The California Board of Pharmacy (BOP) has listed medication error as the number one violation resulting in a citation in nearly every year within the last several years. According to the Journal of the American Medical Association, 46 percent of adults cannot understand the information listed on their prescription drug labels. Furthermore, the Institute of Medicine of the National Academies indicates that medication errors are among the most common medical errors, harming at least 1.5 million people annually.

Pharmacists working in chain community pharmacies, particularly those co-located with other retail and grocery stores, have historically complained that it is common for a pharmacist to be the only employee assigned to the pharmacy area.

And according to previously conducted surveys, 83% of pharmacists report being left alone during the workday for an average period of four hours. And a high percentage of pharmacists stated that they do not have enough time to fulfill their professional functions to the extent that they believed necessary. These pharmacists have argued that instead of providing their core pharmacy services, much of their time is instead spent performing clerical tasks and performing non-pharmacy activities on behalf of the business.

A new law just signed by Governor Newsom, – Assembly Bill 1286 – is aimed at reducing the estimated 5 million mistakes pharmacists make each year.

According to the Author of AB 1286: “The root cause of medication errors in the community chain setting can be tied to pharmacy working conditions, like insufficient staffing, unsanitary conditions, or lack of autonomy to make clinical decisions in the best interest of the patient. Unfortunately, there is no requirement under current law for pharmacies to track medication errors or to consider the pharmacy working conditions that lead to medication errors.

AB 1286 will establish a first in the nation mandatory reporting of medication errors to allow for robust evaluation of the causes of medication errors. It also gives licensed pharmacy staff autonomy over their working conditions so they can provide better patient care and services for Californians.”

The new law empower the pharmacist-in-charge or pharmacist on duty to report conditions to the Board of Pharmacy (BOP) that present an immediate risk of death, illness, or irreparable harm to patients, personnel, or pharmacy staff.

If store management does not resolve those conditions within 24 hours, the pharmacist-in-charge or pharmacist would be required to notify the BOP. The BOP would then be authorized to issue an order to the pharmacy to immediately cease and desist those pharmacy operations that are affected by the conditions at issue.

This cease and desist order would remain in effect until either the executive officer of the BOP determines that the conditions that presented an immediate risk of death, illness, or irreparable harm to patients, personnel, or pharmacy staff have been abated, or for no more than 30 days, whichever date is earlier.

This new law seeks to improve the state’s understanding of the causes of medication errors by requiring community pharmacies to report all medication errors to an entity approved by the BOP. A community pharmacy or its designated third party would be required to submit the report no later than 14 days following the date of discovery of the error.

Reports would be deemed confidential and not subject to discovery, subpoena, or disclosure pursuant to the California Public Records Act, though the BOP would be authorized to publish deidentified data.

The BOP would not be allowed to subject a community pharmacy to discipline or other enforcement action based solely on the report; however, if the BOP receives other information regarding the medication error, that may serve as basis for enforcement by the BOP.

Bobby Levell Gilbert, Jr., 66 of Santa Ana, and owner of B & J Tree Service, has been charged with 96 felony counts for alleged wage theft, denial of workers’ compensation benefits to employees, workers’ compensation fraud, failure to pay taxes and perjury.

Gilbert’s Office Manager, Bertha Rubi Sanchez, 30 of Anaheim, has also been charged with multiple felonies for her alleged role in committing these crimes. Gilbert and Sanchez’ arraignment was continued until December 13, 2023.

An investigation by the Department of Insurance revealed that Gilbert took advantage of his workers by denying them what they rightfully earned or were entitled to, for his own enrichment. In total, 32 workers were identified that were either denied the wages they had earned through their hard work, or the workers’ compensation benefits they were entitled to when injured on the job, or both.

According to Department Detectives, between October 2013 and August 2021, Gilbert and Sanchez conspired together to underreport payroll to their insurance carriers by approximately $1.3 million. The failure to report employee payroll resulted in the illegal reduction of workers’ compensation insurance premiums, leading to approximately $248,757 in premium owed. The underreported payroll also resulted in an unpaid payroll tax to Employment Development Department of approximately $140,485.

“Workers’ compensation insurance is required by law in order to ensure that injured employees can receive the care they need,” said the California Insurance Commissioner. “Cases like this one are particularly egregious, employees were not only put at great risk, but they were denied their hard earned wages. We remain committed to working with our partners, including the Orange County District Attorney’s Office, Employment Development Department, and the Department of Industrial Relations to ensure employees get the protections they deserve.”

This is a joint investigation with Employment Development Department, Department of Industrial Relations and the Orange County District Attorney’s Office. The Orange County District Attorney’s Office is prosecuting the case.

Gabriella Santibanez, 59, and her sister Lisa Hazard, 55, both of Temecula, were sentenced Monday to 15 months in prison and ordered to pay over $7.5 million in restitution for health care fraud.

According to court documents, between Dec, 1, 2015, and Dec, 1, 2020, Santibanez and Hazard ran a mobile phlebotomy company, PhlebXpress Inc. (NPI  1174906432) that provided phlebotomy and other medical collection services at patients’ homes and long-term care facilities in Sacramento and elsewhere.

Santibanez and Hazard agreed to bill Medicare for services provided that were not reimbursable by Medicare. Santibanez and Hazard also agreed to bill Medicare for overstated mileage that PhlebXpress phlebotomists traveled. On average, Santibanez and Hazard caused false billing to Medicare of over 140 miles for each patient seen by PhlebXpress. Santibanez and Hazard caused a loss to Medicare of at least $7.5 million based on false billing by PhlebXpress.

In November 2020, due to “credible allegations of fraud” at PhlebXpress, Medicare instituted a payment suspension for PhlebXpress under which Medicare ceased paying PhlebXpress for the services it continued to bill Medicare.

According to court documents, between July 1, 2021, and Dec. 31, 2021, Santibanez and Hazard agreed to circumvent the payment suspension by representing to Medicare that services provided to Medicare patients were done by another company, Phlebotomy Solutions, when they were in fact being provided by PhlebXpress through its contractors and employees from PhlebXpress’s offices.

Through Phlebotomy Solutions, Santibanez and Hazard agreed to bill Medicare for a non-reimbursable service, misrepresenting that it was for another reimbursable service and overstating the mileage traveled by phlebotomists in order to receive additional money from Medicare. For example, in September 2021, Phlebotomy Solutions billed Medicare for 124.6 miles of travel by a phlebotomist when in fact the phlebotomist travelled 1.4 miles. Santibanez and Hazard caused a loss to Medicare of at least $50,000 based on false billing by Phlebotomy Solutions.

This case was the product of an investigation by the Federal Bureau of Investigation and the U.S. Department of Health and Human Services Office of Inspector General. Assistant U.S. Attorney Lee Bickley prosecuted the case.

The California Department of Insurance announced two settlement agreements with Go Maps, Inc. and its insurance underwriter, Topa Insurance Company, after an investigation into complaints that consumer claims were mishandled for more than two dozen drivers.

As part of the agreement, Go Maps agreed to surrender its insurance license, pay a $150,000 fine, pay $50,000 in cost reimbursement, and provide the Department all the information necessary to ensure statutory requirements are fulfilled in regards to existing policyholders.

Topa was fined $2,108,000, and agreed to ensure it has permanent access to all policies managed by any future general agents, certify all general agents and entities hired by general agents are properly licensed, and not to seek any money from consumers who may have been undercharged as a result of rating mistakes in the Go Maps/Topa program.

Go Maps is an “insurtech” company that used an app-based marketing platform to sell and transact its insurance business for Topa. Insurtech companies and insurance companies that use them to market and manage their products must follow California consumer protection laws and have the insurance expertise and licensed individuals in place to properly transact insurance in this state.

In 2019, Go Maps entered into an agreement with Topa to perform all the functions necessary for the sale, service, management, and claims handling of Topa’s private passenger automobile policies that were sold to the public through the Go Maps app. At one point, the Go Maps/Topa program had more than 10,000 California customers representing the vast majority of its approximately 12,000 policies nationwide.

In June 2022, the Department announced it was taking action against Go Maps and Topa in order to protect the public from further harm caused by the companies’ repeatedly violating various consumer protection laws relating to insurance claims.

Go Maps’ and Topa’s failures to follow California’s consumer protection rules forced drivers to pay for rental car expenses and other costs while their insurance claims were delayed. Among other violations Go Maps and/or Topa:

– – Failed to pay claims within 30 days after the coverage was determined or a settlement was reached. For one consumer, the companies missed the deadline by 52 days. The average delay was more than 24 days beyond the legal 30-day claims payment deadline.
– – Failed to acknowledge claims, provide necessary forms or instructions, or begin investigations within the statutory 15-day requirement. For one consumer, the companies missed the deadline by 30 days. The average delay was more than 8 days beyond the legal 15-day requirement.
– – Failed to respond to consumers’ inquiries about their claims within 15 days. For one consumer, the companies missed the deadline by 25 days. The average delay was more than 11 days beyond the legal 15-day requirement.
– – Failed to deny or accept claims within 40 days. For one consumer, the companies missed the deadline by 66 days. The average delay was more than 25 days beyond the legal 40-days deadline.
– – Hired an unlicensed insurance adjusting firm to adjust claims.

“These settlements represent an important victory for California consumers as we hold all companies accountable and ensure that they comply with our strong consumer protection laws,” the Insurance Commissioner said. “While we encourage new products and innovation in our marketplace, our top priority is protecting policyholders and making sure insurance companies deliver on their promises.”

The California Governor signed Senate Bill 428 on September 30, 2023. The new law expands the circumstances under which employers can seek civil restraining orders on behalf of their employees for harassment.

Under the new law, harassment is defined as “a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress.”

To obtain a restraining order for harassment, a declaration must be filed that establishes:

– – that an employee has suffered harassment by the respondent;
– – that great or irreparable harm would result to an employee;
– – that the course of conduct at issue served no legitimate purpose; and
– – that the issuance of the order is not prohibited by speech or other activities protected by any other law as defined in the law.

The problem with the current law, from the point of view of the author and sponsor of the bill, is that the employer was powerless to obtain a restraining order for an employee until the situation reaches the point of including unlawful violence or a credible threat of violence. Even when a co-worker, a customer, or some other third party is harassing an employee in extreme ways therefore, the employer may try other measures to protect the employee, but a civil restraining order is not one of the employer’s available tools unless and until the harasser becomes or threatens to become violent.

An example of this problem was illustrated by our August 2022 report on the California Court of Appeal published case in Technology Credit Union v Rafat 82 Cal. App. 5th 314 (August 17, 2022). The Court of Appeal reversed a Santa Clara County Superior Court restraining order under existing law against Matthew Mehdi Rafat.

In doing so, the Opinion said “Rafat’s conduct on March 24 was indisputably rude, impatient, aggressive, and derogatory. Further, he had a history of using aggressive language, including making offensive remarks.” However it went on to say “However, while he appeared angry and frustrated during the March 24 incident and its aftermath, there was not sufficient evidence produced by TCU linking any of Rafat’s statements or conduct to any implied threat of violence.”

Perhaps the new law will assist employers who want a restraining order against behavior such as what occurred in the case of Mr. Rafat.

Newsom also signed Senate Bill (SB) 553, which will require employers to establish, implement, and maintain an effective workplace violence prevention plan (WVPP) effective January 1, 2025. The employer will also be required to record information in a violent incident log for every workplace violence incident, and to provide effective training to employees on the workplace violence prevention plan, along with other requirements specified in the new law.

And at the federal level, on September 29, 2023, the Equal Employment Opportunity Commission (EEOC) issued Proposed Enforcement Guidance on Harassment in the Workplace.

In Proposing this new Guidance, the EEOC said “harassment remains a serious workplace problem. Between the beginning of fiscal year (FY) 2018 and the end of FY 2022, thirty-five percent of the charges of employment discrimination received by the Equal Employment Opportunity Commission included an allegation of harassment based on race, sex, disability, or another protected characteristic. The actual cases behind these numbers reveal that many people still experience harassment that may be unlawful.”

The Proposed Enforcement Guidance on Harassment in the Workplace is part of the EEOC’s Fiscal Years 2024 – 2028 Strategic Enforcement Plan.

The purpose of the EEOC’s Strategic Enforcement Plan (SEP) is to focus and coordinate the agency’s work over a multiple fiscal year period to have a sustained impact in advancing equal employment opportunity. The agency’s first Strategic Enforcement Plan adopted for FY 2013-2016 established subject matter priorities and strategies to integrate the EEOC’s private, public, and federal sector activities. In adopting the FY 2017-2021 SEP, the Commission reaffirmed its subject matter priorities with some modifications and additions.

In its Fiscal Years 2024 – 2028 Strategic Enforcement Plan the EEOC says it “will focus on harassment, retaliation, job segregation, labor trafficking, discriminatory pay, disparate working conditions, and other policies and practices that impact particularly vulnerable workers and persons from underserved communities.”

It seem clear that once the Proposed Guidance on Harassment in the Workplace becomes final, and other measures and policies under Fiscal Years 2024 – 2028 Strategic Enforcement Plan are announced, SB 428 may assist employers in obtaining restraining orders against persons who are outside their facilities. Unfortunately SB 428 does not take effect until January 1, 2025.