Tag: 2022 News

Pacific Bell is a telecommunications corporation providing voice, video, data, internet and professional services to businesses, consumers, and government agencies. It has branches around the world, including in California.

Dave Meza filed a consolidated class action lawsuit against Pacific Bell. He alleged Pacific Bell violated California law by failing to provide lawful meal and rest periods and failing to provide lawful itemized wage statements among other Labor Code violations.

Meza appealed four trial court orders: (1) an order denying class certification to five meal and rest period classes (the class certification order); (2) an order granting summary adjudication of Meza’s claim relating to wage statements under section 226, subdivision (a)(9) (the wage statement order); (3) an order striking Meza’s claim under section 226, subdivision (a)(6) (the order to strike); and (4) an order granting summary adjudication of Meza’s claim under the Labor Code Private Attorneys General Act of 2004 (PAGA) (§ 2698 et seq.) (the PAGA order).

The Court of Appeal ruled on these four issues in the partially published case of Meza v Pacific Bell Telephone Company, B317199 (June 2022)

The court said that the orders were appealable under the “death knell doctrine,” which allows immediate appeals of certain interlocutory orders that resolve all representative claims but leave individual claims intact.

The court of appeal concluded that the trial court erred in refusing to certify the meal and rest period classes based on its conclusion that common issues do not predominate.

The trial court order denying class certification dealt with an often-litigated class certification issue: whether supervisors’ diverse practices with respect to uniform written policies makes class certification inappropriate. The trial court held that individualized issues predominated because the managers’ declarations indicated that “the actual management practices of [Pacific Bell]’s supervisors result[ed] in a diverse application of the company’s Premises Technician Guidelines.”

The California Supreme Court case of Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 dealt with the issue of uniform corporate policies as a basis for class certification. The progeny of Brinker has dealt more directly with the question of class certification based on uniform policies that are allegedly applied by corporate managers in different ways. This has proved to be a tricky issue for the courts.

In general, cases following Brinker “have concluded . . . that when a court is considering the issue of class certification and is assessing whether common issues predominate over individual issues, the court must ‘focus on the policy itself’ and address whether the plaintiff’s theory as to the illegality of the policy can be resolved on a classwide basis.”

The trial court did not apply the proper legal framework when it denied class certification. Meza’s theory of liability is that the written guidelines for premises technicians were for the benefit of Pacific Bell and exerted substantial control over the premises technicians during their meal and rest periods in violation of the law.

Although the trial court acknowledged that “the policies are undisputed,” it concluded that the disparate manner in which employees experienced the policy through different managers rendered the claims unsuitable for class treatment.

However, “the employer’s liability arises by adopting a uniform policy that violates the wage and hour laws.” The “fact that individual inquiry might be necessary to determine whether individual employees were able to take breaks despite the defendant’s allegedly unlawful policy . . . is not a proper basis for denying certification.”

With respect to the other issues, the court affirmed the wage statement order and the PAGA order. In the published portion of the opinion, it explain that the trial court correctly granted summary adjudication of Meza’s wage statement claim because Pacific Bell’s wage statements do not violate the Labor Code. The trial court also correctly granted summary adjudication of the PAGA claim because it was barred by claim preclusion in light of the settlement and dismissal of a previous PAGA lawsuit. However Meza’s appeal of the order to strike was dismissed because Meza did not include it in his notice of appeal.

America’s labyrinthine health-industrial complex consumes 17% of GDP, equivalent to $3.6 trillion a year.

The American system’s heft and inertia, perpetuated by the drugmakers, pharmacies, insurers, hospitals and others that benefit from it, have long protected it from disruption.

Its size and stodginess also explain why it is being covetously eyed by big tech. Few other industries offer a potential market large enough to move the needle for the trillion-dollar technology titans.

In a report titled “Alphabet is spending billions to become a force in health care,” the Economist reports that Google’s parent company Alphabet is spending billions to become a major player in the healthcare market.

Google’s parent company Alphabet remains the tech firm that has pushed its healthcare efforts the most. Between 2019 and 2021, Alphabet’s venture capital divisions, Google Ventures and Gradient Ventures, and Capital G, have made almost 100 deals in the life sciences and healthcare industry.

The Economist writes that so far this year, it has injected $1.7 billion into future health ideas, according to data provider, CB Insights, which, leaving its fellow tech giants, has spent nearly $100 million in the dust.

Alphabet is the fifth-highest-ranking business in the Nature Index, which measures the impact of scientific papers in the life sciences, behind four giant drugmakers and 20 places ahead of Microsoft, the only other tech giant in the running. The company has hired former senior health regulators to help navigate America’s health care bureaucracy.

Alphabet Health has dabbled in health since 2008, when Google introduced a service that allowed users to compile their health records in one place. That project was shut down in 2012, relaunched in 2018 as Google Health, which included Google’s other health ventures, and was scrapped again last year.

Today Alphabet’s health adventures can be divided into four broad categories. These are in thick order of ambition: wearables, health records, health-related artificial intelligence (AI) and the ultimate challenge of increasing human longevity.

But Amazon launched an online pharmacy and telemedicine service almost everywhere in the United States.  And then last year Amazon announced the expansion of Amazon Care, which dispenses “high-quality medical care and advice “24 hours a day, 365 days a year,” with a goal of delivering the service through companies of all sizes to their employees nationwide.

This move has broader implications for the healthcare industry, says Jeff Becker, MBA, principal analyst, healthcare, with CB Insights. One of the chief impacts is that it brings a company with brand name recognition into an emerging marketplace of medical care solutions aimed at helping employers reduce healthcare costs.

Employers are ripe for services that can help reduce their healthcare expenditures, the second biggest line item on the balance sheet following salaries, Becker says.

“The economic lever that they are tackling is overuse of the ER and urgent care centers,” Becker says. By providing a mechanism to engage with employees early in the care-seeking process, individuals are directed to the most appropriate and cost-effective level of care, thereby saving employers money.

Startups that have gained traction in this space, he says, include DispatchHealth and Heal, which offer in-person and virtual services, as well as 98point6 and Buoy, which provide triage and telehealth services.

“The big race,” Becker says, “is going to become who can add diagnostic testing to these platforms so that we really start to get a full, end-to-end on-demand healthcare platform.”

The U.S. Supreme Court unanimously overturned a Washington state workers’ compensation law designed for federal contractors working at a nuclear waste site

The state of Washington enacted a workers’ compensation law that applied only to certain workers at a federal facility in the state who were “engaged in the performance of work, either directly or indirectly, for the United States.” The facility, known as the Hanford site, was once used by the Federal Government to develop and produce nuclear weapons, and is now undergoing a complex decontamination process.

Most workers involved in this cleanup process are federal contract workers – people employed by private companies under contract with the Federal Government. A smaller number of workers involved in the cleanup include State employees, private employees, and federal employees who work directly for the Federal Government.

The Washington state law makes it easier for federal contract workers at Hanford to establish their entitlement to workers’ compensation, thus increasing workers’ compensation costs for the Federal Government.

The United States brought suit against Washington, arguing that Washington’s law violates the Supremacy Clause by discriminating against the Federal Government. The United States asserts that a ruling in its favor will allow it to recoup or to avoid paying millions of dollars in workers’ compensation claims.

The District Court concluded that the law was constitutional because it fell within the scope of a federal waiver of immunity contained in 40 U. S. C. §3172. The Ninth Circuit Court of Appeals affirmed.

In a unanimous 9-0 opinion, the Supreme Court of the United States reversed in the case of United States v Washington, 21-404 (June 2022).

Washington argues that Congress has waived federal immunity from state workers’ compensation laws on federal lands and projects through §3172(a). Section 3172(a) says that “[t]he state authority charged with enforcing and requiring compliance with the state workers’ compensation laws . . . may apply [those] laws to all land and premises in the State which the Federal Government owns,” as well as “to all projects, buildings, constructions, improvements, and property in the State and belonging to the Government, in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State.”

The U.S. Supreme Court has interpreted the Supremacy Clause of the Constitution as prohibiting States from interfering with or controlling the operations of the Federal Government. This constitutional doctrine – often called the intergovernmental immunity doctrine – has evolved to bar state laws that either regulate the United States directly or discriminate against the Federal Government or its contractors.

It said that “Washington’s law violates these principles by singling out the Federal Government for unfavorable treatment. The law explicitly treats federal workers differently than state or private workers, and imposes costs upon the Federal Government that state and private entities donot bear. The law thus violates the Supremacy Clause unless Congress has consented to such regulation through waiver.”

The Supreme Court concluded that “the statute thus does not clearly and unambiguously permit the discrimination contained in Washington’s ‘federal workers only’ law” and thus its argument was “unconvincing.”

Dr. Gary Royce Wisner was a board certified orthopedic surgeon practicing as Orthopedics Sports & Workers’ Medical Group, Inc,. at 621 S. Ham Ln. Suite A. in Lodi, California.

He was licensed to practice medicine in California, Alabama, and Nevada. He claims to be affiliated with Adventist Health Lodi Memorial, St. Joseph’s Medical Center, and Dameron Hospital. He is a graduate of Universidad Autonoma de Guadalajara Medical School.

In November 2016, representatives from the California Department of Justice, Division of Medi-Cal Fraud and Elder Abuse (DMFEA) were notified by multiple government offices of suspected fraud by Wisner in overbilling the Medi-Cal and Medicare programs.

DMFEA’s investigation into Wisner’s alleged misconduct revealed Wisner would administer X-rays even in routine office visits and would X-ray multiple parts of a patient’s body – regardless of whether it had any relation to a patient’s medical condition.

On May 30, 2018, a grand jury indicted him on 11 felony counts of insurance fraud. for bilking insurers out of more than $700,000 for allegedly providing unnecessary and excessive medical treatment for orthopedic patients. A criminal complaint was filed on July 9, 2018 following the indictment.

On July 23, 2018 the Attorney General filed a 31 page accusation before the Medical Board of California seeking a revocation of his license. The Accusation alleged “gross negligence” in a separate cause for each of eight of his patients. Three of them were being treated for “work related” injuries. The Accusation in essence claimed that he committed gross negligence in his care and treatment when he obtained excessive, non-medically necessary and repeated x-rays of remote areas unrelated to the place of injury.

The Accusation to revoke his license is still pending, and Wisner is still licensed to practice medicine in California.

But the California Attorney General just announced securing a guilty verdict following a two-week jury trial in Sacramento County Superior Court, Wisner was convicted on Thursday, June 16th, of 10 felony counts of health care insurance fraud.

Evidence presented at trial showed that over the course of an approximate four-year period, Wisner subjected ten individual patients to hundreds of unnecessary X-rays at his clinic.

The Attorney Genera’s announcement reports that Wisner is also the subject of an independent criminal complaint filed by the San Joaquin County District Attorney’s Office for worker’s compensation fraud. The case is still pending and Gary Wisner is presumed innocent until proven guilty of those charges.

This investigation was made possible through collaboration with the United States Department of Health and Human Services (HHS), the San Joaquin County District Attorney’s Office, and the California Department of Insurance.

The California Department of Justice’s DMFEA protects Californians by investigating and prosecuting those who defraud the Medi-Cal program as well as those who commit elder abuse. These settlements are made possible only through the coordination and collaboration of governmental agencies, as well as the critical help from whistleblowers who report incidences of abuse or Medi-Cal fraud at oag.ca.gov/dmfea/reporting.

DMFEA receives 75% of its funding from HHS under a grant award totaling $50,522,020 for federal fiscal year 2021-2022. The remaining 25% is funded by the State of California. The federal fiscal year is defined as October 1, 2021, through September 30, 2022.

According to the report published by RXInformer, over 50% of U.S. physicians are over the age of 50 and one third will be over the age of 65 in the next decade.Thirty percent of physicians retire between the ages of 60 and 65, and more are leaving the profession before retirement age due to job dissatisfaction and burnout. A limited number of residency programs, combined with fewer young people aspiring to careers in medicine, has restricted the number of new physicians. All of which means that physicians are leaving the profession faster than they can be replaced.

The Association of American Medical Colleges projects a shortage of 47,000 – 122,000 physicians by 2032, with family and internal medicine, emergency medicine, hospitalists, and radiologists all falling within the top 10 specialties experiencing shortages. Urgent care, cardiology, orthopedic surgery, neurology, general surgery, and anesthesiology are all included within the top 20.

And the healthcare industry has been directly affected by supply chain disruptions for a large variety of products, as well as experiencing an exacerbation of the already serious shortage of healthcare professionals, making some services equally hard to come by.

The ripple effect of supply chain disruptions, along with ongoing price inflation, can make it challenging to keep up with the fluctuating scarcity and costs of healthcare goods and services, but some notable deficiencies that affect workers’ compensation healthcare include:

Oxygen: COVID-19 has caused a very high demand for oxygen, which many people who suffer from other chronic respitory ailments had already depended on. While oxygen itself is not in short supply, providing the specialized containers, vehicles, and drivers required to safely transport liquid oxygen has been a challenge. Nearly three quarters of suppliers have reported delays for this equipment and 67% reported increased costs, which causes hardship for patients who rely on supplemental oxygen and cannot get refills for home use as quickly and easily as they need.

Basic Medical Supplies: U.S. companies that sell medical supplies such as gloves, cotton swabs, gauze, and other essentials, have long relied on overseas manufacturers to produce their products. When the pandemic hit, many governments required their manufacturers to supply their own countries before servicing overseas customers, which has caused a fluctuating chain of shortage and high prices.

Walking Aids: A long list of durable medical equipment (DME) in short supply includes an acute shortage of crutches, canes, walkers, wheelchairs, and braces These products are manufactured with aluminum, one of a number of raw materials in great demand, leaving some hospitals and care facilities to request donations of unused equipment from their communities. Shortages of these supplies also hampers progress in physical therapy by delaying patients’ transition from wheelchair to walker to cane, etc.

Medical Monitors: Largely due to the backlog of computer chip orders, monitoring devices for blood pressure, insulin, and other vital information are taking longer to procure and costing more. A recent survey of medical technology companies found that 100% had experienced disruptions to their semiconductor chip supply chains and that 50% of the products they produce rely on such chips.

Diagnostic Equipment: Ultrasound machines, CT scanning devices, and imaging machines also require seminconductor chips. The competitition for chips is fierce because they are also used in a mutlitude of consumer items from automobiles to video game consoles. When orders of new equipment are delayed for medical providers and there is a shortage of healthcare professionals available, patients have to wait longer for diagnostic tests, which can in turn, delay appropriate treatment.

Home Health Professionals: The heavy responsibilities and light wages that are typical for home health aides have made good help hard to find for some time. Making it worse, many home health workers left their jobs due to illness or fear of contracting illness, burnout, or the need to care for children or other relatives at home. The shortage of home health aides has continued and is causing a gap between requests for home health services and the ability of agencies to meet those requests. The problem is not expected to get better anytime soon with home health aides projected as the occupation that will have the most demand for workers over the next decade.

A number of solutions should be considered by claims professionals. For example, monitoring, measuring, and comparing network provider performance is a good way to fully optimize managed care. Capturing and analyzing relevant data such as referral acceptance, turnaround times, formulary adherence, etc. is more important than ever to ensure that quality standards are met at the lowest cost possible. Comparing metrics between vendors not only informs current management strategy, but can assist in anticipating future industry trends.