The Weekly Articles

On December 12, 2024, the State of Texas filed suit against a New York physician for providing abortion pills to a Texas resident.  The defendant, Margaret Daley Carpenter, M.D., is a founder of the Abortion Coalition for Telemedicine.  Dr. Carpenter allegedly prescribed mifepristone and misoprostol to a 20-year-old Texas woman via a telehealth visit.  The woman was subsequently seen at a Texas hospital for hemorrhage, which apparently resulted in the putative father learning she had taken the drugs.

The lawsuit alleges that Dr. Carpenter was practicing medicine in Texas without being properly licensed.  It further alleges that Texas law generally prohibits a person from “knowingly performing, inducing or attempting an abortion.”  Tex. Health & Safety Code § 171.063(e).  The case seeks injunctive relief prohibiting Dr. Carpenter from illegally prescribing abortion-inducing drugs to Texas residents and illegally practicing medicine in Texas, civil penalties of $100,000 per violation, and attorneys’ fees.

The lawsuit is anticipated to challenge New York’s shield law.  In addition to providing legal protections to doctors prescribing abortion medication to out of state patients, New York’s law allows a countersuit.  Since the case is anticipated to end up in federal court, it likely will have implications for California’s shield laws. See Cal. Civ. Code §§ 1798.300 et seq.

The case, State of Texas v. Margaret Daley Carpenter, M.D., Cause No. 471-08943-2024, is currently in Texas state court, in Collin County, North of Dallas.  

Kate Broderick, co-editor of CSHA Publications Committee, was recently promoted to Senior Counsel of the California Region with CommonSpirit Health. In this position she advises hospital clients within the Region. When asked how she will celebrate this achievement, Kate said and her family are spending the weekend in Napa! 

The California Privacy Protection Agency (CPPA) has released for public comment proposed California Consumer Privacy Act (CCPA) regulations concerning cybersecurity audits, risk assessments, and automated decisionmaking technology (ADMT). The deadline for submitting comments to the CPPA regarding the proposed regulations is January 14, 2025.

See the final issue of CHLN for 2024! This issue includes articles on an overview of Hospital at Home programs; CA Assembly Bill 2275; the current status of non-competes for California health care providers; and an interview with a California-based reproductive health care provider.

To download your electronic copy, click HERE or on the cover of the latest edition.

A recent class action filed against Inito alleges that its fertility tracker app violates California privacy laws by enabling Google to intercept private information provided by women using the app.  Inito’s fertility monitor measures hormones to predict the most fertile days of a woman’s menstrual cycle and tracks information to confirm ovulation.  During the sign-up process, users are asked to respond to survey questions, including on the women’s menstrual cycle, reproductive health and fertility.  Users are told that “all information will remain between us.”  According to the Complaint, the Inito app is hosted on Google’s Firebase platform which enables Google Analytics to surreptitiously intercept communications between the user and the app.  As a result, Inito intentionally and knowingly enables Google to intercept user communications.

The Complaint alleges claims under the California Invasion of Privacy Act (“CIPA”) (California Penal Code section 631), the state constitutional right of privacy, and for intrusion upon seclusion.  Although Penal Code section 631 was drafted to apply to wiretapping, the Complaint cites recent cases holding that it also applies to “new technologies” such as computers, the internet, and email. (Matera v. Google Inc., 2016 WL 8200619, at *21 (N.D. Cal. Aug. 12, 2016) and Javier v. Assurance IQ, LLC, 2022 WL 1744107, at *1 (9th Cir. May 31, 2022)). 

While the Complaint alleges the potential for data collected by the app to be commoditized and sold to third-party companies, it is unclear if this has actually occurred, and Google is not a defendant.  The Complaint also suggests that, in addition to marketing purposes, information from the app could be used to infer that a user had an abortion and potentially become criminal evidence in a state criminalizing abortion.

The case is Jane Doe v. Inito, Inc., Case No. 3:24-cv-08433, filed in the Northern District of California.

Keep an eye out for the Fall 2024 issue of the California Health Law News which will be published this week. A link to CHLN will be emailed to all members, included with the upcoming Weekly, and accessible on the CSHA website. 

Near the end-of-session bill-signing flurry, Governor Newsom vetoed AB 2467, a bill authored by Assemblymember Rebecca Bauer-Kahn and co-authored by Senator Susan Rubio, that sought to provide comprehensive perimenopause and menopause care for Californians.

Perimenopause is the time when the body transitions away from reproduction into menopause. The transition period usually starts in one’s 40s or as early as one’s 30s, and can be short or last years. Menopause is reached once the body has gone 12 consecutive months without a period, marking the close of one’s reproductive years. Symptoms vary, from irregular, long, heavy, menses to hot flashes and trouble sleeping. In some cases, symptoms can be so severe that they disrupt daily life and interfere with life’s enjoyment. The conditions have received relatively little public health attention, leading to missed diagnoses and treatment among a significant portion of affected patients. Recently however, there has been growing interest in perimenopause and menopause in the medical community and the media. In 2024, the California State Legislature considered seven measures addressing menopause in some way, more than double the number considered in the preceding five years.

AB 2467 sought to bridge the treatment and awareness gaps for perimenopause and menopause by requiring health plans and insurers to cover evaluation and treatment options for these conditions. The bill would have modernized treatment options by requiring each plan to have hormonal and non-hormonal treatments and medications for symptoms and related conditions, including osteoporosis. The bill also required health plans to inform primary care physicians of current best practices recommended by the Menopause Society or similar organization. Most controversially, the bill would have prohibited health plans and insurers from imposing utilization management on evaluation and treatments for perimenopause and menopause when deemed medically necessary by the treating provider.

The Governor vetoed the bill, pointing to cost concerns with the bill’s “expansive coverage mandate in conjunction with” the prohibition on utilization management, as well as the mandate to cover non-FDA approved treatments. The veto message ended with a call for the Legislature to go back to the drawing board and create a more “tailored” solution. So this issue is likely to be reconsidered in the next session.

In an effort to prevent the racial and ethnic disparities in maternal health outcomes and to promote protections for pregnant individuals, the California Legislature passed AB 2319, which makes revisions to the California Dignity in Pregnancy and Childbirth Act effective January 1, 2025. The Act initially took effect January 1, 2020, and the California Department of Justice published a report last year presenting the results of their investigation into compliance (or lack thereof) with the Act. Attorney General Rob Bonta sponsored AB 2319, noting that investigations into the cause of all pregnancy-related deaths determined that more than half were preventable. The Act is intended to create systemic change to reduce the disparate impact on pregnant persons of color and to prevent those preventable deaths. The changes under AB 2319 provide clarity on which facilities are affected, establish firm deadlines for compliance, and authorize enforcement mechanisms.

Under AB 2319’s changes to the Act, hospitals and alternative birth centers will be required to provide initial evidence-based implicit bias training to health care providers during paid work time with refresher courses at least every two years thereafter. Hospitals and alternative birth centers will need to complete initial training for the implicit bias program by June 1, 2025 for current healthcare providers, and within six months of the start date of any new health care providers (unless the provider has a certificate of completion from another facility). Specified facilities must provide proof of compliance with the training requirements by February 1, 2026, and the Act allows the Attorney General to pursue civil penalties for violations of the Act ($5,000 for the first violation, $15,000 for the second and each subsequent violation) and to publish a list of facilities who failed to timely submit proof of compliance or that were required to pay penalties for violating the Act.

A strike by more than 2,400 Kaiser Permanente mental health therapists, psychologists, social workers, and psychiatric nurses in Southern California continues this week, with few signs a resolution is forthcoming. The National Union of Healthcare Workers commenced the strike on October 21, 2024, seeking wage increases and more time in between appointments for Kaiser’s clinicians to chart and prepare for patients. While the union questions whether Kaiser is meeting its patients’ mental-health needs during the strike and has adequately communicated its contingency plans to the Department of Managed Health Care, Kaiser contends that its patients are receiving timely care and notes that 60% of Kaiser patients are receiving mental health services from providers not participating in the strike.

The strike marks the third time since 2022 Kaiser has found its mental-health services in the spotlight. Kaiser’s mental health workers in Northern California struck for 10 weeks in 2022, demanding– and ultimately obtaining – better pay and more protected time to chart and prepare for appointments. In October 2023, Kaiser agreed to a $200 million settlement with the State of California to resolve allegations of improper delays in mental-health patient care.

The CSHA Member-Get-A-Member Campaign is underway! Share with your colleagues the many benefits of membership. For every new member you recruit, you will receive a $25 Amazon gift certificate. 

Act now – the campaign only lasts until November 30th!