HEALTH PLANS/TECH: Looks like the Deal’s over–or is it?

So it looks like from Justen Deal’s website that he’s essentially going to be fired in absentia by Kaiser. My assumption is that he knew this was going to happen all along, and was essentially preparing the way for some kind of entry into politics and/or law career. Kaiser too seems to yet again be getting unnecessarily gummed up about the whole thing—for example according to Deal having people from the insurer side handle the case, rather than from the medical group which he works for.

I don’t know much about employment law, but I do know that California is an “at-will” state, which means that you can fire anyone for basically any reason. It’s obvious from Halvorson’s reaction, let alone the exasperated comments from Permanente’s Andy Wiesenthal on THCB, that they had no further interest in communicating with Deal after he went public, and didn’t want him around. So I don’t see why that didn’t happen straight away. Making up a (fake?) policy about “not abusing the email system” is basically a waste of time.

Deal seems to be appealing to a base of supporters within KP in order to “right” the ship. But if there really is malfeasance and/or an Enron-type meltdown going on within KP over HealthConnect–as opposed to normal teething problems from a huge IT installation (which as you know I suspect to be very, very unlikely) –the best route would be to go to those people who do oversee non-profits. That is regulators and the politicians who supervise them.

Given the various issues that Kaiser is having with the State DMHC over other aspects of its behavior , I suspect that Deal must be involved in some protracted discussions with local politicians. After all if there really is financial mismanagement going within KP, then Chuck Grassley is interested in this type of thing, as is Pete Stark.

If on the other hand, Deal is not pursuing those options, then I’m a little curious as to what this whole thing has been about. As an appeal to the massed ranks of KP employees about HealthConnect might seem appropriate if it was a worker’s collective, but it’s hardly likely to sway the board. Unless of course there’s something going on in the works that we can’t see.

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  1. Continuing Education of the Bar — California
    In California, employment is presumed to be “at will,” that is, either party may terminate the employment relationship for any reason. Lab C §2922. Among the exceptions to an employer’s right to terminate or discipline at will is when it would violate a public policy. Pugh v See’s Candies, Inc. (1981) 116 CA3d 311, 171 CR 917. Public policy in California limits the right to terminate or discipline at will because the threat of termination or discipline could be used to coerce employees into committing crimes, concealing wrongdoing, or taking other action harmful to the public good. Foley v Interactive Data Corp. (1988) 47 C3d 654, 665, 254 CR 211; Garcia v Rockwell Int’l Corp. (1986) 187 CA3d 1556, 232 CR 490. Also limited by public policy in California is an employer’s ability to retaliate against an employee for opposing, reporting, or refusing to further the employer’s unlawful purpose. See, e.g., Tameny v Atlantic Richfield Co. (1980) 27 C3d 167, 164 CR 839; Balog v LRJV, Inc. (1988) 204 CA3d 1295, 250 CR 766. Unlawful discipline or retaliation can take many forms, including termination, demotion, transfer, changed work schedule, suspension, harassment, discrimination, or unfavorable job references.
    Communication may be key when informing whistleblowers about the outcome of investigations. Employers should avoid the temptation to disclose as little as possible, because doing so may cause the whistleblower to escalate the complaint outside of the organization. Instead, there should be communication with the complainant, full explanation of the company’s response, and reiteration of its policy of zero tolerance for retaliation.
    Awards in whistleblower suits have become much heftier than other types of employment claims in recent years. According to Jury Verdict Research, between 1997 and 2003, the median award in whistleblower suits was $ 338,386, outpacing all other types of employment claims. Discrimination claims, for example, rose to a median award of $ 178,500 over the same period. D. Garland, Best Practices to Minimize Whistleblower Risks.
    Employers and their officers, contractors, subcontractors, employees, or agents may all be held personally liable for these awards. Govt C §§8547.8, 8547.10; Walrath v Sprinkel (2002) 99 CA4th 1237, 1242, 121 CR2d 806 (supervisor may be held personally liable under FEHA for retaliation).
    Further, Lab C §1102.5(f) provides that “[i]n addition to other penalties, an employer that is a corporation or limited liability company is liable for a civil penalty not exceeding ten thousand dollars ($ 10,000) for each violation of this section.” A further, albeit contradictory, penalty is provided under Lab C §1103, which states that “[a]ny employer who violates this chapter is guilty of a misdemeanor punishable, in the case of an individual, by imprisonment in the county jail not to exceed one year or a fine of not to exceed $ 1000 or both, and, in the case of a corporation, by a fine of not to exceed $ 5000.”
    Under Lab C §1105, the injured employee may also recover damages “from his employer for injury suffered through a violation of this chapter.” Under Lab C §98.6(b), an employer who retaliates against a whistleblower may be required to reinstate the employee’s employment and work benefits, pay lost wages, and take other steps necessary to comply with the law.
    The Sarbanes-Oxley Act of 2002 (Sarbanes-Oxley) (15 USC §§7201-7266), was designed to deter corporate corruption and protect employees who blow the whistle on corporate transgressions. Under a provision administered by the federal Occupational Safety and Health Administration (OSHA), Sarbanes-Oxley requires an attorney to report evidence of a material violation of securities law or breach of fiduciary duty or similar violation by the company to the head of the company and, if there is no appropriate response to the evidence, to the company’s audit committee, another committee of independent directors, or the full board of directors. 15 USC §7245. Further, employees of public companies who disclose information to a regulatory agency or a supervisor or who assist in an investigation into activities that are reasonably believed to violate federal securities laws or to work a fraud against shareholders are protected from retaliation by a company, any officer, employee, contractor, subcontractor, or agent. 18 USC §1514A(a).
    Penalties for violation of the Sarbanes-Oxley Act may include criminal fines of up to $ 250,000 plus 10 years in jail, as well as damages in the form of reinstatement, back pay, compensatory damages, and attorney fees. A person who objects that the complaint was frivolous or in bad faith can request an award of attorney fees of up to $ 1000. 18 USC §§1513(e), 1514A.

  2. Anyone who embarks on a technology project for political purposes – for the appearance of doing something, for instance – will fail. Period.
    In this case, the victory lap WAS the deliverable. The technology was something they crossed their fingers on.
    Same as it ever was.

  3. I agree with Matt—the implementation problems and cost-overruns associated with HealthConnect that were described by Mr. Deal are certainly not unusual for a large-scale, state-of-the art IT system. On the other hand, it mystifies me why Dr. Wiesenthal and other Kaiser execs have been running around the U.S. (including testimony before a Congressional committee) for the past 2 years declaring HealthConnect a raging success before it has been fully implemented at most Kaiser medical centers and before data has been collected for a rigorous post-implementation evaluation of the system. I understand KP’s desire to get credit for its ambitious IT efforts, but they need to exercise some restraint before running a victory lap. In the event (heaven forbid) that HealthConnect doesn’t deliver its promised benefits, KP is going to look very foolish.

  4. There is always a point in the search for attention where the thing we were trying get the attention for gets buried by speculation as to why we want the attention.
    I don’t know if Mr. Deal’s suppositions and conclusions were right in the first place. So far, all we have is his “one and one make more than one and less than three” argument, which is good, but not really proof.
    Now the attention is on how KP dealt with him and what it means and whether it’s some kind of coverup/conspiracy.
    It means he pissed off the wrong people, and they’re going to make an example out of him. This has nothing to do with what he was saying and everything to do with the fact that he had the gall to say it. To everyone in the company. Uninvited. Bad employee! No employee biscuit!
    None of which tells us if HealthConnect will ever work. I think that’s really all I care about. But that’s me.

  5. California is an employ-at-will state Matthew, but there are some exceptions to that for a variety of things including implied contract (very hard to prove) and whistleblowing. On top of this, Kaiser is a wierd conglomeration of non-profit and for-profit. The whole business of KFHP conducting the review is unusual and might figure into a lawsuit as well. I think it hurts Deal that he was on the for-profit side of things or he might have a better lawsuit even if the termination might have happened more quickly.
    I think there are sound business reasons (both PR and HR) that made it less than desireable to fire Justen, but ultimately, he showed himself (in their eyes) too much of a loose cannon in the aftermath of the incident to keep.
    Finally, George Halvorsen and Kaiser are tarnished by this. Halvorsen’s email response is a classic in corporate BS. If indeed, he personally intervened to have Justen fired then the pettiness is unbelievable. It’s hard for me who both cheers for you, Matthew, and Kaiser, to dismiss such rank incompetence as demonstrated by the HealthConnect uptime numbers, the budget-busting cost, and the Halvorsen lies as just normal IT teething problems.

  6. I don’t know who Justen having discussions with in the political sphere, but the big problem in the past is that those entities do NOTHING unless there is some media stir or public outcry. They will leave a baby dying in its cradle if there’s no chance for a photo op and they think no one else will notice.
    Therefore, if Justen wants them to light a fire under the politicos, then the only way to do it (other than bringing about a big campaign donation) is to appeal to the public at the same time. He seems to be doing a really good job. Much better than my approach of just asking for help and hoping people would do the right thing.