While consumer VR remains a niche product and a massive money-burning venture for Meta CEO Mark Zuckerberg, CNBC reports that the technology is proving to be valuable in certain corners of health care. Kettering Health Dayton is one of dozens of health systems in the U.S. working with emerging technologies like VR as one tool for helping doctors to train on and treat patients. Just days before assisting in his first major shoulder-replacement surgery last year, Dr. Jake Shine strapped on a virtual reality headset and got to work. As a third-year orthopedics resident at Kettering Health Dayton in Ohio, Shine was standing in the medical center’s designated VR lab with his attending physician, who would oversee the procedure. Both doctors were wearing Meta Quest 2 headsets as they walked through a 3D simulation of the surgery. The procedure, called a reverse total shoulder arthroplasty, can last around two hours and requires surgeons to carefully navigate around neurovascular structures and the lungs. For its orthopedics program, Kettering Health Dayton uses software developed by PrecisionOS, a company that builds VR modules for training surgeons, medical residents and medical device representatives. PrecisionOS co-founder and CEO, Dr. Danny Goel, said the company has nearly 80 customers across the globe. Orthopedics residents at the University of Rochester also use PrecisionOS. Dr. Richard Miller, a retired professor at the university, said the software is “sophisticated” and “very realistic,” especially as a way to learn the steps of a procedure. He finds it so compelling that he’s been actively helping the orthopedics department implement the technology even though he retired three years ago. Jan Herzhoff, Elsevier Health’s president, is quoted as saying that her company’s Complete HeartX mixed reality offering ”will help prepare medical students for clinical practice by using hyper-realistic 3D models and animations that help them understand and visualize medical issues, such as ventricular fibrillation, and how to apply their knowledge with patients.” To date, one of the primary applications of VR in health care has been targeted at pain treatment. “It’s very hard to keep track of pain when you’re in a fantastical cyberdelic world,” said Dr. Brennan Spiegel, director of health services research at Cedars-Sinai in Los Angeles. Spiegel said that when someone is injured, there is both a physical and an emotional component to their pain. Those signals are sent to two different parts of the brain, and VR can serve to tamp down the signals in both regions. “It’s training people how to modify their spotlight of attention so they can swing it away from the painful experiences,” Spiegel said. “Not just the physical, but the emotional experiences.” Spiegel said Cedars-Sinai is preparing to launch a virtual platform to help people with gastrointestinal issues like Crohn’s disease, celiac disease or acid reflux, as well as others for anxiety, addiction and perimenopausal health. The technology has also attracted the attention of the U.S. Department of Veterans Affairs, which is using extended reality at more than 160 facilities to help patients with pain management, behavioral therapy and both physical and cognitive rehabilitation. Caitlin Rawlins, the immersive program manager at the VA, said there are currently more than 40 separate use cases for the technology across the agency’s different sites. The VA first introduced extended reality in a limited capacity around 2015, and has found more opportunities to put it to use as the technology has improved. “I’ve seen it change a whole lot,” Rawlins told CNBC in an interview. “The first virtual reality headset that I used was this big clunky headset that had all these wires it had to be connected to a laptop to function.” Rawlins said what drew her to extended reality was seeing the immediate response from patients. She recalled the first time she watched a patient use VR. He was a man in his 80s who had just undergone knee replacement surgery. The pain was so severe that opioids didn’t help, Rawlins said. After mere minutes in VR, he told Rawlins he couldn’t feel the pain in his leg anymore. ″Just using that for a simple 30-minute session can mean the difference between excruciating pain, unable to do the exercises and the ambulation that they need to, to actually get up and move and get ready to go home,” she said ...

The California Attorney General in partnership with six district attorneys, announced a settlement with Kaiser Foundation Health Plan, Inc., and Kaiser Foundation Hospitals resolving allegations that the healthcare provider unlawfully disposed of hazardous waste, medical waste, and protected health information at Kaiser facilities statewide. As part of the settlement, Kaiser will be liable for a total of $49 million and be required to take significant steps to prevent future unlawful disposals. The settlement is the result of undercover inspections conducted by the district attorneys' offices of dumpsters from 16 different Kaiser facilities. During those inspections, the district attorneys' offices reviewed the contents of unsecured dumpsters destined for disposal at publicly accessible landfills, finding hundreds of items of hazardous and medical waste (aerosols, cleansers, sanitizers, batteries, electronic wastes, syringes, medical tubing with body fluids, and pharmaceuticals) and over 10,000 paper records containing the information of over 7,700 patients. The California Department of Justice subsequently joined the district attorneys and expanded the investigation of Kaiser’s disposal practices further throughout the state. In response to this joint law enforcement investigation, Kaiser immediately hired a third-party consultant and conducted over 1,100 trash audits at its facilities in an effort to improve compliance. Kaiser also modified its operating procedures to improve its handling, storage, and disposal of waste. Kaiser is headquartered in Oakland, California and operates over 700 facilities statewide, making it the largest healthcare provider in California. Kaiser provides healthcare to approximately 8.8 million Californians, as well as members of the public who seek emergency care from Kaiser facilities. In announcing today’s settlement, Attorney General Bonta is joined by the district attorneys of Alameda, San Bernardino, San Francisco, San Joaquin, San Mateo, and Yolo counties. As part of the settlement, Kaiser: - - Will pay $47.250 million. That amount includes $37,513,000 in civil penalties; $4,832,000 in attorneys’ fees and costs; and $4,905,000 for supplemental environmental projects, primarily environmental prosecutor training. - - Must pay an additional $1.75 million in civil penalties if, within 5 years of the entry of the final judgment, Kaiser has not spent $3.5 million at its California facilities to implement enhanced environmental compliance measures to ensure compliance with relevant provisions of the law that are alleged to have been violated. - - Must retain an independent third-party auditor - approved by the Attorney General’s Office and the district attorneys - who will: perform no less than 520 trash compactor audits at Kaiser’s California facilities to help ensure that regulated wastes (including items containing protected health information) are not unlawfully disposed of; and conduct at least 40 programmatic field audits each year, for a period of five years after entry of the final judgment, to evaluate Kaiser’s compliance with policies and procedures designed to ensure compliance with applicable laws related to hazardous waste, medical waste, and protected health information. Kaiser’s unlawful disposals are alleged to violate California’s Hazardous Waste Control Law, Medical Waste Management Act, Confidentiality of Medical Information Act, Customer Records Law, and Unfair Competition Law. The disposals are also alleged to violate the federal Health Insurance Portability and Accountability Act of 1996, known as HIPAA. In 2014, the California Department of Justice filed a lawsuit against Kaiser after it delayed notifying its employees about an unencrypted USB drive that was discovered at a Santa Cruz thrift store. The USB drive contained over 20,000 employee records. Kaiser paid $150,000 in penalties and attorneys' fees, and agreed to comply with California's data breach notification law in the future, provide notification of any future breach on a rolling basis, and implement additional training regarding the sensitive nature of employee records. In addition, Kaiser has been the subject of prior enforcement actions by local prosecutors for mismanagement of regulated wastes ...

The Coalition to Protect Access to Care - what Politico reports as "an amalgam of monied health care interests that includes representatives for doctors, hospitals, health plans and other key players,"- has filed paperwork to put a November 2024 ballot measure before voters, that would make permanent a tax on health plans and funnel the revenue to certain parts of the health safety net. The coalition has until March or April to collect 546,651 signatures to qualify for the November ballot, and they’re already a few weeks behind other initiatives. The coalition that secured a $36 billion tax deal to pump more money into Medi-Cal last June, that followed months of private negotiations between bitter industry rivals, state lawmakers and the governor’s office.wants to make it harder for future administrations to spend that revenue elsewhere. The battle surrounds the California Managed Care Organization (MCO) tax. An MCO provider tax is a federally allowable Medicaid funding mechanism whereby a taxis imposed by states on health care services where the burden of the tax falls mostly on providers, such as a tax on managed care plans per members served. Provider taxes have become an integral source of financing for Medicaid nationwide. In California the MCO tax has existed for nearly 20 years and been enacted by both Democratic and Republican governors. Recently AB 115 (Chapter 348, Statutes of 2019) and SB 78 (Chapter 38, Statutes of 2019) authorized a successor MCO tax from July 1, 2019, through December 31, 2022, similar to the 2016 MCO Tax. SB 78 (Chapter 33, Statutes of 2013) extended the MCO tax sunset date from June 30, 2011, to June 30, 2013. California "taxes" MCOs, and uses the revenue to draw down federal matching funds to support the Medi-Cal program. Specifically, California: - 1.Imposes a tax on all managed care plans per members served in a prior year. - - a.The tax varies for Medi-Cal managed care plans compared to non-Medi-Cal managed plans or other managed care plans as seen in proposed budgetlanguage. - - b.The fee also has tiers based on the number of members served by the managed care plan. Some tiers have no fee and some tiers cap the number of members the fee applies to in that tier. - 2.Runs several "tests" based on federal rules to ensure the tax structure meets all federal requirements. - 3.Increases the rates the state pays to Medi-Cal managed care plans to account for thetax. As such, there is no net impact to Medi-Cal managed care plans. - 4.Uses the collected funds to secure a federal match to support the Medi-Cal program,which results in a General Fund gain. According to the article in Politico, the last three times California levied this tax on health plans, it used the money to balance the budget during economic downturns. But after the Coalition entered the negotiations earlier this year, which led to the June 2023 agreement, and for the first time, much of the revenue stayed in the health care system, especially in Medi-Cal. - in a year when the state faces a $32 billion budget deficit. That deal raised rates for primary care, OBGYN care and specialty mental health care and set aside money to cover such costs as emergency room physicians and ambulance services. The new ballot initiative preserves those priorities and adds more, like money for community health workers, specialty dental services, prescription drugs and some clinician and dentist loan repayments. The ballot initiative sets out a spending plan that hews fairly closely to the priorities laid out in June’s iteration of the tax, which expires in 2026. It assumes that the tax will bring in around $4.3 billion when it’s renewed in 2027. "We need to make sure that this is permanent and will last beyond the next several years and become something that providers and patients can count on for decades to come," said Dustin Corcoran, CEO of the California Medical Association and chair of the coalition behind the initiative. "We don’t know what future administrations may or may not do." The ballot measure would make the MCO tax that expired on December 31, 2022, and then renewed by the negotiated outcome by industry rivals in June 2023, which will now otherwise expire in 2026 permanent. Any future changes would have to be approved by voters, making it harder for the state to update how it spends the revenue. The tax will be levied on California Managed Care Organizations (MCOs) who will no doubt pass those costs on to the price of ultimately paid on behalf of participants in one of the MCO organizations. CMS has indicated they will be issuing new MCO Tax guidelines that will be more restrictive no later than 2026 ...

Terry Smith, a recently retired Worker's Compensation Judge, has returned to the law firm of Floyd Skeren Manukian Langevin as a partner its Complex Litigation Unit. He will also be assisting retired Workers Compensation Judge David O'Brien maintain and edit his treatise California Workers' Compensation Claims and Benefits, Online Edition, and other special projects. Judge Smith is a Certified Specialist in California Workers’ Compensation Law and has defended insurance carriers, private employers, public agencies, self-insured employers, administrators, school districts, and transit districts. He is a trial attorney litigating special investigation cases, serious willful misconduct claims, §132(a) claims and appellate work. Judge Smith served as a Deputy Sheriff for the County of Ventura and has worked for the Ventura District Attorney’s office. He began his workers’ compensation career 30 years ago as an adjuster and then as an attorney working at a national insurance carrier specializing in Special Investigations Unit (SIU) cases. He has lectured to insurance company’s claims units and employers in association with the Employer’s Fraud Task Force and the Los Angeles County, San Bernardino County, Orange County and Riverside County District Attorney’s Offices. Judge Smith has also lectured to the International Association of Special Investigation Units and the Southern California Fraud Investigators Association. After serving as a Workers' Compensation Judge at the Marina Del Rey Board, he now has decided to return to his prior home with Floyd Skeren at its Westlake Village office where he was formerly a Partner and Manager of the attorneys in that office. His colleagues at that facility and in other firm offices across the state are very excited to learn of his return to his former group. He spent seventeen years as a defense lawyer with the firm before being recruited as a Workers' Compensation Judge by the WCAB. Judge Smith said he was very pleased to return to the group of colleagues he has known and worked with for many years, and to work with the firm's clients, many of which he has worked in the capacity as defense lawyer. In addition to his work with Floyd Skeren, he enjoys traveling and vacationing with his wife of 30 years. On weekends he enjoys riding his Harley Davidson Street Glide Special with the local Harley Owners Group (HOG) and the local Blue Knights® International Law Enforcement Motorcycle Club - a non-profit fraternal organization consisting of active and retired law enforcement officers who enjoy riding motorcycles ...

The Alamitos Bay Yacht Club in Long Beach hired Brian Ranger as a maintenance worker. He helped the club with its fleet by painting, cleaning, maintaining, repairing, unloading, and mooring vessels. One day, Ranger used a hoist to lower a club boat into navigable waters. He stepped from the dock onto its bow, fell, was hurt, and applied for workers’ compensation. Then he sued the club in state court on federal claims of negligence and unseaworthiness. The trial court sustained the club’s final demurrer to the second amended complaint. The trial court ruled there was no admiralty jurisdiction. The California Court of Appeal affirmed the trial court decision in the published case of Ranger v. Alamitos Bay Yacht Club -B315302 (September 2023). Congress enacted the Longshoremen’s and Harbor Workers’ Compensation Act of March 4, 1927, which established a workers’ compensation program for “any person engaged in maritime employment.” The 1972 amendments extended the coverage of the Longshore Act but created uncertainty about the boundaries of that extension. Congress later learned the 1972 law had created “a general confusion as to whether or not the Longshore Act applies.” The rules of coverage became a prolific generator of litigation. In 1984, Congress responded by introducing a degree of clarity: Congress sharpened the Longshore Act’s focus to exclude employees who, although they happened to work on or next to navigable waters, lacked a sufficient nexus to maritime navigation and commerce. The 1984 statute thus carved out specific employee categories, placed them beyond the coverage of the Longshore Act, and assigned these employees to the “appropriate state compensation laws.” Among the carveouts were employees working for clubs. Which clubs? All clubs. Initially there was disagreement between the Senate and the House of Representatives about whether the Longshore Act should exclude only employees working at nonprofit clubs. (H.R.Rep. No. 98-570, 1st Sess., p. 4 (1983) (H.R.Rep. 98-570).) The Senate wanted a broader approach but the House initially favored the narrower one. The Senate’s view prevailed: the exclusion applies to all club employees and is not limited to nonprofits. Ranger concedes that his employer is a "club," but then asserts that federal law preempts state law in this case.However the Court of Appeal noted that "national and state interests do not clash here. Federal and state law are in accord. For employees like Ranger, both Congress and the California legislature have replaced the fault-based regime of tort with the no-fault alternative of workers’ compensation. Both bodies have preferred the virtues of speedy, predictable, and efficient compensation for occupational accident victims like Ranger." Ranger counters this analysis by repeatedly stressing the importance of “uniformity” of the general maritime law. In this quest, Ranger relies on Green v. Vermilion Corp. (5th Cir. 1998) 144 F.3d 332, 334–341. The Court of Appeal responded "We respectfully but profoundly differ with Green. We therefore also part ways with Freeze v. Lost Isle Partners (2002) 96 Cal.App.4th 45, 51-52 (Freeze), which relied on Green without adding to its analysis." Apart from Green and Freeze, Ranger cites cases predating 1984. However, "these authorities deal with old superseded law, not the new governing law." "In sum, California’s workers’ compensation law is Ranger’s exclusive remedy. Congress in 1984 decreed this state law aptly covers his situation. A core part of the state workers’ compensation bargain is that injured workers get speedy and predictable relief irrespective of fault. In return, workers are barred from suing their employers in tort. The trial court correctly dismissed Ranger’s tort suit against his employer." ...

Historically, common law allowed contractual restraints on lawful business practices, so long as they were reasonable. However, in 1872, California opted to impose stricter limitations on such contractual restraints, instead opting to favor policy that would support competition in trade. This decision resulted in the enactment of Civil Code Section 1673, subsequently renumbered and moved to Business and Professions Code Section 16600. Section 16600 states "Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void." Subject to various statutory exceptions, the impact of this section is to invalidate any attempt at a noncompete agreement (or a contract in restraint of trade) that would improperly prohibit individuals from engaging in a lawful business. There is extensive case law on this matter, but one case in particular has cemented the prohibition on noncompete clauses in California. In Edwards v. Arthur Andersen LLP, the California Supreme Court held that "[n]oncompetition agreements are invalid under section 16600 in California, even if narrowly drawn, unless they fall within the applicable statutory exceptions[.]" (Edwards v. Arthur Anderson LLP, 44 Cal. 4th 937, 955 (2008).) On September 1, Governor Gavin Newsom signed S.B. 699, a new law that strengthens existing California law that voids contracts which restrain anyone from engaging in a lawful profession, trade, or business of any kind. The new provisions take effect on January 1, 2024. Existing Law: - - Provides that every contract that restrains anyone from engaging in a lawful profession, trade, or business of any kind is void, subject to limited exceptions. (Business & Professions Code Section 16600.) - - Provides that any person who sells the goodwill of a business, or any owner of a business entity selling or otherwise disposing of all of his or her ownership interest in the business entity, or any owner of a business entity that sells specified assets or interests may agree with the buyer to refrain from carrying on a similar business within a specified geographic area in which the business is sold, or that of the business entity, division, or subsidiary has been carried on, so long as the buyer, or any person deriving title to the goodwill or ownership interest from the buyer, carries on a like business therein. (Business and Professions Code section 16601.) - - Defines "ownership interest" to mean a partnership interest, a membership interest, or a capital stockholder, as specified. (Business and Professions Code section 16601.) - - Establishes the Division of Labor Standards and Enforcement, of which the state Labor Commissioner is chief, to ensure that minimum labor standards are adequately enforced. (Labor Code Sections 82 and 90.5.) New Law S.B. 866 aims to strengthen and clarify existing restrictions on the use of noncompete agreements in four ways. First, it strengthens California’s restraint of trade prohibitions by making it clear that any contract that is void under California’s restraint of trade law is unenforceable, regardless of where and when the contract was signed. Second, the new law prohibits an employer or former employer from attempting to enforce a contract that is void under California’s restraint of trade law. Third, the new law prohibits an employer from entering into a contract with an employee or prospective employee that includes a provision that is void under restraint of trade law. Fourth, the new law provides that an employer who enters into a contract that is void under California’s restraint of trade law or attempts to enforce a contract that is void under California’s restraint of trade law commits a civil violation. The law provides robust mechanisms for the enforcement of these provisions. The bill allows an employee, former employee, or prospective employee may bring an action to enforce these provisions for injunctive relief or the recovery of actual damages, or both. A prevailing employee, former employee, or prospective employee is also entitled to recover reasonable attorney’s fees and costs. The California Employment Lawyers Association, was in support of SB 699, as it explained that, "although noncompete clauses have been unlawful in California since 1872, our attorneys routinely see these clauses included in employment agreements with California employees." Dozens of law professors from law schools across the nation provided a letter of joint support for the bill. There was no report of any opposition to the passage of S.B. 699 ...

UC Davis Comprehensive Cancer Center researcher Shehnaz K. Hussain Ph.D., Sc.M. has received a $1.9 million California climate action grant to lead a study into the cancer risks facing firefighters as they battle wildfires. The grant is funded through a partnership between the University of California and the state of California, which awarded over $80 million in research grants to help put solutions in place that directly address state climate priorities. A total of four UC Davis climate action grants were awarded. Dr. Hussain’s research, "Exposure Assessment, Health Monitoring, and Cancer Control in Wildland Firefighters" will examine the main carcinogens and cancer risk factors for firefighters as the number of wildfires escalates with climate change. "California’s firefighters are a climate-vulnerable group due to their heavy burden of occupational exposures related to the increased frequency and scale of wildland fires. The fires are also burning into urban areas where there are many more chemicals and other potential carcinogens that threaten the health of firefighters," said Hussain, who is also a professor of Public Health Sciences at UC Davis. Cancer is the leading cause of death among firefighters. Dr. Hussain said the research will identify areas where equipment, technology, protocols, education, programs, and policy can be developed or amended to reduce exposures to carcinogens, mitigate cancer risks, and improve early detection of cancer in California’s firefighters. One aim of this research is to capture and test carcinogenic chemicals and other compounds found in wildfire emissions. The team will also study a large group of firefighters to identify biomarkers and occupational and behavioral cancer risk factors that could be reduced in the future. Another objective is to produce stories about California firefighters dealing with cancer. Researchers plan to evaluate the ability of this peer-to-peer storytelling to enhance best practices for cancer prevention in firefighters. Dr. Hussain will lead a team of biochemical, engineering, microbiology, environmental and occupational scientists on the research initiative. The team will include co-lead Derek Urwin, assistant adjunct professor of chemistry and biochemistry at UCLA and a career firefighter. Other members of the research team include UC Davis colleagues Sheri Belafsky, Cristina Davis, Janine LaSalle, Irva Hertz-Picciotto and Thomas Young. The California Climate Action Seed Grants and Matching Grants will fund 38 projects that collectively involve more than 130 community, industry, tribal, and public agencies, as well as 12 University of California locations, 11 California State University campuses and two private universities. Seed grants were awarded to 34 teams totaling $56.2 million. Four teams received matching grants totaling $26.9 million to support larger projects that could leverage additional funding from non-state sources. The $83.l million total is part of $185 million allocated by the state for UC climate initiatives advancing progress toward California’s climate goals. CapRadio sat down with Dr. Hussain to learn a little more about her plans and how this research might help us better understand the impacts of smoke on Californians as a whole. It's interview is available online ...

Carl Aaron filed three Applications for Adjudication of Claim for injuries he alleged to have occurred while employed by Hesperia Unified School District. On May 30, 2023 the WCJ approved a stipulated settlement agreement of these claims and an Award, was issued based upon the stipulation signed and filed by both parties. The employer subsequently filed a Petition for Reconsideration of this Award, based upon the contention that the Award should be rescinded because it is based on commutation calculations that were incorrect and both parties relied on the erroneous calculations. There was no response to the Petition for Reconsideration filed by Mr. Aaron. The WCJ issued a Report and Recommendation on Petition for Reconsideration recommending that the Petition be denied or, in the alternative, treated as a Petition to set-aside the Award. The WCAB dismissed the Petition as premature, and returned this matter to the trial level for consideration of the Petition as one to set aside the Award in the panel decision of Aaron v Hesperia Unified School District. -ADJ10948627-ADJ11046485-ADJ11046682 (August 2023). Along the way, the WCAB panel set forth a review of the law on the grounds for setting aside a stipulation of a party after an award has been issued. "The appeals board has continuing jurisdiction over all its orders, decisions, and awards made and entered under the provisions of [Division 4] . . . At any time, upon notice and after the opportunity to be heard is given to the parties in interest, the appeals board may rescind, alter, or amend any order, decision, or award, good cause appearing therefor." (Lab. Code, § 5803.) Contract principles apply to settlements of workers’ compensation disputes. The legal principles governing compromise and release agreements, and by extension, stipulations with request for award, are the same as those governing other contracts. (Burbank Studios v. Workers’ Co. Appeals Bd. (Yount) (1982) 134 Cal.App.3d 929, 935 [47 Cal.Comp.Cases 832].) Stipulations between the parties must be interpreted to give effect to the mutual intention of the parties it existed at the time of contracting, so far as the same is ascertainable and lawful. (County of San Joaquin v. Workers’ Compensation Appeals Bd. (Sepulveda) (2004) 117 Cal.App.4th 1180, 1184 [69 Cal.Comp.Cases 193]; Civ. Code, § 1636.) "A stipulation is ‘An agreement between opposing counsel .... ordinarily entered into for the purpose of avoiding delay, trouble, or expense in the conduct of the action,’ (Ballentine, Law Dict. (1930) p. 1235, col. 2) and serves ‘to obviate need for proof or to narrow range of litigable issues' (Black’s Law Dict. (6th ed. 1990) p. 1415, col. 1) in a legal proceeding." (County of Sacramento v. Workers’ Comp. Appeals Bd. (Weatherall) (2000) 77 Cal.App.4th 1114, 1118 [65 Cal.Comp.Cases 1].) Stipulations are binding on the parties unless, on a showing of good cause, the parties are given permission to withdraw from their agreements. (Weatherall, supra, at 1121.) "Good cause" to set aside an order or stipulations depends upon the facts and circumstances of each case. "Good cause" includes mutual mistake of fact, duress, fraud, undue influence, and procedural irregularities. (Johnson v. Workmen’s Comp. Appeals Bd. (1970) 2 Cal.3d 964, 975 [35 Cal.Comp.Cases 362]; Santa Maria Bonita School District v. Workers’ Comp. Appeals Bd. (Recinos) (2002) 67 Cal.Comp.Cases 848, 850 (writ den.); City of Beverly Hills v. Workers’ Comp. Appeals Bd. (Dowdle) (1997) 62 Cal.Comp.Cases 1691, 1692 (writ den.); Smith v. Workers’ Comp. Appeals Bd. (1985) 168 Cal.App.3d 1160, 1170 [50 Cal.Comp.Cases 311].) To determine whether there is good cause to rescind awards and stipulations, the circumstances surrounding their execution and approval must be assessed. (See Labor Code § 5702; Weatherall, supra, 1118-1121; Robinson v. Workers’ Comp. Appeals Bd. (1987) 194 Cal.App.3d 784, 790-792 [52 Cal.Comp.Cases 419]; Huston v. Workers’ Comp. Appeals Bd. (1979) 95 Cal.App.3d 856, 864-867 [44 Cal.Comp.Cases 798].) Moreover, "[t]he Workers’ Compensation Appeals Board shall inquire into the adequacy of all Compromise and Release agreements and Stipulations with Request for Award, and may set the matter for hearing to take evidence when necessary to determine whether the agreement should be approved or disapproved, or issue findings and awards." (Cal. Code Regs., tit. 8, § 10700(b).) The WCJ has the discretionary authority to develop the record when the medical record is not substantial evidence or when appropriate to provide due process or fully adjudicate the issues. (Lab. Code, §§ , ; McClune v. Workers’ Comp. Appeals Bd. (1998) 62 Cal.App.4th 1117, 1121-1122 [63 Cal.Comp.Cases 261]; Tyler v. Workers’ Comp. Appeals Bd. (1997) 56 Cal.App.4th 389, 394 [62 Cal.Comp.Cases 924].) All parties in workers’ compensation proceedings retain their fundamental right to due process and a fair hearing under both the California and United States Constitutions. (Rucker v. Workers’ Comp. Appeals Bd. (2000) 82 Cal.App.4th 151, 157-158 [65 Cal.Comp.Cases 805].) "Accordingly, we dismiss the Petition as premature and return the matter to the WCJ for further proceedings consistent with this opinion. Upon return of this matter to the trial level, we recommend that the WCJ treat the Petition as a petition to set aside, including setting a hearing to allow the parties to provide evidence and create a record upon which a decision can be made by the WCJ." ...

The Federal Trade Commission reached a proposed consent order with Amgen Inc. to address the potential competitive harm that would result from Amgen’s $27.8 billion acquisition of Horizon Therapeutics plc. As part of a nationwide settlement of their challenge to the acquisition, the FTC and attorneys general from six states - California, Illinois, Minnesota, New York, Washington, and Wisconsin - also will dismiss the related federal court preliminary injunction action. The California Attorney General also announced his agreement with this settlement characterizing this as "a groundbreaking settlement with Amgen, one of the world’s largest biopharmaceutical drug companies." "The lawsuit was the FTC’s first ever challenge of a pharmaceutical merger." Under the proposed order, Amgen is prohibited from bundling an Amgen product with either Tepezza or Krystexxa, Horizon’s medications used to treat thyroid eye disease (TED) and chronic refractory gout (CRG), respectively. In addition, Amgen may not condition any product rebate or contract terms related to an Amgen product on the sale or positioning either one of these drugs. Amgen also is barred from using any product rebate or contract term to exclude or disadvantage any product that would compete with Tepezza or Krystexxa. The proposed consent order resolves FTC and state charges that Amgen’s acquisition of Horizon is anticompetitive, as the deal would enable Amgen to leverage its large portfolio of blockbuster drugs to pressure insurance companies and pharmacy benefit managers into favoring Horizon’s two monopoly products - Tepezza and Krystexxa - or disadvantaging rivals to Tepezza or Krystexxa. The proposed order also will prohibit Amgen from entering into any agreement or understanding to acquire any products or interest in any business engaged in the manufacturing or sale of any products, biosimilars, or therapeutic equivalents that treat either TED or CRG, unless it receives prior approval from the Commission. Additionally, Amgen must seek FTC approval if it seeks to acquire any pre-commercial products that have completed FDA clinical trials to treat either thyroid eye disease or chronic refractory gout. Under the terms of the consent order, Amgen is required seek FTC such prior approval through 2032 and notify the states if it is seeking Commission approval. All other requirements in the consent order will be effective for 15 years after it is finalized, including a requirement that Amgen submit annual compliance reports to the FTC and states. A monitor will be appointed to oversee Amgen’s compliance, and the monitor’s reports will likewise be submitted to the Commission and to the states. The FTC’s proposed consent order, among other conditions, also requires that Amgen: - - Submit to the monitor all contracts with payers related to the formulary coverage, placement, or positioning of Krystexxa or Tepezza in the United States within 30 days of entering into such contract. - - Notify the monitor if either Krystexxa or Tepezza meets all three of the following conditions: 1) Krystexxa or Tepezza has been approved by the FDA for patient self-administration; 2) the self-administered version of Krystexxa or Tepezza is available on the market; and 3) the self-administered version of Krystexxa or Tepezza is otherwise eligible to be covered as a pharmacy benefit product. - - Require, annually, that all Amgen employees with direct involvement in contracting or negotiations with payers related to the purchase, coverage, placement, or positioning of Krystexxa or Tepezza in the United States to review the consent order acknowledge in writing (including by email) that they understand and are complying with the obligations of the order. In May 2023, the FTC filed a complaint in the U.S. District Court for the Northern District of Illinois to block the proposed transaction. In addition to alleging that the transaction would give Amgen the ability and incentive to foreclose rivals to Tepezza and Krystexxa, the complaint stated that the deal also would entrench Tepezza’s and Krystexxa’s monopoly positions in the TED and CRG markets, respectively, by substituting Amgen, with its broad and powerful portfolio of blockbuster drugs, for Horizon with its smaller portfolio, thus raising entry barriers and dissuading smaller firms from competing aggressively. This was the FTC’s first litigated challenge to a pharmaceutical merger in more than a decade. Further details about the proposed order can be found in the analysis to aid public comment. The Commission vote to accept the proposed consent order for public comment was 3-0, with Chair Lina M. Khan issuing a separate statement, in which she was joined by Commissioner Rebecca Kelly Slaughter and Commissioner Alvaro Bedoya. The FTC will publish the consent agreement package in the Federal Register shortly. Instructions for filing comments appear in the published notice. Comments must be received 30 days after publication in the Federal Register. Once processed, comments will be posted on Regulations.gov ...

When the Covid pandemic struck, the California State University (CSU) directed that instruction be provided remotely. Patrick Krug did so but was denied access to his workplace office to retrieve his CSU-provided computer and printer.To provide such instruction, Krug, a biology professor at CSU-Los Angeles, incurred expenses which CSU refused to reimburse for a computer and other equipment. CSU took the position that Labor Code section 2802, subdivision (a), which obligates an employer to "indemnify [an] employee for all necessary expenditures . . . incurred . . . in direct consequence of the discharge of his or her duties," did not apply to the school because such application would infringe on its sovereign powers as a department of the state. Krug asked the Department of Industrial Relations (DLSE) whether the school’s non-reimbursement policy was lawful. The DLSE responded that it disagreed with CSU’s interpretation of section 2802. Krug filed this class action complaint, alleging a single claim for reimbursement of home-office expenses for himself and other CSU faculty employees under section 2802. He later amended to add a claim under the Private Attorneys General Act (PAGA) stemming from the same reimbursement violation. He alleged he incurred necessary business expenses for electricity, postage, internet service charges, use of personal phones for work-related purposes, office supplies, chairs, computers, printers, ink and toner, and computer monitors required to perform his work. CSU demurred, arguing that as a department of the state it enjoys broad exemption from Labor Code provisions that infringe on its sovereign powers. Krug appeals from a judgment of dismissal entered after the trial court sustained CSU’s demurrer without leave to amend. The Court of Appeal affirmed the trial court in the Published case of Krug v. Board of Trustees of the Cal. State Univ - B320588 (August 2023). On appeal, Krug contends that section 2802 applies to CSU. "A traditional rule of statutory construction is that, absent express words to the contrary, governmental agencies are not included within the general words of a statute." (Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1192. Thus, the Labor Code applies only to private sector employees unless a Labor Code provision is "specifically made applicable to public employees." (Campbell v. Regents of Univ. of California (2005) 35 Cal.4th 311, 330; California Correctional Peace Officers’ Association v. State of California (2010) 188 Cal.App.4th 646, 652-653; Nutter v. City of Santa Monica (1946) 74 Cal.App.2d 292, 301.) Specifically in the context of reimbursement for work expenses (uniform costs), section 2802 does not apply to counties, cities, or the state. (In re Work Uniform Cases (2005) 133 Cal.App.4th 328, 332, 339, 345.) But this maxim of construction excludes governmental agencies from the operation of general statutory provisions only if their inclusion would result in an infringement upon sovereign governmental powers. "Where . . . no impairment of sovereign powers would result, the reason underlying this rule of construction ceases to exist and the Legislature may properly be held to have intended that the statute apply to governmental bodies even though it used general statutory language only." (Regents of University of Cal. v. Superior Court of Alameda County (1976) 17 Cal.3d 533, 536 (Regents). Although the "sovereign powers" principle can help resolve an unclear legislative intent, it cannot override positive indicia of a contrary legislative intent. (Wells, supra, 39 Cal.4th at p. 1193.) The Court of Appeal applied a three-part test. First, look for "express words" referring to governmental agencies. If there are none,look for "positive indicia" of a legislative intent to exempt such agencies from the statute. If no such indicia appear, ask whether applying the statute would result in an infringement upon sovereign governmental powers. Here Education Code section 89036 authorizes CSU to enter agreements and prescribe policies and procedures for acquiring supplies and equipment. Education Code section 89500 authorizes CSU to address matters of employee allowances and expense reimbursement. "[T]here can be no doubt that public education is among the state’s most basic sovereign powers." (Wells, supra, 39 Cal.4th at p. 1195.) Thus, the Court of Appeal concluded that the "expenses Krug alleges - for computers, monitors, chairs, printers, electricity, internet, and other alleged business expenses - fall directly within CSU’s authority to set rules for employee equipment allowances and the purchase of materials, supplies, and equipment." ...

Lompoc Valley Medical Center (LVMC), a California Health Care District that operates multiple health care providers, including a hospital and several clinics, has agreed to pay $5 million to resolve allegations that it violated the federal False Claims Act and the California False Claims Act by causing the submission of false claims to Medi-Cal related to Medicaid Adult Expansion under the Patient Protection and Affordable Care Act (ACA). With this and several prior settlements, the United States now has recovered $95.5 million in connection with this investigation of entities in Santa Barbara and San Luis Obispo counties. CenCal, Cottage Health System, Sansum Clinic, and Community Health Centers of the Central Coast previously paid $68 million, and Dignity Health and Twin Cities Community Hospital and Sierra Vista Regional Medical Center, two subsidiaries of Tenet Healthcare Corporation previously paid $22.5 million, to settle similar False Claims Act allegations. Pursuant to the ACA, beginning in January 2014, Medi-Cal was expanded to cover the previously uninsured "Adult Expansion" population - adults between the ages of 19 and 64 without dependent children with annual incomes up to 133% of the federal poverty level. The federal government fully funded the expansion coverage for the first three years of the program. Under contracts with California’s Department of Health Care Services (DHCS), Santa Barbara San Luis Obispo Regional Health Authority, doing business as CenCal Health (CenCal), arranged for the provision of health care services as a county organized health system under California’s Medicaid program (Medi-Cal) in Santa Barbara and San Luis Obispo counties by contracting with providers such as LVMC to provide health care services to Medi-Cal patients. Under its contractual arrangement with DHCS, CenCal received funding to serve the Adult Expansion population. If CenCal did not spend at least 85% of the funds it received for the Adult Expansion population on "allowed medical expenses," CenCal was required to pay back to the state the difference between 85% and what it actually spent. California, in turn, was required to return that amount to the federal government. The settlement resolves allegations that LVMC knowingly caused the submission of false claims to Medi-Cal pursuant to agreements executed by LVMC with CenCal for "Enhanced Services" that LVMC purportedly provided to Adult Expansion Medi-Cal members between January 1, 2014 and June 30, 2016. The United States and California alleged that LVMC claimed and received payments pursuant to those agreements that were not for "allowed medical expenses" permissible under the contract between DHCS and CenCal, were pre-determined amounts that did not reflect the fair market value of any Enhanced Services provided by LVMC, and/or the Enhanced Services were duplicative of services already required to be rendered by LVMC. The United States and California further alleged that the payments were unlawful gifts of public funds in violation of the California Constitution. The civil settlement includes the resolution of claims brought under the qui tam, or "whistleblower," provisions of the False Claims Act by Julio Bordas, CenCal’s former medical director. Under the act, a private party can file an action on behalf of the United States and receive a portion of any recovery. The qui tam case is captioned United States and State of California ex rel. Bordas v. Lompoc Valley Medical Center, et al., (15-cv-09834, C.D. Cal.). Dr. Bordas will receive approximately $950,000 as his share of the federal recovery from the LVMC settlement. The resolution obtained in this matter was the result of a coordinated effort between the United States Attorney’s Office for the Central District of California; the Justice Department’s Civil Division, Commercial Litigation Branch, Fraud Section; and the California Department of Justice. HHS-OIG and DHCS provided substantial assistance ...

Grace Nunes sustained two admitted industrial injuries while employed by the State of California, Department of Motor Vehicles. In Case No. ADJ8210063, she sustained injury to her neck, upper extremities, and left shoulder, on September 13, 2011. In Case No. ADJ8621818, she sustained injury to her bilateral upper extremities from September 13, 2010 to September 13, 2011. After being evaluated by various physicians some of whom apportioned permanent disability,her vocational expert addressed apportionment by claiming that "from a vocational standpoint, Ms. Nunes’ preexisting/non-industrial degenerative condition had zero impact to her earning capacitygiven applicant’s work history." Her vocational expert went on to say that "Ms. Nunes’ functional limitations and chronic pain clearly render her 100 percent permanently and totally disabled.Without question, vocational apportionment in Ms. Nunes’ case is 100 percent industrial and attributable to the specific injury of September 13, 2011." The WCJ found that applicant is entitled to an unapportioned award of 100 percent industrial disability based on the analysis that "applicant has rebutted the AMA Guides. She’s found to be 100% disabled as there is no evidence of previous loss of earnings capacity." On June 22, 2023 the Appeals Board in the en banc decision of Grace Nunes I v State of California, Department of Motor Vehicles rescinded the F&A issued by the WCJ. It ruled that (1) Labor Code1 section 4663 requires a reporting physician to make an apportionment determination and prescribes the standard for apportionment, and that the Labor Code makes no statutory provision for "vocational apportionment;" (2) that vocational evidence may be used to address issues relevant to the determination of permanent disability; and (3) that vocational evidence must address apportionment, and may not substitute impermissible "vocational apportionment" in place of otherwise valid medical apportionment. As an aggrieved party for the first time, Nunes subsequently filed her Petitioned for Reconsideration of the En Banc Opinion and Decision After Reconsideration which was denied on August 29, 2023 in the second En Banc decision of Grace Nunes II v State of California, Department of Motor Vehicles -ADJ8210063 -ADJ8621818 (August 2023). Applicant contends in her Petition for Reconsideration that the apportionment analysis described by the QME is speculative and not substantial, and that applicant is entitled to an unapportioned award. Applicant further contends that vocational evidence may be used to characterize and quantify permanent disability, and that the vocational opinions expressed by vocational experts may differ from the medical evidence. Applicant also asserts that the prohibition against using vocational apportionment in place of otherwise valid medical apportionment will result in "pass-through" apportionment that is not substantial evidence; that defendant failed to meet its burden of proof under section 4664; and that our June 22, 2023 Opinion may result in protracted discovery and litigation. In response the Board concluded that "applicant has not established that our decision to return the matter to the trial level for development of the record and to comply with section 5313 was made in error, which, standing alone, may constitute grounds for denial of the Petition." Additionally the Board said "we wish to address the rhetoric used by applicant in the Petition. Applicant contends that the consequences of our decision proscribing "vocational apportionment" will be "disastrous" and will lead to an "implosion of the [workers’ compensation] system. Applicant characterizes our decision as 'directionless' and potentially requiring the application of 'invalid' medical apportionment, the result of which would be "devastating to the worker’s [sic] compensation environment. Applicant further contends that 'lawyers' on both sides may use this case as a sword to distract, delay and obfuscate " "We find these arguments to be unpersuasive and inflammatory. .... Our Opinion does not require the application of invalid apportionment by the parties or by the WCJ, and in those instances where there is a significant question as to the validity of a physician’s medical apportionment opinion, the vocational expert is free to offer their analysis in the alternative." "In summary, reconsideration is inapposite because applicant’s petition offers no challenge to our determination that the current record does not comply with section 5313. We reject applicant’s contention that a vocational expert may substitute a competing theory of apportionment in place of otherwise valid legal apportionment, as inconsistent with statutory and case law authority. We further reject applicant’s contention that evaluating physicians are unwilling or unqualified to evaluate vocational evidence." ...

The Labor Commissioner’s Office has cited farm labor contractor M.G. Luna, Inc. of Parlier and growers Madera Persimmon Growers Inc. of Madera and Willems Farms, Inc. of Kingsburg $1,926,531, for wage theft affecting 356 workers who harvested persimmons and blueberries. The Fresno County-based farm labor contractor registered to Maria Guadalupe Luna collected wages from the growers but failed to pay the workers. The farm labor contractor also hired workers to harvest blueberries on Luna’s own farm and failed to pay them. "The agricultural industry has up-the-chain liability laws holding client companies responsible for unpaid wages when their contractor fails to pay their workers. In this case, the growers who contracted with M.G. Luna will pay the owed wages to workers," said Labor Commissioner Lilia García-Brower. The Labor Commissioner’s Office opened its investigation into M.G. Luna Inc. and growers Madera Persimmon Growers Inc., and Willems Farms, Inc. in September 2019 after receiving a referral from California Rural Legal Assistance, Inc. The investigation focused on dozens of wage claims workers filed against the farm labor contractor and the growers for nonpayment of wages or for receiving checks with insufficient funds. The citations and penalties issued total $1,926,531. Maria Guadalupe Luna, an individual, and Madera Persimmon Inc., a corporation, were cited $75,120 for waiting time penalties, $6,273 for minimum wage violations, and $2,230 in interest involving 25 workers. Maria Guadalupe Luna, an individual, was also cited $1,140,720 for waiting time penalties, $191,943 for minimum wage violations, and $71,325 in interest affecting 223 workers. Maria Guadalupe Luna, an individual, and Willems Farms, Inc., a corporation, and Gayle A. Willems and Paul E. Willems, both trustees of the Willems Family Trust, were cited $334,080 for waiting time penalties, $76,272 for minimum wage violations, and $28,568 in interest involving 108 workers. Under a California labor law enacted in 2014 to protect workers whose labor has been outsourced to a labor provider, the outsourcing entity, known as a "client employer," is liable for the laborers' wages if the laborers' work is within the outsourcers' "usual course of business." The California Legislature enacted Cal. Labor Code § 2810.3 to establish a new form of liability for employers, termed "client employers," who obtain workers from third-party contractors. The legislative history of the statute indicates that client employer liability was created to address the growing business model where a business uses a contractor to supply workers who are supervised and paid by the contractor, but appear to be employees of the business. Under the statute, Cal. Labor Code § 2810.3(a)(1)-(3), (6), the outsourcing entity, known as a "client employer," is liable for the laborers' wages if the laborers' work is within the outsourcers' "usual course of business." The Labor Commissioner’s License and Registration search page allows growers to ensure the labor contractor they are hiring is properly licensed and registered with the Labor Commissioner’s Office as required by law. Growers in California can find out if wage claims have been filed against a farm labor contractor by searching on the Labor Commissioner’s Wage Claim Search tool webpage. Growers should also check the search tool after work is completed, as wage claims are not always filed immediately after nonpayment of wages ...

The Justice Department announced the results of a coordinated, nationwide enforcement action to combat COVID-19 fraud, which included 718 enforcement actions - including federal criminal charges against 371 defendants - for offenses related to over $836 million in alleged COVID-19 fraud. Deputy Attorney General Monaco also announced the launch of two additional COVID-19 Fraud Enforcement Strike Forces: one at the U.S. Attorney’s Office for the District of Colorado, and one at the U.S. Attorney’s Office for the District of New Jersey. These two strike forces add to the three strike forces launched in September 2022 in the Eastern and Central Districts of California, the Southern District of Florida, and the District of Maryland. Michael C. Galdo, Acting Director of COVID-19 Fraud Enforcement, detailed the results of the three-month coordinated law enforcement action that took place from May through July 2023, which included criminal, civil, and forfeiture actions. More than 50 U.S. Attorneys’ Offices, including the COVID-19 Fraud Enforcement Strike Forces, the Justice Department’s Criminal and Civil Divisions, and more than a dozen law enforcement and OIG partners worked together to conduct the sweep. Galdo also said that 63 of the defendants had alleged connections to violent crime, including violent gang members also accused of using pandemic funds to pay for a murder for hire. Twenty-five defendants have alleged connections to transnational crime networks. 718 law enforcement actions occurred, including criminal charges, civil charges, forfeitures, guilty pleas, and sentencings, with a combined total actual loss of more than $836 million. Criminal charges were filed against 371 defendants, and 119 defendants pleaded guilty or were convicted at trial during the sweep. Over $57 million in court-ordered restitution was imposed. 117 civil matters occurred during the sweep, with over $10.4 million in judgments. Prosecutors worked with law enforcement to secure forfeiture of over $231.4 million. Many of the cases in the enforcement action involve charges related to pandemic unemployment insurance benefit fraud and fraud against the two largest pandemic Small Business Administration programs: the Paycheck Protection Program and Economic Injury Disaster Loans. Additional matters involved pandemic healthcare billing fraud, fraud against the Emergency Rental Assistance program, and fraud committed against the IRS Employee Retention Credit program (ERC), a refundable tax credit for businesses and tax-exempt organizations that had employees and were affected during the COVID-19 pandemic. IRS Criminal Investigations (IRS-CI) worked with the California Strike Force and the U.S. Attorney’s Office for the District of New Jersey to bring multimillion dollar ERC fraud cases during the enforcement action. In May 2021, the Attorney General established the COVID-19 Fraud Enforcement Task Force (CFETF) to marshal the resources of the Department of Justice in partnership with agencies across government to enhance efforts to combat and prevent pandemic-related fraud. The task force bolsters efforts to investigate and prosecute the most culpable domestic and international criminal actors and assists agencies tasked with administering relief programs to prevent fraud by, among other methods, augmenting and incorporating existing coordination mechanisms, identifying resources and techniques to uncover fraudulent actors and their schemes, and sharing and harnessing information and insights gained from prior enforcement efforts. The cases were investigated by the following agencies: FBI; U.S. Secret Service; IRS-CI; Defense Criminal Investigative Service; Homeland Security Investigations; U.S. Postal Inspection Service; Army Criminal Investigations Division; Food and Drug Administration’s Office of Criminal Investigations; the Diplomatic Security Service; and the Offices of Inspectors General from the Small Business Administration, Department of Labor, Department of Homeland Security, Federal Deposit Insurance Corporation, Department of Health and Human Services, Department of Veterans Affairs, Federal Housing Finance Agency, Federal Reserve Board, Social Security Administration, the Special Inspector General for Pandemic Relief, Treasury, and the Treasury Inspector General for Tax Administration. OCDETF Fusion Center and OCDETF’s International Organized Crime Intelligence and Operations Center, the Pandemic Response Accountability Committee, the Financial Crimes Enforcement Network, and the National Unemployment Insurance Fraud Task Force provided key support ...

Tien Tan Vo, a doctor practicing in Imperial Valley, has pleaded guilty to crimes related to his years-long use of foreign unapproved and misbranded cosmetic drugs. Vo pleaded guilty to misdemeanor counts of receipt of misbranded drugs in interstate commerce and being an accessory after the fact to an accomplice, who smuggled the unapproved drugs into the United States from Mexico. In his plea agreement, Vo admitted that none of the injectable botulinum toxin or lip fillers used by his clinics between November 2016 and October 2020 was approved for use in the United States. This specifically included a botulinum toxin product called "Xeomeen" and an injectable lip filler called Probcel - both products that have not been approved by the U.S. Food and Drug Administration. Vo acknowledged that he received $100,767 in gross receipts for almost four years of cosmetic services performed with unapproved drugs and devices. As part of his plea agreement, he has agreed to forfeit that amount, and to pay a fine of $201,534. Vo also agreed to pay restitution to victims of his offense. In his plea agreement, Vo admitted purchasing most of his unapproved drugs and devices from the operator of a "med spa" in Mexicali, Mexico, who smuggled them into the United States without declaring them. According to the Associated Press, at one time Vo was a "rock star" doctor who tested tens of thousands of people for COVID-19 in the pandemic’s early months in his badly-stricken California desert community. "All members of our community should be able to trust that their doctor is acting in their best interest," said Acting U.S. Attorney Andrew Haden. "Through this prosecution, we are protecting patients from unapproved and potentially unsafe drugs and will always seek to thwart those who would exploit patients for financial gain." "Injecting unapproved medicines poses a significant threat to public health and can have serious consequences for individuals," said Chad Plantz, Special Agent in Charge for HSI San Diego. "Together, with our partnered agencies, we need to educate people of the dangers caused by using unauthorized botulinum toxin (the active ingredient in Botox®, Xeomin®, and similar products) and thwart those who smuggle and illegally use it for cosmetic procedures." "The FDA’s requirements help ensure that patients receive safe and effective medical treatments. Evading the FDA process and distributing unapproved drugs to U.S. consumers will not be tolerated," said Special Agent in Charge Robert M. Iwanicki, FDA Office of Criminal Investigations, Los Angeles Field Office. "“We will continue to investigate and hold accountable those who traffic in unapproved drugs." Sentencing is set for November 16, 2023, at 9:30 a.m. before U.S. Magistrate Judge Allison H. Goddard. Potential victims related to this case may provide or request information by emailing USACAS.Cosmetic.Case@usdoj.gov ...

From March 2020 through February 2023, California was in a State of Emergency due to COVID-19. Midway through this period, on August 11, 2021, the State Public Health Officer issued an order requiring K-12 schools to verify the COVID 19 vaccination status of all school workers (State Dept. of Public Health, State Public Health Officer Order of Aug. 11, 2021.) When the Public Health Order went into effect, Gloria Elizabeth Rossi was working at the School, as she had for decades, providing in-person classroom assistance for children with special needs and children whose primary language is Spanish. Rossi was placed on unpaid administrative leave and then terminated from her employment with defendant Sequoia Union Elementary School District after refusing to either provide verification of her COVID-19 vaccination status or undergo weekly testing as required by a then-operative order of the State Public Health Officer. Rossi brought suit under the Confidentiality of Medical Information Act (CMIA) (Civ. Code, § 56 et seq.) against defendants the School District; Sequoia Union Elementary School, the School where she worked, and Ken Horn, the School principal and superintendent. Her complaint asserted two causes of action under the CMIA, alleging (1) discrimination due to her refusal to authorize release of her medical information and (2) unauthorized use of her medical information. The trial court sustained defendants’ demurrer without leave to amend, finding each claim failed as a matter of law due to certain statutory exceptions. This appeal is related to two other contemporaneous appeals (Dennis v. Tulare City School District (Aug. 25, 2023, F085428) [nonpub. opn.]; Moran v. Tulare County Office of Education (Aug. 25, 2023, F085385) [nonpub. opn.]) from nearly identical orders by judges of the Tulare County Superior Court dismissing identical CMIA causes of action by similarly situated school-worker plaintiffs. The plaintiff-appellants in all three cases were represented by the same counsel; the cases were argued on the same day before the same panel of this Court. In this case the Court of Appeal affirmed the trial court’s orders in the published case of Rossi v. Sequoia Union Elementary School District F085416 (August 2023) on substantially identical grounds in all three cases. Plaintiff’s principal contention on appeal is that the Public Health Order did not specify "what to do with individual employees not complying" and did not mandate their termination; she argues defendants’ disciplinary actions were therefore undertaken at their discretion, not necessitated by the Order. The Court of Appeal noted that "The Public Health Order required "full compliance" by facilities and mandated that all K-12 schools "must verify vaccine status of all workers" and that those schools with workers who must test (i.e., with workers not reporting complete vaccination) "must report results to local public health departments." Notably, "the School could not fulfill either of these requirements without the cooperation of plaintiff (and all School workers)." And the "administration could not verify her vaccination status on its own, and it could not transmit test results it did not have. Although the Order did not literally state that unvaccinated and non-testing workers could not be present on school campuses, the Order’s prefatory text makes clear that its goal was to "minimize the risk that [workers] will transmit [COVID-19] while on K-12 school campuses," Plaintiff argues a fact finder might reasonably conclude that other reasonable accommodations could have been reached besides putting her on unpaid leave and ultimately firing her - positing "plexiglass [or] physical distancing" as other possible solutions. "However, we do not see how other potential arrangements like these would allow defendants to bring the School into 'full compliance' with the Public Health Order. Even if defendants allowed plaintiff to return to work in the classroom from behind a plexiglass shield, that would not allow them to either verify her vaccination status or report all unvaccinated-worker test results to local health departments. There is no room for factual debate about how else defendants could have complied with the Order’s requirements without directing plaintiff to stay home until she provided test results - and terminating her when it was clear she was never going to test." The Court of Appeal likewise concluded that the demurrer was properly sustained for the second cause of action, under Civ. Code § 56.20(c) (Unauthorized Use Claim), but not for the reasons stated by the trial court. The complaint pleads a section 56.20(c) cause of action arising purely from defendants' unauthorized use of plaintiff’s purported medical information (that is, her presumed unvaccinated status) to terminate her employment. Section 56.20(c)(1)’s exception states: "The information may be disclosed if the disclosure is compelled by judicial or administrative process or by any other specific provision of law." There is no allegation that defendants disclosed her vaccination status to any third party ...

Katherine Rosenberg-Wohl had a homeowners insurance policy with defendant Respondent State Farm Fire and Casualty Company, providing coverage on her home in San Francisco. The policy contains a provision entitled "Suit Against Us" that states: "No action shall be brought unless there has been compliance with the policy provisions. The action must be started within one year after the date of loss or damage." In late 2018 or early 2019, Katherine Rosenberg-Wohl noticed that on two occasions an elderly neighbor stumbled and fell as she descended her outside staircase, and learned that the pitch of the stairs had changed and that to make the stairs safe the staircase needed to be replaced. In late April 2019, she authorized the work and contacted State Farm, and on August 9, she submitted a claim for the money she had spent. On August 26, State Farm denied the claim. Among other things Lee said that it if the claimed loss were "to be covered," something "sudden" had to have happened. And what plaintiff claimed coverage for, Lee said, was just "preventative." Sometime later, her husband, attorney David Rosenberg-Wohl, reached out to State Farm "to see if anything could be done," and in August 2020 a State Farm adjuster, Rita Lee,said it had reopened the claim. And a few days later denied it. In October 2020, represented by her husband, plaintiff filed two lawsuits against State Farm in San Francisco Superior Court., some 18 months after she had replaced the staircase, 14 months after State Farm had denied her claim the first time, and nearly six months after the one-year limitation period of the policy had expired. One alleged two causes of action, for breach of the policy and for bad faith. That lawsuit was removed to federal court, and was resolved against plaintiff on a motion to dismiss based on the one-year limitation provision. It is currently on appeal in the Ninth Circuit. The other action, the one now before the California Court of Appeal, purports to allege a claim for violation of California’s unfair competition law and was designated as a "class action." This case was also resolved against plaintiff, also based on the limitation provision. When the trial court sustained a demurrer to the second amended complaint without leave to amend. Plaintiff appealed, asserting two arguments: (1) the one-year limitation provision does not apply to her unfair competition claim, and (2) even if it does, State Farm waived the limitation provision The California Court of Appeal affirmed the trial court in the published case of Rosenberg-Wohl v. State Farm Fire and Casualty Co., -A163848.PDF (July, 2023). The one-year limitation provision in the State Farm policy is there because " insurance policies providing fire insurance on California property must include the standard form provisions contained in Insurance Code section 2071 or provisions that are at least their substantial equivalent." Insurance Code 2071 specifically states that "2071. (a) "The following is adopted as the standard form of fire insurance policy for this state:" .... "No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, and unless commenced within 12 months next after inception of the loss. If the loss is related to a state of emergency, as defined in subdivision (b) of Section 8558 of the Government Code, the time limit to bring suit is extended to 24 months after inception of the loss." State Farm asserts "the Legislature has expressly endorsed" the provision under Insurance Code section 2071, and argues that because the allegations here all concern how it handled plaintiff’s claim, the suit is subject to the policy limitation period under applicable law. In her brief plaintiff conceded that "there is . . . no doubt that an insured cannot plead around the one-year limitations provision by labeling her cause of action something different than breach of contract," But then went on to argue "where damages are not sought but rather the relief sought is change of an unfair policy that affects not just the insured but the public at large, the insurer’s policy promise to the insured is not at issue," Plaintiff’s brief makes another concession, that "Simply alleging a claim under the UCL, of course, is no different from one alleging breach of the covenant of good faith and fair dealing or any other claim in which the point is to recover money for breach of contract. [Citations.]" And plaintiff’s argument concludes with this: "here the UCL claim about practice and procedure is not a contract claim - the conduct is unfair even though it is not required under the policy, and it is unfair regardless of whether it leads to payment under the policy or no. And plaintiff asserts, she seeks "only injunctive relief . . . and that is why the four-year UCL statutory period applies," going on to cite five cases in claimed support. The Court of Appeal then discussed at length numerous cases, including many of those cited by the parties here, after all of which it made its analysis and conclusion. In rejecting plaintiff's effort to circumvent the one year statute of limitations the Court of Appeals concluded that "In sum, the crux of plaintiff’s claim (Jang, supra, 80 Cal.App.4th at p. 1303) is 'grounded upon a failure to pay policy benefits.' (Sullivan, supra, 964 F.Supp. at p. 1414.) That claim necessarily arises 'out of the contractual relationship.' (Lawrence, supra, 204 Cal.App.3d at p. 575.)" ...

The California State Auditor is required by Government Code section 8546.5, to report to the California Governor and State Legislature about statewide issues and state agencies that represent a high risk to the State or its residents. It's latest report published on August 24, 2023 concludes that the Employment Development Department meets the criteria to me moved to the High Risk list, and two other agencies, the California Department of Technology, and the Department of Health Care Services, should remain on the High Risk list. In the Auditor's prior January 2021 Report it explained that EDD’s fraud prevention approach during the pandemic was marked by significant missteps and inaction that led to billions of dollars in unemployment benefit payments that EDD later determined may have been fraudulent. The new 2023 Auditor's assessment said that "EDD is a high-risk agency because of its mismanagement of the UI program. Specifically, EDD is unable to reliably estimate improper payments under the UI program, thus adversly affecting the State’s financial statements as well as impairing efforts to independently evaluate the efficacy of EDD’s own fraud prevention activities." "Despite the program’s critical importance, EDD’s management of the UI program has been characterized by significant internal control weaknesses. For example, the program did not block addresses used to file unusually high numbers of claims, and it removed a safeguard preventing payment to individuals who had unconfirmed identities. These inadequate internal controls did not prevent potential fraud during fiscal years 2019-20 and 2020-21 and allowed the payments of potentially fraudulent claims, estimated at tens of billions of dollars, most of which have yet to be recovered." "Contributing to this serious detriment, EDD’s inadequate identification of potentially fraudulent UI benefit payments was also a significant factor leading to modified audit opinions and the delayed publication of California’s Annual Comprehensive Financial Report (ACFR) for fiscal years 2019-20 and 2020-21, which the State Controller published in February 2022 and March 2023, respectively." "EDD has not taken adequate corrective action to prevent the substantial risk of serious detriment to the State and its residents. Corrective action is adequate when it prevents a risk - such as the risk of fraud - from presenting a substantial risk of serious detriment. Because the potentially fraudulent payments have already occurred, have not been fully identified, and have largely not been recovered, EDD’s corrective action is not adequate." The Auditor "noted this issue in Report 2021-001.1, March 2023, the report that reviewed internal controls and compliance. In fact, we found that EDD’s estimate of potentially fraudulent payments omitted certain payments to claimants who made false statements to obtain benefits and also incorrectly included valid claims for benefits. EDD has established a process to pursue recovery of ineligible payments, but until it identifies all inappropriate transactions, it cannot effectively manage that process or allocate appropriate resources to pursuing recovery. Thus EDD’s current corrective action remains insufficient and is a contributing element to our designation of the agency as high-risk. "Apart from the potentially fraudulent UI payments that EDD made during the pandemic, which it has estimated to be in the tens of billions of dollars and which continue to affect the State’s financial reporting, EDD’s eligibility decisions are frequently overturned during appeal and have resulted in the substantial risk of serious detriment to California residents." " From 2017 through 2022, about half of the issues in UI claims that claimants appealed were ultimately overturned in favor of the claimant. This rate of overturned decisions is consistent with the high rate of overturned decisions we noted in Report 2014-101, August 2014." The Auditor added that "as of March 2023, California had the third highest reversal rate in the nation." ...

Section 111 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (MMSEA) added mandatory reporting requirements with respect to Medicare beneficiaries who have coverage under group health plan (GHP) arrangements as well as for Medicare beneficiaries who receive settlements, judgments, awards or other payment from liability insurance (including self-insurance), no-fault insurance, or workers’ compensation. The provisions for Non-Group Health Plans (NGHP), such as Workers’ Compensation claims, is found at 42 U.S.C. 1395y(b)(8). Reporting requirements are documented in the NGHP User Guide which is available as a series of downloads on the NGHP User Guide page. The NGHP User Guide is the primary source for Section 111 reporting requirements. An organization that must report under Section 111 is referred to as a responsible reporting entity (RRE). In general terms, NGHP RREs include liability insurers, no-fault insurers, and workers' compensation plans and insurers. Failure to perform the required Section 111 reporting at all within one year of the date a settlement or other payment obligation provides for a monetary penalty of up to $1,000 for each day of noncompliance for each individual whose information should have been reported. This penalty amount will be adjusted annually for inflation under 45 CFR part 102. Current maximum penalty amount as adjusted for inflation in 2023 is $1,247. CMS has just release of the latest iteration of the Non-Group Health Plan User Guide - Version 7.3. According to the firm of Allan Koba, Version 7.3 contains three main revisions: First, and arguably the most significant, Chapter III has been updated to attempt to add some detail to the section on Ongoing Responsibility for Medical (ORM) reporting - Section 6.3. These changes aim to clarify what triggers Ongoing Responsibility for Medical (ORM) reporting. In a prior update, this section was expanded, adding a conjunctive, 2-part test for the trigger of ORM. That is, in Version 7.2, the trigger for ORM was the assumption of ORM by the RRE AND the beneficiary receiving medical treatment for the related injury. This update caused questions from our industry, including how and when an RRE should know about medical treatment. In response to these questions, the agency has released the updates of Version 7.3 which has removed use of the word "and", applying a new definition which now states that the trigger for Ongoing Responsibility for Medical (ORM) reporting is the determination to assume ORM which is when the RRE learns, through normal due diligence, that the beneficiary has received claim-related treatment. These changes to the text effectively remove the decision-making power from the RRE to decide when Ongoing Responsibility for Medical (ORM) has been accepted, and has defined acceptance as knowledge of claim-related treatment. Secondly, Chapter IV has been updated to inform users who have opted into the unsolicited response file process that they may receive an empty file if no updates were made to their records in a given reporting period. That is, if an RRE has opted to receive the unsolicited response file, it will still receive a blank response file if no updates have been made by outside parties that would/should be contained therein. While the issuance of empty unsolicited response files was previously announced via an Alert last month, the fact that an empty file may be received is now outlined in Ch. IV, Sect. 7.5 for future reference. Chapters I, II, and IV have been revised to remove all references to Internet Explorer as it is no longer a supported browser. While this update likely does not make too many waves, it may be of interest to some carriers utilizing a reporting software that was designed for IE. Each chapter of the updated 7.3 User Guide is available for download. For questions about these updates, as well as general inquiries about Section 111 reporting and all things Medicare Secondary Payer, readers may contact Allan Koba at info@allankoba.com ...

The North Coast Village Condominium Association is a California nonprofit corporation with forty-two employees and five board members. The North Coast Village condominium complex includes approximately 550 condominium units, an on-sight management office, and a security office. The Association filed a workplace violence restraining order petition pursuant to Code of Civil Procedure, section 527.8 in support of its board president, Neil Anderson, and 46 other employees and board members seeking to restrain resident Nancy Phillips. Phillips and Anderson both own units within the community and Phillips previously served two terms on the Association’s board of directors. Anderson is the current board president. Phillips and Anderson both own units within the community and Phillips previously served two terms on the Association’s board of directors. Anderson is the current board president. Joseph Valenti was the Association’s general manager for twenty-four years before he retired early - due in part to the fact that dealing with Phillips was "too much." He first met Phillips in 2005 when she angrily confronted him for supporting a contractor she had reported to the contractor’s licensing board. Valenti estimated that Phillips threatened to fire him over fifty times, including while she was on the board and was his boss. He said he feared for his safety as a result because he was the sole provider for his wife. Fidel Jiran is the security patrol supervisor, and once while investigating a car in the parking area, Phillips became irate, shouted numerous profanities, walked quickly towards him, and took a backhanded swipe at his facial area. Jiran pulled his head backward to try to avoid her, but she knocked his baseball cap to the ground. Jennifer Duren works as an administrative assistant and client relations specialist in the Association office.Phillips came into the office and asked to speak with Valenti. Duren went to Valenti’s doorway to announce Phillips. Phillips then came up behind Duren and shoved her with both hands into Valenti’s office. Anderson served in the military for 26 years before retiring and taking a job as the director of disaster preparedness with a local fire department. He first encountered Phillips at an executive committee meeting after they were both elected to the Association’s board in 2016. He testified of many confrontations with her, one where she accused him and had him prosecuted in 2018 for lewd conduct for walking around in his underwear. He hired an attorney, defended and won the misdemeanor criminal case she instigated. Numerous conflicts occurred between the two during the following years. Phillips continued to walk by his condominium almost every day - at least a hundred times according to Anderson - constantly muttering. This persisted even after the Association obtained a temporary workplace violence restraining order against her on February 4, 2021. On one occasion, he heard Phillips say "you (expletive deleted), I’m going to get you if it’s the last thing I do." He said she appeared to be filming him as she walked by. At the conclusion of a three-day hearing, the trial court denied the Association’s request. It then sua sponte and absent a request to amend the pleadings by either party, awarded Anderson a civil harassment restraining order pursuant to Code of Civil Procedure section 527.6 against Phillips "in the interest of judicial efficiency and conforming pleadings to proof." Phillips appealed and the Association cross-appealed. The Court of Appeall reversed and remanded in the published decision in North Coast Village Condominium Assn. v. Phillips D079455 (August 2023). The Court of Appeal agreed with Phillips on her appeal claiming that that she was denied due process protections when the court sua sponte amended the pleadings at the conclusion of the case without prior notice. "The breadth of behavior subject to restriction under section 527.8 also is narrower than that covered by section 527.6, meaning the section 527.8 petition did not put Phillips on notice to engage in discovery of certain facts or prepare appropriate defenses." On cross-appeal, the Association argues the trial court misinterpreted and misapplied section 527.8. It contends the trial court erred in concluding that section 527.8 did not apply to the December 23, 2020, and January 16, 2021 incidents because (1) Phillips was standing on public versus Association property, and (2) Anderson was not acting in his official capaciy as a board member at the time of the incidents. Anderson testified that he considers his home to be his office, and he will respond to Association needs 24 hours a day if he is needed. He also testified residents approach him in the community to ask him questions or talk to him "all the time" and at all different hours. But the Court of Appeal noted that some ambiguity remains in the workplace violence statute as to whether the definition of "workplace" includes a home office when the individual is not actively engaged in work at the time. And neither the legislative history nor caselaw "provides clear guidance as to whether section 527.8 encompasses protection for those who live at their workplace." "The boundary also is not clear regarding the trial court’s other distinction between whether Anderson was acting as an employee at the relevant times or not." "Now that many employees have the ability to work from anywhere and even on their phones, employees may alternate between handling personal and work matters throughout the day and night and follow a less defined work schedule than in the past. As a result, the distinction between when someone is and is not functioning as an employee may not always be abundantly clear." "Ultimately, how this statute is applied in an evolving work environment likely is an issue the legislature will need to revisit. We conclude only that the limitations imposed by the trial court in this case are not supported by the language or history of the statute." The reasoning of the trial Judge on these issued "do not provide a sufficient record that would allow us to determine the court’s holding absent the added limitations regarding location and capacity, remand is appropriate." "We express no opinion as to how the petition should be resolved." ...