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." ...

Employers and Insurance Carriers need to be mindful of the risks of attorney fee and costs awards, which may - at the end of the day - be a major disincentive for using a courtroom to resolve conflicts. As one appellate jurist wisely observed, "All too often attorney fees become the tail that wags the dog in litigation." Deane Gardenhome Assn. v. Dentkas, 13 Cal.App.4th 1394, 1399 (1993). An award of fees and costs in litigation may be authorized by statutory provisions, such as in Public Attorney General Actions (PAGA) involving employers. Or by a provision stated in a contract agreed to by the litigating parties before the dispute arose. In the latter instance Cal. Civ. Code §1717(a)(1) provides that attorney’s fees be awarded to the prevailing party in any action on a contract where the contract specifically provides that attorney’s fees and costs shall be awarded to the prevailing party. The website California Attorney Fees provides a resource tool to practitioners, jurists, and the public about the law governing attorneys’ fees/costs awards, but focused on the law and pragmatic experiences in California state or California federal judicial forums. Their most recent post on Monday provided insights about how attorney fees and costs are allowed, and disallowed, in a report on a Los Angeles County Superior Court (Norwalk) final ruling on attorney’s fees and costs to a prevailing plaintiff in WnG Construction JV, Inc. v. AAA Solar Electric, Inc., et al., L.A. Superior Court Case No. VC065473 [Judge Porras]. Plaintiff WnG won a construction dispute with a contractual fees clause against the defense, winning compensatory damages of about $3.116 million (inclusive of prejudgment interest) despite an offset and plaintiff not winning all that it wanted. However, given that plaintiff did gain much of what it wanted, plaintiff was the prevailing party under the fees clause. Plaintiff then moved for fees and costs, with various law firms submitting fee requests totaling around $2.1 million and with costs claimed of over $205,000. After some reductions on both counts, Judge Porras awarded fees of about $1.309 million and costs of around $82,000. Here are some interesting highlights to show his thinking on awarding reasonable fees and costs: - - An attorney disqualified based on ethical obligation violations is not entitled to any fees, an almost $223,000 reduction; - - A law firm requesting over $653,000 in fees did not get them because they were involved in a discovery dispute which showed plaintiff deliberately spoliated evidence; - - The principal law firm did get a majority of its requested fees, although J.D. law clerk/non-J.D. law clerk/secretarial work was not allowed and the main attorney charging $500 per hour for a breach of contract case was reasonable (but not an enhanced $750 hourly rate based on the Laffey Matrix, which the lower court found did not reflect L.A. County rates); - - A law firm billing for potential post-trial/appellate consultation was not entitled to fees until those events materialized into situations allowing for fee recovery; - - Although a CCP § 998 offer was rejected and could have potentially resulted in expert fee recoupment (although it is not clear from the record), the failure to identify pre-offer versus post-offer costs did not allow for an award of expert fees without a clearer allocation; - - Charges for additional or duplicate copies of court reporter transcripts resulted in a reduction of expenses for these items. The litigation between the parties in this case started with a complaint filed in April 2016, and this month a Notice of Appeal has been filed, thus it is likely there will be several more years of litigation, and subsequent motions for additional attorney fees and costs. The 11 page Minute Order prepared by Judge Porras is a good read, and good resource on the case law he relied on in making his complex review of the requested attorney fees and costs. Plaintiffs here claimed they paid $2.1 million in attorney fees and costs of $205,000 to ultimately obtain a judgment of $3.116 million in damages. It would be reasonable to assume the defense also had a similar expense for their attorneys and litigation costs. Overall, it would seem that the parties together spent about $4.5 million in fees and costs to resolve this dispute adjudicated to be worth about $3.116 million. And it is likely that another million or two will be spent on the appeal process over the next few years. In rough numbers, it will probably cost about $6 million to resolve a $3 million dispute. Returning then to what was said in 1993 by Justice Wallen in Deane Gardenhome Assn. v. Dentkas, - litigation between a homeowner association and Dentkas - who owned a home there over the color of the paint applied to their home - the homeowner prevailed and filed a motion seeking an award of $11,533 in attorney fees. The trial court denied their request noting, "I remember I made some remarks about this when the case ended. [¶] I think I said don't come back here looking for attorneys [sic] fees. [¶] My thought is with a micro ounce of cooperation, insight and judgment, this could have been a ten-minute small claims case. [¶] I'm not giving attorneys [sic] fees to anybody." On appeal, the trial judge was reversed and Dentkas was awarded attorney fees and costs. In doing so the Court of Appeal noted "We are not at all unsympathetic to the trial court's concerns. All too often attorney fees become the tail that wags the dog in litigation. Particularly in homeowner disputes such as this where the allegedly offending homeowner, rather than comply with neighborhood demands he or she remove something deemed to be offensive, decides to stand on his or her "property rights." Often the economic value of what the homeowner gains is minute compared to the litigation costs." ...

The U.S. Department of Labor has just proposed a new rule that would strengthen protections for farm workers in the H-2A program and help prevent abuses that undermine wages and standards for all agricultural workers. The proposed rule would add new protections for worker self-advocacy, better protect workers against retaliation, make foreign labor recruitment more transparent and enhance the department’s enforcement. This proposal builds on a final rule the department published in October 2022 that modernized key aspects of the H-2A program. “Farm workers are vital to our farmers, our food supply and our communities,” said Acting Secretary Julie Su. “This proposed rule would strengthen protections for H-2A farm workers who are particularly vulnerable to labor abuses, empower them to advocate for fair treatment and ensure that their employment does not depress labor standards and undercut domestic farm workers. The administration is committed to protecting all workers, and this proposal would significantly advance that effort.” The proposed rule includes: - - Adding new protections for worker self-advocacy. The proposed rule would improve workers’ ability to advocate for better working conditions by expanding and clarifying existing anti-retaliation protections. The proposed rule would also expand workers’ rights to invite and accept guests – including labor organizations – to employer-provided housing. Additionally, for workers not protected by the National Labor Relations Act, the proposed rule would require employers to provide a list of workers to a requesting labor organization, permit workers to designate a representative to attend any meeting between a worker and the employer where the worker reasonably believes that the meeting may lead to discipline, and prohibits employers from holding captive audience meetings unless the employer provides certain information to ensure that such meetings are not coercive. The proposal would also create greater transparency for workers about their prospective employers’ stance on their right to organize freely and without interference by requiring employers seeking to hire H-2A workers to provide a certification to the Department of Labor that the employer will bargain in good faith over the terms of a proposed labor neutrality agreement with a requesting labor organization or will explain why they will not do so. - - Clarifying when a termination is “for cause.” The proposed rule would clarify that an employer only terminates a worker “for cause” when the worker either fails to meet pre-specified productivity standards or fails to comply with employer policies after the employer applies a system of progressive discipline. The proposal would establish six conditions to terminate a worker for cause, including that the employee has been informed of, or reasonably should have known, the employer’s policy, rule or productivity standards. Clarifying the meaning of the term “for cause” in existing regulations is important because termination “for cause” generally strips affected workers of their right to be offered work hours of at least three-quarters of the contract period and right to outbound transportation. For U.S. workers, termination “for cause” also strips them of their right to be contacted for employment in the subsequent year. - - Making foreign labor recruitment more transparent. In line with concerns expressed by workers’ rights and anti-trafficking organizations, the Government Accountability Office and the department’s Office of Inspector General, the department has found that increased transparency is necessary to help protect agricultural workers from predatory practices during the recruitment process. The proposed rule would require employers to provide a copy of all agreements with any agent or recruiter the employer engages in recruiting prospective H-2A workers to the department, regardless of whether the agent is in the U.S. or abroad. The proposed rule would also require employers to identify and disclose the name and location of anyone soliciting H-2A workers on their behalf. - - Making wages more predictable. The proposed rule would make wages more predictable in the H-2A program by making new wage rates applicable immediately upon their publication in the Federal Register rather than weeks later. This will ensure that agriculture workers are paid the most up-to-date wages as soon as possible. The rule would also require employers who fail to provide adequate notice to workers of a delay in their start date to pay workers the applicable rate for each day that work is delayed for up to 14 days. The proposal would further require enhanced transparency for employers to communicate minimum productivity standards, applicable wage rates, overtime opportunities and delayed start dates to workers. - - Improving workers’ access to safe transportation, including seat belts. Workers in the H-2A program often travel long distances to and from the worksite in crowded vans and buses, sometimes driven by workers who worked all day, raising grave concerns about transportation safety. The proposed rule would add a seat belt requirement to reduce these hazards. For vehicles that are required by the Department of Transportation to be manufactured with seat belts, the proposed rule would prohibit the use of any employer-provided vehicle to transport H-2A workers unless each occupant is wearing a seat belt before the vehicle is operated, except in specific circumstances. - - Enhancing enforcement to improve program integrity. The proposed rule would increase the speed with which the debarment of any business that violates H-2A program rules becomes effective by streamlining deadlines for Office of Foreign Labor Certification integrity and Wage and Hour Division enforcement actions. The proposed rule would also make it easier for the workforce system to discontinue necessary recruitment services for employers who have failed to meet program requirements. Finally, the proposed rule would prohibit employers from holding or confiscating a worker’s passport, visa, or other immigration or government identification documents. Upon publication in the Federal Register, the notice of proposed rulemaking will be open for public comment for 60 days. The department has provided information on sending comments, and will consider all comments received before publishing a final rule ...

The Longshore and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. 901-50, establishes a comprehensive Federal workers' compensation system for an employee's disability or death arising in the course of covered maritime employment. The Office of Workers' Compensation Programs (OWCP) administers the Longshore and Harbor Workers' Compensation Act and its extensions. The Act's provisions have been extended to (1) contractors working on military bases or U.S. government contracts outside the United States (Defense Base Act, 42 U.S.C. 1651-54); (2) employees of nonappropriated fund instrumentalities (Nonappropriated Fund Instrumentalities Act,5 U.S.C. 8171-73); (3) employees engaged in operations that extract natural resources from the outer continental shelf (Outer Continental Shelf Lands Act, 43 U.S.C. 1333(b)); and (4) private employees in the District of Columbia injured prior to July 26, 1982 (District of Columbia Workers' Compensation Act of May 17, 1928, Public Law 70-419 (formerly codified at 36 DC Code 501 et seq. (1973) (repealed 1979)). Consequently, the Act and its extensions cover a broad range of claims for injuries that occur throughout the United States and around the world. OWCP has just proposed new rules for imposing and reviewing civil money penalties prescribed by the Longshore Act. The proposed rules would also set forth the procedures to contest OWCP's penalty determinations. The proposed rules would add new sections and amend existing sections to implement the Act's civil money penalty provisions. The Act allows OWCP to impose a penalty when an employer or insurance carrier fails to timely report a work-related injury or death, 33 U.S.C. 930(e), or fails to timely report its final payment of compensation to a claimant, 33 U.S.C. 914(g). See 20 CFR 702.204, 702.236. The proposed rule would revise current § 702.204 to provide for graduated penalties for an entity's failure to timely file, or falsification of, the required report of an employee's work-related injury or death. See 33 U.S.C. 930(a); 20 CFR 702.201. The proposed rule provides that the penalty assessed will increase for each additional violation the employer has committed over the prior two years. The current regulation states only the maximum penalty allowable, without providing further guidance or a graduated penalty scheme. The proposed rule would also add new §§ 702.206, 207, and 208. These proposed sections would add procedures for the District Director to notify entities of failures to accurately and timely file, provide an opportunity for a response before the District Director issues a notice of proposed penalty, and provide guidance to both the District Director and the Director in determining the amount of the proposed penalty and penalty by setting forth aggravating and mitigating factors they may consider. The proposed rule also contains a new subpart I setting out procedures for challenging proposed penalties and penalties under both § 702.204 (for an entity's failure to timely file, or falsification of, the required report of an employee's work-related injury or death) and § 702.236 (for failing to report the termination of payments). These proposed procedures would allow an entity against whom a penalty is assessed the opportunity for a hearing before an administrative law judge, and to petition the Secretary of Labor (Secretary) for further review. During the hearing, entities would have the opportunity to submit facts and arguments for consideration consistent with the Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges (29 CFR part 18). The ALJ would determine whether the respondent violated the statutory or regulatory provision under which the penalty was assessed and whether the amount of the penalty assessed was appropriate. Consistent with section 557 of the APA, the ALJ's decision would become the decision of the Agency without further proceedings, unless within 30 days, the respondent requested reconsideration of the ALJ's decision The Department invites written comments on the proposed rule from interested parties. Written comments must be received by November 13, 2023. Written comments may be submitted in on of several methods detailed in the Federal Register announcement of this proposed rule change. The Federal Register announcement also contains a Section-by-Section Explanation of the proposed rule if you would like a better understanding of what is proposed ...

The Local Initiative Health Authority for Los Angeles County (L.A. Care) is a public agency that provides health insurance for low-income individuals in Los Angeles County through four health coverage programs including Medi-Cal. Back in March 2022 LA Care was fined $55 million by the California Department of Managed Health Care and the California Department of Health Care Services for "deep-rooted, systemic failures that threaten the health and safety of its members." The departments said their investigations were triggered by a September 2020 Los Angeles Times article that identified multiple county residents who died of their conditions following extensive delays for treatment. And now - slightly more that one year later - the U.S. Department of Health and Human Services’ Office for Civil Rights (OCR) just announced a settlement of potential violations of the Health Insurance Portability and Accountability Act (HIPAA) Rules with L.A. Care, the nation's largest publicly operated health plan that provides health care benefits and coverage through state, federal, and commercial programs. OCR enforces the HIPAA Privacy, Security, and Breach Notification Rules that set the requirements that HIPAA-regulated entities must follow to protect the privacy and security of protected health information (PHI) The settlement concludes two OCR investigations initiated from a large breach report and a media article regarding a separate security incident. Under the agreement, LA Care agreed to pay $1,300,000 and to implement a corrective action plan, discussed in further detail below, which identifies steps LA Care will take to resolve these potential violations of the HIPAA Security Rule and protect the security of electronic protected health information (ePHI). "Breaches of protected health information by a HIPAA-regulated entity often reveal systemic, noncompliance with the HIPAA Rules," said OCR Director Melanie Fontes Rainer. "HIPAA-regulated entities need to be proactive in ensuring their compliance with the HIPAA Rules, and not wait for OCR to reveal long-standing HIPAA deficiencies. Entities such as LA Care must protect the health information of its insureds while providing health care for the most vulnerable residents of Los Angeles County through its coverage, which includes Medicaid, Medicare, and Affordable Care Act health plans." The potential violations in this case included: - - Failure to conduct an accurate and thorough risk analysis to determine risks and vulnerabilities to ePHI across the organization, - - Failure to implement security measures sufficient to reduce risks and vulnerabilities to ePHI to a reasonable and appropriate level, - - Failure to implement sufficient procedures to regularly review records of information system activity, - - Failure to perform a periodic technical and nontechnical evaluation in response to environmental or operational changes affecting the security of ePHI, and - - Failure to implement hardware, software, and/or procedural mechanisms that record and examine activity in information systems that contain or use ePHI. OCR’s investigation found evidence of potential noncompliance with the HIPAA Privacy and Security Rules across LA Care’s organization, a serious concern given the size of this covered entity. In addition to the monetary settlement, LA Care has agreed to take the following steps under a comprehensive corrective action plan that will be monitored for three years by OCR to ensure compliance with HIPAA: - - Conduct an accurate and thorough risk analysis to determine risks and vulnerabilities to electronic patient/system data across the organization. - - Develop and implement a risk management plan to address identified risks and vulnerabilities to the confidentiality, integrity, and availability of ePHI. - - Develop, implement, and distribute policies and procedures for a risk analysis and risk management plan. - - Report to HHS when it conducts an evaluation due to an environmental and operational change that affects the security of ePHI in LA Care’s possession or control. - - Report to HHS within thirty (30) days when workforce members fail to comply with the HIPAA Rules. The resolution agreement and corrective action plan may be found on the HHS website ...

A heartbreaking milestone haunts this year’s 9/11 anniversary. The NY Post and other media report that 341 FDNY members have now died of Ground Zero-related illnesses, nearly equaling the death toll for other fire fighters that perished in the 2001 terror attack at Ground Zero. “Twenty-two years ago the loss of 343 firefighters was an unimaginable number and sadly the day we pass that milestone is quickly approaching,” Andrew Ansbro, president of the FDNY Uniformed Firefighters Association, said at a news conference Friday. “It is inevitable.” “We’ve attended 40 or so funerals this year for the members that we lost and we know it’s not going to end. So for us it’s every day or every week - but for the general public we have this press conference to remind everyone that it is ongoing and that funding is still needed,” he said. James Brosi, president of the FDNY Uniformed Fire Officers Association, warned that “we may exceed” the immediate 9/11 death toll “even before the anniversary.” In February, Brosi said he lost his own father, Joseph Brosi, who worked at Engine 88 in the Bronx and battled both lung and bladder cancers after 9/11. “In the early anniversaries that immediately followed 9/11, our primary focus was on the people we had lost because that was our greatest concern,” Brosi said. “And as the years passed, and as the latency period passed for those illnesses that will now affect us, our concern is shifted not only with the people we lost, but the people we’ve lost since, and the people that are now struggling.” Exposure to the enormous cloud of toxins, dust and debris that resulted from the terrorist attack on the World Trade Center in 2001 has been linked to an increased risk of cardiovascular disease among first-responder firefighters, according to a recent study published in the JAMA Network. In this cohort study of 9796 firefighters, age-adjusted incident rates of cardiovascular disease were higher for firefighters with greater World Trade Center exposure. Both acute World Trade Center as well as repeated exposure during 6 or more months at the World Trade Center site appeared to be associated with long-term elevated cardiovascular disease risk. "The findings of the study suggest a significant association between greater WTC exposure and long-term CVD risk. The findings appear to reinforce the importance of long-term monitoring of the health of survivors of disasters." Among the firefighters in the study, “the ones with the greatest exposure – those present in the morning of 9/11 – had a higher risk than those who showed up later in the week,” said Dr. David Prezant, chief medical officer for the Fire Department of the City of New York and a professor at the Albert Einstein College of Medicine, who was senior author of the new study. "The exposure [among first responders] was really dramatic," explains Dr. Michael Crane, a physician and environmental medicine professor at the Icahn School of Medicine at Mount Sinai, who also is the medical director of a clinic that delivers care to 9/11 first responders. "There were all kinds of carcinogens and combustion products," Crane says. The contents of two skyscrapers including concrete, pipes, computers, were pulverized into burning ash laden with lead and other heavy metals. The plume of smoke that could be seen from space. "It was a real witch's brew," Crane says. And another study published in JNCI Cancer Specturm used a study population that consisted of 28 729 members of the General Responder Cohort. A restricted analyses identified 1072 cancers in 999 responders, with elevations in cancer incidence for all cancer sites combined ...