All posts by Michael Horsch Fizz

FCI (FITCEO, Inc.) Principal Advisor 1500 District Ave Burlington, MA 01803

Artificial Intelligence (AI) and Machine Learning (ML) Hype or Help for medical professionals?

The answer is both.

The diagnostic performance of deep learning models is impressive.

However, we must acknowledge AI and the more advanced ML in healthcare are tools. The correct term is Augmented Intelligence (AugI).

AugI in medicine is an approach focusing on AI’s assistive role, emphasizing the fact that technology is designed to enhance human intelligence not replace it.

The aforementioned is illustrated in an excellent 09/25/19 review article in The Lancet:  “A comparison of deep learning performance against health-care professionals in detecting diseases from medical imaging: a systematic review and meta-analysis”

“Our review found the diagnostic performance of deep learning models to be equivalent to that of healthcare professionals,” write Livia Faes, MD, of Cantonal Hospital Lucerne in Switzerland, and colleagues.

Diagnosis of disease using deep-learning algorithms “holds enormous potential,” they conclude. “From this exploratory meta-analysis, we cautiously state that the accuracy of deep-learning algorithms is equivalent to healthcare professionals while acknowledging that more studies considering the integration of such algorithms in real-world settings are needed.”


Michael Horsch Fizz

HELP STOP the White House Executive Order that would lead to massive Internet censorship.

The White House is spinning this executive order “Preventing Online Censorship” as a positive for free speech! However, if they succeed, it will accomplish the opposite. It places majority power to the White House appointed Commissioner of the FCC Republican Ajit Pai.

We are all for equalizing the playing field. We agree there is a content filtering monopoly. However, this Executive Order is NOT the solution and would shift censorship to the government. The order would also allow news and conspiracy theories, and influence from outside government to go unvetted when favorable to one party or the other. Stop the movement of the White House to take this country to Autocracy. (A) It is a similar move as defunding the United States Postal Service prior to a presidential election.



Bad news. The Federal Communications Commission (FCC) is moving forward with a White House Executive Order that would lead to massive Internet censorship. They’ve opened an official public comment period, and we have to act NOW because the deadline is just a few weeks away.

We’re launching a new campaign to flood the FCC with comments opposing the “Censor the Internet” Executive Order, which would gut Section 230 of the Communications Decency Act and put FCC chairman Ajit Pai in charge of policing online free speech.

Will you chip in to help us stop the “Censor the Internet” Executive Order?

There’s a lot to do. First, we need to rebuild our tool that makes it easy for ordinary people to submit comments to the FCC (their regular comment website is essentially unusable.) 

Then our campaign team will need to get that tool in front of millions of people so we can generate as many comments as possible, as well as media attention and signal boosts from popular musicians and celebrities to keep the issue in the spotlight.

We know how to do this, and we know how to do it well. During the net neutrality fight, our tools drove more comments to the FCC than ever before in history. But because we’ve done it before, we also know we need to raise more funds to cover the costs of this campaign.

Please chip in whatever you can—whether it’s $5 or $500—to make sure we can stop the FCC from enacting this Executive Order and keep the Internet free from political censorship. 

You might be wondering, will the FCC even listen to our comments? Fair question! The overwhelming majority of comments they received opposed the repeal of net neutrality, and they did it anyway.(1)

But here’s the deal: this Executive Order is so poorly written—and so blatantly illegal—that even Ajit Pai has signaled that he’s against it. (2) But if there aren’t enough comments opposing it, politicians that want to censor the Internet and control the free flow of information will seize on that to push their agenda. 

We can’t let that happen, which is why we’re building a tool and launching a campaign to flood the FCC with comments against Internet censorship. Will you chip in to fund this work?

We know these are tough times and not everyone can give right now. If you can’t, don’t worry. We’ll follow up soon with information on how to submit a comment and help sound the alarm. If you’re lucky enough to be in a position to give right now, please stretch as much as you can. This is important!

Chip in here:

Thanks for all you do,

-Evan at Fight for the Future
(1) – Cnet:
(2) – Forbes:

(A) – Autocracy is a system of government in which supreme political power to direct all the activities of the state is concentrated in the hands of one person, whose decisions are subject to neither external legal restraints nor regularized mechanisms of popular control 






11/09/2020 Zoom’s Meeting Platform security crisis continues. 07/13/2020 Wants to share calls with the police!

11/09/2020 – Update

FTC Requires Zoom to Enhance its Security Practices as Part of Settlement.
Commission alleged that the company deceived users about the level of security for Zoom meeting platform and unfairly undermined a browser security feature.

“Zoom has agreed to a requirement to establish and implement a comprehensive security program, a prohibition on privacy and security misrepresentations, and other detailed and specific relief to protect its user base, which has skyrocketed from 10 million in December 2019 to 300 million in April 2020 during the COVID-19 pandemic.”

07/25/2020 – UPDATE

From all the external pressures – ZOOM reversed its decision to make end-to-end encryption a paid feature. Privacy and Security MUST be the default in technology, not a paid luxury!
ORIGINAL 07/13/2020 POST: 

This is outrageous. Zoom made significant and commendable strides forward to finally address security flaws in 2020. However, IMO this latest policy change puts them back into the dog house. Zoom just announced that they will NOT offer end to end encryption to users with free accounts, because they want to give the police and FBI access to calls.

If paid subscribers do have end to end encryption this “policy” is a blatant strategy to simply generate revenue.

Sign the petition to tell Zoom: “Keep people safe by implementing default end to end encryption for all video, audio, and text chat.”

Tell Zoom to implement end to end encryption for all users.

“This threatens protesters who are using Zoom to coordinate demonstrations and have confidential discussions about necessary reforms. By giving cops these sensitive conversations, Zoom puts activists at risk. The police can use the information gathered to disrupt protests and even arrest the people involved.”

“As activists demand justice, accountability, and freedom from police violence, Zoom fuels the very police oppression the protesters are fighting against.1

“This is a decisive moment of change. The need for safety both on and offline has never been greater. Now more than ever companies must take action for our security, not expose us to more danger.”

Tell Zoom to keep all users safe.

“Eric Yuan, Zoom’s CEO, believes limiting encryption to paying customers is necessary because “some people use Zoom for bad purposes.” Not only does Yuan show disturbing bias in drawing a connection between free users and criminals, but he’s making a ridiculous argument. People with bad intentions will just pay to secure their calls, which means there’s literally no reason not to offer end to end encryption to free account holders other than to do law enforcement a favor.2,3

Eric Yuan, CEO Zoom

And while bad actors and corporations pay for safety, users who can’t afford paid accounts will be left vulnerable to cyber-criminals, stalkers, and governments around the world can access calls with full cooperation from Zoom.4

This sets an extremely dangerous precedent. This is what law enforcement wants and why they’re pressuring facebook to not roll out end to end encryption on messenger. By doing this Zoom is reinforcing a dangerous lie that widespread availability of end to end encryption is inherently dangerous, which is just nonsense.5

Tell Zoom to make all user accounts safe and secure with end to end encryption.

1. The Guardian:
2. CNET:
3. Schneier on Security:
4. Tech Crunch:
5. The Verge:

Reliable resources and patience during COVID-19

“Be patient so you don’t become one.”
1990 PostMedCare / MHF

During these times of increased anxieties, the aforementioned holds true as it did when first coined in the early 90s.

I understand how you may be feeling.  Anxious for the most current accurate information.  So many have felt and are feeling the same.  What many have found to counter the negative is to stay informed by utilizing credible resources. No one has all the answers.  However, the below resources can help us all to be informed and significantly reduce risk.

Get the latest public health information from the CDC:

Get the latest research from NIH:

Medical professional resources all can tap into:

March 18

JAMA held a live interview with NIAID Director Anthony Fauci, MD, about updates on the coronavirus.

March 17

—AMA has designed a quick guide to support physicians and practices in expediting the implementation of telemedicine.

—CDC held its latest webinar: Coronavirus (COVID-19) Update and Information for Long-term Care Facilities

—The CDC updated guidelines on cruise ship travel to include additional pre-travel advice about in-cabin isolation if patients become sick during a cruise and a 14-day quarantine following completion of any cruise. 

—New CDC interim guidance released on March 16 for discontinuation of home isolation for persons with COVID-19 as well as new FAQ for Healthcare Professionals released March 17 that provides additional knowledge regarding  COVID-19 at this time.

March 16

—AMA issued a letter to the White House to express the urgent need to resolve the mounting problems being raised by the nation’s frontline caregivers with respect to the COVID-19 pandemic.

—New CDC guidance recommends all persons defer any travel on cruise ships and river boats worldwide and provides recommendations to clinicians and state and local health departments to provide patients with pre- and post-travel advice to reduce risk of COVID-19 transmission.

Special edition of AMA Journal of Ethics Ethics Talk: Editor-in-chief, Audiey Kao, MD, discusses the ethical challenges, including resource scarcity and medical worker obligations, that arise during pandemics with public health expert Dr Matthew Wynia.


JAMA / Humana – Waste in the US Health Care System Estimated Costs and Potential for Savings

William H. Shrank, MD, MSHS1Teresa L. Rogstad, MPH1Natasha Parekh, MD, MS2

The estimated total annual costs of waste were $760 billion to $935 billion and savings from interventions that address waste were $191 billion to $282 billion.


Abstract / Synopsis

Donald M. Berwick, MD, MPP, discuss the findings and their implications for the US health care system.
Watch the VIDEO – Donald M. Berwick, MD, MPP, discuss the findings and their implications for the US health care system.

Importance  The United States spends more on health care than any other country, with costs approaching 18% of the gross domestic product (GDP). Prior studies estimated that approximately 30% of health care spending may be considered waste. Despite efforts to reduce overtreatment, improve care, and address overpayment, it is likely that substantial waste in US health care spending remains.

Objectives  To estimate current levels of waste in the US health care system in 6 previously developed domains and to report estimates of potential savings for each domain.

Evidence  A search of peer-reviewed and “gray” literature from January 2012 to May 2019 focused on the 6 waste domains previously identified by the Institute of Medicine and Berwick and Hackbarth: failure of care delivery, failure of care coordination, overtreatment or low-value care, pricing failure, fraud and abuse, and administrative complexity. For each domain, available estimates of waste-related costs and data from interventions shown to reduce waste-related costs were recorded, converted to annual estimates in 2019 dollars for national populations when necessary, and combined into ranges or summed as appropriate.


Findings  The review yielded 71 estimates from 54 unique peer-reviewed publications, government-based reports, and reports from the gray literature. Computations yielded the following estimated ranges of total annual cost of waste: failure of care delivery, $102.4 billion to $165.7 billion; failure of care coordination, $27.2 billion to $78.2 billion; overtreatment or low-value care, $75.7 billion to $101.2 billion; pricing failure, $230.7 billion to $240.5 billion; fraud and abuse, $58.5 billion to $83.9 billion; and administrative complexity, $265.6 billion. The estimated annual savings from measures to eliminate waste were as follows: failure of care delivery, $44.4 billion to $93.3 billion; failure of care coordination, $29.6 billion to $38.2 billion; overtreatment or low-value care, $12.8 billion to $28.6 billion; pricing failure, $81.4 billion to $91.2 billion; and fraud and abuse, $22.8 billion to $30.8 billion. No studies were identified that focused on interventions targeting administrative complexity. The estimated total annual costs of waste were $760 billion to $935 billion and savings from interventions that address waste were $191 billion to $282 billion.

Conclusions and Relevance  In this review based on 6 previously identified domains of health care waste, the estimated cost of waste in the US health care system ranged from $760 billion to $935 billion, accounting for approximately 25% of total health care spending, and the projected potential savings from interventions that reduce waste, excluding savings from administrative complexity, ranged from $191 billion to $282 billion, representing a potential 25% reduction in the total cost of waste. Implementation of effective measures to eliminate waste represents an opportunity reduce the continued increases in US health care expenditures.


W2 Employee or 1099 Independent Contractor?  “A5” – New Law in CA.

Within this week I have had three conversations with associates about the risk and the conundrum of retaining 1099 talent versus hiring a W2 employee.

Here is how four different agencies determine 1099 / W2 relationships.  1099vsw2-four agencies

At the same time, I received a highly informative update from our friends at the “Law Offices of Omar Figueroa” educating their CA clients of the new recently passed CA Labor Law. (Read Below)

Pay attention to the differences. The state and federal agencies are!



By Andrew Kingsdale, Esq. and Lauren Mendelsohn, Esq. 


When hiring a new worker, whether permanent or temporary, should that person be treated as an “independent contractor” or an “employee”? Over the past decade or so, a number of industries, including the cannabis and technology industries, have moved away from hiring employees and towards bringing on more independent contractors as a way to increase operational agility and cut costs, since independent contractors do not have to be given the same benefits as employees, such as a minimum wage, worker’s compensation insurance, unemployment insurance, paid sick leave, and paid family leave. This has resulted in many workers losing out on benefits that they otherwise would have been entitled to, which has been criticized as unfair.

A new California bill, Assembly Bill 5, which has passed through both chambers of the state legislature and now awaits Governor Newsom’s signature, presumes that most workers are “employees” based on a 3-prong test (the “ABC Test”) and places the burden on the company to prove otherwise. Penalties under both federal and state law for misclassifying an employee as an independent contractor can be severe, including civil penalties of up to $25,000 per willful violation and damages for unpaid wages, so cannabis-related companies should think carefully before treating new workers as “independent contractors.” (See Labor Code § 226.8.)


UPDATE (6/18/19): Governor Newsom has officially signed AB 5 into law.

Background: Borello and the Multi-Factor Test

From 1989 until 2018, the seminal case in California for determining whether a worker is an employee or an independent contractor was S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (“Borello”). That case came up with a long list of factors that should be weighed against each other to determine someone’s employment status, with the most important factor being whether the employer controls the details of how the work will be performed (Borello, 48 Cal.3d at 350). Other factors include: whether the worker could be discharged at will without cause; whether the worker is engaged in a distinct occupation or business; the method of payment (by the hour or by the job); who provides the supplies, the necessary tools, and place to work; whether the work being done is part of the regular business of the person who hired the worker; the length of time for the services to be performed; the amount of supervision provided to the worker; and whether the parties believe there is an employer/employee relationship (Borello, 48 Cal.3d at 350-351). Due to the number of factors involved, this test was often difficult to apply.

Dynamex Ruling and the “ABC Test”

In Dynamex Operations W. v. Superior Court (2018) 4 Cal. 5th 903 (“Dynamex”), delivery drivers for a nationwide package and document delivery company, Dynamex, sued the company for misclassifying them as independent contractors rather than employees. Under their agreements with the company, the drivers were required to use their own vehicles, and to pay for all of their own transportation expenses, as well as all taxes and workers’ compensation insurance.  Dynamex assigned specific package deliveries to drivers, but the drivers could refuse assignments. Dynamex generally expected drivers to wear Dynamex shirts and badges, and attached Dymnamex decals to their vehicles, but the drivers were also free to work for other delivery companies. The drivers were permitted to hire other persons to make deliveries assigned by Dynamex, but Dynamex could terminate its agreement with any driver without cause, on three days’ notice. (See Dynamex, 4 Cal. 5th at 917-18.)

The California Supreme Court held that these drivers should have been classified as “employees” and not “independent contractors” for purposes of Industrial Welfare Commission (IWC) Wage Order No. 9, which imposes certain employer obligations such as overtime, minimum wages, meal and rest breaks, and certain record-keeping requirements on the transportation industry. The Court announced a new test—the “ABC Test”—for making this determination.

This standard “presumes a worker hired by an entity is an employee” (Dynamex, footnote 20, emphasis added), and “the burden [is placed] on the hiring entity to establish that the worker is an independent contractor who was not intended to be included within the wage order’s coverage” based on the ABC Test factors” (Dynamex at 957).

Taking it a Step Further: Assembly Bill 5

The California legislature took the holding in Dynamex a step further in Assembly Bill 5 (“AB 5”) by codifying the ABC Test and expanding it beyond just IWC Wage Orders so that it also applies to the Labor Code and the Unemployment Insurance Code. AB 5 adds the following language to the state’s Labor Code:

Labor Code § 2750.3

For purposes of the provisions of this code and the Unemployment Insurance Code, and for the wage orders of the Industrial Welfare Commission, a person providing labor or services for remuneration shall be considered an employee rather than an independent contractor unless the hiring entity demonstrates that all of the following conditions are satisfied:

(A) The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact.

(B) The person performs work that is outside the usual course of the hiring entity’s business.

(C) The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

Except as expressly provided in AB 5, it will apply to work performed on or after January 1, 2020 for most purposes, and beginning on July 1, 2020 for purposes of workers’ compensation. In addition, certain provisions apply retroactively. Thus, employers could be liable for past as well as future violations. (Proposed Labor Code § 2750.3(i); Proposed Labor Code § 3351(i).)

Exceptions to AB 5

While AB 5 makes the “ABC Test” the default method in California for determining whether a worker is an employee or an independent contractor, there are certain occupations and types of relationships that are exempted from this test, and will be governed either by the previous Borello test or by some other standard.

The first exception is for specific occupations. These include certain licensed medical professionals such as physicians, dentists, and veterinarians; licensed insurance providers; licensed attorneys, engineers, architects, private investigators, and accountants; certain securities broker-dealers or investment advisors; certain direct salespersons; and commercial fishermen working on American vessels. (Proposed Labor Code § 2750.3(b).)

The second exception is for certain contracts for professional services between a hiring entity and an individual. This category includes (but is not limited to) marketing services; graphic design; services provided by a freelance writer or photographer; and services provided by a licensed cosmetologist or esthetician; provided that the requirements set forth in AB5 are met. (Proposed Labor Code § 2750.3(c).)

There are also distinct exceptions for real estate licensees and repossession agencies, relationships between contractors and individuals performing work pursuant to a construction subcontract; and “motor club services.” (Proposed Labor Code § 2750.3(d), (f), (h).) The remaining exceptions include certain business-to-business contracting relationships where specific criteria are satisfied; and relationships between a referral agency and a service provider if the delineated conditions are met. (Proposed Labor Code § 2750.3(e), (g).)

Analysis of “ABC Test” in Practice

Upon closer examination of these ABC Test factors, one can see why it is so difficult to meet the “independent contractor” definition. Take, for example, this hypothetical scenario:

An edibles manufacturer licensed by the Manufactured Cannabis Safety Branch within the California Department of Public Health wants to temporarily hire an experienced cook during a particularly busy time of the year, but the manufacturer does not want to go through the process, expense, and commitment of bringing on a new “employee.” There is no time to train the cook, so she must have relevant and recent experience cooking the same type of edibles that the manufacturer sells. But she also is given flexible hours, allowed to use her own equipment, and she remains free to work for other/competing edibles manufacturers as well.

Can this temporary cook be treated as an independent contractor? First, you might examine whether the cook can remain “free from the control and direction” of the hiring manufacturer (part A of the ABC Test).  Wouldn’t the licensed manufacturer need to direct the cook to follow certain recipes? Wouldn’t the licensed manufacturer want and need to control the quality of this cook’s work? Similarly, how can the manufacturer find a cook who performs work “outside the usual course of the [manufacturer’s] business” (part B of the ABC Test), which business is cooking?  Isn’t the licensed manufacturer hiring the cook precisely because she regularly works in the same line of business? In short: this temporary hire probably should be classified as an “employee,” and not as an “independent contractor.”

One of the factors of the old Borello test that was not included in the new ABC Test is whether the parties believe there is an employer/employee relationship. Many independent contractor agreements contain provisions to the extent of “Nothing herein creates an employer/employee relationship between Company and Contractor.” A provision like this is essentially useless now if the type of work is one that is subject to the ABC Test–regardless of what the parties agree to in writing, a court would still find the worker to be an employee if any of the factors set forth in Dynamex and reaffirmed in AB 5 are not met.

Beyond the standard fines, California cannabis companies also face potential licensing risks from misclassifying employees as independent contractors.  For example, every applicant for a state-issued commercial cannabis license that has “20 of more employees” must entered into a labor peace agreement. (Bus. and Prof. Code § 26051.5(a)(5)(A).) Additionally, employers with two or more “employees” must ensure at least one supervisor and one employee have successfully completed a Cal/OSHA 30-hour general industry outreach training course. (Bus. and Prof. Code § 26051.5(a)(11).)  As part of their annual applications, licensees must certify compliance with these requirements on their applications, so they should be careful not to miscount “employees.” The Bureau of Cannabis Control’s regulations also require that a non-storefront retail delivery driver be directly employed by the retail licensee, and violation of this rule could result in a suspension, fines, and potentially even license revocation (16 Cal. Code of Regs. §5415(a); BCC Disciplinary Guidelines).


It is expected that Governor Newsom will sign AB 5 into law (he has until October 13, 2019 to sign or veto the bill). In the coming years the new “ABC Test” spelled out in AB5 will be further refined and explained, both in the courts and through subsequent legislation. For now, the easiest way for California employers to ensure compliance with the law is to classify and treat new hires as “employees” unless they can positively demonstrate that all three prongs of the ABC test are satisfied, which is a high bar to meet, or unless they fall into one of the exceptions, which are limited. While other alternatives may exist, there is something to be said for being able to exert control over the people working at your facility, which can’t be done with independent contractors. If you are considering how to staff your business, we suggest contacting legal counsel to make sure that you classify your workers properly to avoid penalties.


This information is provided as an educational service and is not intended as legal advice. For questions regarding employees and independent contractors, please contact the Law Offices of Omar Figueroa at (707) 829-0215 or to schedule a confidential legal consultation. 

Continue reading W2 Employee or 1099 Independent Contractor?  “A5” – New Law in CA.