This month's NJ-ACEP news

Volume II, 2002

As you know, Congress adjourned for its two-week spring recess without taking action to stop the reductions. We do know that Senate plans to hold a cloture vote after the recess which, if supported by 60 Senators, will allow a vote to occur on the legislation. That vote could occur as early as April 12.

Since CMS believes Congress is working to avert the April 1 negative update, CMS has instructed its contractors to hold claims containing services paid under the Medicare Physician Fee Schedule (including anesthesia services) for the first 10 business days of April.

This hold will only affect claims with dates of service April 1, 2010, and forward. The hold should have minimum impact on cash flow because, under the current law, clean electronic claims are not paid any sooner than 14 calendar days (29 for paper claims) after the date of receipt.

However, if you are a non-participant with Medicare (that is, you accept assignment on Medicare claims on a case by case basis), there may be consequences.

If Congress does take action on April 12, 2010, there should be no problem for non-participating physicians who have been charging patients using the January/March 2010 Medicare Physician Fee Schedule Limiting Charge on non-assigned claims.

But if Congress does not take action, patients might need to receive refunds for charges billed beyond the negative 21.2% fee reduction effective April 1, 2010.

Thus, non-participating physicians have three options: (1) Hold off on billing Medicare patients from April 1, until Congress takes action or until April 14, 2010, whichever comes first; (2) bill Medicare patients using the January/March 2010 Fee Schedule, with the knowledge that if Congress takes no action, you might have to refund the patients; or (3) accept assignment from April 1, until a Congressional action is taken or until April 14, 2010, whichever comes first.

Non-participating physicians might also consider Opting Out of the Medicare Program and making private-pay arrangements with Medicare patients. Any physician who Opts Out will be out of the Medicare Program for a two-year period: no claims for the physician's services are to be submitted to Medicare - by the physician or by his/her patients. The only exception would be for services that are for urgent or emergent (i.e. life- or limb-threatening) care.

As more information becomes available, we will keep you apprised.

Act now to call your NJ State legislators and express your opposition to these bills!

Background:

New Jersey’s current Wrongful Death law provides fair and equitable compensation to families that have suffered harm due to the wrongful death of a loved one. New Jersey courts are consistently generous when interpreting the current law, providing expansive views of the pecuniary damage requirement, especially true in cases involving children.

New Jersey’s current law is working – and working well –
to ensure justice for its citizens.

Amending the law, as proposed in S-763/A-1158, would take an already liberally-interpreted Wrongful Death Act and create one of the most extreme Acts in the country.

S-763/A-1158 allow for the recovery of unlimited emotional damages in wrongful death cases, which vastly expands the kinds of damages that can be sought and goes far beyond the purpose of wrongful death laws, which is to provide compensation for loss of economic support and other economic damages. The bill creates vaguely-defined and highly-subjective reasons for which damages can be sought with no rationale or standards as to how damages are to be determined.

If enacted, New Jersey would be one of only eight states that do not cap grief damages in wrongful death cases, placing our law well outside of the mainstream and encourage extensive new litigation that will clog New Jersey courts and hurt New Jersey employers and health care providers.

The sweeping scope and vagueness of the bill - combined with a virtual blank check on damage awards - creates opportunities for abuse, invites punitive and unfair treatment of defendants, and encourages novel legal theory to continually expand the types of injury for which compensation can be sought.

Specifically, S-763/A-1158 expands the law as follows:

“Damages may also be recovered hereunder for mental anguish, emotional pain and suffering, loss of society and loss of companionship.”

In January of 2008, the Assembly passed the wrongful death expansion by 41-32 and the Senate by 21-11. Governor Corzine vetoed the bill -- but there is no guarantee that he will do so again.

ACT NOW! Go to http://www.njleg.state.nj.us/ and go to “Find Your Legislator” on the left side. Call all three members in your district. Both the Senate and Assembly are in play on this issue – and they need to hear from you!

More information? Report responses? Contact Beverly Lynch, 609/392-7553, blynch@blynch@blynchassociates.com

The New Jersey Lawsuit Reform Alliance (NJLRA) is a statewide, bipartisan group of individuals, businesses, and organizations that believe a balanced civil justice system is critical for ensuring fair and open courts, maintaining and attracting jobs, and fostering economic growth in New Jersey. The NJLRA advocates for legal reform in the legislature and in the courts, and is New Jersey's only organization dedicated exclusively to improving the state's civil justice system.

Bioterrorism & Smallpox

• Mike Gerardi: Opinion
• Letter to American Hospital Association from Health & Human Services
• Guidance for the Healthcare Community (from the American Hospital Association)

© 2003 NJACEP