Tag: New Jersey

NJDOBI Mandates Insurance Carriers to Reimburse Providers for Telemedicine and Telehealth Encounters During State of Emergency and Public Health Emergency

NJDOBI issued Bulletin 20-07 to mandate insurance carriers to reimburse providers for telemedicine and telehealth encounters.  This applies to: (1) all health insurance companies; all HMOs; all health service corporations and any other entity issuing health benefits plans in New Jersey.

The mandate requires the insurance carriers to do the following:

  1. Review their telemedicine and telehealth networks for adequacy and grant any requested in-plan exception for individuals to access out of health telehealth providers if network providers are unavailable.
  2. Encourage their network providers to utilize telemedicine or telehealth services wherever possible and clinically appropriate in order to minimize exposure of provider staff and other patients to those who may have the COVID-19 virus
  3. Update their policies to include reimbursement for telehealth services that are provided by a provider in any manner that is practicable, including, if appropriate, and clinically appropriate, by telephone.   The Bulletin suggests that this be done on the carrier’s website.  This would include instruction on the use of telephone-only communications to establish a physician-patient relationship and the expanded use of telehealth for the diagnosis, treatment, ordering of tests, and prescribing for all conditions. Carriers are required to update telehealth policies to include telephone only services within the definition of telehealth.
  4. Reimburse providers that deliver covered services to members via telemedicine or telehealth. Carriers may establish requirements for such telemedicine and/or telehealth services, and guidance issued by the Department, including documentation and recordkeeping, but such requirements may not be more restrictive than those for in-person services. Carriers are not permitted to impose any specific requirements on the technologies used to deliver telemedicine and/or telehealth services (including any limitations on audio-only or live video technologies) during the state of emergency and public health emergency declared pursuant to EO 103.
  5. Ensure that the rates of payment to in-network providers for services delivered via telemedicine or telehealth are not lower than the rates of payment established by the carrier for services delivered via traditional (i.e., in-person) methods, and carriers must notify providers of any instructions that are necessary to facilitate billing for such telehealth services.
  6. May not impose any restriction on the reimbursement for telehealth or telemedicine that requires that the provider who is delivering the services be licensed in a particular state, so long as the provider is in compliance with P.L. 2020, c.3 and c.4 and this guidance.
  7. May not impose prior authorization requirements on medically-necessary treatment that is delivered via telemedicine or telehealth.

See the entire text of Bulletin 20-07.

© 2020 Giordano, Halleran & Ciesla, P.C. All Rights Reserved

The 2019 Honig Act Means New Obligations for New Jersey Employers Around Cannabis at Work

Employers cannot afford to ignore the direct impact of the 2019 amendments to the law permitting legal medicinal marijuana use in New Jersey. Among the most important areas of concern, employers must be prepared to (1) create policies that will comply with federal, state and local laws, as well as maintain a safe workplace and (2) respond to a potential increase in positive drug tests and the resultant challenges to any employer action taken in response to a positive test result (e.g., denial of employment for an applicant or termination of the employment of a current employee).

New Jersey’s former Compassionate Use of Medical Marijuana Act (CUMMA) contained language stating:

[N]othing in [CUMMA] shall be construed to require… an employer to accommodate the medical use of marijuana in any workplace. N.J.S.A. 24:6I-14.

On July 2, 2019, Governor Murphy signed into law the Jake Honig Compassionate Use Medical Cannabis Act, N.J.S.A. 24:6I-2, et seq. (Honig Act), which replaced CUMMA. The revised employment law provisions of the Honig Act create job protections. The above-cited language from CUMMA changed, and the Honig Act provides as follows:

It shall be unlawful to take any adverse employment action against an employee who is a registered qualifying patient based solely on the employee’s status as a registrant with the commission [i.e., the Cannabis Regulatory Commission established pursuant to the law].

The Honig Act defines “adverse employment action” as “refusing to hire or employ an individual, barring or discharging an individual from employment, requiring an individual to retire from employment, or discriminating against an individual in compensation or in any terms, conditions, or privileges of employment.” N.J.S.A. 24:6I-3. State regulations were adopted to support CUMMA (N.J.A.C. 8:64-1 et seq.) but no new regulations were promulgated in furtherance of the Honig Act.

The patient/employee-friendly provision moves New Jersey into the group of states with medical marijuana laws that expressly provide employment law protections for medical marijuana users (e.g., Arizona, Arkansas, Connecticut, Delaware, Illinois, Maine, Minnesota, New York, Nevada, Oklahoma, Pennsylvania, Rhode Island and West Virginia).

The Honig Act establishes a procedure employers must follow when an employee tests positive for marijuana. If an employee (or prospective employee) tests positive for cannabis, the employer is required to (1) provide written notice of the right to provide a valid medical explanation for the test result and (2) offer an opportunity to present a valid medical explanation for the result. N.J.S.A. 14-6I-9.

The employee or applicant has three (3) working days after receipt of the employer’s written notice to explain the result or request a retest of the original sample (at the employee’s expense). The Act does not define “working days.” A valid explanation for the positive test result may include an authorization for medical cannabis issued by a health care practitioner or proof of registration with the medical marijuana commission.

If an employee demonstrates she is a valid medical marijuana user, employers will not be permitted to use that alone as a basis to take adverse employment action, unless the employer can demonstrate that one of the federal exemptions applies.

The Honig Act permits employers to take adverse action if an employee possesses or uses an intoxicating substance during work hours, or if such use would require an employer to commit any act that would cause the employer to be in violation of federal law.

“Cannabis” has the meaning given to “marijuana” in section 2 of the New Jersey Controlled Dangerous Substances Act, N.J.S.A. 24:21-2. The NJ Controlled Dangerous Substance Act includes cannabis as a Schedule I(e) hallucinogenic that has a high potential for abuse, has no accepted medical use in treatment in the United States, or lacks accepted safety for use in treatment under medical supervision. Accordingly, we assume “intoxicating substances” includes medical marijuana as it’s used in the Honig Act.

Nothing in the Honig Act requires an employer to commit any act that would cause the employer to be in violation of federal law, lose a licensing-related benefit pursuant to federal law, or lose a federal contract or federal funding. For example, most federal contractors are required to comply with the federal Drug-Free Workplace Act (DFWA), which precludes the possession or use of controlled substances at work sites. 41 U.S.C. §8101(a)(5)(B).

Future lawsuits surrounding marijuana use are likely to be focused on the types of reasonable accommodations employers should make and what jobs are too safety-sensitive to permit an accommodation for medical marijuana use. Due to the Honig Act’s infancy, it is not clear if New Jersey courts will follow precedent from other states imposing a burden on the employer to engage in an interactive process with the employee to determine if there are medical alternatives that are equally effective, and the use of which would not violate company policy.

In some other states, when there are no equally effective alternatives, the employer bears the burden of proving that the use of a medication would cause an undue hardship to the employer’s business to justify the employer’s refusal to make an exception to an anti-drug policy. In addition, the use of medical marijuana may be for an underlying condition meeting the definition of a disability, a condition that affords job protections, including the need to engage in the interactive process seeking to reach a reasonable accommodation.

For example, in Massachusetts, an employer may be able to show an undue hardship exists where accommodating the medical marijuana use would impair the employee’s performance of her work; pose an unacceptably significant safety risk to the public, the employee or fellow employees; or violate an employer’s contractual or statutory obligation and thereby jeopardize its ability to perform its business. We do not yet know how New Jersey will interpret what constitutes an undue hardship in accommodating an employee’s medical marijuana use.

On March 27, 2019, New Jersey’s Appellate Division, the second-highest court, issued an unpublished opinion in Wild v. Carriage Funeral Holdings, Inc. et al., A-3072-17T3 (March 27, 2019). Mr. Wild appealed dismissal of his lawsuit against his former employer alleging various Law Against Discrimination (LAD) violations and common-law defamation. His lawsuit claimed his employer discriminated against him for his use of medical marijuana, which he used as part of his cancer treatment. Both parties pointed the Appellate Division to the fact that “nothing” in CUMMA requires an employer to accommodate a medical marijuana user. Based on that the defendants argued, the plaintiff’s claims under the LAD could not go forward.

The Wild court analyzed whether the plaintiff pleaded a case under the LAD; it did not weigh and analyze proofs. The court concluded the plaintiff set forth allegations necessary to his cause of action and the matter was reversed and remanded for further proceedings. The Appellate Division held CUMMA’s declaration should not be construed to “require” an accommodation, but does not mean such a requirement might not be imposed by other legislation. N.J.S.A. 24:6I-14. Further, the court concluded that CUMMA’s refusal to require an employment accommodation for a user does not mean CUMMA immunizes employers from obligations already imposed elsewhere. Essentially, CUMMA does not limit the LAD by permitting an employer’s termination of a cancer patient’s employment by discrimination without compassion.

The Appellate Division rejected the argument CUMMA and the LAD are in conflict because CUMMA states that “nothing in this act shall be construed to require … an employer to accommodate the medical use of marijuana in any workplace.” N.J.S.A. 24:6I-14. CUMMA intended to cause no impact on existing employment rights; CUMMA neither created new employment rights nor destroyed existing employment rights. CUMMA imposes no burden on defendants, and negates no rights or claims available to a plaintiff under the LAD.

The New Jersey Supreme Court agreed to review the case and heard oral argument on February 4, 2020. The State Supreme Court is considering the impact of the Honig Act’s amendments providing employment protections to medical marijuana users. Because the Honig Act was passed after the events leading to Wild’s termination, it is unclear how it will affect his case on appeal. The Court may address whether the Honig Act, as amended, grants employees a private right of action, and, if so, whether the amendments are retroactive. We anticipate the Supreme Court’s decision within the next three to six months.

While the Honig Act grants employee protections, it is likely that employees still will seek to bring suits under the LAD as a continued source of protection because, unlike the Honig Act, the LAD allows the possibility for punitive damages and contains a fee-shifting provision.

For now, employers should, at a minimum, make sure they comply with the notice and communication provisions in the Honig Act when an employee/applicant tests positive.

© 2020 Wilson Elser

For more on marijuana and employment see the National Law Review Labor & Employment section.

EMPLOYERS BEWARE: $2.4M Jury Verdict Serves as a Reminder of the Duty Employers Owe to Their Employees

A recent New Jersey Superior Court case involving PNC Bank as a defendant should serve as an eye-opening reminder to all employers that it has a duty to maintain a safe and healthy workplace for all employees, free from harassment, discrimination and any other tort or prohibited conduct. Notably, this duty to maintain a safe and healthy workplace not only applies to the eradication of wrongdoing by employees, but also affords protection to employees from improper acts of non-employees such as customers, clients, vendors, independent contractors, etc.

Following a jury trial in Essex County, PNC Bank was deemed liable in the amount of $2.4 million in damages, consisting of both back and front pay, as well as past and future emotional distress damages, awarded to a former employee who claimed she was the victim of a sexual assault/gender discrimination by a bank customer in 2013. The Plaintiff argued that the customer in question was known by the Bank to have groped and harassed others in the past, yet the Bank did not take the appropriate, remedial measures to ensure her safety and prevent it from happening again.

Although the Bank claims that it had no such knowledge of the prior bad acts of the customer and had no way of knowing any such assault would occur towards the Plaintiff, the jury clearly did not accept that defense.

This case is yet another example on how important it is to have a well-established and widely distributed anti-harassment and discrimination policy and training for all staff in the workplace, applicable to all those susceptible to harassment or discrimination in the workplace, whether it be by fellow employees or otherwise, such as customers or guests.

© 2020 Giordano, Halleran & Ciesla, P.C. All Rights Reserved

For more about employer responsibilities, see the National Law Review Labor & Employment law section.

No Relief in Sight for NJ Employers: Six Newly-Enacted State Employment Laws to Tackle

On January 21, 2020, New Jersey Governor Phil Murphy signed five employee-friendly bills into law, including statutorily mandated requirements that increase penalties on employers that misclassify workers and obligate employers to pay severance to workers impacted by mass layoffs. Also, on December 19, 2019, the Governor signed the “Create a Respectful and Open Workplace for Natural Hair Act” (“CROWN Act”), which clarifies that discrimination based on hair textures and styles violates the New Jersey Law Against Discrimination (“LAD”).

In line with states like California and New York, the enactment of these new laws places New Jersey among a handful of states that provide markedly heightened protections for employees. The amalgamation of these new laws dramatically expands employee rights in the workplace.

Increased Employer Fines for Misclassification

Effective immediately, A.B. 5839 authorizes the state’s Department of Labor and Workforce Development to assess fines against employers for misclassifying workers. Under the new law, New Jersey employers or staffing agencies that misclassify workers may be issued up to a $250 fine per employee for the first violation and up to $1,000 per employee for subsequent violations. The amount of the penalty to be assessed will depend on such factors as the history of prior violations, the severity of the violation, the size of the employer’s business and the good faith of the employer. In addition, an employer found to have misclassified a worker may have to pay a fine to the misclassified worker of up to 5% of their gross earnings over the previous year.

New Employer Posting Requirement

Effective March 1, 2020, A.B. 5843 requires employers to post a conspicuous notice regarding employee misclassification. The New Jersey Department of Labor and Workforce Development will issue a form of notice, which will include a prohibition on misclassification, description of what constitutes worker misclassification, employee rights and remedies, and the process for reporting employer misclassifications.

In addition, the newly enacted statute prohibits employer retaliation against workers who make complaints about potential unlawful employee misclassifications. Employer retaliation carries a fine of $100 to $1,000 for each offense, and employees found to be terminated in retaliation for such protected conduct are entitled to reinstatement in addition to back pay and legal fees.

Managers Potentially on the Hook

Effective immediately, A.B. 5840 amends New Jersey’s recently passed Wage Theft Act and provides that employers and labor contractors will be jointly and severally liable for state wage and hour law violations and tax law violations, including with respect to worker misclassifications. The law broadly provides that any person acting on “behalf of an employer,” including an owner, director, officer or manager of the employer, may be held liable as the employer.

Business Shutdowns for Violations

Effective immediately, A.B. 5838 permits state regulators to issue “stop-work orders” upon seven days’ advance notice to sites where employers are found to have violated state wage, benefits, or tax laws, subjecting employers to a steep penalty of $5,000 per day against an employer for each day that it conducts business operations that are in violation of the stop-work order.

The law gives the state’s Commissioner of Labor and Workforce Development the authority to issue stop-work orders requiring cessation of all business operations at the specific place of business where any wage, benefit, or employment tax law violation is found. Employers subject to a stop-work order will have 72 hours following receipt of the order to exercise their right to make a written appeal to contest the stop-work order. Importantly, while employers may appeal the finding, that process may take weeks, risking potentially large losses for the implicated business.

Severance for Mass Layoffs

Effective July 19, 2020, S.B. 3170 dramatically amends the New Jersey state WARN Act in several significant respects. In the event of a covered mass layoff or termination or transfer of operations, the amendment increases the advance notice required to affected employees from 60 days to 90 days. New Jersey was previously aligned with the federal WARN Act which requires 60 days in advance of certain mass layoffs or plant closings. With respect to the length of notice now required in New Jersey, the new 90- day prior notice period mirrors New York State’s advance notice requirement, though threshold standards defining when notice must be given under these statutes differ. Upon the effective date, New Jersey employers now will need to consider two different statutory schemes to determine to what extent advance notice is required.

The amendment requires covered employers to provide severance pay to employees when there is a mass layoff or termination/transfer or operations impacting at least 50 full-time workers laid off in a 30-day period. Under the statute, severance is calculated at one week’s pay for each full year the worker has been employed and is required even when the requisite notice has been provided. In addition, when an employer fails to meet its advance notice mandate, the new law requires employers to give affected employees an additional four weeks of severance pay. In contrast, severance is currently a penalty for non-compliance with the New Jersey WARN Act.

Further, the required severance must be paid to the affected employee at the same time as the final paycheck. The severance cannot be used as consideration to negotiate a general release of claims from the terminated employee. Employers can, however, obtain a release of claims where additional consideration is offered to the impacted employee for that specific purpose.

The Crown Act

S.B. 3945 amends the LAD to clarify that race discrimination includes discrimination on the basis of “traits historically associated with race, including, but not limited to, hair texture, hair type, and protective hairstyles.” Governor Murphy enacted the CROWN Act exactly one year after an incident involving an African-American high school wrestler who was forced to cut off his locks in order to compete in a match. The wrestling incident prompted the introduction of S.B. 3945 and garnered widespread media attention. We reported on the CROWN Act in detail in our October 2019 alert. Effective immediately, the CROWN Act codifies guidance issued by the New Jersey’s Division on Civil Rights (DCR) stating that the DCR considered “hairstyles closely associated with Black people,” such as “twists, braids, cornrows, Afros, locks, Bantu knots, and fades” to be included in the definition of racial characteristics protected under the LAD.

New Jersey has become the third state to ban discrimination based on natural hair and hairstyles, following New York (effective on July 12, 2019) and California (effective on January 1, 2020). The New York City Commission on Human Rights issued similar guidance in February 2019 that clarifies that the New York City Human Rights Law includes discrimination based on natural hair and hairstyles as a form of race discrimination. Several other states and municipalities have similar legislation pending. Also, Senator Cory Booker introduced federal legislation on December 5, 2019 that would ban discrimination based on hair textures and hairstyles that are commonly associated with a particular race or national origin, and Representative Cedric Richmond introduced companion legislation in the House of Representatives.

Takeaways:

New Jersey continues to take steps to dramatically increase employee rights in the workplace. New Jersey employers should take appropriate measures now to ensure that (i) owners, directors, officers, managers, and others involved in the process of classifying workers are mindful of the new employee classification requirements for businesses and their potential exposure based on individual liability for misclassifications, (ii) their businesses are compliant with new posting requirements regarding New Jersey’s recently passed employee misclassification laws, and (iii) managers and supervisors are trained on the new retaliation protections afforded employees who report alleged violations concerning employee misclassification.

New Jersey employers also should review their grooming policies to determine whether they discourage natural hairstyles and hair textures, and determine whether any policies pertaining to appearance or aesthetics implicate any other proxies to race. With similar laws in other states, like New York, and pending elsewhere, employers across the nation should review their policies regarding grooming, appearance and aesthetics.

Lastly, the amendments to the New Jersey WARN Act will require careful analysis to determine an employer’s obligations and to minimize risks in connection with a mass layoff or transfer/termination of operations. The new severance obligations undoubtedly will impose substantial financial burdens on employers who have made the decision to reduce costs and/or operations.

© Copyright 2020 Sills Cummis & Gross P.C.

For more on employment laws in New Jersey and elsewhere, see the National Law Review Labor & Employment law page.

Health Law Section Report – September-December 2019

  • On September 16, 2019, at 51 N.J.R. 1462(a), the Department of Human Services, Division of Medical Assistance and Health Services, published an adoption of a correction to an error in the text of the definition of “nurse delegation” in the definitions set forth in N.J.A.C. 10:60-1.2. During the comment period, Disability Rights New Jersey (DRNJ) submitted a comment pertaining to the definition of nurse delegation. As part of the comment, DRNJ requested DMAHS to add “pursuant to N.J.A.C. 13:37-6.2” after “selected nursing tasks” to clarify what selected nursing tasks referred to (see Comment 16). DMAHS agreed to the change; however, in making the addition upon adoption, DMAHS inadvertently added the cross-reference as “N.J.A.C. 10:37-6.2.” The adoption corrects the error and inputs pursuant to N.J.A.C. 13:37-6.2.
  • On October 7, 2019, at 51 N.J.R. 1493(a), the Department of Human Services, Division of Medical Assistance and Health Services, published a rule proposal for a new chapter, N.J.A.C. 10:52B, to implement The County Option Hospital Fee Pilot Program. The purpose of the pilot program is to increase financial resources through the Medicaid/NJ FamilyCare program to support local hospitals in providing necessary services to low-income residents. The pilot program shall be in effect for a period of five years from April 30, 2019 and will end on April 30, 2024.
  • On October 7, 2019, at 51 N.J.R 1514(a), the Department of Law and Public Safety, Division of Consumer Affairs, Board of Medical Examiners, adopted an amendment to the athletic trainer continuing legal education requirement at N.J.A.C. 13:35-10.21, to require one credit in topics concerning prescription opioid drugs, including the risks and signs of opioid abuse, addiction, and diversion, commencing with the biennial renewal period beginning on February 1, 2019.
  • On October 7, 2019, at 51 N.J.R 1546(a), the Commissioner of the Department of Health published a notice of petition for rulemaking submitted by the New Jersey Hospital Association to make certain amendments to N.J.A.C. 8:43G Hospital Licensing Standards, Subchapter 14 Infection Control, N.J.A.C. 8:43G-14.9, Sepsis protocols, as recommended by CMS and the Surviving Sepsis Campaign, known as Sepsis-1.
  • On October 21, 2019 at 51 N.J.R. 1568(a), the Department of Law and Public Safety, Division of Consumer Affairs, Board of Physical Therapy Examiners, published a proposal to amend rules for supervision of licensed physical therapy assistants to clarify the record keeping regulations (N.J.A.C. 13:39A-7.2 and 7.3) in a manner that in the event patient records are maintained on computer recordkeeping systems that do not permit a supervising licensed physical therapist to sign a licensed physical therapist assistant’s notes, the supervising licensed physical therapist will be able to enter a separate note in the record indicating that he or she reviewed the licensed physical therapist assistant’s notes or the plan of care with the physical therapist assistant. This is meant to avoid a de facto dual signature requirement.
  • On November 4, 2019 at 51 N.J.R. 1597(a), the Department of Law and Public Safety, Division of Consumer Affairs, Board of Medical Examiners proposed amendments to its existing rules concerning graduate medical education programs in order to update the eligibility requirements for graduates of international medical schools who seek licensure or authorization to engage in the practice of medicine as residents. The proposed amendments would replace outdated restrictions on graduates of international medical schools pursuing licensure or authorization in New Jersey and allow the Board to rely on recognized accrediting bodies for international medical schools that adhere to standards substantially similar to the bodies that accredit domestic medical schools. By expanding eligibility, the proposed amendments may positively affect the supply of physicians practicing in the State. The proposal seeks to amend N.J.A.C. 13:35-1.5, 3.11, and 3.11A.
  • On November 4, 2019 at 51 N.J.R. 1600(a) the Department of Law and Public Safety, Division of Consumer Affairs, Audiology and Speech-Language Pathology Advisory Committee (Committee) proposes new rules to effectuate the provisions of the telemedicine and telehealth statute for licensed audiologists and/or speech-language pathologists. The proposed new rules would be codified at N.J.A.C. 13:44C-11.
  • On November 18, 2019, at 51 N.J.R. 1638(a), the Department of Law and Public Safety, Division of Consumer Affairs, State Board of Dentistry, proposed amendments, repeals, and new rules to: 1) implement new laws; 2) update rules, terminology, citations, website addresses, and the names of the licensure examinations; and 3) clarify and codify current standards of practice and licensure and registration requirements. The rulemaking reflects updates related to statutory changes, additions to enhance the safety of patients receiving dental services and those working in the profession, and identifies continuing education courses that must be completed in each renewal period. In response to adverse incident reports and news articles from across the country, the Board is proposing amendments to the sedation rules to enhance the safety of patients receiving dental services. Because the Board is seeing incidents of trained individuals achieving a deeper level of sedation than intended, the Board wants to provide more guidance to the regulated community as to what is expected so as to enhance patient safety. See N.J.A.C. 13:30. Comments due January 17, 2020.
  • On November 18, 2019, at 51 N.J.R. 1664(a), the Department of Law and Public Safety, Division of Consumer Affairs, State Acupuncture Examining Board (Board) proposed to amend N.J.A.C. 13:35-9.20 to require licensed acupuncturists to hold current certification in cardiopulmonary resuscitation (CPR), first aid, and the use of an automated external defibrillator (AED) as part of continuing education required to renew licensure. The certification must be from the American Heart Association, or a substantially similar course approved by the American Red Cross, National Safety Council, Coyne First Aid, Inc., American Safety and Health Institute, EMP International Inc., or EMS Safety Services Inc. In recognition of the hours required to obtain the certification, the Board proposes to reduce the number of required continuing education hours from 30 to 26. The Board is changing the total credits that could be obtained by certain methods to reflect that half of the total required hours will be 13 rather than 15. The Board also proposes to allow licensees who complete more than the continuing education hours required to renew licensure to apply those additional hours to the immediately succeeding biennial license renewal period. See N.J.A.C. 13:35-9.20.
  • On November 18, 2019, at 51 N.J.R. 1666(a), the Department of Law and Public Safety, Division of Consumer Affairs, Board of Massage and Bodywork Therapy proposed amendments that would require applicants for licensure and licensed massage and bodywork therapists to physically attend CPR, first aid, and use of an automated external defibrillator (AED) courses, would require licensed massage and bodywork therapists to complete continuing education in laws and rules pertinent to the practice of massage and bodywork therapy, and would end recognition of continuing education courses provided by schools, colleges, or universities. See N.J.A.C. 13:37A-2.1, 2.2, 2.3, 4.1, and 4.2.
  • On November 18, 2019, at 51 N.J.R. 1674(a), the Department of Law and Public Safety, Division of Consumer Affairs, State Board Of Marriage And Family Therapy Examiners, Art Therapists Advisory Committee adopted new rules at N.J.A.C. 13:34D requiring licensure of art therapists and providing rules governing licensed art therapists. The new rules require licensed art therapists to preserve the confidentiality of information obtained from a client in the course of professional treatment unless disclosure is required by Federal law and requires an art therapist whose client has explicitly waived the art therapist-client confidentiality privilege to release client information to a third-party payor whose benefit plan is qualified under the Federal Employee Retirement Income Security Act (ERISA). In addition, the new regulations provide that failure to comply with Federal laws related to the practice of art therapy will be deemed professional misconduct. See N.J.A.C. 13:34D.
  • On November 18, 2019, 51 N.J.R. 1688(a), the Department of Law and Public Safety, Division of Consumer Affairs, Board of Massage and Bodywork Therapy readopted rules with amendments, adopted repeals and new rules regarding licensure, reinstatement and reporting of misconduct, record keeping and business registration. See N.J.A.C. 3:37A.
  • On November 18, 2019, 51 N.J.R. 1691(a), the Department of Law and Public Safety, Division of Consumer Affairs, Orthotics and Prosthetics Board adopted a new rule regarding the abandonment of license applications due to incomplete information on the application or a one year lapse in submission of information requested by the Board. See N.J.A.C. 13:44H-3.5A.
  • On November 18, 2019, 51 N.J.R. 1691(b), the Department of Law and Public Safety, Division of Consumer Affairs, Orthotics and Prosthetics Board adopted a new rule to implement the telemedicine statute and to permit the use of telemedicine and telehealth by licensed orthotist, orthotist assistant, pedorthist, prosthetist, prosthetist assistant, prosthetist-orthotist, or prosthetist-orthotist assistant. See N.J.A.C. 13:44H-11.
  • On December 2, 2019, at 51 N.J.R. 1761(a), the Department of Law and Public Safety, Division of Consumer Affairs, State Board Of Marriage And Family Therapy Examiners, Alcohol & Drug Counselor Committee adopted amendments to the rules regarding who may provide clinical supervision to interns and counselors. See N.J.A.C. 13:34C-6.2, 6.2A, and 6.3.
  • On December 2, 2019, at 51 N.J.R. 1806(a), the Commissioner of the Department of Health published a notice of action on rulemaking by announcing that more time is required for deliberating on the adoption of new sepsis protocols for hospitals, as proposed on October 7, 2019 at 51 N.J.R 1546(a).
  • On December 16, 2019, at 51 N.J.R. 1841(a), the Department of Law and Public Safety, Division of Consumer Affairs, State Board of Physical Therapy Examiners proposed an amendment and new rule recognizing the provisions of the Compact privileges that would require physical therapists and physical therapist assistants working in New Jersey, under Compact privileges, to comply with Board rules, except for those governing credentialing of applicants, license renewal, and continuing education. The proposed amendment and new rule require those seeking to work in New Jersey, pursuant to Compact privileges, to pass the State jurisprudence examination and to pay the Compact privilege fee ($40).
  • On December 16, 2019, at 51 N.J.R. 1849(ab), the Department of Law and Public Safety, Division of Consumer Affairs, State Board of Medical Examiners adopted amendments to the rules regarding continuing medical education that would permit up to 10 hours volunteer medical service to uninsured low income patients to count towards the required CME requirement. See N.J.A.C. 13:35-6.15.

© 2020 Giordano, Halleran & Ciesla, P.C. All Rights Reserved

For more health care developments in New Jersey and other states, see the National Law Review Health Law & Managed Care section.

 

NJDEP Releases Report on Sea-Level Rise in New Jersey

On December 12, 2019, the New Jersey Department of Environmental Protection (“NJDEP”) released a report discussing historical sea-level rise (“SLR”) in New Jersey and estimating SLR for the next 100+ years. The Rising Seas and Changing Coastal Storms report (“Report”) was commissioned by NJDEP and prepared by Rutgers University’s New Jersey Science and Technical Advisory Panel.

The historical data provided in the Report evince New Jersey’s particular vulnerability to SLR, as SLR along its coast has consistently remained higher than the total change in the global average sea-level. For example, from 1911 to 2019, SLR along the New Jersey coast rose 17.6 inches (1.5 feet) compared to 7.6 inches (0.6 feet) globally. In addition, over the last 40 years, the average rate of SLR on the New Jersey coast was 0.2 inch/year compared to 0.1 inch/year globally.

According to the projections in the Report, it is likely that SLR in New Jersey will continue to rise but at even higher rates over the next 30 years. The Report estimates that there is, at minimum, a 66% chance that New Jersey will experience SLR of 0.5 to 1.1 foot/feet between 2000 and 2030, and 0.9 to 2.1 feet between 2000 and 2050.

Interestingly, the Report presents three different scenarios when taking into account SLR projections after 2050. The Report states that such projections “increasingly depend upon the pathway of future global greenhouse gas emissions.” Under a “high-emissions scenario, consistent with the strong, continued growth of fossil fuel consumption,” New Jersey will likely experience SLR of 1.5 to 3.5 feet between 2000 and 2070, and 2.3 to 6.3 feet between 2000 and 2100. Under a “moderate-emissions scenario, roughly consistent with current global policies,” New Jersey will likely experience SLR of 1.4 to 3.1 feet between 2000 and 2070, and 2.0 to 5.2 feet between 2000 and 2100. Under a “low-emissions scenario, consistent with the global goal of limiting to 2°C above early industrial (1850-1900) levels,” New Jersey will likely experience SLR of 1.3 to 2.7 feet between 2000 and 2070, and 1.7 to 4.0 feet between 2000 and 2100.

As stated by Governor Phil Murphy in NJDEP’s press release regarding the Report, “New Jersey is extremely vulnerable to the impacts of climate change and we must work together to be more resilient against a rising sea and future storms.”

© 2019 Giordano, Halleran & Ciesla, P.C. All Rights Reserved

For more on state environmental concerns, see the National Law Review Environmental, Energy & Resources law page.

New Jersey Appellate Division Affirms Municipal Court Jurisdiction to Enforce Spill Act Penalties

On November 13, 2019, the Appellate Division held that the New Jersey Department of Environmental Protection (“DEP”) can bring a penalty enforcement action under the Spill Compensation and Control Act (the “Spill Act”), N.J.S.A. 58:10-23.11 et seq., in either the Superior Court or the municipal court with territorial jurisdiction. State of New Jersey Department of Environmental Protection v. Alsol Corporation, No. A-3546-17T1, — A.3d – (N.J. Super. App. Div. Div. Nov. 13, 2019).

In this case, DEP filed a summons in municipal court against Alsol Corporation (“Alsol”) alleging that Alsol failed to remediate certain property in accordance with DEP regulations, and sought to impose penalties against Alsol under the Spill Act. Alsol successfully moved to dismiss DEP’s summons for lack of subject matter jurisdiction. In dismissing the summons, the municipal court concluded that its jurisdiction to enforce civil penalties under the Spill Act was limited to “where a finding of liability ha[d] already been adjudicated.” DEP appealed to the Law Division, which reversed the municipal court’s decision. Alsol then appealed to the Appellate Division.

Following a de novo review, the Appellate Division affirmed and held that municipal courts have jurisdiction to impose civil penalties in a summary proceeding under the Spill Act. The Spill Act provides that any person who violates the Act or a court order issued under the Act, or fails to pay a civil administrative penalty will “be subject to a civil penalty not to exceed $50,000.00 per day for each violation,” and such penalties “may be recovered with costs in a summary proceeding pursuant to the [Penalty Enforcement Law of 1999] in the Superior Court or a municipal court.” N.J.S.A. 58:10-23.11u(d). The Appellate Division found that “a plain reading” of the Spill Act authorizes DEP to bring a penalty enforcement action in municipal court. In its reasoning, the Appellate Division cited to a prior decision in which it addressed an analogous issue under the Solid Waste Management Act, and also noted that the Supreme Court endorsed such an approach in Rule 7:2-1(h) “by making this type of summary action cognizable in the municipal courts using the Special Summons . . . DEP used” in this case.

Potentially responsible parties under the Spill Act should be aware that DEP may seek to impose and enforce penalties under the Spill Act in municipal court or Superior Court, and should treat a municipal court summons with the same urgency as a Superior Court complaint.

© 2019 Giordano, Halleran & Ciesla, P.C. All Rights Reserved

More on NJ environmental regulation on the National Law Review Environmental, Energy & Resources law page.

Cannabis Coming to the Northeast? Governors of NY, NJ, CT and PA Adopt “Core Principles” to Implement Adult-Use Legislation.

On October 17, 2019, Governor Cuomo of New York, Governor Lamont of Connecticut, Governor Murphy of New Jersey and Governor Wolf of Pennsylvania co-hosted the first Cannabis Regulation and Vaping Summit to create a set of uniform principles each state can implement through its adult-use legislation to standardize regulations across the region.

The summit resulted in an agreed-to set of core principles for rolling out adult-use legislation, including (1) market regulation and empowerment, (2) public health, (3) public safety and enforcement, and (4) vaping best practices. Also attending the summit were representatives from Rhode Island, Massachusetts and Colorado.

Market Regulation and Empowerment

When creating adult-use legislation and regulation, the states will implement agreed-to guidelines to set cannabis tax structures and to ensure that social justice initiatives are key components of the legislation. The guidelines discussed include:

  • Implementing social equity initiatives to ensure industry access to those disproportionately impacted by the war on drugs
  • Maintaining awareness of the need to ensure a fair and competitive market by deploying strategies such as limiting the number of licenses or license types
  • Implementing a similar overall tax structure for cannabis products between the four states
  • Providing guidance to open up banking to the industry
  • Implementing meaningful social justice reform such as expediting expungements or pardons and waiving associated fees.

Public Health

Concerned that decreasing production costs might lead to inexpensive high-potency products, the four governors agreed to standardized product safety and testing requirements and impose restrictive advertising requirements to ensure youth are not targeted. These principles include:

  • Prohibiting advertising and product forms that target minors
  • Restricting advertising to audiences that are for the most part over the age of 21
  • Banning adverting and products that appeal to youth, such as flavored cannabis products
  • Restricting cannabis sales to purchasers over the age of 21
  • Collecting and sharing cannabis use data to better understand public health outcomes
  • Limiting the cannabis possession amount and limiting the overall THC content of products to discourage over-consumption and accidental overdose.

Public Safety and Enforcement

To help ensure highway safety and improve options for testing cannabis impairment in the field, the states agreed to the following guidelines:

  • Uniform treatment of drug recognition expert evidence
  • Uniform standard for blood or saliva tests
  • Training for drug recognition experts
  • Methods for sharing information on suspected “bad actions” in legal markets
  • Law enforcement strategies to police the illicit market.

Vaping Best Practices

The states agreed to principles to regulate the entire vaping industry, including vapes containing nicotine, CBD and THC. Using the following guidelines, the states will share strategies and solutions for investigating illicit THC vape pens and regulating filler oils and carrier fluids:

  • Banning or regulating the sale of flavored vapes to reduce use among youth
  • Implementing vape product safety standards for nicotine and cannabinoids that include diluents, excipients and cutting agents
  • Regulating temperature control for vape heating mechanisms
  • Increasing enforcement actions to prevent sale to minors.

New York will aim to pass adult-use legislation during the 2020 legislative session, which begins in January. It is expected that Governor Cuomo will include a cannabis plan in his budget proposal, as he did last year.

© 2019 Wilson Elser

For more cannabis regulation, see the National Law Review Biotech, Food & Drug Law page.

New Jersey and New York Further Strengthen Wage and Hour Laws to Protect Employees: Part 1 – NJ Developments

On August 6, 2019, New Jersey substantially amended its wage and hour laws in several critical respects by, among other provisions, expanding the statute of limitations, increasing damages and criminal penalties, strengthening anti-retaliation provisions and, overall, making it easier and more lucrative for employees to prevail on wage and hour claims. The new “Wage Theft” Law is effective immediately, except for one provision identified below. Here is a summary of the key provisions:

    • The Statute of Limitations Expands from 2 to 6 years – The amendment triples the amount of time available to file claims for unpaid minimum wage and overtime payments, thereby tripling the potential damages available to employees. New Jersey now joins New York in implementing a 6-year statute of limitations for such claims. In contrast, the statute of limitations under federal law remains at 2 years or 3 years, depending on whether a willful violation was committed.

    • Liquidated Damages – The amendment provides that, in addition to having to pay earned, unpaid wages, employers also will be liable for liquidated damages of up to 200% of the wages owed. Previously, liquidated damages were not available under New Jersey law. A limited “good faith” defense will be available to first-time violators under certain circumstances.

    • Anti-Retaliation – The amendment expands the anti-retaliation provisions by making it a disorderly persons offense to take retaliatory action by discharging or otherwise discriminating against an employee for making a complaint, instituting an action, or informing other employees about their rights concerning wages and hours of work.There is a rebuttable presumption of retaliation for adverse actions taken within 90 days of an employee filing a complaint with the Department of Labor or a court action. Liquidated damages are available for claims of retaliation.

    • Fines and Penalties – It is now a disorderly persons offense for an employer to (i) knowingly fail to pay wages, compensation or benefits when due, (ii) take retaliatory action, or (iii) fail to pay agreed-upon wages within 30 days of the date when payment is due. An employer who commits any such offense must pay wages due plus 200% of that amount in liquidated damages, reasonable costs and attorneys’ fees, a fine of $500 for a first offense (which increases for subsequent offenses) and, under certain circumstances, an additional penalty of 20% of wages due and/or imprisonment. The amendment provides for a broad definition of “employer” to include officers of a corporation and “any agents having the management of that corporation.”

    • Creation of a New Crime – The amendment creates a new crime of “pattern of wage nonpayment” for a person convicted of violating certain provisions of the Criminal Justice Code and/or wage and hour laws on two or more occasions. Though this is classified as a “3rd – degree” crime, there is no presumption of nonimprisonment. This provision will become effective three months from the August 6 enactment date.

    • Joint and Successor Liabilities – The amendment expands the circumstances under which organizations may now be held liable as joint or successor employers.

    • Failure to Maintain Records – The amendment provides that employers who fail to produce required records are subject to a rebuttable presumption that allegations by the employee concerning the time period the employee was employed and the wages that are due are true.

    • Employer Notice Requirement – The amendment imposes a new written notice obligation on employers. NJ employers will be required to distribute both to current employees and new hires a form the NJ Department of Labor and Workforce Development will publish.

Take Aways

Wage and hour compliance has long been a vulnerable area for employers, and New Jersey employers must now contend with wage and hour protections that are among the strongest in the nation. It is more imperative than ever for New Jersey employers to (i) properly classify workers, where warranted, as employees rather than as independent contractors, (ii) properly classify employees as exempt or non-exempt from overtime requirements, (iii) timely pay employees all wages, compensation and benefits due, including overtime, and (iv) maintain required wage and hour records for at least 6 years.

 

© Copyright 2019 Sills Cummis & Gross P.C.
For more wage-hour laws, see the National Law Review Labor & Employment law page.

Federal Government Slaps $600K Fine on Wanaque Center After 11 Children Die

The federal government imposed a $600,331 fine on the New Jersey nursing center where a viral outbreak left 11 children dead and 36 sick last year. Investigators reported Wanaque nursing home’s poor infection controls, lack of administrative oversight, and slow response from medical staff “directly contributed” to the rapid spread of the virus and its related death toll.

The 114-page federal inspection report, published in December, claimed the staff at Wanaque failed to correct issues that could have controlled the outbreak, allowing residents and one staff member to contract the virus and placing others in “immediate jeopardy.”

The report alleges the center had a faulty infection-control plan, did not respond appropriately when the outbreak emerged, and failed to properly monitor the infection rate.

Multiple children at Wanaque retained high fevers for days before staff sent them to the emergency room, two of which died within hours of arriving at the hospital. At least two other children, who had been symptom-free, contracted the virus and died after staff failed to separate them from their sick roommates.

Wanaque’s pediatric medical director appeared to be absent during the crisis and claimed he did not fully understand the responsibilities of his position. The director also failed to attend quality assurance and performance meetings and had not filed monthly reports for the last four years.

The Wanaque facility is strongly disputing the findings in the federal investigation report, arguing the staff followed proper protocols and the outbreak was “unavoidable.”

New Jersey ceased all admission to the nursing home following the outbreak, but is now allowing the facility to admit new patients. A restriction does still remain in place barring Wanaque from admitting pediatric ventilator patients until federal and state officials approve the facility’s written infection-control plan.

In addition to the $600,331 federal fine, the New Jersey Department of Health is imposing a $21,000 penalty on the nursing home for each infection-control-related failure.

 

COPYRIGHT © 2019, STARK & STARK
This post was written by Jonathan F. Lauri of Stark & Stark.
Read more Malpractice Enforcement on our Professional Malpractice Page.