BrachEichler LLC Blogs Feed Nov 2017firmwise Jersey Approves Constitutional Amendment to Earmark Monies for Environmental Clean-Up Nov 2017Blogs<p>Nearly 70 percent of New Jersey voters approved a ballot measure on Tuesday that will ensure that monies paid by polluters will be used to actually clean-up contamination and that future governors will not be able to redirect the funds. This issue was on the ballot as the result of New Jersey&rsquo;s settlement with ExxonMobil.&nbsp; Governor Christie settled with ExxonMobil for more than $225 million but a cap of funds for natural resource damages meant that the majority of the damages collected would not be used for the restoration and remediation of contaminated land.&nbsp; The outcome of the ballot question and the resulting constitutional amendment will cause controversy in determining if and how much money will be allocated to a particular site, if any, &nbsp;for remediation and restoration but the money will have to be used for environmental restoration and not directed to the general funds.</p> Reform Bill Puts Alimony Deductibility on the Chopping Block Nov 2017Blogs<p>Hidden deep within the proposed Republican tax bill entitled the &ldquo;Tax Cuts and Jobs Act&rdquo; (Sec. 1309, Pages 122-126) published yesterday is a scarcely publicized provision that eliminates the long-standing tax deductibility of alimony payments. While this prospective provision will impact agreements/judgments entered after January 1, 2018, the provision, if adopted, amounts to a significant paradigm shift in the way that alimony payments have been treated by both the payor and payee. Those individuals currently in negotiations and practitioners should be aware of this possible legal landscape change.&nbsp; If adopted, it is unknown how this would impact alimony and child support calculations going forward. To view the entire bill, please click on the attached hyperlink: <a href="" target="_blank"></a></p> Reform Bill Eliminates Tax Benefits Related to Adoption by Taxing Employer Assistance and Eliminating Tax Credit Nov 2017Blogs<p>Under the proposed Republican tax bill entitled the &ldquo;Tax Cuts and Jobs Act&rdquo; (Sec. 1406, Page 142) published yesterday, families seeking to adopt a child will suffer two significant cuts. First, the employer assistance credit for adoption will be eliminated.&nbsp; Currently, if an employer provided assistance to a worker adopting a child up to $13,750, the employee pays no taxes on that assistance.&nbsp; The proposed bill eliminates that provision and the assistance would be taxed as income.&nbsp; Second, the adoption credit of up to $13,750 per eligible child will be repealed.&nbsp; Currently, the credit is applicable for taxpayers with adjusted gross income of between a range of approximately $200,000 to $240,000.&nbsp; To view the entire bill, please click on the attached hyperlink: <a href="" target="_blank"></a></p> Eichler Files Suit Against Aetna, Inc. For Breach Of Privacy Related To Patient Hiv-Medication Status Oct 2017Blogs<p>Brach Eichler LLC has filed a law suit against health insurer Aetna, Inc. and others, alleging breach of privacy relating to mailings the company sent as part of the settlement of previous privacy-based lawsuits against the insurer relating to patient HIV-medication status. Members Lani M. Dornfeld, Esq. and Edward P. Capozzi, Esq. and Associate Dennis Shlionsky, Esq. represent the plaintiffs in the action.<br /> <br /> The suit was submitted to the Superior Court of New Jersey, Essex County, last week. Aetna&rsquo;s privacy breach is believed to have involved the private HIV medication information of more than 12,000 Aetna insureds. The New Jersey suit, John Smith and Richard Becker (Fictitious Designations) vs. Aetna, Inc.; Aetna Health Inc.; Aetna Specialty Pharmacy, LLC; ABC Corporation (1-10) and Doe Vendor, may be the first suit related to the Aetna breach to be filed in the State of New Jersey. <br /> <br /> The New Jersey suit filed by Brach Eichler alleges violation of the New Jersey AIDS Assistance Act, as well as invasion of privacy and negligence on the part of Aetna and the other defendants. (ABC Corporation is a class of fictitiously named individuals or entities responsible for the disclosure and/or presentation of private medical information regarding the plaintiffs, and Doe Vendor is a class of fictitiously named individuals and/or entities representing the unidentified vendor that Aetna used to send its mailing.) The complaint alleges the case is about &ldquo;Aetna&rsquo;s repeated failure to respect the privacy rights of people who are taking HIV medications.&rdquo; <br /> <br /> Dornfeld, a member in Brach Eichler&rsquo;s health law practice who devotes a significant portion of her practice to HIPAA and privacy-related matters, said, &ldquo;The allegations demonstrate an egregious violation of the New Jersey AIDS Assistance Act, as well as extreme negligence on the part of the defendants. The AIDS Assistance Act was passed by the New Jersey legislature to place strict privacy safeguards around HIV and HIV-related information in order to protect individuals from the very type of harm and stigmatism suffered by these plaintiffs.&rdquo; Dornfeld noted that the act provides for punitive damages, which the plaintiffs are seeking in this case.<br /> <br /> Pursuant to the complaint, the background to the suit relates to two separate class actions against Aetna in 2014 and 2015 alleging Aetna jeopardized the privacy of people taking HIV medications by requiring its insureds to receive their HIV medications through the mail and not allowing them to pick up their medications in-person at their chosen pharmacy. Those cases are Doe v. Aetna, Inc., No. 14-cv-2986 (S.D.Cal) and Doe v. Coventry Health Care, Inc., No 15-cv-62685 (S.D. Fla.). The Doe lawsuits were never certified as class actions, but rather were settled by Aetna and the individual plaintiffs in those cases. As a condition of those individual settlements and in addition to payment of damages, Aetna agreed to send notice to its insureds who had been required to mail-order their HIV medications, informing them they were no longer required to do so. <br /> <br /> In sending out the notices, which occurred in or about July 2017, the Brach Eichler complaint alleges that &ldquo;Aetna again failed to recognize the dangers associated with sending information about HIV medications through the mail.&rdquo; Rather than sending the notices in an opaque envelope, the envelope used for the notices contained a large window, covering almost half of the front of the envelope, in which &ldquo;instructions about how individuals could obtain their HIV medications were visible from the outside of the envelope.&rdquo; <br /> <br /> According to Capozzi, who chairs Brach Eichler&rsquo;s personal injury practice, &ldquo;The plaintiffs in the New Jersey action allege, among other things, severe and disabling emotional distress and insult, embarrassment, humiliation, increased stress and anxiety.&rdquo;<br /> <br /> In Pennsylvania, the AIDS Law Project of Pennsylvania and Berger &amp; Montague filed a class action on August 28th of this year, in the U.S. District Court for the Eastern District of Pennsylvania. Almost simultaneously with Brach Eichler&rsquo;s filing, a California man filed suit against Aetna in California stemming from Aetna&rsquo;s privacy breach and alleging Aetna violated state and federal privacy laws.</p> Proposes Medicare for All Act of 2017 Oct 2017Blogs<p>Senator Bernie Sanders recently proposed Senate Bill 1804, which seeks<br /> to expand Medicare into a universal health insurance program. The bill would replace America&rsquo;s health care system with a public system funded by higher taxes.<br /> <br /> <strong>Expected Benefits.</strong> Enrolled individuals would be entitled to certain<br /> essential health benefits, including hospital services; ambulatory patient services; primary and preventive services; prescription drugs, medical devices, and biological products; mental health and substance abuse treatment services (including inpatient care); laboratory and diagnostic services; comprehensive reproductive, maternity, and newborn care; pediatrics; oral health, audiology, and vision services; and short-term rehabilitative and habilitative services and devices.<br /> <br /> <strong>Rollout.</strong> Children would immediately receive universal Medicare cards. Adults not currently eligible for Medicare would be phased in over four years based on age. In the first year, the plan would cover Americans over 55. By year two, everyone over 45 would be covered. In year three, the plan would cover those over 35, and in year four, all Americans would be covered.<br /> <br /> <strong>Funding. </strong>The bill is projected to require significantly more revenue,<br /> but there is no plan for how to fund the bill. Senator Sanders released a number of funding proposals, including a 7.5 percent payroll tax on employers, a 4 percent income tax, and additional taxes on wealthier Americans and corporations. Critics say that even the proposed methods would fall far short of funding the plan.<br /> <br /> <strong>Support.</strong> The bill is backed by at least 16 Democratic senators, which is an unprecedented level of support for this type of proposal. In the House, a single payer bill introduced by Rep. John Conyers has the support of more than 60 percent of Democrats.<br /> <br /> <strong>Insurance Response. </strong>Insurance industry representatives criticize the bill, indicating it will eliminate choice, undermine quality, stymie innovation, and place a heavier burden on taxpayers.</p> Update - Ransomware Attack Puts 33,000 Patients at Risk Sep 2017Blogs<p>St. Mark&rsquo;s Surgical Center in Fort Myers, Florida was the target of a ransomware attack earlier this year that prevented access to patient data, including protected health information (PHI), such as names, dates of birth, and Social Security numbers. A ransomware attack will infiltrate a company&rsquo;s data, encrypt it and only offer the release of the data upon payment of a ransom. It is possible a ransomware attack also could cause the breach of PHI outside the organization.<br /> <br /> The Department of Health and Human Services, Office for Civil Rights (OCR), the HIPAA enforcement agency, reports that ransomware attacks are on the rise with over 4,000 daily attacks since early 2016, a 300% increase compared to 2015. HIPAA requires covered entities and business associates to have in place security measures that can help prevent ransomware attacks, including, among other measures, (1) a security management process, which includes a risk analysis to identify threats and vulnerabilities; (2) procedures to guard and detect against malicious software; (3) staff training to educate staff to identify, assist in detecting, and report malicious software; and (4) implementation of access controls to limit access to PHI to only those necessary.<br /> <br /> <br /> The OCR has issued guidance stating that ransomware attacks are presumed to result in a breach of PHI unless the affected covered entity or business associate can prove, through an investigation and risk assessment, that there is a low probability PHI was compromised. Covered entities have a maximum of 60 days following the discovery of a breach to report the breach to affected individuals and, in certain circumstances, to the OCR and other authorities. In this matter, St. Mark&rsquo;s was assessed a monetary penalty for late notification.<br /> <br /> If you need assistance with your organization&rsquo;s HIPAA policies and procedures, risk management plan, or investigating and responding to a breach or suspected breach incident, including a ransomware attack, please contact a member of our Health Care Practice Group.</p> Division Reverses DEP Decision Regarding Innocent Purchaser Sep 2017Blogs<p>The Appellate Division reversed a final agency decision by the New Jersey Department of Environmental Protection (&ldquo;DEP&rdquo;) regarding who and what is defined as a &ldquo;person&rdquo; under the Brownfield and Contaminated Site Remediation Act (&ldquo;Brownfield Act&rdquo;). Cedar Knolls 2006, LLC (&ldquo;Cedar Knolls&rdquo;) applied to the DEP to receive an innocent purchaser grant, which request was denied by DEP. DEP determined that Cedar Knolls did not qualify as a person under the Brownfield Act because of the way in which it acquired the property. The DEP denied the application stating that Cedar Knolls was not the same person who acquired the property prior to the 1983 date to become eligible for an innocent purchaser grant. Walter Higginson, who purchased the property in 1977, bequeathed the property upon his death to his wife through two different trusts. When those trusts terminated, the contents were transferred to their son and then to Cedar Knolls. Nine years after the transfer to Cedar Knolls, it applied for an innocent purchaser grant to assist with the clean-up of the contamination of the property.<br /> <br /> The Appellate Division referred to the definition in the Industrial Site Recovery Act (&ldquo;ISRA&rdquo;) of a &ldquo;change in ownership&rdquo; finding that &ldquo;although these definitional sections are not among the parts . . . that became the Brownfield Act, they nevertheless reflect the Legislature&rsquo;s concerns with respect to changes of ownership at the time the innocent party grants were established.&rdquo; ISRA provides that a &ldquo;change in ownership&rdquo; is not &ldquo;a transfer where the transferor is the sibling, spouse, child, parent, grandparent, child of a sibling, or sibling of a parent of the transferee.&rdquo; The Court found that, although Cedar Knolls is an LLC, because the transfers were made between family members that would not equate to a change in ownership, Cedar Knolls could qualify as a &ldquo;person&rdquo; under the Brownfield Act. The Court determined that the Legislature was more concerned with the &ldquo;substance of ownership&rdquo; and &ldquo;continuity&rdquo; rather than the precise legal form of the entity. Because this property was transferred within Mr. Higginson&rsquo;s family and he would have otherwise qualified as an innocent purchaser, the Court reversed the DEP&rsquo;s finding as to whether Cedar Knolls is a person to qualify as an innocent purchaser.</p> Updates Soil Remediation Standards for 19 Compounds Sep 2017Blogs<p>The New Jersey Department of Environmental Protection (&ldquo;NJDEP&rdquo;) published revisions to the soil remediation standards for 19 contaminants. These updates bring the New Jersey standards more in line with the USEPA IRIS-based standards. Soil remedial standards for 11 compounds, including 7 PAHs, are now higher than previously. The updated soil remediation standards are operative as of September 18, 2017.<br /> <br /> NJDEP also provided the following information regarding an error in the published update: <em>A courtesy copy of the Notice of Administrative Change may be viewed at <a href="" target="_blank"></a>. Please note that the Notice contains errors for two contaminants. A Notice of Administrative Correction will be published in the October 16, 2017 New Jersey Register (a courtesy copy of the Notice of Administrative Correction can also be viewed at <a href="" target="_blank"></a>).</em></p> Prescriptions in the Age of EMR – Why Physicians Must be Ultra-Vigilant Sep 2017Blogs<p align="left">Opioid addiction and abuse is a national health crisis, with the over-prescription of narcotics such as Oxycontin, Oxycodone and Fentanyl at the foundation of this growing problem. <a href="">According to the CDC</a>, overdose deaths involving prescription opioids have quadrupled since 1999 along with sales of these prescription drugs. From 1999 to 2015, more than 183,000 people in the U.S. died from overdoses related to prescription opioids.</p> <p align="left">With the recent increased scrutiny on opioid prescribing comes the burden of documentation for physicians who prescribe opioids. Aside from weighing the risk-benefit factor for each patient&rsquo;s pain relief, doctors must also meticulously document medical care in compliance with increased regulatory oversight, or risk sanctions against their medical license.</p> <p align="left">Compliance and regulatory matters bring an increased need for thorough patient examinations and rigorous documentation of medical care by way of thorough and contemporaneous notes. Any physician who writes opioid prescriptions must first do a patient evaluation and include the name, strength, and quantity of the narcotic in the medical record (as well as on the written prescription).</p> <p align="left">While the use of electronic medical records (EMR) should make proper documentation easier, medical practices must also ensure their EMR system&rsquo;s reliability and upkeep to avoid any impediments to compliance.</p> <p align="left">Two cases come to mind that illustrate the ramifications of not using and maintaining an EMR system properly.</p> <p align="left">A doctor in a three-physician practice was suddenly faced with working alone due to various circumstances. During that time, the practice&rsquo;s EMR system wasn&rsquo;t working properly and this physician had only worked with paper records in the past. Although he&rsquo;d obtained complete patient histories and conducted thorough examinations, critical information was excluded from those patients&rsquo; EMRs because he was not familiar with the EMR system. Much of that missing information was about opioid prescriptions he&rsquo;d written to manage patients&rsquo; pain. Exacerbating the problem was that he was not a practice owner who could allocate funds towards the system&rsquo;s repair. The EMR&rsquo;s malfunction led to cascading problems: Because this information had not been entered into the EMR system, the practice came under the scrutiny of the state licensing authority and patient records were subpoenaed. The physician had to appear before an investigating committee and answer to the practice partners regarding the wide gaps in the medical records.</p> <p align="left">Another pain management physician was in the process of changing his EMR system vendor and had prescribed a significant amount of opioids for pain management. The quantity of opioid prescriptions caught the attention of his state licensing authority, which subpoenaed patient records. However, this doctor was unable to produce the complete charts because during the EMR vendor transition, many progress notes and other medical record components had vanished. This and other factors resulted in the physician&rsquo;s license being temporarily suspended pending a full hearing.</p> <p align="left">While EMR has vastly improved medical recordkeeping, the burden is still on the physician to ensure that scrupulous documentation occurs and that the medical records are entered into the system properly. The physician is responsible for any breakdowns in the process. Therefore, it is critical for every practitioner and practice to:</p> <ul> <li> <p>Continually monitor patient records and the EMR system to assure its proper function and use. &nbsp;&nbsp;</p> </li> <li> <p>Don&rsquo;t allow system problems to linger; immediately remediate issues to ensure thorough, timely documentation.</p> </li> <li> <p>Educate himself or herself about state licensing authority regulations regarding narcotics to ensure prescription and documentation compliance. Regulations will likely dictate appropriate dosage, strength, and quantity of the medication; circumstances that permit multiple prescriptions and the necessity of treatment plans; guidance on what constitutes a thorough medical history and whether the physician must access a state prescription monitoring program.</p> </li> <li> <p>Audit the office&rsquo;s billing procedures to ensure appropriate billing practices are followed.</p> </li> </ul> <p align="left">Given the country&rsquo;s opioid crisis and the current regulatory environment, physicians must be vigilant about their patients&rsquo; medical records as well as the proper implementation and maintenance of their EMR systems. To do otherwise could put them and their medical practice at risk.&nbsp;</p> Update Sep 2017Blogs<p><em><strong>Amendments to Physician Assistant Regulations</strong></em> &mdash; On August 21, 2017, the State Board of Medical Examiners, as recommended by the Physician Assistant Advisory Committee, proposed to amend its rules and promulgate new rules to implement P.L. 2015, c. 224, which created an expanded, physician-delegated scope of practice for physician assistants. P.L. 2015, c. 224, which became effective on August 1, 2016, revised the scope of practice for physician assistants, requires all physician assistants in the State to maintain malpractice liability insurance or a letter of credit, and requires physician assistants to have a separate written agreement with each physician who delegates medical services to the physician assistant. Written comments on the proposed rules must be submitted by October 20, 2017.<br /> <br /> <em><strong>Prescription Drug Insurance Coverage</strong></em> &mdash; On August 24, 2017, Assembly Bill A5144 was introduced to require health insurers to provide coverage for prescription drugs through the entire course of treatment as determined by the prescriber. The time period for the course of treatment would be determined solely by the covered person&rsquo;s prescriber without the imposition of any utilization management requirements.<br /> <br /> <em><strong>Health Care Facilities Legislation Passed by Legislature</strong></em> &mdash; On July 31, 2017, the New Jersey Assembly passed S2563, which had previously been passed by the Senate on June 22, 2017. The bill clarifies Department of Consumer Affairs rulemaking authority over freestanding residential health care facilities, and prohibits eviction of residents from such facilities, except for good cause. The bill now awaits approval from Governor Christie.</p>