global Industries Executive Vice President Mike Sicilia said during the hearing. "You don't have to learn to use many IT systems these days. It should be fairly intuitive. That said, there are specialty workflows ... that do require some training, but I think you'll see us move to a just-in-time or iterative model rather than an extended, elongated training." VA officials said that with a joint system that allows VA and DoD providers to view both departments' medical records, along with roughly 90% of records at civilian hospitals, veterans are getting the benefits of a comprehensive electronic medical records program. But lawmakers remain frustrated over the cost, which included a $1.86 billion request in the fiscal 2024 budget. "This is dangerous on two fronts: People are dying, and it's costing taxpayers money. Not a little bit of money, a lot of money," said Rep. Tony Gonzales, R-Texas, a retired Navy master chief petty officer. Evans said the VA is committed to the program and will make it work. "The department is committed to moving forward as part of the federal electronic health record, in partnership with the Department of Defense. ... There is value in doing this together," Evans said. "I sure hope so," said Subcommittee Chairman Rep. John Carter, R-Texas. "We have been in this for a long time." ...