The recently passed $1.9 trillion COVID-19 relief bill provides Americans with $1,400 stimulus payments and $7.5 billion for the Department of Health and Human Services and Centers for Disease Control and Prevention. Funds are earmarked for vaccine education, and clinic and mobile unit operation. The bill also includes a significant change strengthening the Affordable Care Act (ACA).[1] This ACA provision expands ACA marketplace subsidies temporarily, lowering marketplace premiums by providing health insurance premiums for qualified individuals.[2]
Through this package, there will be a significant expansion of subsidies for health insurance to middle-class and low-income individuals for the next two years. Numerous families struggle to pay their monthly healthcare premiums. With this in mind, the new legislation will fully cover premiums for those making within 150% of the federal poverty level (FPL), which is approximately $19,320 annually. Individuals earning more than 400% of the FPL – approximately $51,000 per year – will be able to purchase healthcare plans on the marketplace, with premiums capped at 8.5% of their income. For example, the monthly premium will drop from $1,075 to $412.50 for an individual making approximately $58,000 a year.[3]
The legislation provides relief for those who purchase health insurance through the exchange, particularly those who have plans with high deductibles and low premiums. An individual with a high deductible may be incentivized not to seek health services due to high initial out-of-pocket costs. With this legislation, approximately 14 million enrollees from the marketplace may pay less by purchasing an entirely different plan from those savings.[4] This change is in response to criticisms of unaffordability, causing individuals to opt to not purchase any health insurance.[5] But with this change, the Congressional Budget Office estimates that approximately 1.7 million Americans would enroll within the marketplace, 1.3 million of which are previously uninsured.[6]
Additionally, under the relief package, those who receive unemployment benefits may be eligible to enroll in the exchange this year. Prior, these individuals were not eligible for subsidies on the exchange. This new bill will cover cost of premiums for those who receive health benefits through COBRA.[7]
In addition to the relief package, President Biden opened a special enrollment period due to the pandemic. Open enrollment typically comes only once a year, in which individuals can purchase a health plan through the marketplace. With this special enrollment period, Americans can now enroll until May 15.[8] Though these changes are temporary for now, lawmakers are expecting these subsidies to become permanent. Others note that improvements may continuously be made, following the original goals of the ACA under the Obama administration. The current legislation proposes narrow improvements but additional provisions regarding premium affordability and subsidies may be explored in the future.
Annie Lee was a Law Clerk at Wilke Fleury in the Spring of 2021.
[7] The Consolidated Omnibus Budget Reconciliation Act (COBRA) allows workers and their families who have lost health benefits due to loss of job continued coverage at a higher cost. https://dol.gov/general/topic/health‐plans/cobra
“We at Wilke Fleury were saddened to learn of the passing of our former Partner Richard “Dick” Hoffelt on February 11, 2021. Dick was a Partner at our firm for over 50 years and was a highly regarded lawyer in the field of Business and Healthcare Law. As an active member of the State and Local Bar, Dick served as President of the Sacramento County Bar Association and was one of the founders of the first Legal Aid program in the Sacramento area. In addition to his law-related activities, Dick was a leading participant in facilitating the move of Shriners Children’s Hospital from San Francisco to Sacramento. Dick will be genuinely missed by all who knew him.”
Islam Ahmad represents clients on a broad range of civil ligation matters, with a focus on construction, real estate, and commercial disputes. He has represented all sides of construction and real estate cases, including owners, buyers, developers, and general contractors. He possesses superb legal research and writing skills that ensure no stone is left unturned that may improve the chances of victory for his clients.
Islam Ahmad has a sophisticated working background and a wealth of experience that make him ideal for taking on clients’ challenging cases and resolving them in their best interest. His intuition makes him versatile and capable of dealing with a wide range of issues. Islam is also capable of incorporating business performance factors into his legal advice by drawing from his prior experience as a business consultant. This comprehensive approach allows him and his clients to develop sound risk management strategies and business plans.
Islam Ahmad received his Juris Doctorate Degree from the University of California, Davis School Law and his undergraduate degree in Economics from the University of California, Berkeley. During law school, Islam interned at the United States Court of Appeals for the Ninth Circuit and served at the Civil Rights Clinic. Upon graduating from law school, Islam went to Jerusalem on a mission to use his knowledge to promote peace in his birthplace. He spent three years working on projects aimed at establishing a foundation for rule of law, stimulating economic cooperation, and promoting SME development.
About Islam: Islam is a grateful single father to his three daughters, Hannah, Sheek and Mal. He is fluent in Arabic and possesses elementary skills in Hebrew. When not practicing law, he enjoys coaching and playing soccer, playing video games, and day-trading stocks.
Steve Williamson – Business Litigation & Bankruptcy and Creditor/Debtor
The voting for Professional Research Services’ survey to determine the top attorneys in 2020 for Sacramento Magazine was open to all licensed attorneys in Sacramento, Calif. Attorneys were asked whom they would recommend among 56 legal specialties, other than themselves, in the Sacramento area. Each attorney was allowed to recommend up to three colleagues in each given legal specialty. Once the online nominations were complete, each nominee was carefully evaluated on the basis of the survey results, the legitimacy of their license, and their current standing with the State Bar of California. Attorneys who received the highest number of votes in each specialty are reflected in the following list. – Sacramento Magazine
“Whose Pet Is It, Anyway?” was first featured in The Publication of the California Veterinary Medical Association Newsletter: Volume 74 – Number 3
By: Dan Baxter
As most readers of California Veterinarian know, the law firm at which I work provides thirty minutes of free monthly advice to CVMA members with legal inquiries. Most of those inquiries center around employment-related issues and issues arising out of veterinarian/client/patient interactions.
In the latter category is a scenario involving competing claims to animal patients that has produced questions to me and my colleagues from several veterinarians in recent months. Specifically, what should a veterinarian do when more than one ostensible “owner” seeks to take possession of the animal upon its release?
In one hypothetical, “Mittens” is delivered to Clinic by Jane and left there for treatment. At some point during Mittens’ stay, Clinic receives a call from John claiming to be Mittens’ “real” owner, and claims that Mittens should only be released to him rather than Jane. Jane returns to Clinic to pick up Mittens, insists that she is the “real” owner, and demands release of Mittens into her custody.
One can craft many variations to this hypothetical, from joint delivery of Mittens to Clinic by both Jane and John, to Clinic records that clearly identify Mittens owner as one or the other (or both), to introduction of another person entirely into the fray. Regardless of the hypothetical’s nuances, what should a veterinarian do when faced with competing claims to possession of an animal patient?
Fortunately, there is guidance….
Figure It Out, People!
But before we get to that guidance, let’s begin with some practical advice. Each instance in which competing possessory claims are brought to a veterinarian’s doorstep represents an occasion in which animal owners are trying to make their problem your problem. Not only does a Jane/John imbroglio over ownership and possession place the veterinarian in an uncomfortable position from a client service standpoint, it effectively asks the veterinarian to make a quasi-legal judgment call as to who is the true “owner.” The “losing” client will naturally hold the veterinarian responsible for this decision, and various business-related ramifications may ensue, from the cessation of that client’s business, to negative social media reviews, to possible VMB and/or legal complaints.
For these reasons, the first step to take when faced with competing claims is to place the ball back into Jane and John’s court. In our above hypothetical, if Mittens remains at the clinic, Jane is indicating that Mittens should only be released to her, and vice versa relative to John, the veterinarian should issue a clear communication—preferably in writing—to Jane and John describing the situation, and directing them to figure it out between themselves. Such a communique should be direct, concise, and forceful, in the manner of the following:
Jane and John:
Yesterday, Mittens was brought for treatment at our clinic. Following that treatment, we received instructions from each of you that Mittens was only to be released to you, and not to the other. While we value both of you and appreciate your love for Mittens, your competing instructions place us in the unfair and untenable situation of entering a dispute that only you can resolve. Therefore, we request that you jointly come to the Clinic today or tomorrow to pick up Mittens, or otherwise reach a resolution between yourselves as to who will do so. In absence of such a joint decision by you, we will have no choice but to act in conformity with the requirements imposed by the Veterinary Medicine Practice Act.
Please respond as soon as possible.
–Dr. Wendy Smith
More often then not, a communication like the above will bear fruit. Generally speaking, Jane and John will realize the difficulty of the situation from the veterinarian’s point of view, and understand that is good for neither Mittens, nor the veterinarian, nor Jane and John themselves, for the situation to go unresolved. Moreover, by invoking “The Law”—in this case, the VMPA—the veterinarian raises the specter of an undesirable outcome outside of Jane and John’s control. That potential loss of “say” over the outcome will generally produce the cooperation necessary to settle matters.
What Does the Law Say?
But what if matters remain unresolved? What does the VMPA actually tell us about how to manage this situation?
The answer comes to us from 16 Cal. Code Regs. section 2032.1, which deals with the veterinary-client-patient relationship (“VCPR”) and how it is created. While a full discussion of Section 2032.1’s terms is unnecessary to this article, suffice it to say that the existence of a VCPR is specific to the clinical course at issue. In that vein, Section 2032.1(b) requires the veterinarian to have “sufficient knowledge of the animal(s) to initiate at least a general or preliminary diagnosis of the medical condition of the animal(s),” and further requires the veterinarian to communicate with the client “a course of treatment appropriate to the circumstance.” This regulatory language shows that a VCPR is not a singular event that covers treatment of an individual animal for all time, but a relationship that operates on a condition-by-condition and circumstance-by-circumstance basis.
Why is this relevant to a discussion of competing possessory claims to an animal? Because it effectively removes the question of legal ownership from the veterinarian’s calculus. Returning to our above hypothetical, if Jane is the person who delivered Mittens to Clinic for the treatment at issue, then Jane is the person through whom a VCPR was created. Accordingly, if Jane and John find themselves at impasse relative to Mittens’ release even after a Clinic communication of the type recommended above, then Mittens should be released to Jane alone, as she is the “client” for relevant purposes. Tweaking the hypothetical, if Jane and John had jointly delivered Mittens to Clinic, then Clinic may release Mittens to either of them.
In either hypothetical, or different permutations thereof, a VCPR-centric determination of the issue renders irrelevant the validity of John’s (and Jane’s) claim of “real” ownership, and ultimately relieves—at least from a legal standpoint—the veterinarian from being the arbiter of Jane and John’s possessory dispute. Moreover, should the “losing” claimant be so dissatisfied with the veterinarian’s determination as to file a VMB complaint or take other legal action, there is a good argument that the veterinarian’s acts consistent with Section 2032.1 would provide “safe harbor” against an adverse determination against the veterinarian.
This same “safe harbor” argument applies in a variety other of ownership-related disputes (which oftentimes are found between divorcing couples), including the following:
• Medical Records: After Jane brings Mittens to clinic, John calls Clinic, states that there has been a relationship split and that Mittens is now ‘his,” and requests that Mittens’ medical records not be released to Jane. However, because the VCPR is with Jane, Clinic’s obligations relative to the records flow to Jane, not John.
• Treatment-Related Discussions: Similarly, after Jane brings Mittens to clinic, John calls Clinic stating that he—and not Jane—is the owner, and that Clinic should not provide any further information to Jane concerning Mittens’ care, treatment, condition, progress, etc. Once again, since Jane brought Mittens to Clinic, the VCPR is with Jane, not John.
• “Stray” Animals: Jane brings Mittens to Clinic claiming Mittens is a stray, and leaves Mittens at Clinic for treatment. Then, John appears at Clinic claiming to be Mittens’ owner and demands return of Mittens to him, as well as a summary of Mittens’ records. Here, too, the VCPR is with Jane, not John, such that Clinic has no obligations to John.
Conclusion
In the end, clear communication is key, and the likelihood is that most competing possessory claims will be resolved through a short and plain statement like that composed above. However, if communicative efforts fall short, let your path forward be guided by the provisions of Section 2032.1, and the parameters of the VCPR.
Wilke Fleury is proud to announce that 15 of our astounding attorneys were featured in the Annual List of Top Attorneys in the 2020 Northern California Super Lawyers magazine.
Super Lawyers rates attorneys in each state using a patented selection process; they also publish a yearly magazine issue that regularly produces award-winning features on selected attorneys.
Each Wilke Fleury attorney was highlighted as Top Rated in the following practice areas:
Dan Baxter– Top Rated Business Litigation Lawyer, Top 25 Sacramento Super Lawyer, Top 100 Northern California Super Lawyer
After
the City of Vacaville, following a sealed bid process, awarded a significant
well drilling contract to Roadrunner Drilling & Pump Company, second-place
bidder Nor-Cal Pump and Well Drilling filed a protest with the City on January
30, claiming that Roadrunner’s bid failed to meet certain requirements of the
proposed contract. Roadrunner hired Wilke Fleury to defend the bid
protest. After Wilke Fleury partner Dan Baxter transmitted a letter to
the City explaining why the disgruntled bidder’s protest was factually and
legally unsupported, the City—a mere nine days after receiving Dan’s
letter—rejected the bid protest, and maintained its award of the project to
Roadrunner as the lowest responsive and responsible bidder.
Wilke
Fleury wishes Roadrunner the best of luck in completing this important
municipal project!
The recently enacted California Consumer Privacy Act (“CCPA”
or the “Act”) goes into effect on January 1, 2020 and with it comes enhanced
consumer protections for California residents against businesses that collect
their personal information. Generally
speaking, the CCPA requires that businesses provide consumers with information
relating to the business’ access to and sharing of personal information. Accordingly, businesses should determine
whether the CCPA will apply to them and, if so, what policies and procedures
they should implement to comply with this new law.
Application of the CCPA
Importantly,
the CCPA does not apply to all California business. The requirements of the CCPA only apply where
a for-profit entity collects Consumers’ Personal Information, does business in
the State of California, and satisfies one or more of the following: (1) has
annual gross revenues in excess of twenty-five million dollars ($25,000,000); (2)
receives for the business’s commercial purposes, sells, or shares for
commercial purposes the personal information of 50,000 or more consumers,
households, or devices; or (3) derives 50 percent or more of its annual
revenues from selling consumers’ personal information. (California Code of
Civil Procedure § 1798.140(c)(1)(A)-(C).)
Thus, as a practical matter, small “mom
and pop” operations will likely not be subject to the CCPA, but most mid-size
and large companies should review their own books or consult with an accountant
to determine whether the CCPA applies to their business.
Rights Granted to Consumers
“Consumers,” as the term is used in
the CCPA, means “any natural person who is a California resident…” (California Code of Civil Procedure §
1798.140(g).) This broad definition
makes no carve-outs or exclusions for a business’s employees and, despite the
traditional definition of the term “consumer,” does not seem to require that
the resident purchase any goods or services.
This definition seems intentional and was likely designed to prevent
businesses from attempting to circumvent the requirements of the CCPA by
arguing that the personal information they collect does not belong to
“consumers” under the traditional meaning of the word.
While the term “consumer” includes
employees, Civil Code Section 1798.145(g) (effective January 1, 2020) makes a
limited time exception for “personal information that is collected by a
business about a natural person in the course of the natural persons acting as
… an employee of… that business to the extent that the natural person’s
personal information is collected and used by the business solely within the
context of the natural person’s role or formal role as… an employee…” This exception is currently set to lapse on
January 1, 2021, at which time personal information relating to employees will
presumably be subject to the requirements of the CCPA. An example where employee personal information
could be subject to the CCPA is data related to employee benefits or
geo-location data gathered from employee use of rideshare programs like Lyft or
Uber.
Under the
CCPA, all Consumers possess the following four rights in relation to their
personal information:
The right to request that a business disclose to
the consumer the categories and specific pieces of personal information the
business has collected, the purposes for which the personal information is
used, and the sources from which the personal information was collected;
The right to request that a business delete any
personal information about the consumer which the business has collected from
the consumer;
The right to direct a business that sells personal
information about the consumer to third parties not to sell the consumer’s
personal information; and
The right to not be discriminated against by a
business as a result of exercising his or her rights under the CCPA.
Moreover, businesses are required
to disclose the existence of these rights to the consumers at or before the
point of collection of the information. Typically,
this is done pursuant to the business’ privacy policy which is disclosed to the
consumer at the outset of their relationship with the business. For 2020, businesses that must comply with
the CCPA should consider reviewing their existing privacy policies to ensure
that they provide all required notices and prepare policies and procedures for
handling requests from consumers for information relating to their personal information.
What Constitutes Personal Information?
“Personal
Information,” as that term is used in the CCPA, has an expansive definition and
includes all information that identifies, relates to, describes, is capable of
being associated with, or could be reasonably linked with a particular consumer
or household, and includes, but is not limited to:
Identifiers such as real name, alias, postal
address, unique personal identifier, online identifier, IP address, email
address, account name, social security number, driver’s license number,
passport number, or similar identifiers;
Characteristics of protected classifications
under California or federal law (religion, race, national origin, etc.);
Commercial information, including records of
personal property, products or services purchased, obtained, or considered, and
other purchasing or consumer histories or tendencies;
Biometric information;
Internet activity, including browsing history,
search history, and information regarding a consumer’s interaction with a
website, application, or advertisement;
Geolocation data;
Audio, electronic, visual, thermal, olfactory,
or similar information;
Professional or employment-related information;
and
Education information.
Regardless of whether a piece of
information is specifically identified as personal information under the CCPA,
the key inquiry is whether information may reasonably be linked with a
particular consumer or household. If so,
it likely constitutes personal information under the CCPA and is subject to the
consumer rights identified therein.
Penalties for Violation of the CCPA
Businesses
subject to the CCPA face onerous penalties for any violation. Specifically, if a business fails to cure any
alleged violation within thirty (30) days after being notified of alleged
noncompliance, the business will be subject to an injunction to stop its
noncompliant activity and face civil penalties of not more than ($2,500) for
each violation or ($7,500) for each intentional violation. It is unclear from the statute whether the
“each violation” language means a single instance of non-compliance regardless
of the number of consumers affected or whether each affected consumer
constitutes an individual violation.
Alongside these civil penalties, consumers whose personal information is subject to unauthorized access and exfiltration, theft, or disclosure as a result of the business’ violation of the duty to implement and maintain reasonable security procedures may bring a civil action to recover not less than $100 and not greater than $750. However, consumers must provide businesses with 30 days’ written notice of the violation and an opportunity to cure before bringing such a suit. While these penalties are relatively small on a per consumer basis, class-action lawsuits can be initiated, which could result in significant potential liability to non-compliant companies.
Conclusion
In advance of January 1, 2020, businesses should evaluate whether they are subject to the requirements of the CCPA and begin formulating policies and procedures to handle any potential consumer requests thereunder. Regulations relating to the Act are not yet finalized but businesses should keep an eye for finalized regulations in the next several months, which may provide guidance for implementing procedures that comply with the CCPA.
Kevin Bonsignore is an Associate at Wilke Fleury and focuses his practice on general business litigation, bankruptcy, and real estate.
The voting for Professional Research Services’ survey to determine the top attorneys in 2017 for Sacramento Magazine was open to all licensed attorneys in Sacramento, Calif. Attorneys were asked whom they would recommend among 56 legal specialties, other than themselves, in the Sacramento area. Each attorney was allowed to recommend up to three colleagues in each given legal specialty. Once the online nominations were complete, each nominee was carefully evaluated on the basis of the survey results, the legitimacy of their license, and their current standing with the State Bar of California. Attorneys who received the highest number of votes in each specialty are reflected in the following list. – Sacramento Magazine
In addition, David was also acknowledged as a 2020 “Lawyer of the Year” award recipient. He received this accolade for his work in Litigation – Real Estate in Sacramento. Only a single lawyer in each practice area and community is honored with a “Lawyer of the Year” award.
David has extensive and broad experience in 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.
Wilke Fleury is pleased to announce that it has promoted three associates to the position of Senior Counsel – Bianca Samuel, Adriana Cervantes and Aaron Johnson – who have demonstrated professional excellence and complement the firm’s multi-generational leadership.
“Bianca, Adriana, and Aaron’s ascension to Senior Counsel status reflects their significant accomplishments and contributions to the firm, both professionally and culturally,” said Dan Baxter, Managing Partner. “We are lucky to have all three of them within our ranks here at Wilke Fleury, and look forward to their successes for our clients.”
Senior Counsel have at least six years of experience delivering high-quality legal work, collaborate with partners on the development and management of key practice areas, and actively mentor junior lawyers.
Bianca Samuel litigates a wide variety of employment matters, including claims for discrimination, retaliation, wrongful termination, and single-plaintiff wage and hour claims on behalf of employers and supervisors before all state and federal courts and administrative proceedings. She conducts independent workplace investigations for public and private entities. She also advises and counsels employers on best practices relating to hiring, discipline, termination, wage and hour issues and training on employment related topics.
Adriana Cervantes defends healthcare professionals and hospitals against claims of medical malpractice, intentional torts, licensing actions for unprofessional conduct, and similar charges. She has successfully litigated cases involving obstetrics and gynecology, neurology, cardiology, infectious disease, radiology, psychiatry, emergency medicine, and many other medical specialties. Her practice extends to matters initiated in both state and federal court, and before administrative boards. Adriana also serves as the Fundraising Director for Operation Protect and Defend (OPD) an organization dedicated to engaging public high school students in a dialogue about the U.S. Constitution and promoting civic engagement.
Aaron Johnson has deep experience in Estate Planning, Business Formation and Transactions, Tax Planning and Controversy Resolution. His work in estate planning focuses on succession planning for individuals, family limited partnerships and closely-held businesses. Aaron specializes in drafting wills, trusts, advance health care directives, durable powers of attorney and related documents. In addition, he assists clients and companies with matters covering the full life cycle of business from formation to succession planning. He has experience forming LLCs and S Corporations, drafting Buy-Sell agreements, Purchase and Sale agreements, corporate minutes, and shareholder agreements, among other business documents. Aaron represents individuals and companies in all aspects of tax planning and controversy resolution before federal and state taxing authorities. His experience includes representing clients in front of the Internal Revenue Service (IRS), Franchise Tax Board (FTB) and the California Department of Tax and Fee Administration (CDTFA).
Wilke Fleury is a thriving mid‐sized general practice law firm located in California’s capital. Our attorneys offer broad expertise, creativity, and strong ties to local businesses, families, and individuals, making Wilke Fleury one of the region’s most respected and long‐standing law firms. Our support of local charitable organizations, universities, law schools, political interests and the community reveals the character of the firm and our sincere commitment to the Sacramento region.
David has extensive and broad experience in 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.
Wilke Fleury is pleased to announce its inclusion in the 2018 editions of ‘Best Law Firms’ in America and ‘Best Lawyers’ in America. The two award categories reflect excellence in legal service – firms included in the 2018 “Best Law Firms” list are recognized for professional excellence by clients and peers and Best Lawyers® has become universally regarded as the definitive guide to legal excellence.
Wilke Fleury Recognized in U.S. News 2018 Edition ‘Best Law Firms’ in America
Wilke Fleury is honored to be recognized among the nation’s Best Law Firms by U.S. News – Best Lawyers.
“Firms included in the 2018 “Best Law Firms” list are recognized for professional excellence with persistently impressive ratings from clients and peers. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.”
Wilke Fleury Attorneys Elected to U.S. News 2018 Edition ‘Best Lawyers’ in America
David has extensive and broad experience in 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.
Read the full article here: http://www.wilkefleury.com/blog/disclosing-disability-not-pardon-past-bad-conduct/
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