New Jersey Medical Aid in Dying Act Update

A law that is as controversial as New Jersey’s Medical Aid in Dying for the Terminally Ill Act (“Act”) is bound to have its challengers.

The first challenge to the Act came in the form of a temporary restraining order (“TRO”) which was issued by a Superior Court Judge in Mercer County, New Jersey on August 14, 2019.  The TRO prevents physicians from ordering life-ending medication prescriptions to patients until at least Oct. 23, 2019. The Judge granted a TRO because state agencies and regulatory boards allegedly failed to provide guidance to the State’s physicians on how best to implement the provisions of the Act.

Supporters of the Act contend that the law provides sufficient clarity to allow physicians to act without regulations from New Jersey agencies. Physicians who do not want to participate in the Act may transfer care of the patient to another physician per the patient’s request. The suit alleges that the law violates the state constitution on religious, due process, and equal protection grounds.

Oregon, the pioneer of death with dignity laws, faced similar challenges when it became the first state to allow residents to receive life-ending medication from an attending physician. Oregon and several other jurisdictions have successfully defended their laws allowing residents to end their lives in a dignified manner. In Gonzales v. Oregon, 546 U.S. 243 (2006), the United States Supreme Court upheld Oregon’s Death with Dignity law in a six to three decision.

Michael Salad is a partner in Cooper Levenson’s Business & Tax and Cyber Risk Management practice groups. He concentrates his practice on estate planning, business transactions, mergers and acquisitions, tax matters and cyber risk management. Michael holds an LL.M. in Estate Planning and Elder Law. Michael is licensed to practice law in New Jersey, Florida, Pennsylvania, New York and the District of Columbia.  Michael may be reached at (609) 572-7616 or via e-mail at msalad@cooperlevenson.com.

Shaiful Kashem is a summer associate at Cooper Levenson. He is a candidate for a J.D. at Rutgers School of Law in Camden. Shaiful may be reached at (609) 344.3161 or via e-mail at skashem@cooperlevenson.com.

 

The New Jersey Medical Aid in Dying for the Terminally Ill Act

We have witnessed a growing movement to allow terminally ill patients to end their own lives on their terms throughout the United States. New Jersey joined that movement when the Medical Aid in Dying for the Terminally Ill Act (“Act”) was signed into law by Governor Phil Murphy on April 12, 2019. The Act becomes effective on August 1, 2019, making New Jersey the eighth jurisdiction in the country to allow terminally ill patients to end their own lives with life-ending medication prescribed by their attending physicians.

The Act (codified at N.J.S.A. 26:16-1, et seq.) outlines how a terminally ill patient may request life-ending medication. A patient may request life-ending medication if the patient (a) is an adult New Jersey resident (as defined by N.J.S.A. § 26:16-11), (b) is capable and has been determined to be terminally ill and (c) has voluntarily requested to receive the medication. N.J.S.A. 26:16-4.

The first prong arises out of concern that residents of other states will travel to New Jersey to receive life-ending medication.  New Jersey residency may be satisfied if a terminally ill patient provides a copy of one of the following to their attending physician: (a) a driver’s license or non-driver identification card issued by the New Jersey Motor Vehicle Commission; (b) proof that the person is registered to vote in New Jersey; (c) a New Jersey resident gross income tax return filed for the most recent tax year; or (d) any other government record that the attending physician reasonably believes demonstrates that the individual’s current residency is the state of New Jersey. These requirements are intended to prevent non-New Jersey residents from traveling to New Jersey to request life-ending medication. Other jurisdictions that enacted similar death with dignity laws have incorporated a residency requirement in order for a terminally ill patient to receive life-ending medication in that jurisdiction.

To establish residency in New Jersey, one must establish a physical address in the state and obtain a driver’s license or non-driver identification card that reflects the New Jersey address. The requirements for both forms of identification require an applicant to provide proof of address, which include copies of utility bills, bank account statements, current mortgage or rental agreements or property tax bills from the past year. To register to vote, a resident may fill out a voter registration application form established by the county in which the voter resides but the voter must produce a New Jersey driver’s license, non-driver identification card or swear that the voter does not possess government-issued identification.

The second prong is primarily the patient’s attending physician’s responsibility. N.J.S.A. 26:16-4 requires a patient to be “capable” and “terminally ill.”  “Capable” means having the capacity to make health care decisions and to communicate those decisions to a health care provider, including communication through persons familiar with the patient’s manner of communicating if those persons are available.  N.J.S.A. 26:16-3.“Terminally ill” means that the patient is in the terminal stage of an irreversibly fatal illness, disease, or condition with a prognosis, based upon reasonable medical certainty, of a life expectancy of six months or less. N.J.S.A. 26:16-3. To be determined a “qualified terminally ill patient,” a consulting physician must also examine the patient to confirm the attending physician’s diagnosis and authenticate the patient’s capacity and voluntariness. N.J.S.A. 26:16-7. Attending physicians are required to maintain extensive records, which include documentation of a patient’s requests for medication, records concerning the patient’s diagnosis, prognosis, capacity, and voluntariness in submitting such requests, as well as records from consulting physicians and any other health care professionals involved with the patient’s request for medication. N.J.S.A. 26:16-10(d). These records are a part of the medical record of a terminally ill patient. The attending physician is also required to submit a copy of these records to the New Jersey Department of Health no later than 30 days after dispensing life-ending medication to a terminally ill patient. N.J.S.A. 26:16-13(a)(1).

The third prong is a multi-step process that requires a patient to make two oral requests and one written request to a patient’s attending physician. A patient may submit a written request to receive life-ending medication to his or her attending physician when the patient makes the initial oral request or at any time thereafter. N.J.S.A. 26:16-10(a)(3). The two oral requests must be made at least 15 days apart and the attending physician must advise the patient to consult with another health care professional to discuss other treatment options but the patient is not required to participate in the consultation. N.J.S.A. 26:16-10(c). After making the second oral request, the attending physician must afford the patient an opportunity to rescind the request for life-ending medication, which may be completed at any time and for any reason. N.J.S.A. 26:16-10(a)(2),(b).

The Act has raised issues regarding life insurance policies that are owned by terminally-ill patients. Many life insurance policies contain suicide riders that prevent a payout if the insured commits suicide within the first two years of binding an insurance policy. After the two-year period lapses, most policies pay out the death benefit, even if the cause of death is suicide. However, the Act differentiates between patients who ingest life-ending medication and those who partake in assisted suicide.

Additionally, deaths that occur within the parameters of the Act do not constitute suicide or assisted suicide. N.J.S.A. 2C:11-6. As such, suicide riders in most life insurance policies are irrelevant, as deaths under the Act are not considered suicide.  The cause of death for those who pass away in accordance with the terms of the Act will likely reference natural causes on the decedent’s death certificate.

In jurisdictions in which a person passes away in accordance with similar “death with dignity” laws, the underlying terminal illness is generally listed as the cause of death and the manner of death is denoted as “natural” per the instructions of most of the jurisdictions’ respective health departments. Furthermore, in New Jersey, the Act provides that any  provision in a contract, last will and testament, insurance policy, annuity, or other agreement, whether written or oral, made on or after August 1, 2019, that purports to restrict a person’s decision to make or rescind a request for life-ending medication will be invalidated and that premium rates for insurance policies or annuities cannot be conditioned on the same request. N.J.S.A. 26:16-14. In the states in which “death with dignity” laws are in effect, we found no challenges regarding remittance of death benefits under a life insurance policy.

The Act will likely make it easier for New Jersey residents suffering from a terminal illness to end their lives on their own terms. The Act includes safeguards and a well-defined process that allows capable, terminally ill patients who are fully informed of their decision to voluntarily terminate their lives if they feel that it is in their best interest to do so. The Act also guides health care providers and advocates who support dying patients.

Michael Salad is a partner in Cooper Levenson’s Business & Tax and Cyber Risk Management practice groups. He concentrates his practice on estate planning, business transactions, mergers and acquisitions, tax matters and cyber risk management. Michael holds an LL.M. in Estate Planning and Elder Law. Michael is licensed to practice law in New Jersey, Florida, Pennsylvania, New York and the District of Columbia. Michael may be reached at (609) 572-7616 or via e-mail at msalad@cooperlevenson.com.

Shaiful Kashem is a summer Law Clerk at Cooper Levenson. He is a candidate for a J.D. at Rutgers School of Law in Camden. Shaiful may be reached at (609) 344.3161 or via e-mail at skashem@cooperlevenson.com.

 

WHAT ARE YOUR LONG-TERM CARE OPTIONS

If you think “nursing home” as soon as you hear long-term facility, that’s not surprising. However long-term care covers a range of options.  Long-term care is provided at home, in the community, or in a variety of types of facilities.  The options for long-term care span a continuum of care, and your choices may change as a parent or loved one loses mobility or chronic conditions gradually worsen.

Long-term care decisions don’t always involve a sudden crisis, and when you can, it is important to think about long-term care before a crisis occurs.

In many cases, long-term care starts at Home with family members, friends, volunteers, and often times paid home health-care aides providing the necessary care so that your loved one can remain in his or her home.  Short-term, skilled home health care is covered by Medicare; but, if Medicare is paying, it is just a short-term solution.

In addition, most areas have community services such as adult daycare, meal programs, senior centers and transportation that can be helpful as your parent remains at home. Adult daycare for example can provide a variety of health, social, and related support services in a protective setting during the day.

Independent or Retirement Living is best suited for retirees with relatively minor needs. These self-contained communities, sometimes situated in high rise complexes,  are generally light on care but offer many planned outing and activities.  Some include wellness centers on site.  The price can vary widely.

Assisted Living Facilities offer services such as medication management and limited personal care in a supervised setting.  Like independent/retirement living options, there is a real focus on activities. Also available at many assisted living facilities are personal care, housekeeping and prepared meals, often at additional cost.  The care in Assisted living facilities spans a continuum itself, and in many facilities additional care services can be provided as the need arises.

Nursing Homes provide medical and personal services beyond that available at assisted living facilities, with 24-hour supervision, assistance with activities of daily living and three daily meals usually standard.  Skilled-nursing is on-site to meet medical needs.  There is a large range of services available at different nursing homes, and it is important to match your needs with your nursing home choice.

By checking at Medicare.gov, you can learn more about each option, and newer options being offered, as well as Medicare’s coverage for each. LongTermCare.gov also has information and resources that can help with the difficult decisions involved in long-term care.

Bard L. Shober, Esq. is an attorney with Cooper Levenson’s Personal Injury Practice Group in Atlantic City, N.J. He concentrates primarily on medical malpractice and personal injury matters.

Cooper Levenson Attorneys Present Hot Legal Issues in New Jersey at NJSAMSS April 11th

Cooper Levenson attorneys Jill T. Ojserkis, Esq., LL.M.  and Brittany A. Bonetti, Esq. will address Hot Legal Issues affecting New Jersey Medical Staffs at the annual New Jersey State Association of Medical Staff Services (NJSAMSS) conference at the Tropicana Atlantic City. The Cooper Levenson presentation is scheduled for 10:30 a.m. to 12 noon on Thursday, April 11, 2019.

Issues to be addressed in the session include: medicinal cannabis regulations, hospital credentialing of mid-level provider, and NPDB and NJ Clearinghouse reporting.

A partner at Cooper Levenson, Ojserkis is Chair of the Healthcare Law practice group and a member of the firm’s Tax and Cannabis Law practice groups. Although she maintains a general healthcare practice in a wide variety of transactional, tax and corporate matters, she concentrates on medical staff/physician relations, transactional matters including managed care and technology, and governance issues for hospitals and medical staffs.

Bonetti is an associate in the Cooper Levenson’s Healthcare, Cyber Law and Cannabis Law practice groups. She assists hospitals and health systems, medical staffs, individual physicians and physician groups in business and regulatory legal matters of all types, helping them navigate complicated healthcare regulations such as Stark, Fraud and Abuse, Anti-Kickback and state regulatory concerns.

The NJSAMSS’s 26th Annual Education Conference will take place April 11-12, 2019. Participants may earn CEU’s for attending. The mission of NJSAMSS is to assist medical services professionals in broadening their professional knowledge and qualifications in the fields of medical staff and credentialing services through advocacy, certification, education, information, and networking. NJSAMSS members include hospitals, health care systems, managed care organizations, physician offices, and health care entities in New Jersey and adjoining states.

 

New Jersey Cannabis Law Update

by Jill T. Ojserkis, Esq., LL.M.

Despite approval of three cannabis bills, including adult use legalization, following a four hour hearing held before the joint session of the New Jersey Senate and Assembly Budget and Appropriation Committees on November 26, 2018, it appears unlikely that marijuana legislation will be voted upon in 2018. December 17, 2018 is the latest voting day of the legislative year and work still remains on gaining consensus on key issues in the bills including the tax rate, expungements and whether the proposed Cannabis Regulatory Commission would be a full-time commission. Work also remains in ensuring the number of votes needed for passage.

During the joint hearing, the Committees considered testimony related to three bills: S2703, the “New Jersey Cannabis Regulatory and Expungement Aid Modernization Act” which legalizes recreational cannabis, creates a Cannabis Regulatory Commission and provides a social justice component in the form of expungement relief and S10/S2426, the “Compassionate Use Medical Marijuana Act”, which revises requirements to authorize and access medical cannabis; establishes requirements for institutional caregivers; revises permit requirements for alternative treatment centers; and establishes additional legal protections for patients and caregivers. S2703 specifically provides that the regulation, taxing, control and legalization of marijuana products will be handled similarly to that of alcohol in New Jersey. A controversial component of S2703 also calls for all applicants, except for those seeking conditional or microbusiness licenses, to submit a statement that it has entered into a “labor peace agreement” with bona fide labor organizations.

During his keynote presentation before the Greater Atlantic City Chamber of Commerce held in the Atlantic City Campus of Stockton University on December 11, 2018, Hugh O’Beirne, President of the New Jersey Cannabis Industry Association, stated his belief that it is better for New Jersey to wait to get it right and to get needed buy-in rather than to rush given the potentially staggering economics. O’Beirne compared the population of Colorado with approximately 5.6 million residents to the more densely populated New Jersey, with 9 million residents. He also noted that New Jersey has far more visitors than Colorado. The New Jersey Office of Legislative Services (“OLS”), using Colorado as a model, calculated the per person annual spend on legal marijuana to be approximately $194.61. Were New Jersey to experience the same per resident sales as Colorado, the OLS estimates total retail sales of recreational marijuana in New Jersey to approximately $1.75 billion yielding aggregate tax revenue of approximately $210 million annually. Not addressed by O’Beirne or the OLS was the quickly falling price of marijuana in Colorado, which will see a marked reduction in tax revenue due to taxes being based on sales price.

In a December 11, 2018 article, NJ.com reported that 50 towns in New Jersey (or 10% of towns statewide), had banned legal marijuana businesses from operations. S2703 states that if municipalities do not “opt out” of a specific classes or all of licenses within 180 days of enaction of the law, they will be unable to do so for 5 years. The NJ.com article also noted that notwithstanding a municipality’s opt-out, the proposed bills would still permit residents over 21 to possess and use a small amount of legal marijuana in a private residence in that municipality.

S2703 also contains a combined 12% tax rate to be paid to the State and a 2% municipal excise tax. Proponents of this tax rate believe that this lower tax will promote economic growth and that, by reducing the total cost to the consumer (the price of the marijuana product plus taxes), illegal marijuana sales will be reduced. Proponents of a higher tax rate, such as Governor Murphy, believe that tax revenue should be maximized since it is the primary motivation for legalization. The New Jersey League of Municipalities has called for a 5% municipal excise tax with each licensee being required to enter into a host benefit agreement with the municipality.

The provision of licenses to microbusinesses in S2703 is seen as a means to reduce the barriers to entry by small business. Microbusinesses may have no more than 10 employees with 100% of the ownership interests being comprised of New Jersey residents who have lived in the State for at least two years. Further, and in order to promote economic opportunities within the State, at least 51% of the owners, directors, officers or employees of the microbusiness must be residents of the municipality or neighboring municipality where the microbusiness is to be located.

It has also been reported that shortly before the hearing before the joint Committees, changes were made to S10/S2426 which had offered medicinal marijuana patients broad employment protections. While the revised S10 does not permit termination of an employee merely because s/he is registered with the medical marijuana program, there are no other significant protections. Employers may maintain a drug testing policy and a prohibition against positive test results.

As written for Capaldi Reynolds & Pelosi, Certified Public Accountants newsletter

Jill T. Ojserkis at AHLA Physicians and Hospitals Law Institute in New Orleans

“The Opioid Crisis, Litigation Risks, and Medical Staffing Privileging” was the topic at a luncheon at the American Health Lawyers Association (AHLA) Physicians and Hospitals Law Institute today, Tuesday Feb. 5, 2018, in New Orleans.  Jill T. Ojserkis, Esq., a Cooper Levenson Partner, served as a panelist along with David Blank of Quarles and Brady, Washington, D.C. and Donna Michael-Ziereis, Vice-President and General Counsel, AtlantiCare Regional Medical Center, Egg Harbor Township, N.J.

The American Health Lawyers Association’s Physicians and Hospitals Law Institute focused on legal challenges faced by physicians and their counsel, the legal challenges faced by hospitals and health systems and their counsel, and the legal issues of interest to both segments of the health care delivery system.

Blurred Lines or Bright Line Between Gaming and Medical Marijuana

Last year, when the song “Blurred Lines” blasted over the airways, no one, including the recording artists (at least they claimed) realized that lines had been blurred between the popular hit song and a song titled “Got to Give It Up” written by music sensation Marvin Gaye. However, as determined by a jury earlier this year, recording artists Robin Thicke, Pharrell Williams, and T.I. did in fact blur the lines when they produced their hit single without securing the legal rights to the song.

Interestingly, in 2014, Nevada experienced its own form of blurred lines relative to the anticipated approval and operation of medical marijuana establishments and gaming. By way of background, Nevada legalized gaming in 1931 and since that time its success has been largely attributable to the regulatory oversight of the industry, coupled with the obligation to ensure that gaming is free of criminal elements. NRS 463.0129. The policy that the Nevada gaming industry remain free from criminal elements isn’t limited to those individuals included in Nevada’s Black Book or to applicants with transgressions in their background, but instead it contemplates gaming licensees operating lawfully – meaning that they will not engage in business practices that are contrary to state and/or federal law. NRS 463.1405, NRS 463.151, 463.170 and 463.200.

Read complete article here – Blurred Lines or Bright Line between Gaming and Medical Marijuana

Proposed Bill Marks Significant Overhaul in Healthcare: Will Limit Out-of-Network Fees Charged for Urgent and Emergency Care; Mandate Hospital Transparency

On May 14, 2015, New Jersey lawmakers introduced a proposed landmark bill that, if passed, will represent a major overhaul of out-of-network medical care charges, current billing practices, and have a significant impact on hospitals and urgent care centers providing services on an out-of-network basis. Dubbed protection for consumers against surprise medical bills and a way to control rising medical costs, The Out-of Network Consumer Protection, Transparency, Cost Containment and Accountability Act (A4444) comes after a decade of debate and failed efforts to curb out-of-network medical costs in the State, and is part of a rising national trend to do the same. Sponsors of the Act believe that this will create transparency and cap out-of-network charges which are generally understood to add to the costs throughout the system. Providers believe that the Act will force them to agree to fees that they may find unreasonable and will slant the playing field towards managed care providers. Key features of the Act include:

– Healthcare facilities and their physicians will be prohibited from billing a patient for out-of-network urgent care or emergency care in amounts that are greater than the patient’s insurance plan would allow for in-network services;

– Healthcare facilities and physicians will be required to give patients a statement that identifies the medical professionals providing the care, whether they are in network or not, and how much the procedure costs, at least 30 days prior to an elective procedure;
– Under the new bill, patients would not incur any out-of-pocket costs beyond what he would have paid in-network unless he “knowingly, voluntarily, and specifically selected an out-of-network provider.”

– The Department of Banking and Insurance will be authorized to designate an organization to gather and analyze healthcare cost data and create a health-price index for any given urgent or emergency care service;

– Healthcare facilities will be prohibited from billing an out-of-network patient’s insurance carrier for amounts exceeding 2.5 times the median price established by a health-price index for any given out-of-network procedure;

– Insurance companies and healthcare facilities will have the option of entering binding arbitration when they cannot agree on out-of-network costs;

– At least every 20 days, insurance carriers must publish an updated list of out-of-network providers.

– Penalties for hospitals and other healthcare providers ranging from $1,000 to $25,000 per occurrence for failure to comply with the Act.

Though A4444 is still in its infancy stages with a Stakeholders’ meeting scheduled for May 22, 2015, hospitals and healthcare facilities are advised to keep abreast of the legislative situation, and engage in the process as much as possible, because as written, A4444 has the greatest impact on healthcare providers. While leaders in the healthcare industry have offered mixed reactions to the proposed bill, healthcare providers are of the general consensus that A4444, as is, represents a gift to managed care entities that will have deleterious effects on the finances of hospitals and other healthcare facilities, and on their ability to negotiate with managed care entities.

In response to mounting concerns about the impact of A4444 and the perceived slant in favor of managed care entities, CarePoint Health recently proposed an alternative form of payment reform with the goal of finding a solution that can sustain the current health care system and provide equitable reimbursement for patients regardless of insurance status. In addition, The Medical Society of New Jersey has taken the physician-based position that all that is necessary to create valuable reform is to pay physicians fairly and provide fair contract terms that will encourage physicians to join networks, thereby dissipating the out-of-network issue.

Hospitals are advised to consider all of the potential impacts A4444 will have, and take a proactive approach to proposing alternative ideas for lawmakers to consider in shaping a bill that will be fair for insurance carriers and providers alike.

Hospitals and other healthcare providers take note…

Hospitals and other healthcare providers take note: payments made by the Center for Medicare & Medicaid Services (“CMS”) to Medicare Advantage Organizations (“MAO”), Medicare Part D, and other managed Medicare payment programs have been reduced by 2% in accordance with the sequestration order of the Balanced Budget and Emergency Deficit Control Act of 2011. Pass-through of these reductions are governed by individual contracts with third-party payors. Click the link below to read Laura Navarro, Esq.’s entire article.

Navarro, Laura – Sequestration May Affect Medicare Contract Provider Payments.pdf 

Sequestration May Affect Medicare Contractor Provider Payments

Date: 08/25/2014
Publication: Website
CooperLevenson Publication: Website
Summary: Since April 1, 2013, payments made by the Center for Medicare & Medicaid Services (“CMS”) to Medicare Advantage Organizations (“MAO”), Medicare Part D, and other managed Medicare payment programs have been reduced by 2% in accordance with the sequestration order of the Balanced Budget and Emergency Deficit Control Act of 2011. Because the sequestration reductions are only effective for dates of discharge or dates or services provided on or after April 1, 2013, hospitals and other contract providers may just now be realizing the effects of such reduction, as third-party payers such as insurance companies make efforts to pass the reductions on to contract providers. This is so despite guidance issued by CMS that such reductions may be passed through only if the contract between parties explicitly permits such a pass through.
Article: Sequestration May Affect Medicare Contract Provider Payments.pdf