Health care service plans licensed under the Knox-Keene Health Care Service Plan Act of 1975, as amended, (the “Knox-Keene Act”) are categorized as either full-service or specialized health care service plans. A full-service license is issued to an entity that provides, at minimum, six basic health care services (e.g., physician services, inpatient hospital services, home health services, etc.). Examples of full-service health care service plans include Kaiser and HealthNet. A specialized license is issued to an entity that provides health care services in a single area such as dental, vision, or mental health. One such example is Vision Service Plan (VSP).
Although, it isn’t clear from the Knox-Keene Act or the regulations issued by the Department of Managed Health Care (the “DMHC”), a subcategory exists: a restricted (full-service or specialized) Knox-Keene license. A restricted licensee is “restricted” to provider contracting, and is not permitted to contract directly with employer groups and individuals. This means that the licensee does not create its own products nor does it participate in marketing. Instead, the entity subcontracts with other health care service plans or contracts directly with government payors, such as Centers for Medicare & Medicaid Services or CMS, in which products have already been developed.
Naturally, certain supplemental information to the application (called an “exhibit”) does not apply to the restricted licensee and is not required in the licensee’s filing. This includes exhibits related to marketing and group and individual contracts. The exhibit requirements further deviate depending on the type of product offered: Medicare, Medi-Cal (Medicaid), or commercial.
Generally, the application process for a restricted license still requires a fairly thorough review of network adequacy, quality of care processes, grievance procedures, and so forth. This is the case for both Medi-Cal and commercial offerings because the regulation of Medi-Cal (Medicaid) and commercial products is widely left to the states. Since the regulation of Medicare is a function of the federal government (CMS), the DMHC is limited in its review of Medicare products. As a result, the DMHC will spend most of its time reviewing the applicant’s financial viability as opposed to a more encompassing review that would include network adequacy and quality of care processes.
Of course, to some degree, the exhibits that the DMHC would require in any given filing may change based on the current state of the law. To the extent that you may have any questions, feel free to contact myself or my colleague, Michael G. Polis.
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The term “duty of care” refers to the way in which you must interact with your clients and patients in order to satisfy the requirements of the law. For California veterinarians, this amounts to:
Being a competent care provider.
Being humane.
Providing care that is consistent with the current veterinary practice standards.
Since “current” veterinary practice standards are continuously evolving, the duty of care evolves as well.
Negligence
When a veterinarian fails to meet the required standard of care, he or she may be guilty of “negligence.” In order to establish veterinary negligence, a plaintiff must show that:
The veterinarian had a responsibility to care for the animal (duty of care).
The veterinarian didn’t act in accordance with the appropriate standard of care.
The veterinarian’s failure to provide adequate care was a proximate cause of injury, which means that the injury occurred as a direct result of the action and would not have occurred if the veterinarian had acted appropriately.
Examples
1. A client brings her cat Lucy in for her annual shots. An inappropriately high dosage is administered, and the animal dies as a result. In this case, the client can sue for negligence because the veterinarian:
Was responsible for providing care to the animal.
Did not act in accordance with pertinent standards of care.
Was the direct cause of the animal’s death.
2. A client brings his dog Fido in for a checkup. After collecting the necessary information and obtaining consent to treatment, the veterinarian administers an appropriate heartworm prevention medication at the correct dosage. The animal has a severe and highly unusual reaction to the medication. In this case, the veterinarian is not guilty of negligence. Even though the veterinarian’s actions were a cause of the animal’s injuries, he or she was acting in accordance with accepted standards of care, and most other veterinarians would have made the same choices.
The Veterinary Medical Board’s “Cite and Fine” Program was first implemented in 1990 to aid in the processing of complaints made against veterinarians. These guidelines are used to address violations of the law that are not serious enough to warrant criminal prosecution or the suspension or revocation of a veterinarian’s license to practice. In these cases, the VMB issues a citation, and the veterinarian must pay a fine.
Common “Cite and Fine” Issues
Examples of issues that may result in a citation and fine include:
Discipline of license in another state
Unprofessional conduct
Animal abuse or cruelty
Failure to keep premises and/or equipment clean and sanitary
Record keeping violations
Record confidentiality violations
Of these issues, one of the most common citations veterinarians encounter is inadequate recordkeeping. This issue can result in a citation on its own, or it can complicate other actions initiated against the practice. In general, the VMB holds to the belief that information not contained in the records cannot be taken as fact. Thus, this issue often acts as a jumping-off point for more extensive disciplinary actions.
For example, assume a client brings action against your practice on the basis that you did not provide competent care to her pet. Even if the client’s story is misleading, embellished or completely inaccurate, you won’t have a leg to stand on if you don’t have detailed records to support your side of the story. The VMB won’t simply take your word as fact if you have no written documents to back up your position. Thus, you may find yourself facing unnecessary penalties simply because you failed to keep adequate records.
David has extensive and broad experiencein the areas of complex civil litigation, with particular emphasis on the representation of residential and commercial property owners in construction-related disputes. David represents homeowners, homeowner associations, developers and contractors in real estate cases, as well as complex construction defect claims involving multiple single-family residences and multi-unit developments.
Ernest James Krtil – Closely Held Companies and Family Business Law
Jim’s depth of experience in his practice emphasizes business law including mergers and acquisitions, nonprofit organization law and taxation, as well as estate planning and probate and trust administration, including trust and estate disputes.
Employment agreements commonly include a provision designating the place or forum where any employment related-claims must be litigated. Ordinarily, the party opposing a forum selection clause has the burden to demonstrate that the clause should not be enforced. However, the burden is reversed when the underlying claims are statutory rights that may not be waived, such as California Labor Code provisions concerning employee compensation. In such cases, the party seeking to enforce the forum selection clause must demonstrate that the forum selection clause will not diminish the statutory rights; otherwise, the clause will not be enforced.
In Verdugo v. Alliantgroup, L.P., 237 Cal.App.4th 141 (2015), the employer was headquartered in Harris County, Texas, and had regional offices in other states, including California. The employer hired an employee to work at its California office, and required her to sign an employment agreement. The employment agreement included a forum selection clause designating Harris County, Texas as the forum for litigation. The employee filed a lawsuit in California based on various provisions of the California Labor Code concerning proper pay, meal and rest breaks, and wage statements that the Legislature declared cannot be waived by private agreement. The employer moved to stay the action based on the forum selection clause. The employer did not demonstrate that Texas would have applied California law, or, that Texas provided the same or greater rights as California. As a result, the California court of appeal did not stay the action and the lawsuit continued in California.
Employers with California employees should review their forum selection clauses because forum selection clauses that violate California’s public policy on employee compensation will not be enforced. Employers desiring to litigate employment related claims outside California should determine the likelihood that the clauses will be enforced. Provisions designating California law as the applicable law (choice of law provision) may make it more likely that the forum selection clause will be enforced, provided that the forum state would enforce the provision and apply California law. Or, employers may just need to consider alternative forums for claims by their California employees.
DID YOU KNOW…
Generally, prevailing parties in civil litigation are entitled to an award of their litigation costs. Not necessarily so with respect to claims under the Fair Employment and Housing Act, or FEHA. In FEHA cases, the California Supreme Court recently ruled that prevailing employees should ordinarily receive their costs (and attorney fees), but prevailing employers should not be awarded costs (or attorney fees) unless “the action was objectively without foundation when brought, or the [employee] continued to litigate after it clearly became so.” Williams v. Chino Valley Independent Fire Dist., 61 Cal.4th 97, 115 (2015).
The National Labor Relations Board (“NLRB”) enforces the federal National Labor Relations Act (NLRA), which applies to most private employers. Periodically, the General Counsel of the NLRB releases reports to clarify issues that arise in the workplace. One of the more recent reports discusses the lawfulness of employee rules found in a number of different employee handbooks. Section 7 of the NLRA protects the rights of all employees, not merely unionized employees, to communicate with one another or third parties at or away from work regarding terms and conditions of employment. Section 8 of the Act makes it unlawful for employers to interfere with, restrain or coerce employees in the exercise of their Section 7 rights.
Many of the examples of unacceptable employee handbook language were provisions containing broad, general language that would encompass Section 7 rights, whether or not that was the employer’s intention. Section 7 allows employees to be critical of their employer and management. Consequently, a handbook provision requiring employees to “[b]e respectful of others and the Company” would violate Section 7 because the rule would prohibit employees from criticizing working conditions and labor policies. Similarly, employers cannot institute general prohibitions on “negative” or “inappropriate” discussions among employees, but could more narrowly ban harassment of employees or prohibit the “use of racial slurs, derogatory comments, or insults” by employees.
Policies requiring employees to direct or refer all inquiries from the media or government to a particular person in the company would also violate Section 7 because employees have a right to speak about employment matters and labor concerns. Employers have a right to present their official position, but employees also have a right to communicate with the media, government and other third parties on their own behalf.
A handbook provision instituting a general prohibition on the use of company logos without permission would also run afoul because Section 7 protects non-commercial use of company logos by employees on protest materials, such as picket signs or leaflets. Section 7 would not protect employees in disparaging the employer’s product or customers, though.
The NLRB appears to be taking a greater interest in non-unionized workplaces under Section 7, and non-unionized employers should take note. Ultimately, whether a provision will be permissible will depend on how employees would interpret the clause, and context matters. Clauses that would otherwise be impermissible may be fine if employees would understand them to be limited in scope so as not to interfere with their Section 7 activity. Employers should review their policies (including email and social media policies), arbitration agreements, and handbooks to ensure compliance with Section 7 and the NLRA’s recent guidance. Otherwise, they could face an unfair labor practice charge prompting an investigation and an administrative action to remedy any unfair labor practice.
DID YOU KNOW…
The U.S. Supreme Court recently ruled that an employer may not discriminate against a job applicant’s religious beliefs during the hiring process under federal law (Title VII), even if the employer does not have actual knowledge of the need for a religious accommodation. E.E.O.C. v. Abercrombie & Fitch Stores, Inc. (2015) 135 S.Ct. 2028, 2031 (failure to hire Muslim applicant who wore a headscarf because the headscarf conflicted with company dress code).
* Kathryne is currently a law student at The University of the Pacific, McGeorge School of Law and was hand-selected for a 2015 summer clerkship with Wilke Fleury. She is also a member of McGeorge’s Nationally Ranked Mock Trial Team and is President of the McGeorge Women’s Caucus.
Twelve of Wilke Fleury’s attorneys have been listed as 2015 Northern California Super Lawyers and Rising Stars. The firm’s Super Lawyers are Dan Baxter, Philip Birney, Daniel Egan, George Guthrie, Ronald Lamb, Stephen Marmaduke, Thomas Redmon and Robert Tyler. The firm’s Rising Stars are Anthony Eaton, Samson Elsbernd, Bianca Watts and Steve Williamson.
Super Lawyers® is a service of the Thomson Reuters, Legal Division. Each year, the research team at Super Lawyers® undertakes a rigorous multi-phase selection process that includes a statewide survey of lawyers, independent evaluation of candidates by the attorney-led research staff, a peer review of candidates by practice area and a good-standing and disciplinary check.
The California Healthy Workplaces/Healthy Families Act of 2014 has been operative since January 1, 2015 even though employees have not yet begun to accrue sick leave pursuant to the law. Employees will only begin to accrue sick leave pursuant to the law on July 1, 2015.
The California Healthy Workplaces/Healthy Families Act of 2014 requires that employers, subject to very limited exceptions, provide paid sick leave to their employees. The new law covers exempt and non-exempt (including part-time, per diem, and temporary) employees. Employees who have worked in the State for 30 or more days within a year from the start date of their employment will accrue paid sick leave at the rate of one hour for every 30 hours worked, and may use their accumulated leave beginning on the 90th day of employment.
Paid Sick Leave law went into effect on January 1
Since January 1, California employers have been obligated to post the Labor Commissioner’s Healthy Workplaces/Healthy Families Act poster in a conspicuous location in the workplace. The information about the new law is also contained in the revised Notice to Employee, which is the Labor Commissioner’s form for newly hired non-exempt employees that contains employment-related information, such as pay rates and entitlement to sick leave. Employers have been using this revised form for non-exempt employees who are hired after January 1, 2015. As to non-exempt employees hired pre-January 1, 2015, employers already provided written notice of the sick leave law information on a revised Notice to Employee or in another writing, or will provide such notice by July 8, 2015, depending on date of implementation of their policy or the new law’s requirements.
Employees begin to accrue sick leave pursuant to the Paid Sick Leave law on July 1
Starting July 1, employees will accrue paid sick leave either pursuant to the Healthy Workplaces/Healthy Families Act only or pursuant to employer sick leave policies. Employees who simply accrue paid sick pursuant to the minimum requirements of the new law will accrue approximately 8 days (69 hours) of paid sick leave each calendar year, with accrued, unused paid sick leave carrying over to the following year.
Conversely, employees may accrue paid sick leave pursuant to employer sick leave or paid time off (PTO) policies. Employers, through sick leave or PTO policies, may cap the accrual and use of paid sick leave available to their employees pursuant to the Healthy Workplaces/Healthy Families Act. For example, company paid sick leave policies may limit full-time employees to using 3 days (24 hours) of paid sick leave in each year of employment. Accrued but unused paid sick leave must carry over from year to year unless employers simply advance the full 3 paid sick days at the beginning of each year. Employers may cap total accrual of paid sick leave at 6 days (48 hours).
Before employers simply fall back on their written paid sick leave or PTO policies, though, they should ensure that those policies satisfy the accrual, carryover, and use requirements of the Healthy Workplaces/Healthy Families Act. In other words, employer policies must meet the minimum requirements of the new paid sick leave law, and if they do, then employers do not have to provide additional sick leave. If they do not, employers must either modify their polices or allow their employees to accrue paid sick leave pursuant to the new law. Of course, employer policies may also exceed the minimum legal requirements of the new law.
Finally, employers should also be aware that the new law imposes record keeping requirements concerning sick leave, including requiring employers to provide written notice of the amount of sick leave available on the employee’s itemized wage statement or in another writing, and to maintain records concerning sick leave for 3 years.
The California Fair Employment and Housing Act (“FEHA”) protects employees from employment discrimination based on mental disability. “Mental disability” is broadly defined under FEHA, and includes mental disorders and conditions that limit major life activities, like working. This is broader than the federal Americans with Disabilities Act, which requires that mental impairments “substantially limit” major life activities. Still, not all mental impairments rise to the level of a “mental disability” under FEHA.
In Higgins-Williams, No. C073677, 2015 WL 3451590 (Cal. Ct. App. May 26, 2015), an employee was diagnosed by her physician as suffering from anxiety and stress due to her normal interactions with her supervisor and the human resources department. The employer was aware of the diagnosis and granted the employee leaves of absence, including leave under the FEHA as a disability accommodation. The employer eventually terminated the employee when she failed to provide information as to when she could return to work or that additional leave would effectuate her return, and the employee sued alleging various causes of action, including disability discrimination. The trial court granted the employer’s motion for summary judgment on all causes of action and the court of appeals affirmed, largely because an inability to work under a particular supervisor because of anxiety and stress related to the supervisor’s standard oversight of job performance is not a mental disability recognized under the FEHA.
This case reaffirms that while FEHA’s definition of “mental disability” is broad, it is not limitless. Other impairments that are not considered mental disabilities include “sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.” (Gov. Code section 12926(j)(5).) This case is also a good reminder for employers that a leave of absence may be a reasonable accommodation. However, an employer does not have to wait indefinitely for an employee’s return.
DID YOU KNOW…
It is unlawful for an employer to willfully misclassify an individual as an independent contractor. (Lab. Code § 226.8.) This prohibition applies to the employer making the misclassification, and to any joint employer who is aware that the co-employer has willfully misclassified their joint employees. Noe v. Superior Court, No. B259570, 2015 WL 3463006, at 1 (Cal. Ct. App. June 1, 2015).
We are pleased to announce attorney Christine Collins has joined Wilke Fleury.
Christine joins the our Healthcare group as an associate and will focus her practice on Knox-Keene Act licensed health care service plans and insurance regulatory matters. Additionally, she will work with licensed professionals and regulated entities, health, life and disability insurers, professional and trade associations, pharmaceutical companies, and medical equipment providers, said Mike Polis, partner and healthcare practice leader.
Prior to joining Wilke Fleury, Christine was an analyst at Blue Shield of California where she reviewed and conducted legal research to determine impact on large group contracts and benefits; researched regulatory requirements and prepared documents for regulatory filing; and drafted large group contract and benefit language for medical, dental, life, and vision plans.
We are pleased to announce Neal C. Lutterman, former deputy city attorney for the City of Stockton, has joined our firm.
Neal’s return to private practice focuses on municipal law and defending physicians, hospitals, medical groups and allied healthcare providers in professional liability matters, both strong areas of expertise for Wilke Fleury.
Neal was the supervisor of the Litigation Division in Stockton and a member of the municipal bankruptcy project management team. He served as the primary advisory attorney to a number of key city departments, including the police, fire and administrative services, the latter of which oversaw the finance, budget, accounting, information technology and revenue divisions, as well as the police department’s code enforcement division.
Prior to his tenure in Stockton, Lutterman was a shareholder in the litigation firm of Riggio Mordaunt Kelly & Lutterman. For nearly 15 years there, Lutterman represented physicians, surgeons, hospitals and medical groups in professional negligence actions. Additionally, he successfully represented physician clients before the Medical Board of California and in proceedings before hospital credentialing committees.
Employers frequently require employees to agree to arbitrate employment-related disputes as a condition of employment, or of continued employment. The California Arbitration Act (CAA) supplies default procedures for arbitration. Arbitration can proceed in accordance with other procedures, but only if employers can demonstrate that their employees agreed to them.
In Cruise v. Kroger Co., 233 Cal.App.4th 390 (2015), an employee sued her employer in state court following her termination, and the employer moved to compel arbitration. The employee initialed an arbitration provision in the employment application when she applied for employment. That provision incorporated the employer’s arbitration policy, which was found in the employee handbook. The trial court denied the employer’s motion to compel arbitration, and the court of appeals reversed. The court of appeals determined that the provision in the employment application sufficiently expressed an agreement to arbitrate employment disputes. But, arbitration would proceed pursuant to the rules of the CAA, not the procedures in the arbitration policy, because the employer failed to establish that the employee agreed to be governed by those procedures. The arbitration policy was undated, unsigned, not attached to the employment application and was not given to the employee at the time she applied for employment.
Agreements to arbitrate employment related disputes do not have to be long but they must express an agreement to arbitrate. They may even be enforced when they are only signed by the employee, for example, when they are part of an employment application on the employer’s company letterhead and the arbitration provision declares the employer’s intent to be bound by it. Employers who desire procedures for arbitration that diverge from the CAA must ensure that the agreement to proceed by such procedures is clear and lawful, and should require their employees to affirmatively indicate their agreement, such as through their signature on any documents that are part of the agreement to arbitrate.
DID YOU KNOW…
Certain wage orders allow employees in the health care industry to voluntarily waive one of their two meal periods on shifts longer than 8 hours. However, they cannot waive their second meal period if their shift is longer than 12 hours. Gerard v. Orange Coast Memorial Center, 234 Cal.App.4th 285 (2015).
The California Healthy Workplaces/Healthy Families Act of 2014 has been operative since January 1, 2015 even though employees have not yet begun to accrue sick leave pursuant to the law. Employees will only begin to accrue sick leave pursuant to the law on July 1, 2015.
The California Healthy Workplaces/Healthy Families Act of 2014 requires that employers, subject to very limited exceptions, provide paid sick leave to their employees. The new law covers exempt and non-exempt (including part-time, per diem, and temporary) employees. Employees who have worked in the State for 30 or more days within a year from the start date of their employment will accrue paid sick leave at the rate of one hour for every 30 hours worked, and may use their accumulated leave beginning on the 90th day of employment.
Paid Sick Leave law went into effect on January 1
Since January 1, California employers have been obligated to post the Labor Commissioner’s Healthy Workplaces/Healthy Families Act poster in a conspicuous location in the workplace. The information about the new law is also contained in the revised Notice to Employee, which is the Labor Commissioner’s form for newly hired non-exempt employees that contains employment-related information, such as pay rates and entitlement to sick leave. Employers have been using this revised form for non-exempt employees who are hired after January 1, 2015. As to non-exempt employees hired pre-January 1, 2015, employers already provided written notice of the sick leave law information on a revised Notice to Employee or in another writing, or will provide such notice by July 8, 2015, depending on date of implementation of their policy or the new law’s requirements.
Employees begin to accrue sick leave pursuant to the Paid Sick Leave law on July 1
Starting July 1, employees will accrue paid sick leave either pursuant to the Healthy Workplaces/Healthy Families Act only or pursuant to employer sick leave policies. Employees who simply accrue paid sick pursuant to the minimum requirements of the new law will accrue approximately 8 days (69 hours) of paid sick leave each calendar year, with accrued, unused paid sick leave carrying over to the following year.
Conversely, employees may accrue paid sick leave pursuant to employer sick leave or paid time off (PTO) policies. Employers, through sick leave or PTO policies, may cap the accrual and use of paid sick leave available to their employees pursuant to the Healthy Workplaces/Healthy Families Act. For example, company paid sick leave policies may limit full-time employees to using 3 days (24 hours) of paid sick leave in each year of employment. Accrued but unused paid sick leave must carry over from year to year unless employers simply advance the full 3 paid sick days at the beginning of each year. Employers may cap total accrual of paid sick leave at 6 days (48 hours).
Before employers simply fall back on their written paid sick leave or PTO policies, though, they should ensure that those policies satisfy the accrual, carryover, and use requirements of the Healthy Workplaces/Healthy Families Act. In other words, employer policies must meet the minimum requirements of the new paid sick leave law, and if they do, then employers do not have to provide additional sick leave. If they do not, employers must either modify their polices or allow their employees to accrue paid sick leave pursuant to the new law. Of course, employer policies may also exceed the minimum legal requirements of the new law.
Finally, employers should also be aware that the new law imposes record keeping requirements concerning sick leave, including requiring employers to provide written notice of the amount of sick leave available on the employee’s itemized wage statement or in another writing, and to maintain records concerning sick leave for 3 years.
SACRAMENTO – Lobbyist Shannon Smith-Crowley, a registered California lobbyist for more than 15 years who focuses on healthcare, women’s equity, life sciences and the biomedical industry, has joined Sacramento-based law firm Wilke Fleury in its Government Affairs group.
Smith-Crowley spent four years lobbying for the California Medical Association, where she focused on managed health care, medical staff, legal issues and reproductive health. She then founded Partners In Advocacy (PIA) in 2003 to specialize in medical and reproductive health advocacy. PIA expanded its mission over the years to address human trafficking and women’s equity legislation.
Notable legislative successes during her career include: developing California law that requires maternity coverage in all health insurance policies, well before the enactment of similar provisions in the Affordable Care Act; working on bills creating California’s public umbilical cord blood banking program, which provides unique material for lifesaving stem cell transplants and groundbreaking biomedical research; contributing to bills allowing HIV+ men to safely create families using Assisted Reproductive Technologies; and playing a pivotal role in developing the Modern Family Act, protecting the rights of intended parents, donors and surrogates.
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