EMERGENCY DEPARTMENT PHYSICIANS AND HOSPITAL FOUND NOT LIABLE FOR FAILURE TO INITIATE CHILD ABUSE REPORT
May 6, 2014
Posted by Beth Christian
The New Jersey Supreme Court has issued a decision finding that an emergency department physician and the hospital where he worked did not breach their duty to report suspected child abuse for failure to report a child’s ingestion of cologne. The Supreme Court reversed an earlier decision of the Appellate Division, which had found that summary judgment in favor of the emergency department physician and the hospital was inappropriate because “a reasonable jury could find a probable inference from the information available to Dr. Yu at the time of treatment was that the child’s condition was the result of reckless or grossly or wantonly negligent conduct or inaction on the part of her parent or guardian.”
The facts which gave rise to the litigation arose when a toddler was brought to a hospital’s emergency room for treatment of what was determined to be accidental cologne ingestion. The child was treated and released from the hospital’s emergency department to the care of her father. Sometime later, the child was subjected to several incidents of child abuse, and she was removed from the care and custody of her father and stepmother. After she was later adopted, the child’s adoptive parent filed a malpractice action against the hospital and the emergency room physician, alleging that the doctor breached the duty imposed by New Jersey’s child abuse reporting statute to report suspected child abuse.
The Supreme Court reversed the decision of the Appellate Division and held that the circumstances surrounding the child’s presentation at the hospital were insufficient to give rise to a finding that the emergency department physician behaved unreasonably in failing to report an incident of suspected child abuse. The court found that the liquid that the 2 year old child ingested was a common item found in many homes and was not an inherently dangerous item, such as an acid, a poison, a gun or a non-household sharp cutting instrument that no reasonable adult would allow in any accessible proximity to a child. The court found that “the idea that a toddler might find a way to get her hands on a common cosmetic or toiletry item is not equal to grossly negligent or reckless behavior on the part of a parent.” The court expressed concerns that if it were to reach a contrary conclusion, every accidental ingestion case presenting at a hospital’s emergency department give rise to a mandatory child abuse reporting obligation. The court concluded that the physician did not breach the reporting obligation set forth in New Jersey’s Child Abuse Reporting Statute in connection with the child’s emergency room visit and treatment for apparent accidental cologne ingestion.
This case has been watched closely by physicians who treat children, and had the potential to greatly expand the child abuse reporting obligations imposed on physicians and other health care practitioners. The court appears to have taken a common sense approach which balances the State’s interest in protecting children from abuse without the imposition of greatly expanded reporting requirements upon physicians and other medical practitioners.
CMS Issues Data Listing Medicare Payments To Individual Physicians
April 10, 2014
Posted by Beth Christian
As it had promised to do, the Medicare program issued data listing the amounts paid to individual physicians for services rendered by those physicians to Medicare beneficiaries for calendar year 2012. CMS indicated that the data was issued “in order to make our healthcare system more transparent, affordable, and accountable.” The Wall Street Journal has created a tool which allows users to search the CMS data set by name, specialty and location. The Medicare announcement and data set link can be found here: http://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-and-Reports/Medicare-Provider-Charge-Data/Physician-and-Other-Supplier.html. The searchable tool prepared by the Wall Street Journal can be found here: http://projects.wsj.com/medicarebilling/.
Corporate Integrity Agreement Gone Wrong: OIG Excludes Entity Found Non-Compliant with CIA
April 4, 2014
Posted by Beth Christian
On April 3rd, the OIG issued a press release announcing that it was excluding CSHM, LLC (“CSHM”), a pediatric dental management chain, from participation in the Medicare and Medicaid programs for a period of five years. CSHM operates a national chain of pediatric dental facilities known as Small Smiles Dental Centers, which primarily serves Medicaid recipients. CSHM’s corporate predecessor had executed a Corporate Integrity Agreement in 2010.
The OIG found that CSHM had materially breached its obligations under the CIA. According to the OIG’s press release, CSHM failed to report serious quality-of-care reportable events, take corrective action, or make appropriate notifications of those events to the State dental boards as required by the CIA. The OIG press release also indicated that CSHM failed to implement and maintain significant quality-related policies and procedures, comply with internal quality and compliance review requirements, properly maintain a log of compliance disclosures, and perform training as required by the CIA. The OIG also noted that CSHM submitted a false certification from its Compliance Officer regarding its compliance with CIA obligations.
The action taken by the OIG serves as an important reminder to providers operating under a CIA that signing a Corporate Integrity Agreement is only the first step in a series of compliance obligations that must be met while the CIA is in effect. Providers that fail to comply with such obligations do so at their peril and risk Medicare/Medicaid exclusion.
SGR Patch
April 2, 2014
Posted by Frank Ciesla
Both the House and the Senate have now passed a temporary patch to the Sustainable Growth Rate (“SGR”) for the next year. See our prior blog as to the action, which also defers the implementation of IDC-10 for a year. It is expected that the White House will sign the extension. In anticipation, CMS has instructed the Medicare administrative contractors to hold claims containing services paid under the MPFS for the first 10 business days of April. This hold would only affect MPFS claims with dates of service of April 1 and later. It is expected by CMS that the hold will have minimal impact on provider cash flow, because under current law, clean electronic claims will not be paid any sooner than 14 calendar days after the date of receipt. All claims for services delivered on or before March 31st will be processed and paid under the normal procedures, regardless of whether or not the President now signs the legislation extending the patch for another year.
Hopefully during this period of time, a permanent solution of the SGR will be agreed upon by the House, the Senate and the White House. However, at this point in time, there does not appear to be an acceptable funding source for the payment of the solution. We will be looking forward, in the latter part of 2014, to a CBO estimate of what the cost will be going forward.
Sustainable Growth Rate – Here We Go Again!
March 31, 2014
Posted by Frank Ciesla
As pointed out in our prior blogs, it appeared that there was not sufficient time to permanently resolve the Sustainable Growth Rate (“SGR”) issue. To the consternation of the AMA, it now appears that both Houses will defer resolution. However, it appears that the House version will not be a clean bill but will also include a provision that delays not just the SGR, but delays the implementation of the ICD-10 also. It is now Monday, March 31st, which does not provide a significant amount of time for the Senate to approve a different version of the House bill and then reconcile both versions to defer the implementation of the SGR for the year. No one has provided an acceptable offset to the 180 billon dollar cost of the SGR solution.
It has been said that the deferral will be effective so long as both Houses pass a bill and provide it to the President by April 4, 2014.
Obviously, deferring the solution to the SGR problem until 2015, after the elections, is a political move. A cynic might look at this as an opportunity for Congressional candidates to encourage donations to their campaigns by various parties that may be affected by the SGR and/or by a solution to the SGR. For instance, it would behoove doctors to continue to contribute to the campaigns of various Congressional candidates in favor of resolving the SGR as it will behoove other parties, such as pharmaceutical companies and hospitals, to contribute to the campaigns of various congressional candidates, so that payment for the solution to the SGR, will not come by reducing the payments being made to either of those categories of business. However, that is just a cynic’s view of how Washington operates.
Legislature Expands Codey Law Exception for Lithotripsy Referrals
March 24, 2014
Posted by Beth Christian
The New Jersey Legislature recently amended N.J.S.A. 45:9-22.5 (known as the “Codey Law”) to expand the scope of facilities where lithotripsy referrals may be made. The Codey Law generally prohibits physicians from referring patients to health care services with which the physician or his or her immediate family has a financial interest, but provides for several exceptions.
Previously, there was an exception in the Codey law which allowed physicians to refer patients to an ambulatory surgery facility that provides lithotripsy services even if the physician had a financial interest in the ambulatory surgical facility, under certain conditions. The physician had to personally perform the procedure; the physician’s remuneration had to be directly proportional to his or her ownership interest and not be based on the volume of their referrals; all clinically related decisions had to be made by the facility’s practitioners and in the patient’s best interests; and the physician had to disclose the financial interest of the patient at or prior to the time the referral was made. The amendment to the Codey law expanded the locations where lithotripsy referrals can be made if a physician has a financial interest in the facility. Under the amendment, referrals are permitted to freestanding ambulatory care facilities licensed to provide lithotripsy, in addition to referrals for lithotripsy provided in licensed ambulatory surgical facilities. Referrals to freestanding ambulatory care facilities licensed to provide lithotripsy will be subject to the same conditions as are currently imposed on referrals to ambulatory surgical facilities.
COURT RULES THAT VOLUNTEER RESCUE SQUAD IS NOT SUBJECT TO OPRA
March 21, 2014
Posted by Ari G. Burd
GH&C Attorney Ari G. Burd prevailed on behalf of the Tabernacle Rescue Squad in the first ever Superior Court decision to consider the applicability of the Open Public Records Act (“OPRA”) to volunteer rescue squads. In the matter Fran Brooks v. Tabernacle Rescue Squad, Docket No. L-002629-13, the Superior Court held that OPRA is not applicable to volunteer rescue squads, a decision that could affect both volunteer rescue squads and volunteer fire departments throughout the state of New Jersey. The ruling is an important victory for nonprofit volunteer rescue squads, who would be significantly burdened if they were required to respond to costly, time-consuming OPRA requests despite having neither the funding nor manpower to respond.
The Plaintiff, a citizen of Tabernacle Township, served an OPRA request on the Rescue Squad seeking trip reports for every Rescue Squad ambulance and rescue truck for the time period January 1, 2013 through July 31, 2013. The Rescue Squad rejected the request based on its position that it is not subject to OPRA. The Plaintiff then filed an Order to Show Cause in Burlington County Superior Court before the Hon. Ronald E. Bookbinder, A.J.S.C.
The Plaintiff argued that because the Rescue Squad allegedly performed a governmental function and received a minority of its funding from Tabernacle Township, it should be subject to OPRA. Citing an array of Supreme Court and Appellate Division decision, Mr. Burd argued on behalf of Tabernacle Rescue Squad that the Rescue Squad should not be subject to OPRA. Noting that the nonprofit, all volunteer Rescue Squad was formed by private citizens, operated without any interference from the town and received the majority of its funding from non-municipal sources, Mr. Burd argued the Rescue Squad did not meet the definition of “public agency” as set forth in the OPRA statute. Judge Bookbinder agreed, finding that as a matter of law, OPRA was not applicable to the Rescue Squad.
Sustainable Growth Rate Update
March 20, 2014
Posted by Frank Ciesla
The AMA forwarded the attached letter (http://www.ama-assn.org/resources/doc/washington/medicare-sgr-letter-to-senate-leadership-18march2014.pdf) in regard to the sustainable growth rate to both the House and the Senate. It now appears that the best that will happen before March 31st is a temporary fix extending the delay while members of Congress work out a resolution. While there appears to be an agreement on the solution for repealing the Sustainable Growth Rate, there does not appear to be an agreement on how that solution will be paid for. Funding being proposed by Senator Ron Wyden would use the funds that are freed up by the reduction in armed forces involved in the hostilities in Iraq and Afghanistan to fund the cost of the solution to the Sustainable Growth Rate. As pointed out by various commentators, the problem with this solution is that those funds have already been spent in the budget proposed by the President.
Follow Up on Sustainable Growth Rate
March 14, 2014
Posted by Frank Ciesla
The House by a vote of 237 to 182 today passed legislation permanently repealing and replacing the Sustainable Growth Rate requirement. The Bill now goes to the Senate. However, while both parties have agreed that a repeal is essential and to some extent have agreed on the replacement, the funding mechanism set forth in the House bill (delaying the Affordable Care Act mandate) is opposed by the Democrats. Therefore, it is unlikely that it will pass the Senate.
Democratic Senator Ron Wyden has stated that he hopes that final resolution will be completed by March 31st.
In light of the passage by the House with the funding solution being delaying the Affordable Care Act mandate, and the Democratic opposition, it is unlikely that the House solution will be adopted by the Senate. Therefore, over the next 16 days, the Senate must pass its version of legislation, which if it differs from the House, will need to be remanded back to the House and potentially a Senate-House Committee for resolution and forwarded to the President for his signature all before March 31st.
While this is unlikely, it is possible. The more likely event however is a temporary extension of the delay of the Sustainable Growth Rate implementation for a period of time.
OIG Publishes Op-Ed Suggesting Mandatory Random Drug Testing For Health Care Professionals
March 13, 2014
Posted by Beth Christian
In an Op Ed article published in yesterday’s New York Times (http://www.nytimes.com/2014/03/13/opinion/why-arent-doctors-drug-tested.html?action=click&module=Search®ion=searchResults%230&version=&url=http%3A%2F%2Fquery.nytimes.com%2Fsearch%2Fsitesearch%2F%3Faction%3Dclick%26region%3DMasthead%26pgtype%3DHomepage%26module%3DSearchSubmit%26contentCollection%3DHomepage%26t%3Dqry780%23%2FLevinson%2F24hours%2F&_r=1), HHS OIG Daniel Levinson has called for mandatory random drug testing by hospitals for all health care workers with access to drugs. Citing recent cases involving drug diversions by health care workers that led to patient harm, the OIG indicated that since transportation or other safety-sensitive workers are already subject to random drug testing, health care workers should be subject to such testing as well. The OIG also called for the imposition of a requirement obligating hospitals to contact law enforcement if they suspect that a health care worker is stealing drugs. The OIG did not identify what vehicle would be used to implement these proposals. The Op-Ed piece leaves open the question of how the proposals would impact existing mandatory reporting obligations imposed on health care professionals by their professional boards, how mandatory reporting to law enforcement might impact referrals to professional assistance programs such as New Jersey’s Alternate Resolution Program, or issues raised in connection with collective bargaining agreements.
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