New Jersey Recognizes the Need for an Increase in the Number of Adult Acute Psychiatric Beds
February 28, 2017
Posted by Anjali Baxi
Last week, the New Jersey Department of Health (NJDOH) issued a notice inviting CN applications to establish new adult acute psychiatric beds under N.J.A.C. 8:33-4.1(a)(2). Recognizing national trends, such as the increasing number of individuals diagnosed with co-occurring mental health and substance use disorders, the fact that nearly 750,000 New Jersey adults are receiving mental health treatment and more than 957,000 New Jersey adults are getting substance abuse treatment, and the fact that Governor Christie has supported legislation that would require health insurers to pay without prior authorization for up to six months of inpatient treatment, the Department has established a bed need of 40 adult psychiatric beds per 100,000 adults. Applications are due by May 1, 2017. Read more
February 6, 2017 Regulatory Developments
February 27, 2017
Posted by Beth Christian
Here are the most recent health care related regulatory developments as published in the New Jersey Register on February 6, 2017:
- On February 6, 2017 at 49 NJR 225, the Office of the Governor issued Executive Order No. 219, which establishes the governor’s task force on drug abuse control.
- On February 6, 2017 at 49 NJR 232, the Department of Health published notice of its proposed amendments to its rules, as well as the proposal of new rules, governing hospice licensing standards. Among other things, the proposal sets forth requirements for licensed inpatient hospice care providers.
- On February 6, 2017 at 49 NJR 259, the Department of Human Services published notice of its readoption with amendments to its rules governing the standards for community residences for persons with head injuries.
- On February 6, 2017 at 49 NJR 286, the Department of Human Services published notice of its action on a petition for rulemaking which was filed on behalf of Medicaid and NJ FamilyCare beneficiaries. The proposed amendment would have required that managed care organizations providing health care services to Medicaid and NJ FamilyCare plan beneficiaries not deny medically necessary services on the grounds that such services are investigational or experimental in nature. The Department of Human Services denied the request, finding that existing regulations require managed care organizations permit enrollees to participate in an approved clinical trial and that such regulations provide sufficient protection to enrollees.
January 17, 2017 Regulatory Developments
January 18, 2017
Posted by Beth Christian
Here are the most recent health care related regulatory developments as published in the New Jersey Register on January 17, 2017:
- On January 17, 2017 at 49 NJR 174, the Department of Human Services published notice of its proposed readoption with amendments to its rules governing the statewide respite care program.
- On January 17, 2017 at 49 NJR 179, the Division of Consumer Affairs published notice of its proposed amendment to its rules governing the schedules of controlled dangerous substances.
- On January 17, 2017 at 49 NJR 201, the Department of Human Services published notice of its readoption with amendments to its rules governing adult mental health rehabilitation services provided in or by community residence programs.
- On January 17, 2017 at 49 NJR 203, the Department of Human Services published notice of its readoption with amendments to its rules governing the NJ FamilyCare-Childrens Programs Manual.
January 3, 2017 Regulatory Developments
January 17, 2017
Posted by Beth Christian
Here are the most recent health care related regulatory developments as published in the New Jersey Register on January 3, 2017:
- On January 3, 2017 at 49 NJR 50, the Board of Medical Examiners published notice of its proposal of amendments to its rules governing the standards for declaration of death based upon neurological criteria (brain death).
- On January 3, 2017 at 49 NJR 101, the Department of Human Services published notice of its readoption with amendments to its rules governing psychiatric residential treatment facility services for individuals under age 21.
- On January 3, 2017 at 49 NJR 116, the State Board of Nursing published notice of its repeal of NJAC 13:37-7.3. The regulation had allowed advanced practice nurses to practice under a work permit letter while they were waiting to take the advance practice nursing certification exam. The Board proposed repeal of the regulation because the availability of on line advanced practice nursing certification examinations obviates the need for work permit letters, since applicants no longer need to wait for an exam to be held on a specific date.
- On January 3, 2017 at 49 NJR 116, the State Board of Nursing published notice of its adoption of amendments to its rules regarding forensic nurse-certified sexual assault education programs.
U.S. Supreme Court Issues Important Decision Regarding False Claims Act Liability
July 22, 2016
Posted by Beth Christian
On June 16, 2016, the United States Supreme Court issued a unanimous decision which held that an implied false certification made for the purpose of claiming payment from the government can serve as a basis for False Claims Act liability. The court held that when an individual or entity submits a claim to the government making specific representations about goods or services provided, but fails to disclose noncompliance with material statutory, regulatory or contractual requirements that result in those representations being misleading, that individual or entity may be subject to liability under the False Claims Act.
The case involved claims for payment for mental health services provided to a teenage beneficiary of the Massachusetts Medicaid program. The patient received counseling services from Arbour Counseling Services, a mental health facility owned and operated by a subsidiary of Universal Health Services, Inc. (“Universal”). The patient had an adverse reaction to a medication that an Arbour employee had prescribed. The patient’s condition worsened and she eventually died of a seizure. Read more
Appellate Division Accords Absolute Privilege To Patient Safety Act Materials
May 6, 2016
Posted by Beth Christian
On May 4, 2016, the Superior Court of New Jersey, Appellate Division, issued a decision in Conn vs. Rebustillo which held that the materials provided to the Department of Health in the contact of a Patient Safety Act report and submission, including the root cause analysis prepared by the hospital in the context of an internal Patient Safety Act investigation, are subject to an absolute privilege and are not subject to disclosure in discovery. The case was a medical malpractice action involving an inpatient at Newton Medical Center who fell out of bed while hospitalized, suffered a brain hemorrhage, and later died. The hospital conducted an internal root cause analysis (which was submitted to the Department of Health) and also submitted a Patient Safety Act report. The wife of the hospital inpatient who died filed a medical malpractice lawsuit, and her attorneys sought to compel disclosure in discovery of the root cause analysis. The plaintiff contended that disclosure of the documents in discovery was permitted because the hospital had not shown that it complied with all of the process requirements of the Patient Safety Act. The trial court held that the underlying facts of the root cause analysis had to be disclosed, as well as any and all other documents withheld by the hospital on the basis that the documents were protected as a root cause analysis. The Appellate Division reversed the decision of the trial court, finding that the privilege set forth in the Patient Safety Act is an absolute privilege and protects all documents submitted to the Department of Health, including the root cause analysis. Internal documents prepared by the hospital as part of its Patient Safety Act investigation which are not submitted to the Department of Health are also subject to protection from disclosure if the hospital can show that the documents were developed as part of a Patient Safety Act plan which complies with the requirements of the Patient Safety Act. The court concluded that the protection accorded to documents submitted to the Department of health is absolute, and that the privilege is not subject to review to determine whether or not the hospital complied with the process requirements of the Patient Safety Act.
Appellate Division Upholds Trial Court’s Finding That A Volunteer Ambulance Squad is Not Subject To OPRA
July 1, 2015
Posted by Beth Christian
Tabernacle Rescue Squad (“TRS”) , a volunteer ambulance squad located In Tabernacle Township, has scored an important victory in the Appellate Division in an OPRA case that could have far-reaching implications for non-profit volunteer rescue squads throughout the State of New Jersey. GH & C attorneys Ari Burd and Beth Christian have represented TRS in an on-going dispute with a resident of Tabernacle Township who filed an OPRA request with TRS . The Township resident asserted that TRS was an instrumentality of the Township and was therefore subject to OPRA. We reported in an earlier blog post that after the Township resident filed an Order to Show Cause seeking to compel release of the records, the trial court issued a decision finding that TRS, as a nonprofit, all volunteer organization formed and operated by private citizens, should not be subject to OPRA: http://www.njhealthcareblog.com/2014/03/court-rules-that-volunteer-rescue-squad-is-not-subject-to-opra/. Thereafter, the Township resident appealed the trial court’s decision to the Appellate Division.
Ari Burd appeared at oral argument in the Appellate Division on behalf of TRS. In a per curium decision, the Appellate Division upheld the decision of the trial court. The Appellate Division indicated that “we agree with Judge Bookbinder that the Rescue Squad, having been founded by private individuals and conducting its operations wholly free of government control, albeit with financial support permitted by statute, cannot be considered a public agency under OPRA.” The Appellate Division also held that because TRS is not a public agency and its volunteer members do not conduct government business, the appellant was not entitled to the TRS records under common law.
NJ Tax Court Upholds Morristown Tax Assessor’s Denial of Property Tax Exemption for Non-Profit Hospital
June 30, 2015
Posted by Beth Christian
The New Jersey Tax Court has issued a decision that could have broad implications for a majority of New Jersey’s hospitals. In AHS Hospital Corp vs. Township of Morristown, Dockets Nos. 010900-2007 et als., the Tax Court held that a majority of Morristown Memorial Medical Center’s property was subject to property tax, even though the Medical Center is a federally tax exempt organization and was formed as a non-profit corporation under New Jersey law. N.J.S.A 54:4-3.6 provides for exemption from property taxes for “all buildings actually used in the work of associations and corporations organized for hospital purposes, provided that if any portion of a building used for hospital purposes is leased to profit-making organizations or otherwise used for purposes which are not themselves exempt from taxation, that portion shall be subject to taxation and the remaining portion only shall be exempt . . “The Tax Court found that because the Medical Center was used by non-employed Medical Staff members and Hospital-based physicians who were not employed by the Medical Center, the Tax Court was unable to discern the difference between the Medical Center’s non-profit activities and the for-profit activities of physicians. The Tax Court also scrutinized the Medical Center’s relationship with its captive professional corporation, for-profit affiliates and captive insurer, as well as its loans to several non-affiliated for-profit entities. In addition, the Tax Court found that the Medical Center failed to meet its burden of proof concerning the reasonableness of the compensation paid to some of its senior executives, and that the productivity incentive payments contained in the Medical Center’s contracts with its employed physicians “demonstrated a profit-making purpose.” Finally, the Tax Court found that the Medical Center’s management contract with Aramark Corporation to manage the Hospital Cafeteria evidenced a profit-making purpose.
The activities which the Tax Court found to be evidence of a “profit-making purpose” are activities in which federally tax-exempt hospitals have routinely engaged throughout the United States.. At the present time, the decision is only applicable to Morristown Memorial Medical Center, which has the right to appeal the decision. If Morristown Medical Center elects not to appeal the decision, or if it is ultimately upheld on appeal, the decision could have broad implications for many New Jersey hospitals if other municipalities elect to challenge the property tax exemption of hospitals within their borders.
CMS Announces Payment Cuts For Failure to Meet Meaningful Use Requirements
December 19, 2014
Posted by Beth Christian
As reported by the Wall Street Journal this week (http://www.wsj.com/articles/medicare-to-cut-payments-to-some-1418955589), approximately 257,000 health care providers (most of them physicians) will be receiving notifications from the Centers for Medicare and Medicaid Services that the rates that they paid under both Medicare and Medicaid will be reduced by 1% in 2015. The reduction is being imposed because the providers failed to comply with the Federal “meaningful use” requirements for use of electronic health records. An additional 1% reduction will be imposed on providers who failed to prescribe medications electronically. The payment adjustments are scheduled to continue for those providers who continue to be non-compliant in future years.
CMS Finalizes Changes to Medicare Enrollment Rules
December 10, 2014
Posted by Beth Christian
On December 3, 2014, the Centers for Medicare & Medicaid Services (CMS) issued a final rule concerning provider enrollment or re-enrollment in Medicare. The final rule will give CMS the ability to deny or revoke the enrollment of entities and individuals that pose a program integrity risk to Medicare, including those that have a managing employee that has been convicted of certain crimes. In addition, CMS will have the ability to deny Medicare enrollment of providers, suppliers, and owners affiliated with an entity that has unpaid Medicare debt. Providers and suppliers may have their Medicare enrollment revoked if (i) the provider or supplier demonstrates a “pattern and practice” of submitting claims that fail to meet Medicare requirements or (ii) the provider or supplier submits a claim or claims for services that could not have been furnished to a specific individual on the date of service. CMS is also making the effective date of Medicare enrollment uniform for all provider and supplier types. Providers and suppliers will only be able to submit claims for services rendered as of the filing date of their enrollment application or the date of first furnishing services at a new practice location, whichever is later.
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