In the news – 02/23/2017

Provider pays $5.5 million in HIPAA settlement

A Florida healthcare provider has paid the government $5.5 million to settle potential Health Insurance Portability and Accountability Act violations after information on more than 115,000 patients was “impermissibly accessed” several years earlier, officials announced Thursday.

Memorial Healthcare Systems, which operates a nursing home, six hospitals and other healthcare facilities in South Florida, reported to the Department of Health and Human Services that patients’ protected information, including names, dates of birth and social security numbers, had been accessed by employees and “impermissibly disclosed to affiliated physician office staff.”  Full Article


SB: 3: Minimum Wage and Paid Sick Leave Expands for In-Home Supportive Services Workers

(1) Under existing law, the Healthy Workplaces, Healthy Families Act of 2014, an employee who, on or after July 1, 2015, works in California for the same employer for 30 or more days within a year from the commencement of employment is entitled to paid sick days, as specified. Existing law requires an employee to accrue paid sick days at the rate of not less than one hour per every 30 hours worked subject to specified use and accrual limitations. For the purposes of the act, an “employee” does not include a provider of in-home supportive services, as described.

This bill, on and after July 1, 2018, would entitle a provider of in-home supportive services who works in California for 30 or more days within a year from the commencement of employment to paid sick days, subject to specified full amount of leave time amounts and that rate of accrual. The bill would require the State Department of Social Services, in consultation with stakeholders, to convene a workgroup to implement paid sick leave for in-home supportive services providers and to issue guidance in that regard by December 1, 2017. The bill would authorize the department to implement that paid sick leave without complying with the Administrative Procedure Act.

(2) On and after July 1, 2014, existing law requires the minimum wage for all industries to be not less than $9 per hour. On and after January 1, 2016, existing law requires the minimum wage for all industries to be not less than $10 per hour.

This bill would require the minimum wage for all industries to not be less than specified amounts to be increased from January 1, 2017, to January 1, 2022, inclusive, for employers employing 26 or more employees and from January 1, 2018, to January 1, 2023, inclusive, for employers employing 25 or fewer employees, except when the scheduled increases are temporarily suspended by the Governor, based on certain determinations. The bill would also require the Director of Finance, after the last scheduled minimum wage increase, to annually adjust the minimum wage under a specified formula.

On or before July 28, 2017, and on or before every July 28 thereafter until the minimum wage is a specified amount for employers employing 26 or more employees, the bill would require the Director of Finance to annually determine, based on certain factors, whether economic conditions can support a scheduled minimum wage increase and certify that determination to the Governor and the Legislature. The bill would also require the State Board of Equalization to publish specified retail sales and use tax information on its Internet Web site to be used by the Director of Finance in making that determination.

On or before July 28, 2017, and on or before every July 28 thereafter until the minimum wage is a specified amount for employers employing 26 or more employees, in order to ensure that the General Fund can support the next scheduled minimum wage increase, the bill would also require the Director of Finance to annually determine and certify to the Governor and the Legislature whether the General Fund would be in a deficit in the current fiscal year, or in either of the following 2 fiscal years. Senate Bill No. 3


AB: 2337: Employment protections: victims of domestic violence, sexual assault, or stalking

Existing law prohibits an employer from discharging or in any manner discriminating or retaliating against an employee who is a victim of domestic violence, sexual assault, or stalking for taking time off from work for specified purposes related to addressing the domestic violence, sexual assault, or stalking. Existing law provides that any employee who is discharged, threatened with discharge, demoted, suspended, or in any manner discriminated or retaliated against in the terms and conditions of employment by his or her employer because the employee has taken time off for those purposes is entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer, as well as appropriate equitable relief, and is allowed to file a complaint with the Division of Labor Standards Enforcement within the Department of Industrial Relations. Existing law establishes the Labor Commissioner as the head of the Division of Labor Standards Enforcement.

This bill would require employers to inform each employee of his or her rights established under those laws by providing specific information in writing to new employees upon hire and to other employees upon request. The bill would also require the Labor Commissioner, on or before July 1, 2017, to develop a form an employer may elect to use to comply with these provisions and to post it on the commissioner’s Internet Web site. Employers would not be required to comply with the notice of rights requirement until the commissioner posts the form. Assembly Bill No. 2337


AB 1843: Applicants for Employment: Criminal History

Existing law prohibits an employer, whether a public agency or private individual or corporation, from asking an applicant for employment to disclose, or from utilizing as a factor in determining any condition of employment, information concerning an arrest or detention that did not result in a conviction, or information concerning a referral or participation in, any pretrial or post trial diversion program, except as specified. Existing law also prohibits an employer, as specified, from asking an applicant to disclose, or from utilizing as a factor in determining any condition of employment, information concerning a conviction that has been judicially dismissed or ordered sealed, except in specified circumstances. Existing law specifies that these provisions do not prohibit an employer at a health facility, as defined, from asking an applicant for a specific type of employment about arrests for certain crimes. Existing law makes it a crime to intentionally violate these provisions.

This bill would also prohibit an employer from asking an applicant for employment to disclose, or from utilizing as a factor in determining any condition of employment, information concerning or related to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court law. The bill, for the purposes of the prohibitions and exceptions described above, would provide that “conviction” excludes an adjudication by a juvenile court or any other court order or action taken with respect to a person who is under the jurisdiction of the juvenile court law, and would make related and conforming changes. The bill would prohibit an employer at a health facility from inquiring into specific events that occurred while the applicant was subject to juvenile court law, with a certain exception, and from inquiring into information concerning or related to an applicant’s juvenile offense history that has been sealed by the juvenile court. The bill would require an employer at a health facility seeking disclosure of juvenile offense history under that exception to provide the applicant with a list describing offenses for which disclosure is sought.

Because this bill would modify the scope of a crime, it would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. Assembly Bill No. 1843


AB 908: Disability Compensation; Disability Insurance

Existing unemployment compensation disability law provides a formula for determining benefits available to qualifying disabled individuals. For an individual who has quarterly base wages of greater than $1,749.20, the weekly benefit is calculated by multiplying base wages by 55% and dividing the result by 13. For a benefit that is not a multiple of $1, existing law provides that the benefit shall be computed to the next higher multiple of $1. However, existing law provides that this amount may not exceed the maximum workers’ compensation temporary disability indemnity weekly benefit amount.

Under existing law, the family temporary disability insurance program provides up to 6 weeks of wage replacement benefits to workers who take time off work to care for specified persons, or to bond with a minor child within one year of the birth or placement of the child in connection with foster care or adoption. Existing law defines “weekly benefit amount” for purposes of this program to mean the amount of benefits available to qualifying disabled individuals pursuant to unemployment compensation disability law.

This bill would revise the formula for determining benefits available pursuant to unemployment compensation disability law and for the family temporary disability insurance program, for periods of disability commencing after January 1, 2018, but before January 1, 2022, to provide a weekly benefit amount minimum of $50 and increase the wage replacement rate to specified percentages, but not to exceed the maximum workers’ compensation temporary disability indemnity weekly benefit amount established by the Department of Industrial Relations pursuant to existing law.

Existing law deems an individual to be eligible for family temporary disability benefits if, among other things, the individual is unable to perform his or her regular or customary work for a 7-day waiting period during each disability benefit period. and prohibits payments for benefits during this waiting period.

This bill, on and after January 1, 2018, also would remove the 7-day waiting period for these benefits.

This bill, by authorizing an increase in the expenditure of money from the Unemployment Compensation Disability Fund, would make an appropriation.

This bill would require, by July 1, 2017, the Employment Development Department to report to the Assembly Committee on Insurance and Senate Committee on Labor and Industrial Relations specified information regarding the waiting period for disability benefits. The bill also would require, by March 1, 2021, the department to prepare a report to the Legislature and specified legislative committees on levels and trends regarding utilization, costs, and rates with respect to family leave and disability insurance.  Assembly Bill No. 908


AB 488: Employment Discrimination

“Existing law, the California Fair Employment and Housing Act, protects the right to seek, obtain, and hold employment without discrimination because of race, religious creed, physical disability, mental disability, sex, age, and sexual orientation, among other characteristics. The act prohibits various forms of employment discrimination, including discharging or refusing to hire or to select for training programs on a prohibited basis. The act prescribes requirements for filing complaints of employment discrimination with the Department of Fair Employment and Housing and charges this department with investigating and determining whether or not to bring a civil action on behalf of the complainant, among other duties. The act exempts employers from remedies for specified unlawful employment practices, including when the discrimination is on the basis of physical or mental disability and the disability prevents the employee from safely performing essential duties even with reasonable accommodations. The act excludes from the definition of “employee,” any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility. A special license permits the employment of individuals with disabilities at a wage less than the legal minimum wage.”

“This bill would authorize an individual employed under a special license in a nonprofit sheltered workshop, day program, or rehabilitation facility to bring an action under the act for any form of harassment or discrimination prohibited by the act. The bill would provide an employer against whom the individual brings this action with an affirmative defense by proving, by a preponderance of evidence, that the challenged action was permitted by statute or regulation and was necessary to serve employees with disabilities under a special license. The bill would exempt an employer’s obtaining a special license, or hiring or employing a qualified individual at a wage less than the minimum wage in conformity with a special license, from the act’s provisions prohibiting discrimination based on disability. The bill would provide that the definition of employee was not intended to permit the harassment of, or discrimination against, an individual employed under a special license in a nonprofit sheltered workshop, day program, or rehabilitation facility.” Assembly Bill No. 488


Employment News – 10/20/2016

The Fair Labor Standards Act defines regular rate of pay to include all remuneration for employment except certain payments excluded by the Act itself. Payments which are not part of the regular rate include:

  • Expenses incurred on the employer’s behalf,
  • Premium payments for overtime work or true premium paid for work on Saturdays, Sundays and holidays,
  • Discretionary bonuses,
  • Gifts and payments in the nature of gifts on special occasions, and
  • Payments for occasional periods when no work is performed due to vacation, holidays, or illness.

Source for News notes: Calculating Overtime Just Got Trickier for Some Employers by Laura K. Sitar, Shareholder at Wroten & Associates.


Employment News – 10/18/2016

The Fair Labor Standards Act (FLSA) requires that employees be paid one and one-half times their regular rate of pay for all hours worked over forty hours in a workweek. California’s Labor Code additionally requires overtime for all hours worked over eight hours in a day and on the seventh day worked in a workweek. To calculate an overtime rate, an employer must know what to include in an employee’s regular rate of pay.

Source for News notes: Calculating Overtime Just Got Trickier for Some Employers by Laura K. Sitar, Shareholder at Wroten & Associates.


Newsletter Fall 2016

fall-2016-newsletter



In the News – 04/12/16

Another View: State not prepared to handle mentally ill and aging population (by James Gomez, The Sacramento Bee) “The Sacramento Bee article, “Shifting population in California nursing homes creates ‘dangerous mix’ ” (Page 1A, April 3), identifies growing challenges for our state’s nursing homes, but it fails to focus on the root cause of what got us here. State and local policy on mental and behavioral health care, and its lack of dedicated services in this area, are key to this issue. California, by conservative estimates, is several thousand beds short of adequately serving those with mental illness or behavioral issues. The shortage of 24-hour care – and the beds required for that treatment – places a strain throughout the health care system, and specifically in long-term care and skilled nursing facilities.”  Entire Article


In the News – 04/11/16

The California End-of-Life Option Act: The opponents of the Act included the Coalition of Physicians & Other Healthcare Providers and organizations dedicated to the rights of people with disabilities. Faith-based organizations advocate that while protections for healthcare providers are present, it is the patient who remains without adequate protections. The Coalition wrote that the Act does not require a psychiatrist to evaluate a patient before he or she decides to end their life; does not require anyone to be present when the patient takes his/or her lethal prescription; and allows the patient, or designated agent, to pick up their lethal prescription at the local pharmacy. In addition, the opponents assert that the Act will have a devastating impact on the treatment of terminally ill and disabled patients because it will quickly become another treatment option, always being the cheapest. The Medical Oncologist Association of Southern California, Inc. believes that no matter how many parameters are placed around the practice, legalizing a form of suicide will have spill over effects in society at large.

Source for News notes: The California End-of-Life Option Act: To Participate or Not to Participate by Larry T. Pleiss, Shareholder at Wroten & Associates.


The California End-of-Life Option Act

Among the rapidly evolving areas of health law are the legal, medical, and ethical issues relating to death and dying. California is now the fifth state to authorize medical aid-in-dying. This raises the thorny and inevitable question as to whether your institution, facility or agency will participate or not participate in the activities authorized under the End of Life Option Act [the “Act”] signed by Governor Jerry Brown, on October 5, 2015. (Cal. Health & Safety Code, § 443, et seq.) The Act permits a competent, qualified individual who is an adult with a terminal disease to receive a prescription for an aid-in-dying drug if certain conditions are met. These conditions include two oral requests, a minimum of 15 days apart, and a written request signed by two witnesses. These requests must be provided to his or her attending physician who then refers the patient to a consulting physician to confirm diagnosis and capacity to make medical decisions. The attending physicians refers the patient to mental health specialists, if indicated.

 

Source for News notes: The California End-of-Life Option Act: To Participate or Not to Participate by Larry T. Pleiss, Shareholder at Wroten & Associates.


Mandatory Sick Leave

Many employers who offer holiday pay have written policies that state holiday pay will not be granted if an employee calls in sick the day before or after a holiday. Presumably the intent is to discourage employees from calling in sick as a means of lengthening a holiday weekend. Unfortunately, it is likely such a provision would be seen as resulting in retaliation against the employee for using protected sick leave since using the sick leave results in loss of holiday pay. It’s important to strike any similar language from written policies.

Source for Employment notes: California’s Mandatory Sick Leave, by Laura K. Sitar, Shareholder at Wroten & Associates.


In the News – Employment 04/04/16

The California Healthy Workplaces, Healthy Families Act of 2014 requires all California employers to provide the greater of three days or twenty-four hours of paid sick days annually to all eligible employees beginning July 1, 2015. A detailed description of the law with questions and answers is available on the California Department of Industrial Relations website at http://www.dir.ca.gov/dlse/Paid_Sick_Leave.htm Eight months after California employees rolled out their new compliant sick leave or Paid Time Off (PTO) policies, one simple requirement of the act deserves special attention. The law prohibits retaliation against employees for exercising their right to use protected sick leave. Given the frequency retaliation claims are filed in California, it’s important that employers evaluate their sick leave policies and procedures to avoid inadvertent retaliation.

Source for Employment notes: California’s Mandatory Sick Leave, by Laura K. Sitar, Shareholder at Wroten & Associates.


In the News – 03/01/2016

Direct care staff (defined as staff members of residential care facilities for the elderly who assist residents with personal activities of daily living as well as CNAs, RNs, and LPNs) must now receive 40 hours of training before working independently with residents, and an additional 12 hours annually for in-servicing. The training must include topics related to physical limitations and the needs of the elderly, techniques for personal care, Residents’ rights, policies and procedures regarding medications, psychological needs of the elderly, building safety, the use and misuse of antipsychotics, special needs for residents with dementia and Alzheimer’s as well as cultural competency and sensitivity. This is a huge increase in training requirements as prior to January 1, 2016, direct care staff are only required to receive 10 hours of training within the first four weeks of employment, meaning on-the-job training. Further, required training hour topics have not previously included the use and misuse of antipsychotics, special needs for residents with dementia and Alzheimer’s as well as cultural competency and sensitivity.

Source of Update notes: Training Requirements by: Lora A. Ajello, Senior Attorney at Wroten & Associates

 


Newsletter Spring 2016

spring-2016


In the News – 02/22/16

All RCFE caregivers must receive dementia care training, regardless if the RCFE promotes or advertises a memory care unit or any special programs related to the residents with dementia. This training is in addition to the increased requirements laid out in section 1569.625. As of January 1, section 1569.626 now requires 12 hours of dementia care training, six of which must be completed prior to the staff member being able to work independently with residents and the remaining six hours must be completed within the first four weeks of employment. The Code is very clear: beginning on January 1, 2016, all 12 hours must be devoted to the care of persons with dementia. In-servicing relating to dementia care likewise must be performed annual for at least eight hours. In-service training must “be developed in consultation with individuals or organizations with specific expertise in dementia care or by an outside source with expertise in dementia care.”

Source of Update notes: Training Requirements by: Lora A. Ajello, Senior Attorney at Wroten & Associates


Employment News – 02/16/16

Labor Code § 226 requires accurate itemized pay statements showing:

  • Gross wages earned,
  • Total hours worked by the employee,
  • The number of piece rate units earned and any applicable piece rate if the employee is paid on a piece rate basis,
  • All deductions, provided that all deductions made on written orders of the employee, may be aggregated and shown as one item,
  • Net wages earned,
  • Dates inclusive of the period for which the employee is paid,
  • Name of the employee and only the last four digits of his or her social security number or an employee identification number other that a social security number,
  • Name and address of the legal entity that is the employer, and
  • Applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee.

Source for Employment notes: Window of Opportunity for Employers: AB 1506 by: Laura K. Sitar, Shareholder at Wroten & Associates.

 


Employment News – 02/10/16

AB 1506 now provides employers with 30 days to cure select missing information, specifically (6) missing inclusive dates of the period for which the employee is paid and (8) the names and address of the legal entity that is the employer. Before filing a civil action the employee must give written notice of the violation by certified mail to the Labor and Workforce Development Agency and the employer, including facts and theories to support the alleged violation.  Employers should pay attention to any correspondence served by certified mail addressed to the Labor and Workforce Development Agency and the employer identifying Labor Code violations. The cure provisions require providing compliant wage statements to all employees for the past three years, which may sound onerous, but is certain to be less costly than the penalties and attorneys fees available if the violation is not cured.

Source for Employment notes: Window of Opportunity for Employers: AB 1506 by: Laura K. Sitar, Shareholder at Wroten & Associates.


In the News – 02/09/2016

AB 1570 and SB 911 have now amended Health and Safety Code section 1569.23 and section 1569.625 to require the certification program for a prospective Administrator to consist of 100 hours of course work and a state-administered exam of no less than 100 questions. The current law requires an Administrator of an RCFE to successfully complete a department approved certification program prior to employment that requires, among other things, a minimum of 40 hours of classroom instruction on a uniform core of knowledge. Starting on January 1, 2016, the minimum hours of classroom instruction for Administrators jumps to 80 hours, including 60 hours of in-person instruction, and would add additional topics to the uniform core of knowledge, including the adverse effects of psychotropic drugs for use in controlling the behavior of persons with dementia.

Source of Update notes: Training Requirements by: Lora Ajello, Senior Attorney at Wroten & Associates

 




Claims of negligent hiring

Claims of negligent hiring are waiting in the wings for employers who fail to conduct reference checks on prospective employees.  The following are tips for conducting effective reference checks:

  1. Contact the candidate’s former supervisors, not the human resources department of personal references.
  2. Identify who you are and the nature of the position sought. Ask:
  3. What was the individual’s start and end date?
  4. What was the individual’s final pay rate?
  5. Why did the individual resign?
  6. Why was the individual fired?
  7. How was the individual’s attendance?
  8. Was the individual ever disciplined for abuse?
  9. Is there anything else I should know about this individual?
  10. Don’t give up.  Keep calling.
  11. Document all of your efforts including an employer’s refusal to provide a reference.

Source for Employment notes: Reference Checks by: Laura K. Sitar, Shareholder at Wroten & Associates.












Reference Checks

An employer is immune from liability for defamation, as long as the employer provides the information to a prospective employer who requests it and acts without malice. California Civil Code section 47(c) specifically states that this protection extends to statements about job performance, qualifications, and eligibility for rehire. An employer is protected if its statements are based on credible evidence and made without malice.

Source for Employment notes: Reference Checks by: Laura K. Sitar, Shareholder at Wroten & Associates.





Paid Sick Leave (effective July 1, 2015) Part II of II

AB 1522 requires California employers to pay up to three days sick pay per year effective July 1, 2015.   Sick leave may be used for diagnosis, treatment, or preventative care for an employee or that employee’s family members.  Family members include parents-in-law, grandparents, grandchildren, and siblings.  Sick leave may also be used for victims of domestic violence, sexual assault or stalking.

Unused hours must carry over year to year with a permissible cap of 48 hours or six days.  However, if employees are given the total amount of sick days that may be used at the beginning of the year, no accrual or carryover is required.  Employers are not required to pay employees for accrued unused sick pay at the time of separation from employment.

Employers must provide employees with an itemized statement setting forth available sick leave on the employee’s itemized wage statement or separate form each payday.  Employers must also display a poster informing employees of their rights in a conspicuous location.

Source for Employment notes: New California Employment Laws for 2015 by: Laura K. Sitar, Shareholder at Wroten & Associates


Paid Sick Leave (effective July 1, 2015) Part I of II

AB 1522 requires California employers to pay up to three days sick pay per year effective July 1, 2015.  Employers must permit employees to accrue paid sick leave at a rate of at least one hour of paid sick leave for every 30 hours worked.  Exempt employees are deemed to work 40 hours, unless the employees work week is less than 40 hours.

The employer may limit the use of paid sick days to 24 hours or three days in each year of employment.  Employees who work 30 or more days within a year from commencement of employment are entitled to accrue sick days and entitled to use accrued sick leave beginning the 90th day of employment.  Employers may set a minimum increment of sick hours to be used at one time, but that minimum cannot be more than two hours.

Source for Employment notes: New California Employment Laws for 2015 by: Laura K. Sitar, Shareholder at Wroten & Associates.


Protecting Workers in the New Subcontracted Society

We are half way through 2015. Are you following the employment laws that went into effect January 1, 2015?

 Protecting Workers in the New Subcontracted Society
AB 1897 requires a client employer to share all civil legal responsibility and civil liability for the payment of wages and the failure to obtain valid workers’ compensation coverage for all workers supplied by certain labor contractors.  It amends existing law which prohibits a person or entity from entering into a contract for labor or services with a construction, farm labor, garment, janitorial, security guard, or warehouse contractor if the person or entity knows or should know that the contract or agreement does not include sufficient funds for the contractor to comply with laws or regulations governing the labor or services provided.

Source for Employment notes: New California Employment Laws for 2015 by: Laura K. Sitar, Shareholder at Wroten & Associates.


Prohibition Against Discrimination Based on Driver’s License for Undocumented Workers

We are half way through 2015. Are you following the employment laws that went into effect January 1, 2015?

 Prohibition Against Discrimination Based on Driver’s License for Undocumented Workers
AB 1600 extends current anti-discrimination and harassment provisions of the FEHA because the individual holds a driver’s license that indicates that he or she is undocumented.  It further prohibits any employer from requiring that an applicant or employee present a driver’s license unless having a driver’s license is a requirement of the job.

Source for Employment notes: New California Employment Laws for 2015 by: Laura K. Sitar, Shareholder at Wroten & Associates.


Mandatory Reporting to OSHA

We are half way through 2015. Are you following the employment laws that went into effect January 1, 2015?

Mandatory Reporting to OSHA
AB 326 amends current law requiring a company to immediately report a severe occupational injury, illness or death to the Division of Occupational Safety and Health Administration (OSHA) by phone or telegraph.  The bill very simply replaces the ability to report by telegraph with email.  An employer who violates the immediate reporting requirement may be assessed a civil penalty of not less than $5,000.  Employers continue to be required to report any occupational injury or illness which results in lost time beyond the date of injury or illness, or which requires medical treatment beyond first aid, within 5 days after the employer learns of the injury or illness.

Source for Employment notes: New California Employment Laws for 2015 by: Laura K. Sitar, Shareholder at Wroten & Associates .

 



CVS to Spend $10.4 in cash on drug distributor Omnicare

[Los Angeles Times, May 21, 2015] CVS Health will spend more than $10 billion to buy pharmacy services provider Omnicare and tap a growing target for prescription drug distribution: care for the elderly. The deal announced Thursday will give one of the nation’s biggest pharmacy benefits managers national reach in dispensing prescription drugs to assisted living and skilled nursing homes, long-term care facilities, hospitals and other health care providers. Omnicare’s long-term care business operates in 47 states and the District of Columbia.


What to Do When a Resident Refuses Transfer or Discharge (30 Day Notice Residential Care)

A thirty-day notice for a residential care facility for the elderly must state the following:

  • The reasons relied upon for the eviction, with specific facts to permit determination of the date, place, witness, and circumstances concerning those reasons.
  • The effective date of the eviction.
  • Information about resources available to assist the resident in identifying alternative housing and care options.
  • Information about the resident’s right to file a complaint with the California Department of Social Services regarding the eviction with the contact information for the nearest community care licensing office and State Ombudsman.
  • The following statement: “In order to evict a resident who remains in the facility after the effective date of the eviction, the residential care facility for the elderly must file an unlawful detainer action in superior court and receive a written judgment signed by the judge.  If the facility pursues the unlawful detainer action, you must be served with a summons and complaint.  You have the right to contest the eviction in writing and through a hearing.”

Source for Discharge Notes: What to Do When a Resident Refuses Transfer or Discharge by: Andrea R. Sitar,  Attorney at Wroten & Associates.


What to Do When a Resident Refuses Transfer or Discharge (Skilled Nursing)

A skilled nursing facility may evict a resident only if one of the following criteria are met and documented:

  • Nonpayment of rent;
  • Resident’s health has improved and he/she no longer needs nursing care;
  • Resident’s needs have increased and cannot be met by the facility;
  • Resident is endangering others’ safety;
  • Resident is endangering others’ health; or
  • The facility is going out of business.

Source for Discharge Notes: What to Do When a Resident Refuses Transfer or Discharge by: Andrea R. Sitar,  Attorney at Wroten & Associates.


What to Do When a Resident Refuses Transfer or Discharge (Residential Care)

A residential care facility for the elderly may evict a resident only if one of the following criteria are met and documented:

  • Nonpayment of rate for basic services within ten days of their due date;
  • Failure of the resident to abide by state or local law;
  • Failure of the resident to follow facility policies;
  • Needs of the resident are no longer met; or
  • Facility has changed its purpose.

Source for Discharge Notes: What to Do When a Resident Refuses Transfer or Discharge by: Andrea R. Sitar,  Attorney at Wroten & Associates.


Drive by Shakedowns – Americans with Disabilities Act (ADA)

Limit your exposure to “drive by shakedowns” by addressing common ADA parking lot issues:

  • Determine whether your loading zones/ van access aisles are compliant.
  • Determine whether your parking lot signage is compliant.
  • Determine whether your parking lot contains the required minimum number of accessible parking spaces.
  • Determine whether the routes to and from the parking lost as “accessible”.
  • Determine whether curb ramps or entrance ramps are compliant.

Source for News Notes: Drive by Shakedowns – Americans with Disabilities Act (ADA) by: Stephen R. Hunter, Senior Attorney at Wroten & Associates.


Conquering a Department of Labor Investigation (What Employees Should Know)

What employees should know:

  • Employee interviews are voluntary.
  • Employees should not be intimidated because the investigator’s credentials look like a police badge.
  • Employees are expected to be truthful.
  • Employees should listen carefully to all questions asked.
  • Employees should take a break or end the interview at any time.
  • Employees should feel comfortable asking facility management any questions about the interview process before or after the interview.

Source for Employment Notes: Conquering a Department of Labor Investigation by: Laura K. Sitar, Shareholder at Wroten & Associates.



Fiscal Year 2016 proposed Inpatient and Long-term Care Hospital policy and payment changes (CMS-1632-P)

On April 17, 2015 the Centers for Medicare & Medicaid Services (CMS) issued a proposed rule to update fiscal year (FY) 2016 Medicare payment policies and rates under the Inpatient Prospective Payment System (IPPS) and the Long-Term Care Hospital (LTCH) Prospective Payment System (PPS). The proposed rule, which would apply to approximately 3,400 acute care hospitals and approximately 435 LTCHs, would affect discharges occurring on or after October 1, 2015. Entire Proposed Plan and Payment Changes


Government Sues Skilled Nursing Chain HCR Manorcare for Allegedly Providing Medically Unnecessary Therapy

“The government has intervened in three False Claims Act lawsuits and filed a consolidated complaint against HCR ManorCare alleging that ManorCare knowingly and routinely submitted false claims to Medicare and Tricare for rehabilitation therapy services that were not medically reasonable and necessary, the Department of Justice announced today.  ManorCare is one of the nation’s largest healthcare providers, operating approximately 281 skilled nursing facilities (SNFs) in 30 states.” Entire Article


Conquering a Department of Labor Investigation (Be Prepared)

All too often, employers are not prepared and negatively influence the outcome of an investigation by failing to:

  • Immediately respond to a request for an appointment by the DOL or a notice requesting documents be provided.
  • Prepare a game plan ahead of time regarding how to proceed once notice of an investigation has been given.
  • Prepare employees for interviews.
  • Fully understand the laws the DOL is there to enforce.
  • Cooperate with the DOL.
  • Seek assistance or representation, if necessary.

Source for Employment Notes: Conquering a Department of Labor Investigation by: Laura K. Sitar, Shareholder at Wroten & Associates.


Conquering a Department of Labor Investigation (Initial Conference)

The initial conference is part of the investigation and what is said in the conference counts. It is important that whomever is present representing the interests of the employer appears knowledgeable and organized.  Documents generally requested are:

  • Names, addresses and telephone numbers of all business owners and their company officers.
  • Organizational chart.
  • Legal names of company and all other names used.
  • Records showing gross annual dollar volume for past three years.
  • List of all employees with addresses and phone numbers, job titles, hourly rates/ salaries and exempt status.
  • All 1099 forms issued for the past two years.
  • Employers’ federal tax ID number.

Source for Employment Notes: Conquering a Department of Labor Investigation by: Laura K. Sitar, Shareholder at Wroten & Associates.










Consumer Class Actions: A Growing Phenomenon In the Elder Abuse Arena

By Laura Sitar

In a recent national seminar regarding consumer protection class actions, elder abuse was specifically identified as a burgeoning area for class action litigation. Courts have increasingly disfavored class certification for personal injury and wrongful death cases, making “traditional’ elder abuse cases all but impossible to certify as class actions. Not to be left out of the class action arena with its impressive financial rewards, plaintiffs’ counsel are increasingly filing consumer protection class actions against groups of skilled nursing homes and residential care facilities under both California’s Unfair Competition Law and Consumer Legal Remedies Act. These claims take the traditional elder abuse allegations of intentional under-funding and under-staffing and turn them into broader violations of business practices and consumers’ rights. The resulting class action litigation targets a previously untapped source of monetary awards in the elder abuse arena.

While thoroughly covering the issues involved in evaluating and defending consumer protection class actions based on traditional elder abuse allegations would require an extensive treatise, the following article is intended to provide an overview of the subject matter.

Typical California Consumer Protection Class Actions
California based consumer protection class actions founded on traditional elder abuse allegations are generally filed under the following California statutes:

Violation of the Unfair Competition Law
California Business and Professions Code section 17200 et seq. is commonly known as the Unfair Competition Law (UCL) Under section 17200, unfair competition is defined as any unlawful, unfair or fraudulent business act or practice and any unfair, deceptive, untrue or misleading advertising. It’s apparent from the language of the code that covered acts or practices are virtually limitless. Plaintiffs need simply allege defendants violated any of a number of Health and Safety codes and regulations as they relate to skilled nursing facilities (SNFs) or residential care facilities for the elderly (RCFEs) to show a pattern of misconduct and violations that constitute unfair business practices. The theory follows that defendants’ violation of Health and Safety codes and regulations give them unfair advantage over other facilities who abide by the rules. Citations issued by the Department of Social Services or Department of Health Services provide important supporting evidence for such class action complaints.

Violation of the False Advertising Act
California Business and Professions Code section 17500 et seq. is commonly known as the False Advertising Act. Under these claims, plaintiffs generally allege defendants advertise they are able to provide necessary care and services to their residents even when defendants know they do not have adequate staff in numbers and training to do so. In essence, defendants systematically disseminate advertising which is false and misleading and which defendants know to be untrue. The alleged false advertising identified by plaintiffs is found on facility web sites, in brochures and through statements made by marketing and admissions personnel. Plaintiffs’ examples of false and misleading statements are often as simple as “We can take care of your needs.”

Violations of Consumer Legal Remedies Act
California Civil Code section 1750 et. seq. is known as the Consumer Legal Remedies Act (CLRA). This act targets unfair methods of competition and unfair or deceptive acts or practices intended to result in the sale of goods or services. Here, a typical allegation states defendants represent to the public that they provide sufficient and lawful care and supervision to their residents. Plaintiffs argue these representations are made through such vehicles as admissions agreements, Department of Social Service and Department of Health Services licensing, and representations to the public through defendant web-sites, brochures, advertising materials and facility personnel. Plaintiffs allege defendants’ actions are intended to entice the elderly to reside or receive care in their facilities, however, due to inadequate funding and staffing those facilities cannot provide the necessary services.

Relief Sought
Consumer protection class actions based on “traditional” elder abuse allegations generally seek restitution of payments made by residents for those services which were never provided. The Consumer Legal Remedies Act also authorizes civil penalties of $500 per plaintiff for violation of that statute, as well as punitive damages and attorneys fee. Penalties under CLRA alone could amount to $500,000 in class actions involving only 1000 current and former residents. Finally, these consumer protection class actions generally seek injunctions requiring defendants to immediately cease those acts that constitute unlawful, unfair and fraudulent business practices and false advertising.

What is a Class Action Claim?
A class action is a lawsuit brought by one or more named parties as representatives of a group or “class” of similarly situated parties. Class action representatives sue on behalf of other class members based on a showing that the class action format is necessary and superior to litigation of numerous individual claims.

Class actions generally have two phases, the first being class certification and the second being litigation of the underlying claims, provided certification is approved by the court. In order to obtain certification of the class and thus allowing the claims to proceed as a class action, plaintiffs must demonstrate the class meets certain requirements. Plaintiff must show there are ascertainable class members who can be readily identified. Plaintiff must also show there is a well defined community of interest among those class members. The community of interest requirements include three factors: 1) there must be a predominance of common questions of law and fact among the class members’ claims, 2) class representative(s) must have claims or defenses which are typical of the class, and 3) class representative(s) must be able to adequately represent the class. The community of interest requirement is not satisfied if every member of the alleged class would be required to litigate numerous and substantial questions determining the member’s individual rights to recovery following the class judgment which has resolved issues common to the purported class. Additionally, a class representative must demonstrate he/she is similarly situated to the other members of the class and has the ability to represent the class.

Finally, under all claims except those brought under the CLRA, plaintiff must demonstrate that substantial benefits will accrue to the court and the litigants by proceeding as a class action. Defense of class action claims begins with an attack on the elements needed to be proven by plaintiffs to achieve class certification. If class certification is denied, plaintiffs are left to prosecute individual claims, something which is very unlikely to occur.

Issues To Be Considered

State v. Federal Court:
Unlike traditional elder abuse cases, many class action complaints based on elder abuse allegations may be filed in either state or federal court. In some cases, the decision must be made whether to remain in state court or seek removal to federal court. In 2005, Congress enacted the Class Action Fairness Act (CAFA) which expanded federal jurisdiction over class actions, presumably in an attempt to rein in expanding class action practice. CAFA allows any claim with damages greater than $5,000,000 to be removed to federal court. It also expands the opportunity for removal based on diversity when at least one defendant is a resident of a different state than any plaintiff. Defendants must evaluate whether a move to federal court is likely to be beneficial. Federal courts apply underlying state caselaw, however, they apply federal procedural rules which are often viewed as more restrictive on plaintiffs. On the other hand, Federal courts are generally perceived as being more liberal regarding expanded discovery. One consideration faced in California when deciding whether to remove a class action to Federal court is the make-up of the Ninth Circuit which would hear a likely appeal. The Ninth Circuit has been recognized by experts as a “class action friendly” circuit. Overall, the Ninth Circuit has far outpaced every other circuit in allowing class actions to proceed since CAFA was enacted in 2005.

Jury Trial v. Arbitration
The existence of arbitration agreements between defendants and class members present another important decision to be made early on in the class action litigation process. While claims for injunctive relief cannot be arbitrated, many other claims are amenable to arbitration. In some cases, courts have ordered select causes of action seeking monetary relief to be litigated in arbitration while retaining jurisdiction to hear those claims seeking injunctive relief.

The difficultly faced when contemplating arbitration is the question of whether a qualified neutral arbitrator is available to hear the case and address the numerous issues which arise when adjudicating class actions, including the thorny issues surrounding class certification. Further, the perception that neutral arbitrators tend to “split the baby” becomes more dangerous when an inexperienced arbitrator may be called upon to decide class certification. Finally, binding arbitration is not appealable. On the other hand, defendants must weight the reception the “facts” will receive when presented to a jury as opposed to a panel of arbitrators.

Judicial Abstention
In a recent beneficial ruling for defendants in consumer protection class actions based on elder abuse allegations, the Second District of the California Court of Appeal ruled that it was not an abuse of discretion for the trial court to abstain from hearing a class action based on allegation of violations of the Unfair Competition Law (UCL) against a group of skilled nursing homes. The Court of Appeal agreed adjudication of plaintiffs’ claims would require the trial court to assume general regulatory powers over the health care industry through the guise of enforcing the UCL and that it was reasonable to believe the Department of Health Services was better equipped to determine compliance with the underlying codes and regulations which formed the basis of plaintiffs’ UCL claims. Finally, the appellate court reiterated that courts may abstain from hearing a matter when an administrative agency is better equipped to provide an alternative and more effective remedy. While the class action involved claims particular to the skilled nursing industry, the opinion is applicable in the defense of similar cases brought against residential care facilities for the elderly as well.

It is likely we will see more rulings which shape litigation in these consumer protection class actions against skilled nursing homes and RCFE’s as they continue to be filed and as they work their way through the California judicial system.




Newsletter Spring 2013

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