Health Care

President Biden recently marked the 31st anniversary of the Americans With Disabilities Act (ADA) by announcing that the Department of Health and Human Services and the Department of Justice have issued a joint memo setting forth new guidance on “Long COVID” as a disability under the ADA.Since the beginning of the COVID-19 pandemic, it has been a relatively uncontroversial proposition that individuals suffering from the acute effects of the virus could qualify as disabled under the ADA. Somewhat more controversial, however, has been the issue of whether so-called “long haulers” could also be considered disabled under the ADA. These are…
Our firm represented an applicant to the California Department of Insurance who had applied for a Property and Casualty Broker-Agent License for the second time, after previously being denied in 2017.  The applicant had three convictions: two for receiving stolen property, and one for unauthorized use of identity, between 2010 and 2012.  The 2017 application contained a false statement regarding the convictions.  Because of the applicant’s history, CDI refused to offer a settlement, and took the position that the applicant needed to wait even longer before being allowed to produce insurance. Due to the participation of character references from the…
Our office represented a licensee in 2020 who had earned a license only two years prior, in 2018.  Unfortunately, this client was arrested for DUI just a few months after earning the license, and ultimately pled guilty in 2019.  Having only been licensed for a year at the time of conviction, the client did not realize his reporting duty to the Department of Real Estate and failed to notify the agency of his conviction.  This was the client’s second DUI conviction, having previously been arrested and convicted in 2013. The Department refused to negotiate with the client and demanded…
The Board of Registered Nursing accused our client of gross negligence and incompetence in the practice of nursing following alleged failure to obtain or document a specific reading with respect to a patient under her care. To resolve the case, our client was willing to enter into a public letter of reproval, but the Board refused and insisted upon a period of probation. We advised our client not to accept the Board’s offer and instead took the case to hearing. During a three-day proceeding before the Office of Administrative Hearings, the Board presented an expert witness, an investigator, and an…
CMS Recently Introduced New Interoperability Mandates for Health Plans That Must be Implemented by July 1, 2021 The CMS Interoperability and Patient Access Rule (“Interoperability Rule”) requires payors to permit third-party applications to retrieve, with the approval and at the direction of a current enrollee certain health care data.  42 C.F.R. §§ 422.119(a), 431.60(a), 457.730(a); 45 C.F.R. § 156.221(a).  The Interoperability Rule does not alter covered entities’ or business associates’ responsibilities to protect PHI under HIPAA, however, once a member selects a third-party application and authorizes access of their data to the application, the covered entity and business associate are…
On September 30, 2018, the Governor signed Assembly Bill 2138, which primarily helps many license applicants with criminal records get professional licenses.  AB 2138 took effect on July 1, 2020. After the change in the law, a plea of guilty or a verdict of guilty can only be used against a licensee or license applicant as a conviction once a judgment has been entered.  (Business and Professions Code section 7.5)   This is an important change for defendants who get deferred entry of judgment, for example.  In criminal courts, individuals granted deferred entry of judgment enter a plea…
New U.S. Supreme Court Decision May Expand Health Plans’ Ability to Text Members Under the TCPA The Telephone Consumer Protection Act of 1991 (TCPA) has restricted health plans’ ability to call or send text messages to cell phone numbers.  The U.S. Supreme Court’s recent decision in Facebook, Inc. v. Duguid, 141 S. Ct. 1163 (2021) (“Facebook”) eases those restrictions by clarifying and narrowing the type of dialing equipment which falls within the TCPA’s definition of an automatic telephone dialing system (“autodialer”). The TCPA generally makes it unlawful to make any call (other than a call made for emergency purposes…
California Business and Professions Code section 2310 empowers the Medical Board of California to immediately and without prior notice suspend certain California physician licenses.  Business and Professions Code section 2310 provides that if a California physician’s license in another state is suspended or revoked outright and that action is reported to the National Practitioners Data Bank, and the physician’s primary place of practice is outside of California, the physician’s California license can be immediately suspended.  The suspension stays in place unless overturned by a hearing at the Office of Administrative Hearings, if the out-of-state order of suspension or revocation…
In its first abortion-related decision with a newly cemented majority of conservative jurists, the U.S. Supreme Court in a 6-3 decision on Tuesday stayed an injunction of a Food and Drug Administration regulation requiring women seeking the abortion pill to pick up the drug in person rather than receiving it in the mail. The injunction of the rule, issued by a Maryland district court, prevented the FDA from enforcing the in-person dispensation requirement for mifepristone, used to end an early pregnancy or manage a miscarriage, for the duration of the COVID-19 public health emergency. The American College of Obstetricians and…
Mandated Reporting of Sexual Misconduct Allegations against California Licensed Physicians by Healthcare Facilities The Medical Board of California and other healthcare licensing boards hold licensed physicians and other healthcare licensees to an extremely high standard regarding sexual misconduct allegations. Every day physicians, and other healthcare licensees, who communicate with hundreds of patients each week, face the possibility of patients reporting unprofessional conduct, which can trigger a license investigation and license discipline. Existing laws require the Medical Board of California, and other licensing boards, to monitor, regulate, and discipline licensed health care practitioners. When licensed physicians face sexual or inappropriate misconduct…