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Thinking about moving out of New Jersey after your divorce has been finalized? You might think twice as to having a Choice of Law provision in your Marital Settlement Agreement. Banner Image

Thinking about moving out of New Jersey after your divorce has been finalized? You might think twice as to having a Choice of Law provision in your Marital Settlement Agreement.

Month: March 2020

Thinking about moving out of New Jersey after your divorce has been finalized? You might think twice as to having a Choice of Law provision in your Marital Settlement Agreement.

Posted on by rd_admin

When couples in New Jersey engage in divorce litigation, one of the many conversations that a client may have with his or her attorney may be about the desire to relocate out of the state of New Jersey. This blog is not intended to provide guidance as to how to overcome the burden of relocating out of the state of New Jersey with children; however, it will focus on a recent decision; namely, Saavedra v. Saavedra,  which  explains what can occur if relocation ensues and the parties fail to have a Choice of Law Provision in their Marital Settlement Agreement (“MSA”).

In Saavedra v. Saavedra , N.J. Super. App. Div., Plaintiff and Defendant divorced in New Jersey in 2011, with two children. The Marital Settlement Agreement was incorporated into the Judgment of Divorce (“JOD”).  After the divorce, Plaintiff moved to California with the children. Defendant followed shortly afterward. Plaintiff registered the JOD in California.

In 2015, Plaintiff filed an application in California to modify custody and child support. The court noted that the parties agreed California would be the correct jurisdiction and California law would govern. The court modified child support on August 24, 2015, by significantly increasing it. In 2017, Plaintiff and Defendant both filed applications before the court in California to modify child support. Plaintiff also requested to extend the duration term to what it had been under the MSA. Under the original MSA, child support was to continue through the children's college, but under the California Child Support Modification Order, duration only lasted until the children were eighteen (18). The court denied Plaintiff's request. Plaintiff then filed a new complaint, again seeking to extend the duration term to what it had been under the MSA. The court denied the request, noting Plaintiff did not appeal the previous decision, but rather chose to file a new complaint as a collateral attack on the Court's ruling.

Plaintiff filed an application in New Jersey for post-disposition relief on July 2, 2018, requesting modification of the California Child Support Order to restore the duration term used in the MSA. The Judge scheduled a case management conference to discuss jurisdiction and held oral argument. The lower court denied Plaintiff's request, finding that since the parties obtained a Modification Order in a California Court and failed to appeal that Order, New Jersey no longer had jurisdiction.

On appeal, the court affirmed the denial, finding that the parties had relocated to California and agreed California would be the proper jurisdiction, with California law controlling. Therefore, the decisions rendered by the California courts were binding. The court noted when all the parties have left the state, New Jersey may not modify a Child Support Order, even though it issued the controlling Order, where the parties have consented that another state can modify the Order.

In order to change jurisdiction from New Jersey, the parties either need to provide their individual consent to have it heard in a jurisdiction that one of the parties is currently residing in or, as in Saavedra v. Saavedra, both parties must live in the jurisdiction. Saavedra informs us that even though parties might have agreed to a certain provision in their Martial Settlement Agreement, that does not always mean that a court in a different jurisdiction will enforce and/or modify provisions that the parties bargained for in their MSA according to New Jersey law, even though the MSA was entered into in New Jersey.

If the parties had a Choice of Law Provision, they could have sought to have their MSA enforced  by the California courts; however, the California court would have been bound to uphold New Jersey Law and child support would have been extended until the children were considered to be emancipated under New Jersey law.  Given the fact that the parties agreed that California was proper jurisdiction and did not have a Choice of Law Provision, they were bound by California law, even though the MSA was entered into in the state of New Jersey.  Although it is not clear what would have happened if Plaintiff filed a Motion for Reconsideration instead of filing a new Complaint, it is likely that the Motion would have been denied, as California law would have likely prevailed over New Jersey law in this specific case.

This decision demonstrates the importance of having a Choice of Law Provision in a Marital Settlement Agreement, as if it is not expressly written in the parties’ MSA, a court in a different state that has proper jurisdiction is not bound to uphold New Jersey law, and parties might be denied relief which was specifically bargained for as a part of their divorce settlement.

Relief and Benefits to Providers Under The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”)

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For more information about this blog post, please contact Khaled J. Klele, Ryan M. Magee, or Labinot Alexander Berlajolli.

Although a lot of attention has been focused on the Small Business Administration (“SBA”) loan programs under the CARES Act, there are many other provisions favorable to healthcare providers to alleviate the financial distress caused by COVID-19.  The below identifies some of those provisions.

Accelerated and Advance Payment Program:  Pursuant to Section 3719 of the CARES Act, CMS is expanding its accelerated and advance payment program for Medicare participating healthcare providers to lessen the financial hardships that providers are experiencing because of COVID-19.   Accelerated and advance payments provide emergency funding and address cash flow issues based on historical payments when there is disruption in claims, usually when dealing with natural disasters.  CMS, however, is expanding the program for COVID-19.  The payments can be requested by hospitals, doctors, durable medical equipment suppliers and other Medicare Part A and Part B providers and suppliers.  

Physician practices can request an advanced payment of up to 100% of the Medicare payment amount based on a three-month lookback period, while hospitals can request up to 100%, or 125% for critical access hospitals, based on a six-month lookback period.   To qualify for accelerated or advance payments, the provider or supplier must:

  • Have billed Medicare for claims within 180 days immediately prior to the date of signature on the provider’s/ supplier’s request form;
  • Not be in bankruptcy;
  • Not be under active medical review or program integrity investigation, and
  • Not have any outstanding delinquent Medicare overpayments.

CMS issued a guidance document regarding the process.   A provider must submit their application to their local Medicare Administrative Contractor, which you can locate here.  If approved, CMS anticipates that payments will be issued within seven days of the provider’s request.   Most non-hospital providers will have to start repaying the amount after 120 days by offsetting amounts from new claims.  Most hospitals will have up to one year.

Cost for Testing and Preventive Service:   Section 3202 of the CARES Act requires a health plan to pay a provider for COVID-19 services pursuant to any rate specified in any in-network contract.  However, if there is no existing contract, the plan is required to reimburse the provider in the amount specified (“cash price”) as listed by the provider online, or the plan or issuer may negotiate a lower price with the provider. Furthermore, under Section 3203 of the Act, health plans are required to cover “any qualifying coronavirus preventive service” without cost-sharing.  The phrase “any qualifying coronavirus preventive service” includes any item or service used to prevent or mitigate COVID-19.

HIPAA and Substance Abuse Disorders: Section 3221 loosens the restrictions on sharing 42 C.F.R. Part 2, which is a separate HIPAA regulation that specifically applies to substance abuse disorders, with regard to treatment, payment and healthcare operations.  It also requires an additional privacy notice.

Limitation of Liability:   As many providers are volunteering their time in assisting hospitals and other providers treat patients with COVID-19, Section 3215 eliminates the liability of such volunteer providers for any harm caused by an act or omission of the professional in the provision of healthcare services with respect to COVID-19 as long as, among other things, the services are within the scope of the license, registration, or certification of the volunteer, and the volunteer did not receive compensation.

Additional Provisions:  Sections 3701-3718 provide a host of additional benefits for providers and patients as follows:

Section 3701:  Allows high deductible health plans to cover telehealth services before a patient has reached their annual deductible.

Section 3702:  Health savings accounts, Archer medical savings accounts, flexible spending arrangements and health reimbursement arrangements can be used to pay for certain items that were previously ineligible, including over-the-counter medications (without a prescription) and menstrual care products retroactive to the beginning of 2020.

Section 3703-07:  This expands telemedicine in several respects:  (1) they eliminate a provision from the recently passed HR 6074, Coronavirus Preparedness and Response Supplemental Appropriations Act, which requires providers to have treated a patient within the last three years in order to furnish telehealth services to that person during the emergency period;  (2) they allow federally qualified health centers and rural health clinics to serve as distant sites and provide telehealth services to patients during the public health emergency; (3) HHS is waiving certain face-to-face requirements for home dialysis and hospice care; and (4) allows the use of remote patient monitoring and other telehealth services in home health.

3708:  Nurse practitioners and physician assistants can order home health services during the six months following the enactment of the CARES Act.

3709-10:  Temporarily suspends sequestration-mandated reductions to Medicare claims from May 1, 2020 through December 31, 2020.  This should increase Medicare payments to providers since the sequester reduced most Medicare payments by two percent starting in 2013.  These sections also provide 20% add-on payments to the diagnosis-related group rate for patients with COVID-19 and the add-on applies to patients treated at hospitals reimbursed through the inpatient prospective payment system (“IPPS”).

Section 3711:    Provides flexibilities for post-acute care providers to increase access to post-acute care during the emergency period by waiving the requirement that inpatient rehabilitation facilities patients attend three hours of therapy per day or 15 hours per week. It also waives the requirement that long-term care hospitals have no more than 50 percent of Medicare cases paid at the “site-neutral” or IPPS rate.

Sections 3712-14:  The Act provides different blended payment rates to increase Medicare reimbursement for durable medical equipment suppliers in both rural and non-rural areas.  When a vaccine is developed, it will be covered under Medicare Part B without any beneficiary cost-sharing. In addition, Part D beneficiaries can receive up to a 90-day supply of a covered prescription drug during the public health emergency.

Section 3715:   To free up hospital beds, this section permits state Medicaid programs to pay for direct support professionals to transition hospitalized individuals to home care  and community-based care.

Section 3716-17:   These sections provide that uninsured individuals may be covered for COVID-19 testing costs with no cost sharing under the state Medicaid program, if the state chooses to provide this benefit.  These sections also broaden the tests that are covered.  

Section 3718:   The Act delays the reduction in payments to clinical laboratories and delays their reporting dates. 

Medicaid Disproportionate Share Hospital Rule:  The CARES Act delays this rule until December 1, 2020. 

USEPA Exercises Enforcement Discretion in Response to the COVID-19 Pandemic

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In response to the COVID-19 pandemic, the United States Environmental Protection Agency (“USEPA”) has decided to exercise enforcement discretion.  That is, USEPA will review any violations and determine if they result from the pandemic; if so, USEPA will decide the proper enforcement action, if any.  See USEPA Memorandum, COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program, dated March 26, 2020 (the “Policy”). 

Specifically, USEPA recognizes that the COVID-19 pandemic will impact certain facility and laboratory operations, which may result in potential violations of reporting obligations, permit limits, regulations and statutes. 

USEPA has set forth guidelines for regulated facilities seeking enforcement discretion due to the pandemic.  In order to seek enforcement discretion, a regulated facility must meet the following requirements:

1. Make every effort to comply with environmental requirements;

2. If compliance is not reasonably practicable, it must

     a. Document the information, actions and conditions identified in a. through d.

     b. Return to compliance as soon as possible;

     c. Identify how COVID-19 was the reason for non-compliance and identify the decisions and actions in response and the efforts to comply;

     d. Identify the specific nature and dates of non-compliance;

     e. Act responsibly;

USEPA is applying the Policy retroactively starting March 13, 2020 and will provide notice before terminating the Policy. 

Importantly, the Policy notes that states may take a different enforcement approach.  Where USEPA shares jurisdiction with a state, it will consult or coordinate with the state on enforcement obligations in certain circumstances. 

The Policy also contains specific information about different instances of non-compliance.  For instance, with respect to routine compliance monitoring and testing, a regulated entity that is unable to meet its obligations should use existing procedures to report non-compliance.  USEPA, in general, is not going to seek penalties for violations of routine monitoring or testing if such non-compliance is the result of the COVID-19 pandemic.  Additionally, when the pandemic ends and the Policy is no longer needed, USEPA is not going to require the regulated entity to play “catch up” on missed routine monitoring and testing, if such non-compliance did not exceed a three-month period.  For bi-annual or annual reporting, however, after the Policy is terminated, USEPA expects the regulated entity to assume compliance as soon as possible, including submittal of late reports.  Also, if a submission requires an original signature, USEPA now is accepting a digital or electronic signature.

Entities that are unable to comply with USEPA settlement agreements or consent decrees should follow the notice procedures set forth in those documents.  With respect to consent decrees, USEPA will coordinate with the Department of Justice on enforcement discretion for stipulated penalties.  It should be noted that courts maintain jurisdiction over consent decrees and can take their own actions regarding non-compliance.

If non-compliance resulting from the COVID-19 pandemic may result in an imminent threat to human health or the environment or cause a facility to fail to meet emission limitations for air, water or wastewater, an entity should immediately contact the proper authority (USEPA, State or Tribe) responsible for implementing the relevant program.  In cases of an imminent threat, USEPA encourages facilities to work with USEPA regional offices, even if USEPA is not the implementing authority.  USEPA will work with facilities to properly address these issues.

Moreover, a facility that is a generator of hazardous waste that is unable to transfer its hazardous waste off-site within the time limits set forth in the Resource Conservation Recovery Act (“RCRA”) should continue to properly label and store its waste.  In these cases, even though the facility failed to remove its waste timely under RCRA, USEPA will continue to consider the facility a hazardous waste generator and not a facility that treats, transfers or stores hazardous wastes.  Very Small Quantity and Small Quantity Generators of hazardous waste will retain their status even if their storage volume thresholds are exceeded during this time period. 

USEPA expects that public water supply systems will continue normal operations and maintenance.  All other facility operations not specifically identified by USEPA in the policy, should follow the guidelines above if non-compliance is unavoidable.  

The Policy makes it clear that it does not relieve any entity from responsibility to prevent, respond to or report accidental releases of hazardous substances and pollutants.  The Policy is not a free pass to release pollutants.   

The Policy does not apply to Superfund and RCRA Corrective Action enforcement instruments.  USEPA will be addressing compliance with these instruments in separate correspondence.  It also does not apply to imports, such as pesticides, or criminal violations.

Although the Policy sets forth guidelines for USEPA enforcement discretion during this trying time, facilities should take all possible steps to meet their regulatory obligations.  If this is not possible given the COVID-19 pandemic, the facilities should work with counsel to determine how to proceed and properly document any non-compliance in order to avail itself of the USEPA Policy. 

For more information, please contact the author Laurie Sands at lsands@riker.com or any attorney in our Environmental Practice Group.

Washington Appellate Court Reminds Parties of the Importance of a Cross-Appeal in Title Dispute

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The Court
of Appeals of Washington recently taught litigants a stern message: you may
want to consider a cross-appeal of any adverse ruling even if you are generally
satisfied with the judgment of the lower court.  See Nationstar
Mortg. LLC v. Schultz, 2019 WL 6713614 (Wash. Ct. App. Dec. 10,
2019).  In this case, an individual named Danny Schultz (“Schultz”)
conveyed, via a “Survivorship Conveyance Deed” (the “Deed”), an interest in a
parcel of real property (the “Property”) to Patricia Small (“Small”) and
Margaret Duke (“Duke”).  The Deed stated in pertinent part:

THE GRANTOR, DANNY R. SCHULTZ, a
single person, for and in consideration of love and affection, grants and
conveys to PATRICIA J. SMALL, a married person as her separate estate, and
MARGARET A. DUKE, a single person, a complete and unlimited right of
survivorship jointly between them, in all of his interest in the [Property]:

***

The rights of Grantees hereunder
shall be superior to all interests created by Grantor hereafter, or imposed by law
hereafter, if any.

One year
after executing the Deed, Schultz entered into a reverse mortgage loan
agreement utilizing the Property as security and assigned the lender,
Nationstar Mortgage LLC (“Nationstar”), a deed of trust. Schultz defaulted on
the loan and Nationstar initiated foreclosure proceedings in the superior
court, naming Schultz, Small, and Duke as defendants.  Small and Duke
answered the complaint, cross-claimed to quiet title, and counterclaimed
against Nationstar, asserting that their interests in the Property were
superior to Nationstar’s.  Small and Duke moved for summary judgment
claiming that “the Deed conveyed the property to them in fee simple absolute as
joint tenants, meaning Mr. Schultz could not have had an interest to encumber
when he sought his loan.”  In opposition, Nationstar claimed the Deed was
ambiguous and argued the matter should be resolved at trial using extrinsic
evidence to properly construe the Deed.

The
superior court granted summary judgment in favor of Small and Duke, holding
that “the Deed was not ambiguous, and that neither a trial nor extrinsic
evidence was necessary to construe it.”  However, the court found that the
Deed did not convey the property to Small and Duke in fee simple.
Instead, the Deed granted Schultz a life estate in the property and conveyed
the remainder to Small and Duke, thereby ruling that Nationstar could only seek
foreclosure on Schultz’s life estate—not the entire property.  Nationstar
appealed the superior court’s summary judgment order.  Small and Duke did
not cross appeal.

On appeal,
the Washington Appellate Court affirmed the trial court’s ruling that the Deed
was not ambiguous and conveyed all of Schultz’s interests in the property to
Small and Duke.  However, the Court disagreed with the superior court’s
determination that the deed created a life estate.  Instead, the Court
held that the “use of the word ‘survivorship,’ describes the relationship of
the grantees, Ms. Small and Ms. Duke, as joint tenants with the right of survivorship.
It does not convey an intent to reserve an interest in the property for Mr.
Schultz for the remainder of his life.”

Nonetheless,
the Court found that because Small and Duke failed to cross-appeal, the Court
could not grant them “greater relief than they received in the superior court”
(i.e., a joint tenancy with the right of survivorship) and, accordingly, the
“equitable resolution” is to “affirm the superior court’s order finding Mr.
Schultz retained a life estate and conveyed the remainder to Ms. Small and Ms.
Duke.”

For a copy
of the decision, please contact Michael O’Donnell at modonnell@riker.com or
Anthony Lombardo at alombardo@riker.com.

Who Pays When Remediation Goes Wrong? A Federal Court’s Evaluation of Contractor Liability

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The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”) has been a prodigious generator of litigation for decades.  First, the government sought to compel potentially responsible parties (“PRPs”) to clean up contaminated sites.  Then, those PRPs who were found liable or who settled with the government sought contribution from other PRPs.  Now, even after these interminable disputes over liability for remediation costs are resolved, the implementation of costly remedies can give rise to yet more litigation if those remedies fail.  A recent decision by the federal district court in Philadelphia in Cottman Avenue PRP Group v. AMEC Foster Wheeler Environmental Infrastructure Inc., arising from one of the earliest CERCLA Superfund sites, is an example of this last type of case and offers important lessons both for parties responsible for remediation and the contractors they hire to fulfill those obligations.

A predecessor of AMEC Foster Wheeler (“AMEC”), acting as a remediation contractor, designed a sheet pile wall intended to prevent PCB-contaminated soil at a Philadelphia Superfund site from falling into the Delaware River.  Construction of the sheet pile wall was completed in 2010, but by 2012, cracks in the wall and unwanted movement of the wall were observed.  The PRP group, making claims both under CERCLA and its contract with AMEC, sued AMEC in 2016 after the PRP group had to repair the wall.

AMEC prevailed on the CERCLA claims based on its assertion of the statutory defense for “response action contractors.”  That is, CERCLA provides that “a response action contractor with respect to any release or threatened release of a hazardous substance … shall not be liable … to any person for injuries, costs, damages, expenses, or other liability … which results from such release or threatened release”; however, a response action contractor nonetheless will be liable  for “a release that is caused by” the contractor’s negligence.  42 U.S.C. § 9619(a)(1)-(2).  (The New Jersey Spill Act includes a similar defense for contractors, see N.J.S.A. 58:10-23.11g1.)  The court held that AMEC could not be liable under this standard because the PRP group incurred costs in response to a threatened release of PCBs only, and could not prove that an actual release occurred.  In fact, the PRP group’s repeated assurances to the United States Environmental Protection Agency that the defective sheet pile wall did not cause any releases to the river ultimately proved fatal to its CERCLA claim against AMEC.  The court concluded that, under the “plain terms” of the response action contractor defense, a contractor cannot be liable for a threatened release of hazardous substances under CERCLA because the statute immunizes them from liability for a release or threatened release, but the exception creating liability refers only to a release caused by the contractor’s negligence.  Although a reasonable interpretation of this CERCLA provision when read in isolation, it seems inconsistent with the statute’s general liability scheme, which imposes liability for both releases and threatened releases.

In contrast to the dismissal of its CERCLA claim, the PRP group had mixed success on its contract claims.  Yet, the success or failure of the contract arguments rested not on the intent of the parties as expressed in the contract, but rather on certain background legal rules that the parties may not have contemplated when they entered the agreement. 

First, the court found that the warranty provided by AMEC for the remediation work had expired and, as a result, the breach of warranty claim brought by the PRP Group was untimely.  Under Pennsylvania law, unless the contract specifically provides otherwise, the “discovery rule” does not apply to breach of warranty claims, so the four-year statute of limitations applicable to breach of warranty begins to run upon completion of the work under the contract, regardless of when the defect causing the breach of warranty becomes apparent.  Here, AMEC’s final inspection of the sheet pile wall under the contract occurred in 2011 and the PRP group did not sue until 2016, so the breach of warranty claim was barred.  This is a harsh rule for remediating parties, who might not expect that their warranty for a remedy intended to last for decades would evaporate after four years.

AMEC also raised timeliness as a defense to the PRP group’s claim under the contractual indemnity, but the court ruled in favor of the PRP group on that issue.  Specifically, AMEC unsuccessfully argued that its indemnification obligations ended upon termination of the contract in 2011 because the indemnification clause did not state that it survived termination, whereas other terms of the contract included explicit “survival” language.  The court analogized the indemnification clause to “structural provisions relating to remedies and dispute resolution,” such as an arbitration clause, which usually survive termination of the contract.  Thus, in contrast to the warranty, specific language was not needed to preserve indemnification claims that might arise after the remedy was constructed.

Finally, AMEC could not escape claims that it breached the contract by not procuring all of the required insurance policies.  Although during the term of the contract AMEC intermittently provided certificates of insurance to the PRP group, in discovery it could not produce insurance policies that satisfied the requirements under the contract.  Unlike the breach of warranty claim, the “discovery rule” did apply to this breach of contract claim, so the PRP group could bring the claim even though the breach—the failure to obtain insurance—had occurred long before the PRP group brought the lawsuit in 2016.

Remediating parties and the engineers and contractors they hire should observe three takeaways from the Cottman Avenue case:

  • Response action contractors have a powerful and unique defense to statutory environmental claims.  Strict liability does not apply to response action contractors under CERCLA (or the New Jersey Spill Act), and, under this case, even a negligent contractor would not be liable for threatened releases.  Like the Cottman Avenue PRP Group, remediating parties may be caught in a bind between assuring regulators that no contaminants have been or will be released and preserving potential CERCLA claims against their contractors.
  • Specify survival of warranties and indemnification provisions.  Contracts often contain an explicit period that a warranty will remain in effect and also provide that indemnities will survive termination of the agreement.  The failure to include these terms in this contract led to extensive litigation that could have been avoided and that probably produced results that the parties would not have expected when they entered the contract.
  • Pay attention to insurance requirements (and other ongoing obligations).  Before agreeing to maintain certain insurance, parties should make sure they have the ability to provide that insurance or evidence thereof, which it seems was not done in this case.  It may be tempting to put a contract out of sight and out of mind after it is signed, but without a system to make sure ongoing insurance obligations are met, a party may find itself in the unfortunate position of acting as its own insurer.

For more information, please contact the author Michael Kettler at mkettler@riker.com or any attorney in our Environmental Practice Group.

Coronavirus – CMS Guidance Part Three

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For more information about this blog post, please contact Khaled J. Klele, Ryan M. Magee, or Labinot Alexander Berlajolli.

This update follows our previous updates regarding COVID-19 on March 12 and March 18.  Needless to say, both federal and state governments have taken significant steps since March 18.   As detailed below, besides the stimulus bill that is currently pending, there has been additional guidance issued on the expansion of telemedicine and the relaxation of the HIPAA rules.   In addition, numerous bills and orders have passed and been executed expanding insurance coverage in connection with COVID-19, waiving cost-sharing, and delaying reporting requirements to the Centers for Medicare & Medicaid Services ("CMS").  To the extent guidance is needed on any of the issues below, Riker Danzig is available to assist.

FEDERAL LEVEL

March 16:  The Drug Enforcement Agency (“DEA”) waived the requirement that a licensee conduct an in-person examination before prescribing controlled substances II-IV, and issued guidance to assist licensees.  DEA-registered licensees may continue this telemedicine practice for as long as the public health emergency is in effect, if all required conditions are met: (1) the prescription is issued for a legitimate medical purpose by a licensee acting in the usual course of his/her professional practice; (2) the telemedicine communication is conducted using an audio-visual, real-time, two-way interactive communication system; and (3) the practitioner is acting in accordance with applicable federal and state law.  The latter part is important because New Jersey has not relaxed its rule requiring a licensee to have an in-person examination of the patient before prescribing controlled substances.  As a result, until New Jersey changes its rules, the DEA’s relaxation of this rule will not assist New Jersey licensees.

March 18:   President Trump invoked the Defense Production Act, 50 U.S.C.A 4501, to increase production of medical supplies and equipment in response to COVID-19.

March 20:  CMS issued toolkits on telehealth to help providers navigate through the new regulations.   In addition to expanding telehealth capabilities for Medicare beneficiaries, President Trump allowed HHS to waive federal licensing regulations so out-of-state physicians can treat patients through telehealth in states with large outbreaks. The toolkits are specific to general practitioners as well as providers treating patients with end-stage renal disease.

March 21:  The FDA rapidly approved a new COVID-19 test that delivers results within 45 minutes.

March 22:  CMS announced that it was delaying the reporting requirements that clinicians, providers, and facilities must provide if they are participating in Medicare quality reporting programs including the 1.2 million clinicians in the Quality Payment Program.  Please review CMS’ press release identifying the new reporting dates for providers and facilities.

March 23:  CMS rolled out an amended inspection process, with a fact sheet, for state survey agencies to ensure that facilities are prepared to prevent the spread of COVID-19. Although the inspection changes affect all types of healthcare providers, CMS is focusing on nursing homes since at least 147 nursing homes across 27 states currently have at least one resident with COVID-19.

March 23:  CMS issued four waiver options to reduce red tape in an effort to accelerate relief to State Medicaid and CHIP Programs.    These options will allow states to access emergency administrative relief, make temporary modifications to Medicaid eligibility and benefit requirements, relax rules to ensure that individuals with disabilities and the elderly can be effectively served in their homes, and modify payment rules to support healthcare providers impacted by the outbreak.  CMS is allowing these waivers to be made effective to, at least, March 1, 2020.

March 23:   CMS announced that it issued eleven 1135 Waivers to various states, including New Jersey.  New Jersey’s waiver includes, among others, temporarily suspending prior authorization requirements, extending the existing authorizations for services through the end of the public health emergency, modifying certain timeline requirements for state fair hearings and appeals, and relaxing provider enrollment requirements.

March 23:  President Trump executed an executive order to prevent hoarding of vital medical equipment and supplies.

March 23:  The Office of Civil Rights issued guidance on when healthcare providers can share the protected data of patients who have been exposed to Covid-19 with law enforcement, paramedics, or other first responders if doing so is needed to provide treatment. The guidance clarifies when entities covered under the Health Insurance Portability and Accountability Act can disclose patient data to first responders amid the new coronavirus pandemic.  Providers can share identifiable health data such as names and addresses without the patients’ permission when that information would help emergency staff provide treatment, is required by law, or when first responders could be at risk of infection.  This guidance follows the guidance issued in February and March 15.

March 24:  CMS issued guidance to states that want to increase their federal matching rate during the Covid-19 outbreak. The Families First Coronavirus Response Act, signed into law on March 18, provides a temporary 6.2 percentage point increase to a state’s Federal Medical Assistance Percentage, or federal Medicaid matching rate. The guidance from CMS provides states with information for determining which expenditures qualify for the enhanced rate, and what they must do to qualify for the temporary increase.

March 24:  As we previously reported, OIG is now allowing the waiver of telehealth cost-sharing as a result of COVID-19.  The OIG issued an FAQ related to this policy with some helpful information.

STATE LEVEL

A3860 – Approved – This bill relaxes some of the telemedicine requirements in New Jersey but, unlike the federal relaxation, the New Jersey modification does not relax the rule on establishing a licensee-patient relationship.  It also does not eliminate the need for in-person visits when prescribed for controlled substances.  The original telemedicine statute required a practitioner to be licensed in New Jersey if they engaged in telemedicine with a patient located in New Jersey.  This bill eliminates that requirement, but limits the telemedicine engagement to COVID-19.   Thus, the bill provides the following: (1) the practitioner must be licensed or certified to practice in another state or territory of the United States, and is in good standing in that jurisdiction; (2) the services provided by that practitioner are consistent with the practitioner’s authorized scope of practice in the jurisdiction; (3) unless the practitioner has a preexisting provider-patient relationship with the patient that is unrelated to COVID-19, the services provided are limited to services related to screening for, diagnosing, or treating COVID-19; and (4) if the encounter is not related to COVID-19, and the practitioner does not have a preexisting provider-patient relationship with the patient, then the practitioner must advise the patient that the practitioner is not authorized to provide services to the patient.

Just as important, the bill requires the Commissioner of Health and the Director of the Division of Consumer Affairs to waive any requirement of state law or regulation as may be necessary to facilitate the provision of healthcare services using telemedicine and telehealth during the COVID-19 public health emergency, including any privacy requirements that would limit the use of electronic or technological means that are not typically used in the provision of telemedicine and telehealth.  The Director has not issued those waivers to date.

A3862 – Approved – This bill provides that the Director of the Division of Consumer Affairs could expedite the professional and occupational licensing process for out-of-state individuals when the New Jersey Governor has declared a state of emergency in connection with COVID-19. The out-of-state individual must have a corresponding license, certificate of registration or certification in good standing from another jurisdiction. The bill also gives the Director and applicable Boards under the Division the ability to waive certain requirements normally required in the licensure process, such as a criminal history record, background checks, and payment of certain fees.

A3854 – Approved – This bill provides that, for the duration of the declared state of emergency in connection with COVID-19, all licensed healthcare facilities and clinical laboratories will be authorized to collect specimens for the purposes of testing for COVID-19.   The bill also authorizes the Commissioner of Health, during the state of emergency, to waive mandatory staffing ratio requirements for healthcare facilities.

A3843 – This bill mandates that, during the state of emergency, health insurance carriers, the State and School Employees’ Health Benefits Programs and the State Medicaid program, provide coverage for expenses incurred in: (1) the testing for COVID-19, provided that a licensed medical practitioner has issued a medical order for that testing and (2) the delivery of healthcare services through telemedicine or telehealth.  The bill requires the coverage to be provided to the same extent as for any other services under the health benefits plan, except that no cost-sharing may be imposed on the coverage provided pursuant to the bill.

March 23:  Governor Murphy issued an executive order suspending all adult elective surgeries effective 5:00 pm on Friday, March 27.   An elective surgery is defined in the order as any surgery or invasive procedure that can be delayed without undue risk to the current or future health of the patient as determined by the patient’s treating physician or dentist.  The executive order requires ambulatory surgery centers to coordinate possible post-surgery admissions with local hospitals and to draft guidelines that comport with the order.   Excluded from the order, however, are the full range of family planning services and procedures, including termination of pregnancies.

Remote Notarization in New York in the Age of COVID-19

Posted on by rd_admin

In
response to the COVID-19 virus, lawmakers across the country are scrambling to
pass a number of measures to blunt the ill effects of the pandemic to allow for
real estate and loan closings.  Specifically, New York Governor Andrew
Cuomo has taken steps to enable “remote notarizations” in an effort to maintain
social distancing practices.

A.
THE EXECUTIVE ORDER

On March
19, 2020, New York Governor Andrew Cuomo signed Executive Order No. 202.7:
Continuing Temporary  Suspension and Modification of Law Relating to the
Disaster Emergency (“EO 202.7”).  EO 202.7 allows, among other things,
that any “notarial act that is required under New York State law is authorized
to be performed using audio-video technology provided the following conditions
are met:

(i) The person
seeking the Notary's services, if not personally known to the Notary, must
present valid photo ID to the Notary during the video conference, not merely
transmit it prior to or after; (ii) The video conference must allow for direct
interaction between the person and the Notary (e.g. no pre-recorded videos of
the person signing);  (iii) The person must affirmatively represent that
he or she is physically situated in the State of New York;  (iv) The
person must transmit by fax or electronic means a legible copy of the signed
document directly to the Notary on the same date it was signed;  (v) The
Notary may notarize the transmitted copy of the document and transmit the same
back to the person; and (vi) The Notary may repeat the notarization of the
original signed document as of the date of execution provided the Notary
receives such original signed document together with the electronically
notarized copy within thirty days after the date of execution.”

B.
PRACTICE TIPS

In light
of this recent change in the law, notaries, lenders, and insurers—among
others—must be aware of the new regulations required in remote notarizations to
maintain compliance and thwart potential acts of fraud.  As such, readers
should consider implementing the following tips to ensure compliance in this
novel “remote” environment:

1.
VERIFY AN UNKNOWN SIGNER’S IDENTITY:  A remote notary
should take extra precautions to verify the identity of an unknown
signer.  Under EO 202.7, if the signer is not personally known to you, the
signer must present valid photo ID to you during the video
conference, not merely transmit it prior to or after the notarial
session.  Further, by way of example, if the unknown signer produces a
driver’s license as a form of identification, be sure to carefully inspect the
name, birth date, photograph, height, eye color, and listed address for
compliance and authenticity.

2.
VERIFY THE SIGNER’S LOCATION:  EO 202.7 requires that
the signer “must affirmatively represent that he or she is physically situated
in the State of New York.”  Accordingly, a remote New York notary must
verify where the signer is remotely situated before performing the notarial
act.

3.
RECORD THE SESSION:  A remote New York notary should
make an audio-visual recording of the notary session and preserve the recording
for an extended period of time.  Although EO 202.7 does not specifically
mandate that a remote notary record (or preserve) the notary session, such a
practice will ensure compliance with the requirement that “[t]he video
conference . . . allow for direct interaction between the person and the Notary
(e.g. no pre-recorded videos of the person signing).”

For a copy
of the bill, please contact Michael O’Donnell at modonnell@riker.com or Anthony Lombardo at
alombardo@riker.com.

Please
visit Riker Danzig’s COVID-19
Resource Center to stay up to date on all related legal issues.

New Jersey’s Governor Murphy Issues Executive Order Halting Residential Evictions and Foreclosures

Posted on by rd_admin

On March 19, 2020 and in response to COVID-19 concerns, Governor Murphy signed Assembly Bill No. 3859 into law and immediately issued an executive order prohibiting the removal of anyone from a residential property as a result of an eviction or foreclosure proceeding.  Under A3859, whenever there is a Public Health Emergency, “the Governor may issue an executive order to declare that a lessee, tenant, homeowner or any other person shall not be removed from a residential property as the result of an eviction or foreclosure proceeding.”  Immediately upon signing the bill, Governor Murphy issued Executive Order No. 106 prohibiting such removals.  The Executive Order is based on the fact that “removals of residents pursuant to evictions or foreclosure proceedings can increase the risk to those residents of contracting COVID-19, which in turn increases the risks to the rest of society and endangers public health.”  The Order does not prohibit lenders or landlords from filing foreclosure or eviction actions or from continuing the actions while the Executive Order is in place, and does not affect payments due under rent schedules.  The Order went into effect immediately, and expires no more than two months after the end of the Public Health Emergency.

For a copy of the Executive Order or A3859, please contact Michael O’Donnell at modonnell@riker.com or Anthony Lombardo at alombardo@riker.com.

Coronavirus, COVID-19, Stay in Place Orders, Social Distancing, and the Emerging Family Law Issues being Raised by the Pandemic

Posted on by rd_admin

Governor Phil Murphy on March 21, 2020, signed Executive Order No. 107, directing all residents to stay at home until further notice to mitigate the impact of Coronavirus, COVID-19 and protect the capacity of New Jersey’s healthcare system.

“We know the virus spreads through person-to person contact, and the best way to prevent further exposure is to limit our public interactions to only the most essential purposes. This is a time for us all to come together in one mission to ‘flatten the curve’ and slow – and eventually halt – the spread of coronavirus.”

To strengthen the existing social distancing measures in place, the order also prohibits all gatherings of individuals, such as parties, celebrations, or other social events, unless otherwise authorized by the Order. When in public, individuals must practice social distancing and stay at least six feet apart whenever possible, excluding immediate family members, caretakers, household members, or romantic partners.

Governor Murphy’s Executive Order further directs the closure of all non-essential retail businesses to the public.  In addition, the Order continues existing bans on recreational and entertainment businesses, requirements that all restaurants operate by delivery and takeout only, and the directive that all pre-K, elementary, and secondary schools close and all institutions of higher education cease in-person instruction.

Regardless of Executive Order 107, the threat of contracting Coronavirus, COVID-19, social distancing and directives against entertainment, gatherings, parties and celebrations, what if your co-parent has decided that Coronavirus is overblown and exaggerated and that he or she will continue to gather, party, recreate with your child(ren) and others during parenting time?  This raises interesting questions, many of which must be dealt with on a case-by-case basis, based on the facts and daily developments regarding the pandemic of COVID-19 and governmental directives and orders.

Likewise, Governor Murphy’s Order restricted the opening of non-essential businesses.  The Order specifically prohibits the following, including but not limited to casinos, gyms, entertainment venues, retail shopping establishments and hair salons, nail salons and other personal care services.  The list is specific as follows:

All recreational and entertainment businesses, including but not limited to the following list, must close to the public as long as this Order remains in effect.

a.        Casino gaming floors, including retail sports wagering lounges, and casino concert and entertainment venues. Online and mobile sports and casino gaming services may continue to be offered notwithstanding the closure of the physical facility.

b.        Racetracks, including stabling facilities and retail sports wagering lounges. Mobile sports wagering services may continue to be offered notwithstanding the closure of the physical facility.

c.         Gyms and fitness centers and classes.

d.         Entertainment centers, including but not limited to, movie theaters, performing arts centers, other concert venues, and nightclubs.

e.         All indoor portions of retail shopping malls. Restaurants and other stores located within  shopping malls that have their own external entrances open to the public, separate from the general mall entrance, may remain open pursuant to the terms and directives of this Order for operating hours and takeout or food delivery services. All entrances and exits to the common area portions of retail shopping malls must remain closed.

f.          All places of public amusement, whether indoors or outdoors, including but not limited to, locations with amusement parks, water parks, aquariums, zoos, arcades, fairs, children’s play centers, funplexes, theme parks, bowling alleys, family and children’s attractions.

g.         Facilities where personal care services are performed that, by their very nature, result in noncompliance with social distancing guidelines, including but not limited to cosmetology shops; barber shops; beauty salons; hair braiding shops; nail salons; electrology facilities; spas, including day spas and medical spas, at which solely elective and cosmetic medical procedures are performed; massage parlors, tanning salons, tattoo parlors, and public and private social clubs, whether or not they serve alcohol, including but not limited to facilities owned or operated by the American Legion, Veterans of Foreign Wars, Knights of Columbus, and any other social clubs associated with community service organizations. This excludes any health facilities that provide medically necessary or therapeutic services.

h.         All municipal, county, and State public libraries, and all libraries and computer labs at public and private colleges and universities.

So you work as a hairstylist, barber, gym owner or physical trainer and you are out of work temporarily – how does this affect your support obligations?  How will work stoppage and the financial implications affect you and your child and spousal support?

The answer to most of these questions is that this is a temporary change of circumstances, but a change that should be addressed.  Below are several of the immediate family law issues that are being triggered by the Coronavirus, COVID-19 pandemic and New Jersey’s responsive measures, and the national directives of social distancing and stay home directives.

1. Will the New Jersey court system shut down due to COVID-19?

Not likely. Discovery deadlines and filing deadlines have been relaxed by the Supreme Court of New Jersey.   Trials and hearings are being adjourned until later dates to avoid in-person court appearances and are now limited to emergent applications. Divorce and child custody actions will remain active and the courts will not dismiss cases. In some circumstances, the courts will hear cases through remote connections such as video and telephone.  These orders and protocols change daily.  The short of it is that some issues that are not emergent will be delayed or adjourned until the safety issues are better controlled and understood and upon further directives of the Governor and State Supreme Court, but the courts remain open to those that need immediate action.

2. Can I refuse to allow the children to go to the other parent’s home during the state of emergency?

Existing orders and decrees do not change during times of emergency, unless there is a specific provision to that effect.   In hardly any case does such a provision exist in a Marital Settlement or Custody and Parenting Time Agreement.  Those provisions may become common in the future. That said, orders and agreements usually contain language that states exactly when a parent has the children and when the parent does not have the children. The language may also specify what happens when school is closed. These orders and agreements should serve as your baseline guide for all questions. If you do not understand the language or think the wording is vague, you should contact an attorney.  In addition, if there is some other troubling issue, such as the other parent has contracted the virus, or is not adhering to safety measures and governmental directives or guidelines, you may consider filing an Order to Show Cause, emergent application to address the safety issues.

3. Restricting child travel during the pandemic

Existing orders and agreements contain specific provisions regarding travel, which will be controlling, absent some exigent circumstance. If your spouse seeks to take the children out of state, out of the country, or to a dangerous area where the Coronavirus is pervasive, judicial intervention is likely your only recourse. You may need to determine if an emergency application to restrict the children’s movement by the other parent is needed for their protection.  Please note, however, that a court may be reluctant to limit the joint custodian’s decision-making and to limit travel.  It also has to do with timing; an application that would have failed a week ago may prevail today given recent Executive Orders in New York, Pennsylvania and New Jersey.

4. Homeschooling and staying home from school during the coronavirus pandemic

Children are transitioning between households for parenting time all while schools are closed and lessons are being taught online.  Each parent has a duty to assure all school assignments are being completed so there is consistency in learning and the children do not fall behind in their school work. If a parent finds this is not occurring, this must be dealt with swiftly so that the child does not lose valuable time from schoolwork.

5. Coronavirus has caused a lay-off, business closure, or loss of income and you can’t pay child or spousal support

You must  follow all court orders and agreements at the moment. In New Jersey this is a basis to vacate, terminate, suspend, and/or modify certain support agreements based on a significant, permanent change in circumstances.  Courts will not modify or suspend support based on a perceived temporary change of circumstances.  What should you do?  You should immediately notify your spouse or former spouse of the issue.  You should at a minimum seek some level of consent or agreement to pay a reduced amount.  You should not unilaterally stop paying.

6. Choice of hospital and choice of medical care

Who has primary physical care?  Is the physical custody shared equally?  You should already, in the interest of co-parenting, discuss this with the other parent and get it in writing.  Having said that, if a court had to decide the issue it would likely be based on the network of pediatricians and specialists your child(ren) have been routinely seeing and the hospital where those physicians have privileges.

The decisions regarding the child’s care become more difficult.  For instance, one parent wants to enroll the child in a clinical study or trial and the other does not.  One parent wants testing and the other does not.  These issues would have to be addressed by a judge.  The court would look to the best interests of the child regarding the child’s health, safety and welfare in making the decision.

So please stay safe and healthy until this situation resolves.  There are likely numerous other family-related issues that will develop in the coming days as this process continues to evolve.

Please visit Riker Danzig’s COVID-19 Resource Center to stay up to date on all related legal issues.

Governor Relaxes Telemedicine Rules in NJ

Posted on by rd_admin

Some good news for healthcare providers.  Just yesterday, the Governor signed into a law a bill that relaxes the telemedicine rules in New Jersey that track some of the Federal relaxed rule.  Please review Bill 3860.

For more information, please contact Khaled J. Klele, Ryan M. Magee, or Labinot Alexander Berlajolli.

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