John LeBlanc

John LeBlanc has no picture

ohn LeBlanc is a litigation partner in the firm’s Los Angeles office focusing on matters affecting the health care industry. Mr. LeBlanc represents many of the nation’s leading insurers and health plans, including the largest not-for-profit health care service plan in California.
Mr. LeBlanc has extensive experience, successfully handling hundreds of cases at the state and federal level. He not only serves as counsel to his clients, but acts as a strategic advisor, providing representation on a wide variety of day-to-day legal matters. Mr. LeBlanc is the lead co-author of the health insurance and managed care section of the popular and respected Insurance Litigation Practice Guide, published by The Rutter Group.
Mr. LeBlanc is highly accomplished in visual persuasion, creating powerful graphic presentations for opening statements, closing arguments, mediations, mock trials and speaking engagements. He combines his wide litigation background with a unique ability to create presentations that convey authenticity, credibility and, importantly, result in persuasive and winning arguments. Mr. LeBlanc is available to consult with attorneys and create presentations, regardless of subject matter, and then assist the attorney with delivery and presentation.


Articles By This Author

White House Delays Implementation of Employer Coverage Mandate of ACA

On Tuesday, July 2, 2013, the U.S. Department of Treasury announced that it will provide an additional year before the mandatory employer and insurer reporting requirements of the Affordable Care Act (ACA) begin.  

In a blog posting, Mark J. Mazur, Assistant Secretary for Tax Policy at the U.S. Department of Treasury, stated that the Administration has been engaging in a dialogue with businesses about the new reporting requirements under the ACA.  

According to Mr. Mazur, "[w]e have heard concerns about the complexity of the requirements and the need for more time to implement them effectively."  

The additional year will meet two goals, according to Mazur:

First, it will allow us to consider ways to simplify the new reporting requirements consistent with the law.  Second it will provide time to adapt health coverage and reporting systems while employers are moving toward making health coverage affordable and accessible for their employees."    

 

UnitedHealth to Exit California's Individual Health Market By Year End

UnitedHealth recently announced that it will be leaving California's individual health market at the end of this year.  

UnitedHealth's announcement comes on the heels of a similar announcement by Aetna last month. Both UnitedHealth and Aetna will remain in California's group market.  

UnitedHealth and Aetna combined account for approximately 7% of California's individual health market, while Blue Shield of California, Anthem Blue Cross and Kaiser Permenente, collectively, account for approximately 87% of California's individual market.

Legal Challenges to ACA Not Quite Finished

If you thought that the legal battle over the constitutionality of the Patient Protection and Affordable Care Act ("ACA") was put to rest in NFIB v. Sebelius, you may want to pay attention to Liberty University v. Geithner.  

Today, the United States Supreme Court granted certiorari and then returned the case to the U.S. Court of Appeals for the Fourth Circuit to consider new challenges to the ACA.

In its lawsuit, among other things, Liberty University contended that the ACA violates its First Amendment religious freedoms through the funding of abortions and other practices that it maintains are at odds with the core beliefs of the school. Liberty University also challenged the so-called "employer mandate" that requires all employers employing 50 or more people to provide health coverage to those employees, or face a penalty.

The Fourth Circuit had previously held that the mandates were "taxes," but dismissed the case for lack of jurisdiction on the grounds that the federal Anti-Injunction Act did not permit the federal courts to consider the legality of the tax until it went into effect. Because it dismissed the case on jurisdictional grounds, it did not rule on the merits of the religious freedom and employer mandate arguments. Liberty University sought review in the Supreme Court, which was denied.

In NFIB v. Sebelius, the Supreme Court unanimously held that the Anti-Injunction Act did not preclude the federal courts from deciding the constitutionality of a "tax" only after it goes into effect. Liberty University therefore filed a motion for rehearing, and the Supreme Court ordered the Department of Justice to file a response. In a somewhat surprising move, the DOJ did not oppose Liberty University's motion for pre-hearing, paving the way for today's ruling from the Supreme Court.

On remand, the Fourth Circuit will now have to consider Liberty University's arguments on their merits, and its rulings could conceivably make their way back to the Supreme Court.

Health Reform Bills Approved by California Assembly Health Committee

By John M. LeBlanc and Natalie J. Ferrall

The California Assembly Committee on Health recently heard and approved two high-profile health care reform bills with the stated purpose of bringing California into compliance with the federal Affordable Care Act (“ACA”). 

The first bill, Senate Bill 951 (Hernandez, D-West Covina), would require individual and small group health care service plans and insurance policies to cover essential health benefits beginning in 2014. Under the ACA, essential health benefits must include the following ten categories of items and services:

  • Ambulatory patient services
  • Emergency services
  • Hospitalization
  • Maternity and newborn care
  • Mental health and substance use disorder services, including behavioral health treatment
  • Prescription drugs
  • Rehabilitative and “habilitative” services and devices (to date, there is no guidance as to what the “habilitative” umbrella will include)
  • Laboratory services
  • Preventive and wellness services and chronic disease management
  • Pediatric services, including oral and vision care

SB 951 designates the Kaiser Small Group HMO as the benchmark standard for essential health benefits coverage in California.

The second piece of legislation, Senate Bill 961 (Hernandez, D-West Covina), prohibits health care service plans and insurers from denying coverage to individuals based on preexisting conditions. It requires guaranteed issue of individual health service plans and insurance policies. The bill only allows health plans and insurers to use age, geographic region, and family size in establishing individual coverage rates.

Supreme Court Rules Affordable Care Act is Constitutional

By John M. LeBlanc and Natalie J. Ferrall

In a 5-4 decision, the United States Supreme Court ruled that the Patient Protection and Affordable Care Act (“ACA”) is constitutional. The majority opinion, authored by Chief Justice Roberts, upheld the centerpiece of the ACA—the individual mandate—requiring citizens to obtain health insurance or pay a penalty to the IRS beginning in 2014. The Court construed the penalty as a tax on persons who choose not to purchase health insurance and thus within Congress’ taxing power. The Chief Justice, however, rejected the argument that the individual mandate was constitutional under the Commerce Clause. He stated that the Commerce Clause “authorizes Congress to regulate interstate commerce, not to order individuals to engage in it.” Justices Scalia, Kennedy, Thomas, and Alito filed a dissenting opinion in which they also found that the individual mandate could not be upheld under the Commerce Clause.

The Court further addressed the so-called Medicaid expansion provision, which required states to extend Medicaid coverage by 2014 to all individuals under the age of 65 with incomes below 133% of the federal poverty line; if a state fails to do so, the federal government could withdraw all of the state’s existing Medicaid funds. The Court held that it was unconstitutional under the Spending Clause for the federal government to coerce states into accepting changes to Medicaid, describing this financial threat as a “gun to the head”, leaving states with no meaningful choice but to accept the terms of the Medicaid expansion. The Court struck the provision, but left the remaining portions of the ACA intact.

Click here to read the full decision (pdf).

TranscriptPad for iPad Offers Powerful Mobile Transcript Review

TranscriptPad is an elegant, fast and powerful transcript review app for the Apple iPad, designed specifically for the legal field, from the same folks who designed TrialPad, their flagship trial presentation and legal file management app. Similar software exists for your PC or Mac, such as the excellent Deposmart (from Clarity Legal), but TranscriptPad is the first dedicated transcript review and annotation app for the iPad. 

TranscriptPad accepts transcripts in .txt format, and exhibits in .pdf format. (Make sure you request the transcript in .txt format, as some court reporting agencies have their own proprietary format). The .txt format is a simple and relatively small file format that all court reporters can generate, and usually do so at no extra charge. Importing is a breeze, and can be done via email, Dropbox or even iTunes. I’ve uploaded multiple transcripts simultaneously, quickly and without any problems.

TranscriptPad

Transcripts are imported into case folders that you create and that are stored on your iPad. Opening a case folder reveals a deponent folder (created automatically upon import, with the deponent’s name and date of the deposition, along with the volume number). Multiple sessions of the same deponent are placed automatically in the deponent’s folder.

You can read a transcript hands-free by pressing the play button at the bottom of the screen, which allows you to adjust the speed. You can also flip back and forth as if you are reading a book (either in landscape or portrait orientation). 

Most attorneys like to annotate their transcript when reviewing, and here’s where the software really shows off. You can create your own “issue” codes to any part of the transcript. Issue codes can be assigned any name along with a choice of six colors, and appear in the margins of the transcript. You can also flag a portion of the transcript for later review. Issues codes, flags or any portion of the transcript can be emailed or exported to Dropbox. 

TranscriptPad contains a powerful search feature that allows you to search across any transcript or even multiple transcripts. Each hit is highlighted in the text, and you can create issue codes or flags from there, or email the section containing the search result. Detailed or summary reports of your issue codes, flags and searches are easily generated, and can be exported in .pdf or .txt format. 

TranscriptPad’s price tag is $49.99, which is pricey for an app, but on the other hand, this is robust and professional software. Similar software for the Mac or PC start at $200, and go much higher. For lawyers, paralegals, experts, in house counsel, and others who review and annotate transcripts, and who place a premium on mobility, TranscriptPad is a must. TranscriptPad can be found here (www.transcriptpad) and purchased in the Apple App store.

 

Emergency Regulation to Enforce Medical Loss Ratio in Patient Protection and Affordable Care Act of 2009 Made Permanent

On Thursday February 9, 2012, California Insurance Commissioner Dave Jones announced that he had obtained approval from the California Office of Administrative Law to make permanent the emergency regulation issued in 2011 allowing the Department of Insurance (the “Department”) to enforce the medical loss ratio guidelines in the Patient Protection and Affordable Care Act of 2009 (“PPACA”) (which we previously discussed here).

As of January 1, 2011, the PPACA required all health insurers in the individual market to maintain an 80% medical loss ratio.

The Department obtained approval to make permanent its amendment to 10 California Code of Regulations § 2222.12 to reflect this requirement. A copy of the text of the regulation can be viewed here.

This permanent regulation went into effect on February 8, 2012.

The regulation adopted by the Department contains more stringent requirements than PPACA, as it allows the Department to evaluate whether the 80% medical loss ratio will be met at the time a rate is filed with the Department, rather than waiting until the end of the year to determine if this ratio was satisfied.

Health Insurance Rescission Case Upheld by California Appellate Court

On Wednesday, December 28, 2011, the First District Court of Appeal affirmed the trial court's granting of summary judgment in Hagan v. California Physicians' Service dba Blue Shield of California, et al, Case No. A130809 (unpublished), a health insurance rescission matter.

The matter was handled by Barger & Wolen Senior Partners John M. LeBlanc and Sandra Weishart, Senior Associates Ophir Johna and Vivian Orlando, and Greg Pimstone of Manatt, Phelps and Phillips

Background

In 2005, the Hagan family applied for health coverage with Blue Shield of California Life & Health Insurance Company. Beginning in 2001, Lori Hagan -- in her mid-thirties -- began to experience heavy menstrual cramping and bleeding. Over the next four years, she saw at least four physicians who diagnosed her with an enlarged uterus, fibroid tumors, menorrhagia and dysmenorrhea. She underwent exploratory laparoscopic surgery under general anesthesia, which confirmed the fibroid tumors and also revealed uterine adhesions and endometrial tissue. Ms. Hagan also underwent hormone therapy to treat the bleeding and severe pain. She was advised on multiple occasions that she needed to consider a hysterectomy or uterine ablation as treatment options.  

In applying for insurance coverage, however, the Hagans failed to disclose any of this information, despite application questions that asked the applicants to disclose any treatment, advice or symptoms concerning the female reproductive system, such as abnormal bleeding or fibroids, questions that inquired about any visits to the hospital, outpatient center, surgeries, and questions that requested disclosure of any other symptoms, conditions or recommended treatment not mentioned elsewhere on the application. 

In response to the application question that asked the applicants to disclose their last physician visit, Ms. Hagan failed to disclose that she had seen her physician just three weeks earlier, where he had again diagnosed her with painful symptoms related to her fibroids and where they again discussed hysterectomy as an option. 

Blue Shield Life rescinded the policy after it discovered these misrepresentations and omissions.

Though not required, Blue Shield Life paid all of the medical expenses incurred by the Hagans through the date of the rescission. The Hagans obtained replacement coverage within a few days, and Ms. Hagan was not deprived of any medical treatment as a result of the rescission.

Unfortunately, Ms. Hagan later passed away from uterine cancer. John Hagan sued Blue Shield Life alleging breach of contract, breach of the covenant of good faith and fair dealing and punitive damages. 

The Court's Decision

In upholding the trial court's decision granting summary judgment, the Court of Appeal first reviewed general principles governing an insurer's right to rescind. It rejected Hagan's argument that the language of Blue Shield Life's policy required it to prove that the Hagans' misrepresentations were intentional. 

The Court then reviewed the undisputed evidence in detail, in light of the specific questions on the application, as well as the excuses proffered by Hagan for why Ms. Hagan failed to disclose her long medical history, and concluded that the trial court properly granted summary judgment in Blue Shield Life's favor, in that there were clear misrepresentations and omissions of material facts on the application. 

The Court also found that Blue Shield Life did not engage in postclaims underwriting as defined in California Insurance Code section 10384

The Court held that the case was governed by the legal standards concerning underwriting and rescission set forth in Nieto v. Blue Shield of California Life & Health Insurance Company, 181 Cal. App. 4th 60 (2010) (click here for list of prior posts on Nieto). 

According to the Court, Blue Shield Life can only be guilty of postclaims underwriting if the "written information submitted on or with" the Hagans' application gave rise to "reasonable questions" that Blue Shield Life failed to resolve prior to issuing the policy. 

Against the background of California law that entitles Blue Shield Life to rely on the accuracy of the information the Hagans provided on their application (i.e., Blue Shield Life was not required to assume any of the Hagans' statements were false), Blue Shield Life properly completed its medical underwriting, and therefore did not violate Insurance Code section 10384.

Technology and the Courtroom

When introducing technology into the courtroom, the trial lawyer needs to be master of that domain. This is not the time to experiment. Trial lawyers not comfortable with technology should seriously consider utilizing litigation-technology support services, who -- for a price -- can provide everything needed to make the presentation look and feel professional, freeing the lawyer up to concentrate on the case.

For those who doubt, Robyn Weisman's recent article in ALM’s Law Technology Review, Wrong Way: Preventing (and Recovering From) Courtroom Snafus, (free subscription) outlines what could happen when technology and people crash during trials, and how to recover from (and prevent) those disasters.

Ms. Weisman’s article provides sound advice for all lawyers utilizing technology in the courtroom. The inability to incorporate technology into your case, or the misuse (or abuse) of PowerPoint, can do more damage than good.

Fredric Lederer, chancellor professor of law and director of the Center for Legal and Court Technology and Legal Skills at William & Mary Law School, says there are three types of trial technology snafus: 1) real or perceived hardware failure, 2) real or perceived software failure, and 3) attorney ineptitude.

Hardware and software failures can be minimized, somewhat, by ensuring that your equipment is up-to-date, with the latest software installed. Back up your software on CD-rom or DVDs. Keep an extra laptop computer handy, preferably one that has a mirror image of your main computer, just in case. Make sure you have the proper cables, extension cords and adapters available. I would never venture into a trial without first paying a visit to the courtroom and getting to know the clerk and scouting out their equipment first, as they often insist that you use their equipment. 

Even for those who master technology, or who use professional services, Ms. Weisman wisely points out some of the pitfalls of using technology that have nothing to do with hardware or software failures. Technology can too easily run roughshod over the rules of evidence. An inadvertent keystroke or move of the mouse can display documents not yet admitted into evidence, or your PowerPoint presentation may obstruct, rather than elucidate your point.

But, for those lawyers who take technology as seriously as their arguments, it can make a world of difference in creating winning presentations. 

Health Care Rate Regulation Bill Stalls In State Senate

Controversial California Assembly Bill 52 (“AB 52”), which, among other things, granted the California Department of Insurance (“CDI”) and the California Department of Managed Health (“DMHC”) the authority to reject or modify any proposed rate or rate change by a health insurer or health care service plan, has stalled out in the California Senate. Under current law, neither the CDI nor the DMHC has the authority to reject or modify proposed rates or rate changes.

While AB 52 had previously cleared the California Assembly in June, on Wednesday August 31, 2011, AB 52’s author – Assemblyman Mike Feuer – halted efforts to try to get AB 52 passed by the Senate this year, indicating that there were insufficient votes to win approval from the Senate before the deadline next week for approving bills. Assemblyman Feuer stated that he would re-visit passage of AB 52 next year when the Senate returns to session.