Tag: 2022 News

AI generally refers to the development of computer systems and algorithms to perform tasks historically requiring human intelligence. One form or type of AI is machine learning, which refers to the process by which machines use large sets of data to make better and better predictions. Some forms of AI can be used to automate certain aspects of decision-making.

The Blueprint for an AI Bill of Rights: Making Automated Systems Work for the American People was published by the White House Office of Science and Technology Policy in October 2022. This framework was released one year after the Office of Science and Technology Policy announced the launch of a process to develop “a bill of rights for an AI-powered world.” Its release follows a year of public engagement to inform this initiative. The framework is available online.

The Office of Science and Technology Policy (OSTP) was established by the National Science and Technology Policy, Organization, and Priorities Act of 1976 to provide the President and others within the Executive Office of the President with advice on the scientific, engineering, and technological aspects of the economy, national security, health, foreign relations, the environment, and the technological recovery and use of resources, among other topics.

The document commences by proclaiming that “Among the great challenges posed to democracy today is the use of technology, data, and automated systems in ways that threaten the rights of the American public. Too often, these tools are used to limit our opportunities and prevent our access to critical resources or services. These problems are well documented. In America and around the world, systems supposed to help with patient care have proven unsafe, ineffective, or biased. Algorithms used in hiring and credit decisions have been found to reflect and reproduce existing unwanted inequities or embed new harmful bias and discrimination. Unchecked social media data collection has been used to threaten people’s opportunities, undermine their privacy, or pervasively track their activity – often without their knowledge or consent.”

Thus the White House Office of Science and Technology Policy has identified five principles that should guide the design, use, and deployment of automated systems to protect the American public in the age of artificial intelligence.

– – Safe and Effective Systems: People should be protected from unsafe or ineffective systems.
– – Algorithmic Discrimination Protections: People should not face discrimination by algorithms and systems should be used and designed in an equitable way.
– – Data Privacy: People should be protected from abusive data practices via built-in protections and should have agency over how data about them is used.
– – Notice and Explanation: People should know that an automated system is being used and understand how and why it contributes to outcomes that impact them.
– – Alternative Options: People should be able to opt out, where appropriate, and have access to a person who can quickly consider and remedy problems they encounter.

This framework is accompanied by a technical companion – a handbook for anyone seeking to incorporate these protections into policy and practice, including detailed steps toward actualizing these principles in the technological design process.

The Blueprint for an AI Bill of Rights is non-binding and does not constitute U.S. government policy. Nonetheless the White House separately announced that several federal agencies will be taking action to advance the guidelines in the Blueprint.

For example, the following is related to protecting workers.

– – To protect worker’s rights, the Department of Labor has released “What the Blueprint for an AI Bill of Rights Means for Workers” and is ramping up enforcement of required surveillance reporting to protect worker organizing.
– – To protect workers with disabilities, the Equal Employment Opportunity Commission (EEOC) and the Department of Justice released antidiscrimination technical assistance and guidance on the Americans with Disabilities Act (ADA) and employment algorithms in May 2022, and the Partnership on Employment & Accessible Technology, funded by the Department of Labor, has released the AI & Disability Inclusion Toolkit and the Equitable AI Playbook.
– – To promote equal employment opportunity, the EEOC and the Department of Labor have launched a multi-year collaborative effort to reimagine hiring and recruitment practices, including in the use of automated systems.

In addition to the action taken for protecting workers, similar action is taken by federal agencies for Protecting consumers – Protecting students and supporting educators – Protecting patients and assisting health care providers – Ensuring fair access to housing:- Leading by example and advancing democratic values – and Guiding and supporting technologists and entrepreneurs.  Links in the Fact Sheet provide comprehensive details about the action taken by federal agencies on each of these additional protected areas.

Several states have also adopted similar regulations. And the California FEHC has published draft modifications to its employment anti-discrimination laws that would impose liability on companies or third-party agencies administrating artificial intelligence tools that have a discriminatory impact.

Medicare Advantage, a private-sector alternative to traditional Medicare, was designed by Congress two decades ago to encourage health insurers to find innovative ways to provide better care at lower cost. If trends hold, by next year, more than half of Medicare recipients will be in a private plan.

But a New York Times review of dozens of fraud lawsuits, inspector general audits and investigations by watchdogs shows how major health insurers exploited the program to inflate their profits by billions of dollars.

The government pays Medicare Advantage insurers a set amount for each person who enrolls, with higher rates for sicker patients. And the insurers, among the largest and most prosperous American companies, have developed elaborate systems to make their patients appear as sick as possible, often without providing additional treatment, according to the lawsuits.

As a result, a program devised to help lower health care spending has instead become substantially more costly than the traditional government program it was meant to improve.

Eight of the 10 biggest Medicare Advantage insurers – representing more than two-thirds of the market – have submitted inflated bills, according to the federal audits. And four of the five largest players – UnitedHealth, Humana, Elevance and Kaiser – have faced federal lawsuits alleging that efforts to overdiagnose their customers crossed the line into fraud.

The fifth company, CVS Health, which owns Aetna, told investors its practices were being investigated by the Department of Justice.

The health system Kaiser Permanente called doctors in during lunch and after work and urged them to add additional illnesses to the medical records of patients they hadn’t seen in weeks. Doctors who found enough new diagnoses could earn bottles of Champagne or a bonus in their paycheck.

Anthem, a large insurer now called Elevance Health, paid more to doctors who said their patients were sicker. And executives at UnitedHealth Group, the country’s largest insurer, told their workers to mine old medical records for more illnesses – and when they couldn’t find enough, sent them back to try again.

Each of the strategies – which were described by the Justice Department in lawsuits against the companies – led to diagnoses of serious diseases that might have never existed. But the diagnoses had a lucrative side effect: They let the insurers collect more money from the federal government’s Medicare Advantage program.

In statements, most of the insurers disputed the allegations in the lawsuits and said the federal audits were flawed. They said their aim in documenting more conditions was to improve care by accurately describing their patients’ health.

The increased privatization has come as Medicare’s finances have been strained by the aging of baby boomers. But for insurers that already dominate health care for workers, the program is strikingly lucrative: A study from the Kaiser Family Foundation, a research group unaffiliated with the insurer Kaiser, found the companies typically earn twice as much gross profit from their Medicare Advantage plans as from other types of insurance.

Many of the fraud lawsuits were initially brought by former employees under a federal whistleblower law that allows them to get a percentage of any money repaid to the government if their suits prevail. But most have been joined by the Justice Department, a step the government takes only if it believes the fraud allegations have merit. Last year, the department’s civil division listed Medicare Advantage as one of its top areas of fraud recovery.

In theory, if the insurers could do better than traditional Medicare – by better managing patients’ care, or otherwise improving their health – their patients would cost less and the insurers would make more money. But some insurers engaged in strategies – such as locating their enrollment offices upstairs or offering gym memberships – to entice only the healthiest seniors, who would require less care, to join. To deter such tactics, Congress decided to pay more for sicker patients.

Kaiser, which both runs a health plan and provides medical care, is often seen as a model system. But its control over providers gave it additional leverage to demand additional diagnoses from the doctors themselves, according to the lawsuit.

“The cash monster was insatiable,” said Dr. James Taylor, a former coding expert at Kaiser who is one of 10 whistleblowers to accuse the organization of fraud. At meetings with supervisors, he was instructed to find additional conditions worth tens of millions of dollars. “It was an actual agenda item and how could we get this,” Taylor said.

Raquel Betancourt worked at Fleming’s Steakhouse & Wine Bar on Olympic Boulevard in Los Angeles.as a server from 2008 through 2015. OS Restaurant Services, LLC and Bloomin’ Brands, Inc., were the owners or operators of the facility.

In August 2016, Betancourt filed a civil action alleging her employer regularly failed to give her full uninterrupted rest periods, and that they wrongfully terminated her in retaliation for her making internal complaints that the employer violated wage and hour laws and food safety laws.

She also alleged she was entitled to recover unpaid premium wages under section 226.7 for the rest break violations; penalties, costs and attorney fees under section 226 for failing to include rest break premiums on her itemized wage statements; and waiting time penalties under sections 201 through 203 for failure to pay all wages on termination, “including, without limitation, unpaid premium wages in lieu of rest periods.”

On October 13, 2017. the parties agreed to a settlement and Defendants agreed to pay plaintiff $15,375 in full settlement of her claims for failure to provide meal and rest periods under section 226.7, failure to provide accurate itemized wage statements under section 226, failure to pay all wages upon termination under sections 201 through 203, and “any and all wage-and-hour-related causes of action that were or could have been asserted in the complaint.” Plaintiff agreed to dismiss with prejudice and without any payment her claims for retaliation and wrongful termination. The parties agreed plaintiff could later file a motion for attorney fees incurred only on her wage and hour claims, “consistent with applicable law.”

The Labor Code mandates an award of reasonable attorney fees to the prevailing party in any action brought for the nonpayment of wages, if any party requests attorney fees at the initiation of the action. (Lab. Code, § 218.5, subd. (a).)

After substantial litigation over the award of attorney fees and costs, the trial court entered judgment on August 31, 2018, in the principal sum of $15,375 payable to Bentancourt as agreed, plus attorney fees of $280,794 and costs of $8,671.95.

In May 2020, the California Court of Appeal reversed the award of attorneys’ fees citing the 2012 California Supreme Court decision in Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, 1255, which concluded that an action brought for failure to provide rest breaks or meal periods (§ 226.7) is not “an ‘action brought for the nonpayment of wages” within the meaning of section 218.5.

While this decision was pending appeal, the Supreme Court held otherwise in the case of Naranjo v. Spectrum Security Services, Inc. (2022) 13 Cal.5th 93. The California Supreme Court concluded that “extra pay for missed breaks constitutes ‘wages’ that must be reported on statutorily required wage statements during employment (Lab. Code, § 226) and paid within statutory deadlines when an employee leaves the job.

The Supreme Court therefore transferred this Bentancourt case back to the Court of Appeal with directions to reconsider its prior opinion in light of Naranjo. Accordingly, the Court of Appeal issued a new published opinion in Bentancourt v OS Restaurant Services, LLC – B293625A (September 2022) which affirmed the award of attorney fees.

“Here, plaintiff’s complaint sought penalties, costs and attorney fees under section 226 for failing to include rest break premiums on her itemized wage statements; and waiting time penalties under sections 201 through 203 for failure to pay all wages on termination. These were claims for nonpayment of wages. Under section 218.5, the court must award the prevailing party reasonable attorney fees and costs “[i]n any action brought for the nonpayment of wages,” if any party requested fees and costs at the beginning of the action.”

California’s largest health care workers union is no stranger to taking its fights to the ballot – both statewide and locally. In the past five years, it has pitched to voters initiatives on issues ranging from staffing at dialysis clinics to price caps for specific health care providers.

CalMatters reports that this election season, Service Employees International Union-United Health Workers West is targeting the cities of Duarte and Inglewood, where on Nov. 8 voters will decide whether to set a   minimum wage requirement of $25 per hour for some of the lowest paid workers at private hospitals, integrated health systems and dialysis clinics. These workers include patient care technicians, janitorial staff, food service workers and aides, among others.

Union leaders are betting that local wins this November could spur a larger statewide movement. Given California’s shortage of health care workers, supporters say a pay bump may help; opponents say these proposals are too narrow to make a difference and may instead backfire.  

The union tried negotiating a statewide minimum wage with hospital leaders this summer, but that deal fell apart. And in the past, the union has pushed to raise the state’s general minimum wage, such as when it authored a $15 minimum wage measure for the statewide ballot. The union withdrew its measure when Gov. Jerry Brown signed a similar proposal into law.

Residents in a handful of other Southern California cities may have to make a decision on health care worker wages in later elections. For example, city councils in Los Angeles, Long Beach and Downey approved minimum wage hikes for health care workers at private facilities this summer. But an industry-backed campaign temporarily blocked the cities from implementing the ordinances after it collected enough signatures for a referendum. Those city councils either must repeal the ordinance or put the issue up to voters, likely in 2024.

The coalition of hospitals and clinics leading the opposition to the wage initiatives is calling the union’s proposals “deeply flawed” and the pay rate “arbitrary.” The hospital lobby and health systems across the state have poured at least $17 million into campaigns to defeat these two measures, according to campaign filings in Inglewood and Duarte. SEIU-UHW has allocated more than $1.2 million in support.

The opposition campaign’s argument to voters is that the measures are bad policy because they exclude a significant amount of health care workers in these cities. The measure applies only to private hospitals, their affiliated facilities and dialysis clinics, meaning workers employed at public hospitals would be excluded. Workers at nursing homes, private or public, are also not included in the measure.

Duarte’s Measure J would primarily apply to people employed by City of Hope, a private nonprofit hospital and cancer research center. In Inglewood, Measure HC would apply to workers at a number of dialysis clinics and Centinela Hospital Medical Center, a 362-bed facility operated by the for-profit system Prime Healthcare.

If approved, the $25 minimum wage rate could go into effect as early as December. Employers would then have to follow up with cost of living increases starting in 2024. The initiatives prohibit employers from funding the minimum wage hike by laying people off or reducing their benefits.

SEIU-UHW is also behind this year’s Proposition 29, a measure that asks voters statewide – for a third time – to decide on establishing new rules for dialysis clinics, including adding an extra medical provider on site. The union is known to routinely turn to voters and use the initiative process as a negotiating tactic. In the past, the union has proposed ballot measures and then pulled them after reaching agreements with hospital leaders.

In August, the union and the California Hospital Association tried to hash out a last-minute legislative deal that would boost the minimum wage for workers in both public and private facilities statewide (ranging from $19 to $24 an hour, depending on location) in exchange for the union’s support for a request to delay seismic upgrades due in 2030. But those negotiations fizzled.

Miguel Pena suffered severe industrial injuries while working for Aqua Systems on October 5, 2015, in an automobile accident involving Larry Hahn and Specialty Construction, Inc. Pena filed both an Application for Adjudication of Claim, and a civil lawsuit against Hahn and Specialty Construction.

Pena reached a third-party settlement with the insurance carriers for the third-party defendants for a payment of $997,500 to the Employee, and the workers’ compensation carrier, Great American Insurance Co., agreed to waive its subrogation recovery of in excess of $214,703, however it was stipulated that the carrier could claim credit against future workers’ compensation benefits in the amount of $474,705.79.

The matter proceeded to trial of the workers’ compensation case, and the parties stipulated that injury caused 100% permanent disability without apportionment. The start date for payment of the $907.69 per week award was agreed to be 2/3/18.

The settlement and agreement as to third party credit for $474,705.79 was received into evidence. It provided in part that “Petitioner shall be entitled to an immediate award of credit against any and all species of further and future workers’ compensation liability relating to any body parts affected by the Employee’s underlying October 5, 2015 incident, including but not exclusive to all awards of permanent disability benefits.”

Pena’s attorney, William Herreras requested a 15% attorney fee commuted off the far end of the award. He submitted a declaration that said he “was never consulted, considered, or notified of the third-party settlement in this case, netting the applicant $474,074.79.” Thus he contended that he was not bound by the stipulated agreement to immediately apply the $474,705.79 third-party credit against all unpaid benefits because he was not a party to the agreement, and, as such, he is entitled to have his fee commuted from the far end of the award.

The WCJ awarded permanent disability as stipulated, “less a fifteen percent (15%) attorney fee without commutation, with defendant entitled to a credit for amounts previously paid against the permanent disability and the attorney fees thereon.” And it then provided “upon exhaustion of all credit . . . applicant’s counsel has leave to request commutation of any remaining fee on future benefits.”

Pena’s attorney petitioned for reconsideration . A WCAB panel granted reconsideration in the panel decision of Pena v Aqua Systems ADJ10308959 (September 2022).

The panel cited case and statutory provisions that supported the rule that “Contracts such as releases purporting to exempt employers from liability for workers’ compensation benefits are prohibited and presumptively invalid unless and until the WCJ determines that they meet the requisite criteria for approval. (See also Steller v. Sears, Roebuck & Co. (2010) 189 Cal.App.4th 175, 180 (citing section 5001 for the proposition that no settlement is valid unless the WCAB approves the settlement).)”

Following this reasoning, the panel went on to say “the Stipulation to Credit purports to release applicant’s rights to future workers’ compensation benefits and is therefore presumptively invalid unless and until the WCJ inquires into its fairness and adequacy and determines that it meets the criteria for approval.”

And “inasmuch as the Stipulation to Credit does not appear to be duly executed by the proper persons, it fails to meet minimum statutory requirements for establishing the requisite fairness and adequacy for approval.“

For “the entire pendency of this action defendant has been on notice that applicant was represented by an attorney because the application for adjudication identifies Herreras as applicant’s attorney.” And “it is long-settled law that an applicant’s attorney’s appearance in a matter is tantamount to the filing of a lien claim because it puts the defendant on notice that a fee will be claimed.”

“Notwithstanding that it was on notice of Herreras’s lien, defendant made no attempt to secure his agreement for the lien to be subject ‘to an immediate award of credit.’ “

“Accordingly, we will rescind the F&A and substitute findings that defendant is entitled to a third-party credit of $474,705.79 that is not applicable to the attorney’s fee.”

However “Since it is unclear whether defendant’s credit should be applied against applicant’s future medical treatment, we conclude that the record should be developed as to that issue.”