Admera Health LLC has agreed to pay the United States $5,389,648 to resolve allegations that it violated the False Claims Act by paying commissions to third party independent contractor marketers in violation of the Anti-Kickback Statute (AKS). Admera will pay an additional $147,851 to individual states for claims paid to Admera by state Medicaid programs. Admera is a New Jersey-based company that provides biopharmaceutical research services for health care institutions and provided clinical laboratory testing services to health care providers relating to pharmacogenetics until 2021. Pharmacogenetics analyzes how a patient’s genetic attributes affect their response to therapeutic drugs. The settlement resolves allegations that, from Sept. 1, 2014, through May 21, 2021, Admera made commission-based payments to independent contractor marketers in return for recommending or arranging for the ordering of genetic testing services in violation of the AKS. The AKS prohibits offering or paying remuneration in return for arranging or recommending items or services covered by Medicare and other federally funded programs. As part of the settlement, Admera has admitted that it made millions of dollars of commission payments to independent-contractor marketers to induce them to arrange for or recommend that health care providers order and refer clinical laboratory services to Admera, including genetic tests, that were reimbursable by Medicare and/or Medicaid, that it paid marketers through arrangements that took into account the volume and value of genetic testing referrals, and that Admera was informed that the payment of commissions to independent contractors did not comply with the AKS but continued to enter into such contracts. The civil settlement includes the resolution of claims brought under the qui tam or whistleblower provisions of the False Claims Act by relators, Sunil Wadhwa and Ken Newton, co-founders of Financial Halo LLC/MedXPrime, a former third-party marketer for Admera. Under those provisions, 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 U.S. ex rel. Wadhwa and Newton v. Admera Health, LLC et al (E.D. Cal.). Relators will receive $862,343 of the proceeds from the settlement. The resolution obtained in this matter was the result of a coordinated effort between the Justice Department’s Civil Division, Commercial Litigation Branch, Fraud Section, and the United States Attorney’s Office for the Eastern District of California, with substantial investigative assistance from HHS-OIG, the Federal Bureau of Investigation, and the Department of Veterans Affairs, Office of Inspector General. The matter was handled by Assistant U.S. Attorney Colleen Kennedy for the Eastern District of California and Civil Division Fraud Section Trial Attorney Elizabeth J. Kappakas. The investigation and resolution of this matter illustrates the government’s emphasis on combating health care fraud. One of the most powerful tools in this effort is the False Claims Act. Tips and complaints from all sources about potential fraud, waste, abuse, and mismanagement, can be reported to the Department of Health and Human Services at 800-HHS-TIPS (800-447-8477). The claims resolved by the settlement are allegations only and there has been no determination of liability ...

A Ventura County physician who worked for two Pasadena hospices pleaded guilty to defrauding Medicare out of more than $3 million by billing the public health insurance program for medically unnecessary hospice services. Dr. Victor Contreras, 68, of Santa Paula, pleaded guilty to one count of health care fraud. Contreras, who was on probation imposed by the California Medical Board while he was part of the scheme, provided fraudulent certifications for some of these patients, including patients he claimed to have examined, but never actually saw, according to the indictment. According to his plea agreement, from July 2016 to February 2019, Contreras and co-defendant Juanita Antenor, 61, formerly of Pasadena, schemed to defraud Medicare by submitting nearly $4 million in false and fraudulent claims for hospice services submitted by two hospice companies: Arcadia Hospice Provider Inc., and Saint Mariam Hospice Inc. Antenor controlled both companies. Medicare only covers hospice services for patients who are terminally ill, meaning that they have a life expectancy of six months or less if their illness ran its normal course. Contreras falsely stated on claims forms that patients had terminal illnesses to make them eligible for hospice services covered by Medicare, typically adopting diagnoses provided to him by hospice employees whether or not they were true. Contreras did so even though he was not the patients’ primary care physician and had not spoken to those primary care physicians about the patients’ conditions. Medicare paid on the claims supported by Contreras’ false evaluations and certifications and recertifications of patients. In total, approximately $3,917,946 in fraudulently claims were submitted to Medicare, of which a total of approximately $3,289,889 was paid. According to Medical Board of California records, Contreras is a licensed physician in California, but has been on probation with the Board since 2015 and is subject to limitations on his practice. United States District Judge André Birotte Jr. scheduled an October 25 sentencing hearing, at which time Contreras will face a statutory maximum sentence of 10 years in federal prison. Antenor remains at large. Co-defendant Callie Black, 65, of Lancaster, who allegedly recruited patients for the hospice companies in exchange for illegal kickbacks, has pleaded not guilty and is currently scheduled to go on trial on October 15. An indictment contains allegations that a defendant has committed a crime. Every defendant is presumed to be innocent until and unless proven guilty in court. The United States Department of Health and Human Services Office of Inspector General, the FBI, and the California Department of Justice investigated this matter. Assistant United States Attorneys Kristen A. Williams of the Major Frauds Section and Aylin Kuzucan of the General Crimes Section are prosecuting this case ...

DaVita Inc. provides kidney dialysis services through a network of 2,816 outpatient dialysis centers in the United States, serving 204,200 patients, and 321 outpatient dialysis centers in 10 other countries serving 3,200 patients. The company primarily treats end-stage renal disease (ESRD), which requires patients to undergo dialysis 3 times per week for the rest of their lives unless they receive a donor kidney. The company has a 37% market share in the U.S. dialysis market. It is organized in Delaware and based in Denver. DaVita has agreed to pay $34,487,390 to resolve allegations that it violated the False Claims Act by paying kickbacks to induce referrals to DaVita Rx, a former subsidiary that provided pharmacy services for dialysis patients, and by paying kickbacks to nephrologists and vascular access physicians to induce the referral of patients to DaVita’s dialysis centers. The Anti-Kickback Statute prohibits anyone from offering or paying, directly or indirectly, any remuneration - which includes money or any other thing of value - to induce referrals of patients or of items or services covered by Medicare, Medicaid and other federally funded programs. The United States alleges that DaVita paid kickbacks to a competitor to induce referrals to DaVita Rx to serve as a "central fill pharmacy," or prescription fulfillment provider, for that competitor’s Medicare patients’ prescriptions. In exchange, DaVita paid to acquire certain European dialysis clinics and agreed to extend a prior commitment to purchase dialysis products from the competitor. DaVita would not have paid the price that it did for these deals without the competitor’s commitment to refer its Medicare patients’ prescriptions to DaVita Rx in return. The United States further alleges that DaVita provided management services to vascular access centers owned by physicians in a position to refer patients to DaVita’s dialysis clinics. DaVita paid improper remuneration to these physician-owners in the form of uncollected management fees to induce referrals to DaVita’s dialysis centers. Finally, the United States alleges that DaVita paid improper remuneration to a large nephrology practice to induce referrals to DaVita’s dialysis clinics. DaVita gave the practice a right of refusal to staff the medical director position at any new dialysis center that opened near the nephrology practice and paid the practice $50,000 despite the practice’s decision not to staff the medical director position for those clinics. "Illegal kickback payments corrupt the market for health care services and cause harm and financial loss to Medicare and other federally funded health care programs," said Special Agent in Charge Linda Hanley of the Department of Health and Human Services Office of Inspector General (HHS-OIG). "Our ongoing enforcement efforts aim to safeguard the integrity of taxpayer-funded health care programs, like Medicare and Medicaid, while curbing schemes that unduly influence patients' and doctors' health care options." The civil settlement includes the resolution of claims brought under the qui tam or whistleblower provisions of the False Claims Act by Dennis Kogod, a former Chief Operating Officer of DaVita Kidney Care. Under those provisions, 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 ex rel. Kogod v. DaVita, Inc., et al., No. 17-cv-02611-PAB (D. Colo.). Kogod will receive $6,370,000 of the proceeds from the settlement. The resolution obtained in this matter was the result of a coordinated effort between the Civil Division’s Commercial Litigation Branch, Fraud Section, and the U.S. Attorney’s Office for the District of Colorado with assistance from HHS-OIG. The claims resolved by the settlement are allegations only. There has been no determination of liability ...

Chiropractor Kevin Michael Brown (NPI #1780206565), of Menifee, has agreed to pay $180,000 to resolve allegations that he violated the False Claims Act by submitting hundreds of false claims to Medicare for surgically implanted neurostimulators. As part of the settlement, Brown stipulated that, through his companies, Revive Medical of San Diego and Revive Medical LLC, located in Oklahoma City, he submitted claims to Medicare for surgically implanted neurostimulator devices, even though his companies did not perform surgery or implant neurostimulators. Brown stipulated that he and his companies instead taped a disposable "electroacupuncture" device called "Stivax" to their patients’ ears. Stivax devices do not require surgical implantation and are not reimbursable by Medicare. The United States alleges that this conduct violated the False Claims Act. In addition to paying the civil settlement, Brown agreed to a five-year exclusion period from Medicare, Medicaid, and all other federal health care programs. "In addition to the clinics in San Diego and Oklahoma City, Revive Medical personnel performed Stivax procedures at a pain clinic in Chico, which is in the Eastern District of California," said U.S. Attorney Talbert. "As this case demonstrates, we are committed to vigorously pursuing those who defraud Medicare and will use all tools available to us, including civil enforcement remedies. The investigation into false claims involving Stivax is ongoing." "Health care professionals who fraudulently bill Medicare for services never actually provided divert taxpayer funding meant to pay for medically necessary services for Medicare enrollees," stated Special Agent in Charge Steven J. Ryan of the U.S. Department of Health and Human Services, Office of the Inspector General. "HHS-OIG will continue to work with our law enforcement partners to protect the integrity of federal health care programs and those served by those programs." The investigation was conducted with the U.S. Department of Health and Human Services, Office of the Inspector General. Assistant U.S. Attorney Emilia P. E. Morris handled the case for the United States ...

In January 2019 Waliullah Nazari fell off a ladder at work rendering him unconscious. Hospital records indicated he suffered a broad-based disc herniation between vertebrae 4 and 5, with resulting bilateral/lateral recess stenosis, and sciatica. Nazari submitted a workers’ compensation claim to Liberty Mutual Insurance (Liberty Mutual) and received benefits between January 5 and July 19 totaling $99,656.96. During the course of his treatment for this injury, Nazari told an orthopedic surgeon that he needed a walker to stand and could not walk without using a walker. On April 11, a private investigator working for Liberty Mutual conducted a recorded surveillance session and saw Nazari enter his car and drive away. He saw Nazari return in the car, exit the car, and walk without using a walker and with a normal gait. Later that day, he saw Nazari walk unassisted to a car, remove a folding aluminum walker from the trunk, assemble the walker, and then carry the walker out of view. A few minutes later, he observed Nazari walking slowly with a walker for support to a medical transport van where the driver assisted him into the van. When the van returned to the residence, the investigator watched as Nazari used the walker to slowly ambulate up the driveway and out of view. During another surveillance session Nazari was videotaped carrying a small child in his arms, assisting the child into a vehicle, and driving away. Liberty Mutual deposed Nazari during the time between the video surveillance sessions. At the first deposition, the attorney representing Liberty Mutual observed Nazari enter the room using a walker, move very slowly while standing, and take "quite a bit of time" to sit into his chair. During his second deposition, Nazari claimed, among other things, that he has been unable to carry his child and could not drive because he used a walker. Liberty Mutual closed the investigation in August and reported the matter to the local District Attorney’s Office and California Department of Insurance. A criminal case was filed, and a jury found Nazari guilty of two counts of making false and fraudulent statements for the purpose of obtaining workers’ compensation benefits (Ins. Code, § 1871.4, subd. (a)(1)) and seven counts of attempted perjury under oath (Pen. Code, §§ 118, subd. (a) & 664). The trial court suspended imposition of sentence and placed Nazari on probation for two years, sentenced him to 365 days in jail as a condition of probation, stayed pending successful completion of probation, and ordered him to pay restitution totaling $53,879.44 at $100 per month. Nazari appealed his conviction. The Court of Appeal affirmed the trial court in the unpublished case of People v Nazari -D081940 (July 2024). The sole issue raised on appeal was the sufficiency of the evidence. Nazari contended the evidence was insufficient to show the statements he made to the orthopedic surgeon (1) were false and (2) made for the purposes of obtaining workers’ compensation benefits. Nazari contends the sub rosa videos of him walking and standing without the use of a walker after his April 1 visit do not show the falsity of his statements on April 1 because the orthopedic surgeon observed symptoms consistent with a back injury and he presumably received relief from the epidural injection. However the Court of Appeal noted that "there is no evidence in the record to support Nazari’s contention he received an epidural injection before he was subject to surveillance" And from the "videos, the jury could reasonably conclude Nazari misrepresented his pain level, faked reliance on the walker during his physical examination, and falsely told the orthopedic surgeon that he required a walker to stand or walk". Nazari next contends that his statements to the orthopedic surgeon were not made for the purposes of obtaining workers’ compensation benefits but for treatment. "However, a claims specialist at Liberty Mutual testified he 'very much' relies on statements a workers’ compensation claimant makes to medical professionals, as well as the claimant’s deposition testimony and medical records to determine what benefits will be paid to the claimant. Thus, Nazari’s statements to the orthopedic surgeon influenced the surgeon’s opinion that Nazari required further treatment and influenced Liberty Mutual’s decision to pay Nazari’s medical bills - a form of benefits." ...

On Friday, July 19, 2024, the Superior Court of Los Angeles County announced that its Court Technology Services (CTS) Division identified a serious security event in the Court’s internal systems which was determined to be a ransomware attack. The attack began in the early morning hours of Friday, July 19. The attack is believed to be unrelated to the CrowdStrike issue currently creating disruptions to technology platforms worldwide. Immediately upon discovery of the attack, the Court disabled its network systems to mitigate further harm. The Court’s network systems will remain disabled at least through the weekend to enable the Court to further remediate the issue. The Court is receiving support from the California Governor’s Office of Emergency Services (CALOES) as well as local, state and federal law enforcement agencies to investigate the breach and mitigate its impacts. At this time, the preliminary investigation shows no evidence of court user’s data being compromised. Over the past few years, the Court said it "has invested heavily in its cybersecurity operations, modernizing its cybersecurity infrastructure and making strategic staff investments in the Cybersecurity Division within CTS. As a result of this investment, the Court was able to quickly detect an intrusion and address it immediately." By Sunday, July 21, the Superior Court provided an update and announced that the "Superior Court of Los Angeles County will be closed tomorrow, July 22, 2024, as the Court works diligently to repair and reboot network systems that were severely impacted by a ransomware attack first detected the morning of Friday, July 19. This closure includes all 36 courthouse locations throughout Los Angeles County." "The Court experienced an unprecedented cyber-attack on Friday which has resulted in the need to shut down nearly all network systems in order to contain the damage, protect the integrity and confidentiality of information and ensure future network stability and security," said Presiding Judge Samantha P. Jessner. "While the Court continues to move swiftly towards a restoration and recovery phase, many critical systems remain offline as of Sunday evening. One additional day will enable the Court’s team of experts to focus exclusively on bringing our systems back online so that the Court can resume operations as expeditiously, smoothly and safely as possible." The update said that "Court staff have been working vigorously over the past 72 hours in partnership with outside consultants, vendors, other courts and law enforcement to get the Court’s network systems back online. These systems span the Court’s entire operation, from external systems such as the MyJuryDuty Portal and the Court’s website to internal systems such as the Court’s case management systems." "While the team of experts has made significant progress, there remain some challenges that are delaying progress. With many of the Court’s network systems still inaccessible as of Sunday evening, the Court will close tomorrow in order to provide one additional day to get essential networks back online. At this time, the Court does not anticipate being closed beyond Monday, July 22. The Court recognizes the significance of a court closure on the communities it serves and the mission it abides by, however, it is essential that judicial officers and court staff are able to work in an environment that is safe and secure and with the information they need to meet the Court’s mission at their disposal. The Court is confident the closure will not exceed one day as it continues to make progress and overcome obstacles." At the end of Monday, July 23, the Superior Court of Los Angeles County announced it would reopen Tuesday, July 23, with many technology functions restored and some technology functions either operating with limited functionality or remaining offline after a ransomware attack first detected on Friday, July 19, left most of the Court’s internal and external systems inaccessible. Nonetheless, another announcement said that remote appearances would not be available today in Civil, Family Law, Probate and Traffic cases. Parties with cases on calendar today in Civil, Family Law, Probate and Traffic departments are instructed to appear in person if possible. Matters in which parties do not appear in person will be continued and parties will be notified of a continuance date by the Court. Electronic filing remains available for filing of case initiating documents only. Electronic filing of subsequent documents in existing cases remains unavailable at this time. Certain pages of the Court’s website at www.lacourt.org are available now. Other pages will come back online over the next few days as the remainder of the Court’s systems are brought back online ...

Charter Communications has nearly 100,000 employees and provides telecommunications services throughout the United States. Charter has adopted an alternative dispute resolution program called Solution Channel, which it describes as "the means by which a current employee, a former employee, an applicant for employment, or Charter can efficiently and privately resolve covered employment-based legal disputes." Charter job applicants had to agree to use Solution Channel. If a job offer was made, prospective employees used a computerized onboarding process. They were required to read several company documents and policies and to agree by use of an electronic signature. Thse documents included a Mutual Arbitration Agreement and the Solution Channel Guidelines. Charter hired plaintiff Angelica Ramirez in July 2019. Using the onboarding process, Ramirez accepted the proposed Agreement, including adherence to the Guidelines. In May 2020, Ramirez was fired. She sued Charter in July 2020, alleging claims for discrimination, harassment, and retaliation under the Fair Employment and Housing Act along with a claim of wrongful discharge in violation of public policy. Charter moved to compel arbitration. The trial court found that the Agreement was one of adhesion because it was required as a condition of employment and also concluded additional provisions were unconscionable. Finding the Agreement was "permeated with unconscionability," the court refused to enforce it and denied the motion to compel arbitration The California Supreme Court granted review of the to consider the remedy (among other issues). Should the courts have refused to enforce the agreement, or could they have severed the unconscionable provisions and enforced the rest? The Supreme Court concluded that the matter must be remanded for further consideration of this question in the case of Ramirez v. Charter Communications, Inc. -S273802 (July 2024). In its Opinion, the Supreme court agreed that some of the provisions of the Agreement were appropriately found to be unconscionable by the Court of Appeal, and disagreed in the reasoning of the Court of Appeals in others. Many pages of the Opinion were dedicated to a discussion of the standards to be used in the analysis, and indeed are a clear guideline for employers who have agreements with employees as to arbitration of disputes. However the Supreme Court when on to discuss the concept of severing the unconscionable provisions rather than refusing to enforce the agreement as a whole. Civil Code section 1670.5, enacted in 1979,codifies the principle that a court can refuse to enforce an unconscionable provision in a contract. Civ. Code, § 1670.5, subd. (a).) provides that "If a contractual clause is found unconscionable, the court may, in its discretion, choose to do one of the following: (1) refuse to enforce the contract; (2) sever any unconscionable clause; or (3) limit the application of any clause to avoid unconscionable results." The "strong legislative and judicial preference is to sever the offending term and enforce the balance of the agreement." Though the "statute appears to give a trial court some discretion as to whether to sever or restrict the unconscionable provision or whether to refuse to enforce the entire agreement," it "also appears to contemplate the latter course only when an agreement is ‘permeated’ by unconscionability." The trial court’s decision to act as Civil Code section 1670.5 permits is reviewed for abuse of discretion. (Murphy v. Check ’N Go of California, Inc. (2007) 156 Cal.App.4th 138, 144 (Murphy).) According to Charter, the Court of Appeal assumed that "while one or two provisions may be severed from an arbitration agreement, three or four is too many." Charter urges that there is no hard and fast rule regarding the number of provisions that may be severed from a contract. The Supreme Court noted that "some Courts of Appeal have treated the severance question as more of a quantitative inquiry than a qualitative one. (See, e.g., Carmona v. Lincoln Millennium Car Wash, Inc. (2014) 226 Cal.App.4th 74, 90; Ontiveros v. DHL Express (USA), Inc. (2008) 164 Cal.App.4th 494 at p. 515; Murphy supra, 156 Cal.App.4th at p. 149.) However, other courts have rejected the proposition that 'more than a single unconscionable provision in an arbitration agreement precludes severance.' (Lange, supra, 46 Cal.App.5th at p. 454.) " The Supreme Court then clarified by saying: "Here, we clarify that no bright line rule requires a court to refuse enforcement if a contract has more than one unconscionable term. . Likewise, a court is not required to sever or restrict an unconscionable term if an agreement has only a single such term. Instead, the appropriate inquiry is qualitative and accounts for each factor Armendariz identified. At the outset, a court should ask whether 'the central purpose of the contract is tainted with illegality.' " Other clarifying remarks on this topic were made in the Opinion. "The Court of Appeal’s judgment is reversed. The matter is remanded for further proceedings consistent with our decision." ... "On remand, the Court of Appeal may consider the severance question anew, in light of its answers to those questions, and in a manner consistent with this opinion." ...

In response to rising concerns over the prevalence of silicosis among California workers, the California Insurance Commissioner issued a letter to the Workers’ Compensation Insurance Rating Bureau (WCIRB) requesting a detailed study and data collection on silicosis claims. This request aims to better understand the impact of this serious occupational disease and ensure that affected workers receive the benefits they are entitled to. Silicosis is a progressive and incurable lung disease caused by inhaling crystalline silica dust, often during the cutting and finishing of engineered stone countertops, a consumer preference more prevalent in recent years. Reports indicate that this occupational hazard has been increasingly affecting workers, particularly young Latino men, since 2015. The Commissioner's letter highlights the urgency of addressing this issue and outlines specific data points that the WCIRB is requested to provide. The requested data includes: - - The number of silicosis cases filed in the past 10 years - - The average age of the claimants - - The percentage of claim acceptances and denials - - The average medical, temporary disability, and permanent disability costs associated with these claims - - The average allocated loss adjustment expenses on these claims - - The average number of insurers associated with each claim "We need to gather comprehensive data on silicosis claims to make informed decisions and protect California workers effectively," said the Insurance Commissioner in his letter. "This disease has a devastating impact on individuals and their families, and it is our duty to ensure they are supported." The California Department of Insurance said it remains committed to safeguarding consumers and will continue to work with the WCIRB and other stakeholders to address this critical issue ...

The San Francisco Zen Center is the largest Soto Zen Buddhist temple in North America. It was formed to "encourage the practice of Zen Buddhism by operating one or more religious practice facilities and educating the public about Zen Buddhism." The Center operates three residential programs that build on each other. First, an individual can be a "guest student" who lives at the temple for two to six weeks. Second, an individual can be a Work Practice Apprentice (WPA) for a two-to-three-year residency. Third, an individual who completes a Work Practice Apprenticeship can be staff at the temple as a continuation of Zen training. WPAs follow a strict practice schedule of formal and work practice. Formal practice includes morning and evening meditations and services, soji (temple cleanings), dharma talks, classes, and a range of other events. Work practice includes things like cooking, dishwashing, cleaning, and doan ryo ceremonial tasks ‘which support the formal practice, such as ringing bells, cleaning altars, and watching the door during zazen meditations. Alexander Behrend became involved with the Center in 2014 after he was in a car accident that left him with physical disabilities and PTSD. Following his car accident, Behrend was unable to remain in his prior employment and therefore unable to afford his apartment. In 2016, he spoke with the Center’s head of practice because he was given a one-month notice of losing his housing. He then applied and was accepted as a guest student in November 2016. In January 2017, he was accepted as a WPA, where he received room and board at the center and a small stipend. Behrend was assigned to the maintenance crew in September 2018, but that work exacerbated his PTSD symptoms. Behrend sought accommodations, including moving off the maintenance crew, but eventually the Center "made a decision to end [his] participation in the Program." Behrend sued for disability discrimination under the Americans with Disabilities Act (ADA) in the Northern District of California, and the Center moved for summary judgment on its affirmative defense under the First Amendment’s ministerial exception. The district court granted the Center’s motion, determining that no party disputed that the Center is a religious organization and the undisputed facts established that Behrend fit within the ministerial exception. Behrend appealed, arguing that he was not a minister because he performed mostly menial work and did not have a "key role in making internal church decisions and transmitting the faith to others." The 9th Circuit Court of Appeals affirmed the district court’s grant of summary judgment in the published case of Alexander Behrend V. San Francisco Zen Center, Inc. -23-15399 (July 2024). The ministerial exception exempts a church’s employment relationship with its ‘ministers’ from the application of some employment statutes, even though the statutes by their literal terms would apply. The exception is grounded in both religion clauses of the First Amendment. The Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own. The ministerial exception was recognized to preserve a church’s independent authority to select, supervise, and if necessary, remove a minister without interference by secular authorities. Behrend argued on appeal that the exception only covers those with "key roles" in preaching and transmitting the faith to others. But precedent from the 9th Circuit and the Supreme Court evinces a much broader rule that covers positions like his. There is no "rigid formula for deciding when an employee qualifies as a minister." Hosanna-Tabor Evangelical Lutheran Church and School. v. EEOC, 565 U.S. 171(2012) at 190. In Hosanna-Tabor, the Supreme Court of the United States considered whether the exception applied to a "called" teacher at a Lutheran school who was commissioned by the Church after completing a special religious teaching program, and who taught elementary school math, language arts, social studies, gym, art, music, and religion to her students. Id. at 178. Even though only a small part of her day was spent actually teaching religion, the Court determined the exception applied, considering "all the circumstances of her employment." The Court found relevant that she was given a formal title by the Church, that she held herself out as a minister, and that she received the title after "a formal process of commissioning." "Here, the ministerial exception protects the Center’s ability to determine who may serve in its WPA program. While Behrend argues that he was not a minister because, as a WPA, he performed mostly menial work, there is no genuine dispute that '[w]ork itself is an essential component of Zen training and is indistinguishable from other forms of practice.' " ...

In December 2017, the Chief Justice of the Supreme Court of the United States issued a call urging the Judiciary to ensure every employee of the Judiciary had a safe workplace. Shortly afterwards, the Federal Judiciary Workplace Working Group (WCWG) was created. From the recommendations provided by the working group, in 2019 the Judicial Conference adopted revisions to the Judiciary’s Codes of Conduct. In 2022, WCWG provided additional recommendations; however, many reforms remain to be implemented. California congresswoman Norma J. Torres (CA-35), a senior member of the House Appropriations Committee, just released a "startling" 200 page joint study by the National Academy of Public Administration and the Federal Judicial Center. The study as directed by Congresswoman Torres and funded by the Consolidated Appropriations Act of 2023, is an unprecedented joint report by the Federal Judicial Center (FJC) and the National Academy of Public Administration (NAPA) assessing the Judiciary’s internal systems to prevent and manage workplace sexual assault, harassment, and misconduct. The report details systemic failures of the Judiciary to prevent workplace sexual assault, harassment, and misconduct, including 34 recommendations for reform. It comes a week after U.S. District Judge Joshua Kindred, a appointed to the District of Alaska, resigned amid sexual misconduct claims. An internal investigation found Kindred had created a hostile work environment, encouraging his clerks to rate people based on sexual desirability. Kindred also had an inappropriate sexual relationship with one clerk. Courts are required to have employee dispute plans posted on their websites so workers know their rights. Investigators found that only 26% of public websites met all the requirements while 11% of court websites failed to include any workplace conduct information. "No American should suffer sexual misconduct, abuse, or harassment while on the job, yet it continues even in the halls of our judicial system where decisions about every aspect of our lives are made," said Congresswoman Norma Torres, "the era of judges abusing their power and taking comfort in an environment that rewards silence and fear are over." "It is disheartening to hear about incidents of sexual assault and harassment involving judicial employees who lack trustworthy and safe avenues to report and navigate these horrifying and traumatic encounters. The federal Judiciary must urgently establish robust systems to handle sexual harassment claims, because clearly its longstanding reliance on the good character and conduct of individuals alone has been grossly insufficient." "The report reveals startling findings, emphasizing the absolute need for internal reforms. We have waited on the Judiciary to prove it is capable of protecting its employees, and sadly it has failed to do so. Congress will be forced to step in." Background: Investigators interviewed a wide variety of employees from judges to Circuit Directors of Workplace Relations. The four main tasks this report assesses are the Implementation of the Model Employment Dispute Resolution (EDR) Plans, Monitoring and Assessing How the Resolution Processes Are Working, Educational and Outreach Efforts Related to Workplace Issues, and Evaluation of Public-Facing Judiciary Websites. Some of the findings include: - - No one entity in the Judiciary is tasked with overseeing the systems that prevent or confront misconduct. No one is tasked with monitoring or evaluating the implementation of the Informal Advice process or the formal employee dispute resolution (EDR) process with the exception of the appeals process, which the vast majority of victims never reach. No one is tasked with overseeing how cases are investigated, preventative training, and other preventative measures - - The Judiciary requires each court to have a plan to address employment disputes (EDR plan) and to post relevant information on its websites so that employees know their rights. Only 26% of public judiciary websites fulfill all the requirements of inclusion of workplace misconduct information. 11% of websites have NO workplace conduct information. - - The Law Clerk -Judge relationship is especially perilous, and the Judiciary should address underlying structural issues that create power imbalances. - - There is no national requirement for employees or judges to attend trainings or any preventative educational measures ...

While working inside a jet fuel tank at the San Francisco International Airport, Eugene Bowen fell from a ladder and was injured. Bowen attributed his fall to the flexible metal floor at the bottom of the fuel tank and the sand on that floor. The floor was made of pieces of metal welded together. When walked on, the surface would "raise up and down like a waterbed," "flex" and "pop and move." There was sand on the floor of the tank, underneath the ladder. Bowen did not notice the sand before he decided to use the ladder. At the time, Bowen was employed by sub-tier independent contractor Team Industrial Services, Inc.. He sued general contractor Burns & McDonnell Engineering Company Inc. and subcontractor HMT, LLC who hired Team, alleging a premises liability cause of action based on defendants’ negligence and negligent supervision. The operative first amended complaint alleged a single cause of action for premises liability. Bowen averred defendants negligently owned, maintained, and operated premises with dangerous conditions that caused his injuries, including a ladder that was not properly secured to the scaffolding, an unbalanced floor, and debris on the floor. Bowen received workers’ compensation benefits through Team in connection with the incident. The trial court granted defendants’ respective motions for summary judgment based on the Privette doctrine (Privette v. Superior Court (1993) 5 Cal.4th 689 (Privette)), which limits a hirer’s liability for on-the-job injuries sustained by an independent contractor or its workers unless an exception applies. With respect to Burns, the court observed that it did not own, install, or tag the ladder or scaffolding, nor did it direct or control the means by which Team did its work. Relative to HMT, the court stated HMT demonstrated it had a contract with Team providing that Team would "furnish all material, equipment, and labor necessary to perform the work." Additionally, HMT presented evidence that it installed the scaffolding and ladder for its own work. Bowen did not dispute these facts or introduce evidence that Burns or HMT directed Teams or Bowen or required them to use HMT’s equipment. The court therefore entered judgment for defendants. The Court of Appeal affirmed the trial court in the published case of Bowen v. Burns & McDonnell Engineering Co., Inc. -A166793 (July 2024). (NOTE:The opinion in the above-entitled matter filed on June 17, 2024 was not certified for publication in the Official Reports. For good cause, the request for publication by Association of Southern California Defense Counsel was granted.) Under the Privette doctrine, "a hirer is typically not liable for injuries sustained by an independent contractor or its workers while on the job." As originally articulated, the doctrine was grounded on the principle that it would be unfair for the hirer of an independent contractor to be held liable for injuries to a contractor’s employee when the contractor’s own liability would be capped by the limits of its workers’ compensation coverage. However, an exception to the Privette doctrine may exist when a hirer fails to effectively delegate all responsibility for workplace safety to the independent contractor. For the retained control exception to apply, there must be some indication the hirer directed that the contractor perform its work in a certain way or interfered with the means and methods by which the work was to be accomplished "Here, it is undisputed that the Privette doctrine applies, and Bowen bears the burden of raising a triable issue of fact as to the applicability of an exception to the doctrine." Bowen asserts that HMT "failed to meet its burden on summary judgment to show that there was no triable issue of material fact" regarding HMT’s retention of control over safety conditions; he further contends HMT "effectively" retained control because it was contractually responsible for the safety of its subcontractors and negligently set up a ladder and scaffolding for Bowen to use. "But these arguments erroneously place the burden on HMT to demonstrate the lack of a triable issue of material fact when it is Bowen’s burden to raise a triable issue of fact as to an exception to the Privette doctrine once defendants demonstrate the applicability of that doctrine." "Bowen has presented no evidence HMT directed his work or told him to use the scaffold it left in place for its own employees. In fact, the evidence indicates that HMT was completely unaware Bowen would use its ladder and scaffold." ...

Guardant Health, Inc., a precision oncology company based in Palo Alto, has agreed to settle allegations that it knowingly violated the False Claims Act, and regulations of the Defense Health Agency (DHA). In connection with the settlement, the United States acknowledged that Guardant took a number of significant steps entitling it to credit for cooperating with the government, including voluntarily disclosing the conduct to HHS-OIG. Guardant will pay $913,932.93 to settle the FCA allegations and $31,082.00 in an administrative settlement with DHA. As alleged by the government, in or around April 2021, a physician based in Austin, Texas contacted Guardant’s Human Resources Department to recommend a close friend of the physician’s family member for a position as an Account Manager in Guardant’s Oncology Division. Guardant hired the family friend as an Account Manager. In October 2021, the physician contacted Guardant again, this time seeking a position for his step-daughter upon her graduation from college. The step-daughter was considered but rejected for a position in Guardant’s Screening Division. However, in or around February 2022, two Guardant employees arranged for the family friend to be promoted, thereby creating an opening in the Oncology Division for employment of the step-daughter. These employees knew of the relationship between the step-daughter and the physician, and that the step-daughter was not qualified for the role. The physician then ordered significantly more Guardant tests per quarter after both hirings. Based on this conduct, the United States alleges that Guardant submitted claims to and received payments from Medicare for clinical laboratory services that had been referred to Guardant by the physician in violation of the Physician Self-Referral Law, or Stark Law, 42 U.S.C. § 1395nn. The United States further alleges that Guardant knowingly submitted or caused the submission of false claims for payment for Guardant tests ordered by the physician during the relevant time period to Medicare Part B in violation of the FCA and to TRICARE in violation of 32 C.F.R. § 199.9. Guardant cooperated with the government’s investigation of the issues and took prompt and substantial remedial measures. Shortly after receiving information regarding the physician’s referrals, Guardant stopped billing federal health care programs for Guardant tests ordered by the physician. Guardant also terminated the physician’s family memer’s employment. Assistant U.S. Attorneys Sharanya Mohan and Ekta Dharia handled this matter for the government, with assistance from Jonathan Birch. The investigation and settlement resulted from a coordinated effort by the U.S. Attorney’s Office for the Northern District of California, HHS-OIG, and DOD-OIG. Mr. Ramsey thanked HHS-OIG, DOD-OIG, and HHS’s Office of General Counsel for their assistance with this matter. The claims resolved by the settlement are allegations only, and there has been no determination of liability ...

Truck Insurance Exchange is the primary insurer for companies that manufactured and sold products containing asbestos. Two of those companies, Kaiser Gypsum Co. and Hanson Permanente Cement (Debtors), filed for Chapter 11 bankruptcy after facing thousands of asbestos-related lawsuits. As part of the bankruptcy process, the Debtors filed a proposed reorganization plan. That Plan creates an Asbestos Personal Injury Trust under 11 U. S. C. §524(g), a provision that allows Chapter 11 debtors with substantial asbestos-related liability to fund a trust and channel all present and future asbestos-related claims into that trust. Truck is contractually obligated to defend each covered asbestos personal injury claim and to indemnify the Debtors for up to $500,000 per claim. For their part, the Debtors must pay a $5,000 deductible per claim, and assist and cooperate with Truck in defending the claims. The Plan treats insured and uninsured claims differently, requiring insured claims to be filed in the tort system for the benefit of the insurance coverage, while uninsured claims are submitted directly to the Trust for resolution. Truck sought to oppose the Plan under §1109(b) of the Bankruptcy Code, which permits any "party in interest" to "raise" and "be heard on any issue" in a Chapter 11 bankruptcy. Among other things, Truck argues that the Plan exposes it to millions of dollars in fraudulent claims because the Plan does not require the same disclosures and authorizations for insured and uninsured claims. Truck also asserts that the Plan impermissibly alters its rights under its insurance policies. The District Court confirmed the Plan. It concluded, among other things, that Truck had limited standing to object to the Plan because the Plan was "insurance neutral," i.e., it did not increase Truck’s pre-petition obligations or impair its contractual rights under its insurance policies. The Fourth Circuit affirmed, agreeing that Truck was not a "party in interest" under §1109(b) because the plan was "insurance neutral." The United States Supreme Court Reversed in the case of Truck Insurance Exchange v. Kaiser Gypsum Company, Inc. No. 22-1079 (June 2024) An insurer with financial responsibility for bankruptcy claims is a "party in interest" under §1109(b) that "may raise and may appear and be heard on any issue" in a Chapter 11 case. Section 1109(b)’s text, context, and history confirm that an insurer such as Truck with financial responsibility for a bankruptcy claim is a "party in interest" because it may be directly and adversely affected by the reorganization plan. "Section 1109(b)’s text is capacious. To start, it provides an illustrative but not exhaustive list of parties in interest, all of which are directly affected by a reorganization plan either because they have a financial interest in the estate’s assets or because they represent parties that do. This Court has observed that Congress uses the phrase "party in interest" in bankruptcy provisions when it intends the provision to apply "broadly."Hartford Underwriters Ins. Co. v. Union Planters Bank, N. A., 530 U. S. 1, 7." "This understanding aligns with the ordinary meaning of the terms "party" and "interest," which together refer to entities that are potentially concerned with, or affected by, a proceeding. The historical context and purpose of §1109(b) also support this interpretation. Congress consistently has acted to promotegreater participation in reorganization proceedings. That expansion of participatory rights continued with the enactment of §1109(b).Broad participation promotes a fair and equitable reorganization process." "Applying these principles, insurers such as Truck are parties in interest. An insurer with financial responsibility for bankruptcy claims can be directly and adversely affected by the reorganization proceedings in myriad ways." ...

The Subsequent Injuries Benefits Trust Fund pays additional compensation to workers who suffer an industrial injury that, when combined with pre-existing disabilities, causes permanent disability equal to 70 percent or more. (Labor Code, § 4751. ) Section 4753 requires this additional compensation to "be reduced to the extent of any monetary payments received by the employee, from any source whatsoever, for or on account of such preexisting disability or impairment." This reduction or "credit" preserves state resources by ensuring applicants receive benefits commensurate with their combined disabilities - no more, no less. Nancy Vargas drove a bus for the Santa Barbara Metropolitan Transit District (district) for 25 years. She injured her foot in March of 2018 while stepping off the driver’s pedestal. Vargas settled her claim against the district in December of 2020. They stipulated the injury caused permanent disability of 26 percent and agreed on the amount of her weekly indemnity payments going forward. Vargas applied for subsequent injury benefits from the Fund while her workers’ compensation case was pending. She listed pre-existing disabilities to her back, upper extremities, left knee, and right ankle. She disclosed filing one prior workers’ compensation case. Vargas confirmed she had applied for SSDI in January of 2018 and was currently receiving monthly SSDI payments of $940. The Fund acknowledged Vargas qualified for benefits but claimed section 4753 credit for a significant portion of the Social Security Disability Insurance (SSDI) payments she began receiving after her latest injury. The WCJ found the Fund "ha[d] not met their burden to show an entitlement to credit for social security disability award nor any other disability retirement benefit." The Board denied the Fund’s petition for reconsideration, finding "section [4753] does not state that credit is absolute. [The Fund] would need to show that the monetary payment received is for or on account of such pre-existing disability or impairment. [It] did not show that in this case." The Board noted Vargas’s award letter and subsequent SSDI statements "did not describe the basis of the benefit." It concluded "[w]hat is before the court without assumptions does not establish credit and therefore no credit was awarded." The SIBTF filed a petition for review that challenges the Board’s decision. The Fund contends the Board erred by placing the burden of proof on the Fund to show Vargas received SSDI benefits "for or on account of" her pre-existing disabilities. The Court of Appeal affirmed the WCAB in the published case of Subsequent Injuries Benefits Trust Fund v. Workers Comp. App. Bd. -B333633 (July 2024). "We agree with the Board that the Fund must prove its entitlement to a credit for SSDI and other "monetary payments" received by applicants. The burden of proof in workers’ compensation proceedings "rests upon the party . . . holding the affirmative of the issue. (§ 5705.)" "Applicants must initially show they are entitled to subsequent injury benefits under section 4751 by proving: (1) they were "permanently partially disabled" and (2) they "receive[d] a subsequent compensable injury resulting in additional permanent partial disability." "The Fund must then show it is entitled to reduce the applicant’s subsequent injury benefit under section 4753, and, if so, the "extent" it may reduce those payments. Both sides must meet their burden by a preponderance of the evidence." ...

Elon Musk has successfully had a $500 million lawsuit against him dismissed. The lawsuit was brought by thousands of former Twitter employees who claimed they were owed severance pay after Musk laid off a significant portion of the workforce following his acquisition of the company. From August 2020 through January 4, 2023, Plaintiff Courtney McMillian was an employee at Twitter as the Head of People Experience leading Compensation, Benefits, and other global functions.From June 2021 through April 28, 2023, Plaintiff Ronald Cooper was a Workplace Operations, Facilities, and People Manager. McMillian and Cooper filed this putative class action under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001, et seq. Plaintiffs claim that their former employer, Twitter, Inc., now X Corp, provided insufficient severance payments under a post-termination benefits plan that applies to former Twitter employees due to Twitter’s takeover in October 2022. Defendant Twitter is a social media company and online platform. Plaintiffs McMillian and Cooper, along with the putative class members, were employed by Twitter before their employment was terminated due to the takeover layoffs. Defendant X Corp is successor in interest to Twitter. After the March 2023 merger, X Corp assumed all of Twitter’s debts and obligations. Plaintiffs claim that after the takeover they were only offered one months’ worth of severance pay but are entitled to a higher amount under the plan. As a result, Plaintiffs seek relief for (1) wrongful denial of benefits under an ERISA plan; (2) breach of fiduciary duties imposed by ERISA for failure to fund plan; and (3) failure to provide complete and accurate information about an ERISA plan. The class is defined as "[a]ll participants and beneficiaries of the Plan who were terminated from Twitter since the date of Defendant Musk’s takeover, October 27, 2022, through the date of judgment." McMillian’s class action is one of multiple lawsuits filed by former Twitter employees relating to the 2022 restructuring of Twitter and subsequent layoffs. For example, on November 3, 2022, Cornet v. Twitter, Inc. was filed amidst ongoing layoffs at Twitter. No. 22-cv-06857-JD, 2022 WL 18396334, at (N.D. Cal. Dec. 14, 2022). About four months after the second amended complaint was filed in Cornet, Cornet was transferred from the Northern District of California to the District of Delaware and assigned Case No. 23-cv-00441-JLH, transfer date April 20, 2024. The Cornet plaintiffs assert contract-based claims for severance benefits on behalf of a nationwide putative class of X Corp employees and former employees that had been promised that "if there were layoffs, employees would receive benefits and severance at least as favorable as the benefits and severance that Twitter previously provided to employees." Both this action and the Cornet action concern Twitter’s deficient severance payments following mass layoffs in November 2022, December 2022, February 2023, and September 2023 after Twitter was purchased in October 2022. Defendants filed a Motion to Dismiss asserting, among other things, that ERISA did not apply to Twitter’s post-buyout plan because there was no "ongoing administrative scheme" where the company reviewed claims case-by-case, or offered benefits such as continued health insurance and out placement services. On July 9, 2024 the federal judge agreed with Plaintiffs and dismissed the case of McMillian v Musk et.al. -3:23-cv-03461in her 23 page ruling.The Court granted leave to amend the complaint, but only as to claims that are not governed by ERISA. For Plaintiffs’ operative complaint to survive the Motion to Dismiss, Plaintiffs must plead sufficient facts that allow the court to draw the reasonable inference that the severance plan is governed by ERISA. For a severance benefit plan to be governed by ERISA however, it must be an ongoing administrative program for processing claims and paying benefits. (Fort Halifax Packing Co. v. Coyne, 482 US 1at 12.) "The operative complaint lists the severance benefits components and the payments Plaintiffs expected for each of those components after Twitter’s takeover. The allegations state the formulas provided for the human resources staff to calculate amounts (or the cash equivalent) of benefits that would be paid to the terminated employees in one lump sum and provided at one point in time. Because there are set formulas, or mathematical calculations of severance benefits, to be paid at one point in time without any "ongoing particularized discretion", these allegations do not show that Plaintiffs adequately pled an ongoing administrative scheme under Velarde." (Velarde v. PACE Membership Warehouse, Inc., 105 F.3d 1313, 1317 (9th Cir. 1997) ) Upon the filing of a sufficient complaint (stating non-ERISA claims for breach of contract, promissory estoppel, etc.), the Court will consider issuing an Order finding this case related to one of the cases currently pending, such as Cornet, No. 23-cv-00441-JLH. Also related to Cornet are Arnold, No. 23-cv-00528-JLH-CJB and Woodfield, No. 23-cv-0780-JLH, both of which are pending in the District of Delaware. If this action is found to be related to Cornet, then it can be transferred to the District of Delaware since the ERISA venue provisions will not apply once the SAC is filed with its non-ERISA claims ...

Physicians are facing a 2.8% cut in pay under the proposed 2025 Medicare physician payment schedule published this month. According to the American Medical Association the "proposal from the Centers for Medicare & Medicaid Services (CMS) reinforces the clear need for systemic changes and follows a 1.69% Medicare pay cut in 2024 and 2% drop in 2023." "With CMS estimating a fifth consecutive year of Medicare payment reductions - this time by 2.8% - it’s evident that Congress must solve this problem," said AMA President Bruce A. Scott, MD. "In addition to the cut, CMS predicts that the Medicare Economic Index [MEI] - the measure of practice-cost inflation - will increase by 3.6%. Facing this widening gap between what Medicare pays physicians and the cost of delivering quality care to patients, physicians are urging Congress to pass a reform package that would permanently strengthen Medicare." The AMA is leading the charge to reform the Medicare payment system, which is the AMA’s top advocacy priority. "Physician practices cannot continue to absorb rising costs while their payment rates dwindle," Dr. Scott said. "The death by a thousand cuts continues. Rural physicians and those treating underserved populations see this CMS warning as another reminder of the painful challenges they face in keeping their practices open and providing care. It’s crucial that we ensure both continue." Medicare physician payment effectively declined 29% from 2001 to 2024, even before accounting for the newly proposed cut. It’s widely acknowledged by the experts that chronically inadequate Medicare payment rates will eventually take a toll on older adults’ access to high-quality care. Among them is the Medicare Payment Advisory Commission (MedPAC), which recognized in its report to Congress earlier this year an unsustainable combination within Medicare physician payment: an inadequate baseline and a lack of an inflation-based update. Meanwhile, Medicare’s trustees have warned that the physician payment system has failed to keep up with the cost of practicing medicine and that failure could hinder older adults’ access to health care. "Absent a change in the delivery system or level of update by subsequent legislation, the trustees expect access to Medicare-participating physicians to become a significant issue in the long term," the trustees said in their most recent report. The report notes that the Medicare program faces "challenges" as physician payments - which are not based on underlying economic conditions - don’t keep up with inflation or the cost of practicing medicine. The trustees predicted that, because of the gap between rising costs and falling payments, the "quality of health care received by Medicare beneficiaries would, under current law, fall over time compared to that received by those with private health insurance." Many members of Congress from both parties have seen the need for systemic change, and they introduced the bipartisan Strengthening Medicare for Patients and Providers Act, H.R. 2474. That legislation would give physicians an annual, permanent inflationary payment update in Medicare tied to the Medicare Economic Index. The AMA supports the legislation, and the AMA also put forward a proposal to make the Medicare Merit-based Incentive Payment System (MIPS) "more relevant to patients and supports pending legislation to improve the budget-neutrality process to better reflect actual Medicare costs," Dr. Scott said. "The consecutive years of Medicare cuts demand a comprehensive legislative solution," he added. "Previous quick fixes have been insufficient. This situation requires a bold, substantial approach. A Band-Aid goes only so far when the patient is in dire need." ...

The National Council on Compensation Insurance (NCCI) has just published its NCCI Labor Market Insights Report as of July 2024. This resource includes: - - An overview of the most recent jobs report from the Bureau of Labor Statistics, including employment change, average hourly earnings, payroll gr​owth, and hiring rates - - Key insights that provide context and highlight labor market trends that could impact the workers compensation industry - - Benchmark averages for a long-term view into how the labor market continues to evolve alongside our changing workforce and our economy Key Insights: - - The June jobs report revealed solid employment growth for the month, but that news masked a relatively weaker report overall. Private sector employment growth was more modest while revisions to previous data reduced employment growth over the previous two months by 111,000. - - Over the first half of 2024, the private sector labor market told a tale of two economies. White-collar employment-information services, financial activities, and professional and business services - grew at an annualized pace of just 0.5% while all other private industry groups grew at an annualized pace of 1.9%. - - Wage growth also remained solid, especially in construction and manufacturing, two important workers compensation industries. - - The unemployment rate ticked up again in June and has now risen to its highest level since 2021, though it remains historically low. - - The slowdown in white-collar employment discussed above contributed to a portion of the uptick in job seekers. In addition, there has been a notable rise in prime-age labor force participation this year. - - Unemployment in 2024 has also reflected a tale of two economies. The rise in unemployment this year has come primarily from new entrants and reentrants rather than those losing and leaving jobs, another key signal that the labor market is returning to balance rather than deteriorating ...

The Federal Trade Commission sharply criticized pharmacy benefit managers, saying in a scathing 71-page report on the prescription drug middleman industry that underscores the impact pharmacy benefit managers (PBMs) have on the accessibility and affordability of prescription drugs. The interim staff report, which is part of an ongoing inquiry launched in 2022 by the FTC, details how increasing vertical integration and concentration has enabled the six largest PBMs to manage nearly 95 percent of all prescriptions filled in the United States. This vertically integrated and concentrated market structure has allowed PBMs to profit at the expense of patients and independent pharmacists, the report details. The report finds that PBMs wield enormous power over patients’ ability to access and afford their prescription drugs, allowing PBMs to significantly influence what drugs are available and at what price. This can have dire consequences, with nearly 30 percent of Americans surveyed reporting rationing or even skipping doses of their prescribed medicines due to high costs, the report states. The interim report also finds that PBMs hold substantial influence over independent pharmacies by imposing unfair, arbitrary, and harmful contractual terms that can impact independent pharmacies’ ability to stay in business and serve their communities. The Commission’s interim report stems from special orders the FTC issued in 2022, under Section 6(b) of the FTC Act, to the six largest PBMs - Caremark Rx, LLC; Express Scripts, Inc.; OptumRx, Inc.; Humana Pharmacy Solutions, Inc.; Prime Therapeutics LLC; and MedImpact Healthcare Systems, Inc. In 2023, the FTC issued additional orders to Zinc Health Services, LLC, Ascent Health Services, LLC, and Emisar Pharma Services LLC, which are each rebate aggregating entities, also known as "group purchasing organizations," that negotiate drug rebates on behalf of PBMs. PBMs are part of complex vertically integrated​ health care conglomerates, and the PBM industry is highly concentrated. As shown in the below image, this concentration and integration gives them significant power over the pharmaceutical supply chain. The percentages reflect the amount of prescriptions filled in the United States. ​ The interim report highlights several key insights gathered from documents and data obtained from the FTC’s orders, as well as from publicly available information: Concentration and vertical integration: The market for pharmacy benefit management services has become highly concentrated, and the largest PBMs are now also vertically integrated with the nation’s largest health insurers and specialty and retail pharmacies. - - The top three PBMs processed nearly 80 percent of the approximately 6.6 billion prescriptions dispensed by U.S. pharmacies in 2023, while the top six PBMs processed more than 90 percent. - - Pharmacies affiliated with the three largest PBMs now account for nearly 70 percent of all specialty drug revenue. Significant power and influence: As a result of this high degree of consolidation and vertical integration, the leading PBMs now exercise significant power over Americans’ ability to access and afford their prescription drugs. - - The largest PBMs often exercise significant control over what drugs are available and at what price, and which pharmacies patients can use to access their prescribed medications. - - PBMs oversee these critical decisions about access to and affordability of life-saving medications, without transparency or accountability to the public. Self-preferencing: Vertically integrated PBMs appear to have the ability and incentive to prefer their own affiliated businesses, creating conflicts of interest that can disadvantage unaffiliated pharmacies and increase prescription drug costs. - - PBMs may be steering patients to their affiliated pharmacies and away from smaller, independent pharmacies. - - These practices have allowed pharmacies affiliated with the three largest PBMs to retain high levels of dispensing revenue in excess of their estimated drug acquisition costs, including nearly $1.6 billion in excess revenue on just two cancer drugs in under three years. Unfair contract terms: Evidence suggests that increased concentration gives the leading PBMs leverage to enter contractual relationships that disadvantage smaller, unaffiliated pharmacies. - - The rates in PBM contracts with independent pharmacies often do not clearly reflect the ultimate total payment amounts, making it difficult or impossible for pharmacists to ascertain how much they will be compensated. Efforts to limit access to low-cost competitors: PBMs and brand drug manufacturers negotiate prescription drug rebates some of which are expressly conditioned on limiting access to potentially lower-cost generic and biosimilar competitors. - - Evidence suggests that PBMs and brand pharmaceutical manufacturers sometimes enter agreements to exclude lower-cost competitor drugs from the PBM’s formulary in exchange for increased rebates from manufacturers. The report notes that several of the PBMs that were issued orders have not been forthcoming and timely in their responses, and they still have not completed their required submissions, which has hindered the Commission’s ability to perform its statutory mission. FTC staff have demanded that the companies finalize their productions required by the 6(b) orders promptly. If, however, any of the companies fail to fully comply with the 6(b) orders or engage in further delay tactics, the FTC can take them to district court to compel compliance. The Commission voted 4-1 to allow staff to issue the interim report, with Commissioner Melissa Holyoak voting no. Chair Lina M. Khan issued a statement joined by Commissioners Rebecca Kelly Slaughter and Alvaro Bedoya. Commissioners Andrew N. Ferguson and Melissa Holyoak each issued separate statements ...

The Division of Workers’ Compensation (DWC) is now accepting applications for the Qualified Medical Evaluator (QME) examination for October 2024. The examination will be held between October 4 to October 10, 2024. DWC will offer in-person computer-based testing (CBT) for the October 2024 QME examination using Pearson VUE. CPS HR consulting, the vendor managing the QME Exam, will notify interested candidates of the registration and scheduling process. The test sites will be announced on the Registration Notices. The DWC also published this Notice regarding Public Access to Information about QME applicants. Please note that completed QME applications and registration forms submitted to DWC become records accessible to members of the public for inspection and copying under the California Public Records Act (PRA; Gov. Code, § 7920 et seq.). Under the PRA, the names and contact information such as address, phone number and email address of providers who register to take or pass a QME examination may be disclosed to members of the public; the division does not regulate the purposes for which such information might be used. In addition, DWC makes the name, business address and area of specialty of approved QMEs available to the public through its online search portal. DWC recommends that providers use a business address, not a home (residential) address, on any correspondence with, or on any completed form submitted to the division. The application and registration packet for the QME exam can be downloaded from the DWC website. Applicants may also contact the Medical Unit at 510-286-3700 to request an application via U.S. mail, email, or fax. The deadline for filing the exam applications is August 21, 2024. No applications will be accepted after this postmarked date. For more information, contact the Medical Unit at 510-286-3700 or by email at QMETest@dir.ca.gov ...

OSHA has released the long-anticipated proposed rule with the goal of protecting millions of workers from the health risks of extreme heat. If finalized, the proposed rule would help protect approximately 36 million workers in indoor and outdoor work settings and arguably substantially reduce heat injuries, illnesses and deaths in the workplace. The proposed rule would require employers to develop an injury and illness prevention plan to control heat hazards in workplaces affected by excessive heat. Among other things, the plan would require employers to evaluate heat risks and - when heat increases risks to workers - implement requirements for drinking water, rest breaks and control of indoor heat. It would also require a plan to protect new or returning workers unaccustomed to working in high heat conditions. Employers would also be required to provide training, have procedures to respond if a worker is experiencing signs and symptoms of a heat-related illness, and take immediate action to help a worker experiencing signs and symptoms of a heat emergency. If adopted, the Rule will become the first nationwide standard for addressing the hazards of excessive heat in the workplace.The rule comes as the U.S. Supreme Court has been scrutinizing federal agencies’ rulemaking and Congress’s delegation of authority to federal agencies.Some major employment law attorneys are predicting the new SCOTUS opinion may cause OSHA some headaches. In a landmark case decided in June 2024, Loper Bright Enterprises v. Raimondo, a group of commercial fishermen, challenged a regulation by the National Marine Fisheries Service (NMFS) that required them to fund on-board observers in the Atlantic herring fishery. This program came with a hefty price tag of $710 per day for the fishermen. The crux of the issue was whether the NMFS had the legal authority to impose this financial burden. The fishermen argued that the law governing fishery management, the Magnuson-Stevens Fishery Conservation and Management Act (MSFCA), didn't grant the NMFS such power. They also felt the agency didn't follow proper procedures when setting up the rule. The case hinged on a legal principle called Chevron deference. Established in a previous case, Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, Chevron deference instructed courts to defer to an agency's interpretation of a law it enforces, especially if the law was ambiguous. Loper Bright Enterprises asked the Supreme Court to not only decide on the specific regulation, but also to reconsider Chevron deference altogether. The Supreme Court agreed to hear the case specifically on the question of Chevron deference. In a 6-2 decision, the Supreme Court sided with the fishermen and threw out Chevron deference. The Court ruled that courts must make their own independent judgment about whether an agency is acting within the legal limits of its authority. They cannot simply accept an agency's interpretation of the law, even if the law is unclear. This decision was a major shift in the balance of power between courts and regulatory agencies. It gives courts more authority to review agency actions and ensure they comply with the law. Moreover, on July 2, 2024, Justice Clarence Thomas dissented from the Court’s decision not to take a case, Allstates Refractory Contractors, LLC v. Su, which raised the issue of whether Congress’s delegation of authority to OSHA in the Occupational Safety and Health (OSH) Act to write "reasonably necessary or appropriate" workplace safety standards was unconstitutional. In his dissenting opinion, Justice Thomas argued the Court should reconsider its standard of allowing congressional delegation when a statute creating an agency contains an "intelligible principle" that guides the agency’s exercise of authority. This principle "does not adequately reinforce the Constitution’s allocation of legislative power" in Congress, Thomas argued. "The [OSH Act] may be the broadest delegation of power to an administrative agency found in the United States Code," Justice Thomas wrote. "If this far-reaching grant of authority does not impermissibly confer legislative power on an agency, it is hard to imagine what would." At least five justices have already indicated an interest in reconsidering Congress’s delegation to federal agencies, including Justice Neil Gorsuch, who separately indicated he would have granted the petition for a writ of certiorari in Allstates In the interim, OSHA continues to direct significant existing outreach and enforcement resources to educate employers and workers and hold businesses accountable for violations of the Occupational Safety and Health Act’s general duty clause, 29 U.S.C. § 654(a)(1) and other applicable regulations. Record-breaking temperatures across the nation have increased the risks people face on-the-job, especially in summer months. Every year, dozens of workers die and thousands more suffer illnesses related to hazardous heat exposure that, sadly, are most often preventable. The agency continues to conduct heat-related inspections under its National Emphasis Program - Outdoor and Indoor Heat-Related Hazards, launched in 2022. The program inspects workplaces with the highest exposures to heat-related hazards proactively to prevent workers from suffering injury, illness or death needlessly. Since the launch, OSHA has conducted more than 5,000 federal heat-related inspections. In addition, the agency is prioritizing programmed inspections in agricultural industries that employ temporary, nonimmigrant H-2A workers for seasonal labor. These workers face unique vulnerabilities, including potential language barriers, less control over their living and working conditions, and possible lack of acclimatization, and are at high risk of hazardous heat exposure ...