d e c e m b e r 2 0 11
Jersey Rehab, P.A.
A Multi-Specialty Approach to the Management of Pain and Coordination of Rehabilitative Treatment Also in this Issue
• NJ Medicaid Fraud Division Releases 2012 Work Plan • Vitale-Weinberg Bill Permitting The Sale Of Syringes Without a Prescription Signed Into Law • Avoid Civil Liability Under the Cullen Act • New Realities in Physician Compensation
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Publisher’s Letter Dear Readers, Welcome to the December issue of New Jersey Physician and thank you to those readers who have participated in Leon Smith’s column on Diagnosis. We had four correct answers from the November issue, let’s see how you do this month. Physician Compensation is a common subject for discussion recently. There are many issues in this that we frequently here about. Medicare reimbursement is one of the most common. Another popular area that we hear much about is the shift from volume to value via pay for performance. Many of these programs are based on partnerships with hospitals, others use the ACO model as the center of the pay for performance objective. Leslie Thomas has gratefully shared her expert insight into these programs with us. How do you react when a request for information comes to you in regard to a former employee? The Cullen Act’s civil immunity provision is an area of law you
Published by Montdor Medical Media, LLC Co-Publisher and Managing Editors Iris and Michael Goldberg Contributing Writers Iris Goldberg Leon Smith, MD Leslie Thomas, CPA Anthony M. Rainone, Esq. Joseph Conn Keith Roberts, Esq. Debra C. Lienhardt, Esq. John Fanburg, Esq. Mark Manigan, Esq. Joseph Gorrell, Esq. New Jersey Physician is published monthly by Montdor Medical Media, LLC., PO Box 257 Livingston NJ 07039 Tel: 973.994.0068 Fax: 973.994.2063
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Rehabilitation after illness, trauma or aging is something most people experience
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in Belleville. Additionally, they focus on helping patients to prevent many of these problems before they occur, such as working on balance issues before an elderly patient falls and breaks a hip. Using a team approach, and a staff of board certified physicians trained specifically in rehabilitative medicine and pain management, Jersey Rehab is a most valuable asset in our area.
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Jersey Rehab, P.A.
A Multi-Specialty Approach to the Management of Pain and Coordination of Rehabilitative Treatment CONTENTS
9 10 12
Health Law Update
Avoid civil liability under the Cullen Act
Hackensack names Sawczuk CMO
The shift from â€œvolume to valueâ€? via pay for performace (P4P) programs has begun
Choose the correct diagnosis to the given symptoms and you could win.
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Cover Photo: The Physician team of Jersey Rehab Left: Diagnostic procedures such as EMG are administered on site
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Jersey Rehab, P.A. A Multi-Specialty Approach to the Management of Pain and Coordination of Rehabilitative Treatment By Iris Goldberg
Whether from illness, trauma or just the wear and tear associated with
of these and other painful, debilitating neuro-musculoskeletal disorders,
aging, all of us at one time or another experience pain and/or loss of
the physicians and staff of Jersey Rehab, P.A. emphasize the optimization
mobility. Some, unfortunately, live with pain on a daily basis. In fact,
of function with a team approach to comprehensive rehabilitation and
chronic pain, which plagues more Americans (116 million) than diabetes,
pain management through coordinated care.
heart disease and cancer combined, is a serious healthcare concern which affects productivity and overall quality of life.
Edward M. Gangemi, MD is the Founder of Jersey Rehab. Dr. Gangemi, who is a board-certified physical medicine & rehabilitation physician,
There are a myriad of common conditions that cause prolonged pain and/
discusses how the practice has evolved since its inception. With offices at
or alter the function and performance of patients including: sports injury,
that time in Newark, Belleville and additional satellite locations in lower
stroke, spinal cord injury, congenital diseases such as cerebral palsy and
Essex County, Dr. Gangemi merged his rehabilitative medicine practice
spina bifada, musculoskeletal pain syndromes such as low back pain,
with the practice of his former medical schoolmate, Robert Marini, MD.
fibromyalgia, traumatic brain injury and amputation. For the management Dr. Marini’s background includes board-certification in physical medicine & rehabilitation and fellowship training in pain management. His practice was originally based in New York with a flagship office in the Bronx and a number of affiliated offices in other New York locations. After the two practices became joined, Dr. Gangemi and Dr. Marini reorganized things in order to best serve the needs of their combined patients. Dr. Gangemi, who now handles many of the administrative aspects of the practice in addition to seeing patients, emphasizes the priority to provide pain management services in addition to physical rehabilitation. “Pain management has become such a force in medicine that it dwarfs rehab medicine in regard to the requests from physicians and the public in general,” he reports. With this in mind, shortly after they merged, Drs. Gangemi and Marini invited Shailendra Hajela, MD, who is board-certified in physical medicine & rehabilitation and also received subspecialty fellowship training in pain management, to join the practice as a partner. Today, Jersey Rehab has evolved from a three-person group into a six-person group. “The reason for this transition was the overwhelming demand for physician-patient time,” explains Dr. Gangemi. “In order to best serve the community, we had to add capable hands,” he continues, sharing that the physicians at Jersey Rehab spend at least 30 to 45 minutes with each patient during an office visit. “Whether it’s the young athlete who has p A medical assistant prepares to administer a balance test
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suffered a traumatic injury or the senior citizen with a painful degenerative
propensity for falling. The benefits of this in terms of reducing medical costs and most importantly, morbidity, are obvious. For the vast majority of patients who are treated at Jersey Rehab, however, its comprehensive umbrella of pain management services provides a pathway to regaining functionality and quality of life. “Physiatry, which is musculoskeletal medicine and pain management overlap,” explains Dr. Hajela. “Most of the common pain problems within our population are musculoskeletal,” he continues. Dr. Marini concurs. “By combining our physiatry training with the procedure-oriented pain management experience we derive a clear method of diagnosing and treating both acute and chronic pain.” He additionally shares that a crucial component to the specialty of pain management is the ability to understand the best way to utilize pain medications in order to maximize their benefits while minimizing the risks of substance abuse and addiction. “It’s tough,” Dr. Marini says, referring to dealing with individuals who he knows are in chronic, debilitating pain and yet having to closely monitor how much medication they are permitted take. Routine urine testing is one way in which the pain management team at Jersey Rehab makes sure that patients do not abuse pain meds. p The patient is guided through the balance test by the medical assistant
Procedures Offered at Jersey Rehab, P.A. condition, we don’t leave the room until all of their questions have been answered,” Dr. Gangemi emphatically states. At Jersey Rehab’s state-of-the-art facilities patients of all ages can receive the entire gamut of rehabilitative and pain management services (see Fig.1). Additionally, the physicians spend a great deal of time at Clara Maass Medical Center in Belleville, where they consult to formulate and oversee ongoing rehabilitative and pain management treatment plans for patients, many of whom are post-surgical, while they are hospitalized and after they are discharged. “Jersey Rehab banners itself as a kind of ‘soup to nuts’ facility,” Dr. Gangemi shares, referring to the fact that patients who come in with an illness or injury can be thoroughly evaluated with diagnostic procedures such as electromyography (EMG) and nerve conduction, for example and treated on site. Also, preemptive evaluation of senior citizens that screens for problems with balance that might lead to a subsequent fall and possible serious injury is a crucial service offered at Jersey Rehab. When an older individual sustains an injury such as a hip fracture and requires hospitalization and/or a nursing home stay, pneumonia and other life-threatening conditions can ensue. With recent changes in Medicare that encourage seniors to be tested, Dr. Gangemi reports that Jersey Rehab regularly performs fall-prevention screening through videonystagmography (VNG) and balance testing and enacts a balance-improving therapy protocol for those deemed as having a
Automated Percutaneous Discectomy Caudal Epidurals-Lumbar Cervical Facet Injection Cervical Facet Radiofrequency Neurotomy/Ablation Cervical Medial Branch Block Cervical Selective Nerve Root Block Cervical Transforaminal Epidural Steroid Injection Discography Dorsal Column Stimulator Facet Electrodiagnostic Testing Electromyography & Nerve Conduction IDET Interlaminar Epidurals-Cervical, Lumbar & Thoracic Interscalene Brachial Plexus Block Intradiscal Injections Joint Blocks Joint Injection-Hip and Shoulder Lumbar Transforaminal Epidural Steroid Injection Lumbar Selective Nerve Root Block Medial Branch Blocks-Cervical Neurostimulation Therapy Radiofrequency Soft Tissue Injection-Shoulder Sympathetic Blocks Thoracic Facet Injection Thoracic Facet Radiofrequency Neurotomy/Ablation Thoracic Selective Nerve Root Block Thoracic Transforaminal Epidural Steroid Injection Trigger Point Injections
Rehab can perform a minimally invasive radiofrequency ablation that can provide lasting relief to those suffering from facet joint pain. During this fluoroscopy-guided procedure radiofrequency waves are used to produce heat on specifically identified nerves surrounding the facet joints on either side of the spine. Generating heat around the nerve destroys its ability to transmit pain signals to the brain, thereby ablating the nerve. Radiofrequency ablation requires only local anesthetic and perhaps mild sedation and as is the case for most of the minimally invasive interventions performed at Jersey Rehab, is a preferable alternative to open surgery and its associated risks. p A modern injection room with a C arm is used for guided injections
Another important diagnostic aid employed One of the most often performed interventional
joints are small joints at each segment of the
by the physicians at Jersey Rehab is the
pain management procedures at Jersey Rehab
spine that provide stability and help to guide
is the fluoroscopically-guided tranforaminal
motion. The facet joints can become painful
epidural injection for relief of back and/or
due to arthritis or perhaps, injury. Injecting
intervertebral discs. Dye is injected into the
leg pain that has its origin in the lumbar spine
steroid medication directly into the facet joint
disc to make it clearly visible. A discogram
as a result of conditions such as disc herniation
anesthetizes the joint and blocks the pain.
is used to determine if a disc has begun to
or foraminal stenosis. These steroid injections
rupture and if it has tears in the tough outer
buy time to allow healing to occur and also
The pain relief from a facet joint injection
ring (annulus). A long needle is inserted into
serve as an attempt to avoid surgery when
can help a patient better tolerate physical
the very center of the disc. Once the physician
other non-surgical modalities have failed.
therapy in order to ultimately rehabilitate his
sees on the fluoroscopy screen that the needle
or her condition. Also, facet joint injections
has been properly placed, a small amount
To administer a transforaminal epidural
can serve as a diagnostic tool. By placing
of fluid is injected to cause an increase in
numbing medication into the joint, the amount
pressure. This is usually done at more than one
information obtained from MRI and EMG
of immediate pain relief experienced by the
level. If the patient reports that this causes pain
studies to selectively block the irritated nerve
patient will help confirm or deny the joint as
that is similar to his or her pain, it is a strong
in question. A small-gauge blunt needle is
the source of pain.
indication that the disc in question is, in fact,
inserted into the epidural space through the
causing the problem. Appropriate treatment
bony opening of the exiting nerve root. A
If a particular facet joint has been found to be
radiopaque dye is injected to enhance the
the source of pain, the physicians at Jersey
can then be decided.
fluoroscopic images and confirm that the needle is properly placed. It is interesting to note that although the literature reports that transforaminal epidural injections provide significantly more pain relief than conventional single level interlaminar epidural injections, the physicians at Jersey Rehab are amongst the relatively small number pain management specialists within the state who have incorporated this technology thus far. Fluoroscopically-guided facet joint injections are also commonly administered by the pain management specialists at Jersey Rehab. Facet
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p A comfortable waiting room is provided for patients when they arrive
Patients who will be good candidates must be carefully selected. The overall goal for SCS is to choose those patients most likely to experience therapeutic success while reducing the likelihood of risks, complications and adverse events. A careful assessment by a multidisciplinary team is imperative. For example, a psychological evaluation must be obtained to ascertain whether the patient is capable of understanding and complying with the requirements associated with undergoing this procedure. Also, a discussion of the patientâ€™s expectations and goals will be helpful in identifying appropriate candidates. Patients must also be medically suitable to undergo SCS. Diabetics, for instance, should have well-controlled glucose levels and no serious diabetes-related conditions that might increase procedure-related risk factors. After a patient at Jersey Rehab has been deemed to be a good candidate for SCS, he or she will first undergo a trial stimulation to determine if the procedure will be successful. The trial will ascertain whether the stimulation is correct for the type, location and severity of pain for each patient. It will also evaluate the effectiveness of various stimulation settings. The insertion of the trial lead and electrode is performed under local anesthetic. One of the pain management physicians at Jersey Rehab will p Dr Marini counsels a patient on the treatment she will receive.
insert a hollow needle through the skin (percutaneous) into the epidural space between the bony vertebra and the spinal cord with the help of
If the discogram shows that there is no rupture in the problem disc
fluoroscopic guidance. The lead is properly positioned and then attached
(gelatinous material is still contained within), the pain management physicians at Jersey Rehab can perform a percutaneous discectomy. During this fluoroscopically-guided, minimally invasive procedure a small instrument is introduced through a needle and placed into the center of the disc to remove tissue from the nucleus. Tissue removal from the nucleus acts to decompress the disc and relieve the pressure exerted by the disc on the nearby nerve root. As pressure is relieved, pain is reduced. Dr. Hajela shares, â€œPhysiatry is a branch of medicine that restores function and improves quality of life. That is the most important thing we do,â€? he emphatically states. Some patients must live with chronic pain caused by conditions which, themselves, cannot be treated. Two prime examples of this are post-laminectomy (failed back surgery) syndrome, in which patients report persistent or recurrent pain, mainly involving the lower back and/or legs after undergoing spine surgery and peripheral neuropathy, most commonly suffered by diabetics. For appropriate patients with these or other amenable chronic pain conditions, the pain specialists at Jersey Rehab can implant a spinal cord stimulator. This device, sometimes referred to as a dorsal column stimulator, is used to exert pulsed electrical signals to the spinal cord in order to control chronic pain. Spinal cord stimulation (SCS) employs stimulating electrodes which are implanted in the epidural space, an electrical pulse generator placed in the lower abdominal area, conducting wires connecting the electrodes to the generator and the generator remote control.
p Diagnostic procedures such as EMG are administered on site. December 2011
Edwin Gangemi, MD
Board Certified in Physical Medicine and Rehabilitation
Robert Marini, MD
Board Certified in Physical Medicine and Pain Management
Shailendra Hajela, MD
Board Certified in Physical Medicine and Rehabilitation and Pain Management
p The EMG display indicates problems with nerve conduction
to an external generator and power supply to
incision is made below the waistline to create a
be worn by the patient on a belt.
pocket for the generator between the skin and
Damian Martino, MD
muscle layers. The extension wire is attached The patient is sent home with instructions on
to the pulse generator which is then correctly
how to use the trial stimulator and care for
positioned under the skin and sutured to the
the incision site. After a few days the patient
fascia layer overlying the muscles. The incisions
returns to Jersey Rehab and the physician
are closed and after a short recovery period the
and patient decide if the trial was successful
patient is sent home with detailed instructions.
Board Certified in Pain Management
enough in terms of pain relief and tolerance of the experience by the patient to warrant
Spinal cord stimulation does not cure the
condition causing the pain but rather, helps
Felix Almentero, MD Board Certified in Physical Medicine and Rehabilitation
patients to tolerate the pain, thereby increasing During surgery for permanent implantation,
functionality and improving quality of life. At
the highly-skilled pain management surgeon at
Jersey Rehab, whether through a complex
Jersey Rehab makes a small incision in the mid-
procedure such as SCS or the many other
back to expose the bony arch of the vertebra. A
innovative and effective modalities utilized by
portion of the lamina is removed to allow room
its team of experienced and expertly-trained
for placement of the leads and electrodes. The
specialists, helping patients to lead productive
leads are placed in the epidural space above
and happy lives is their ultimate goal.
Saundra Nickens, MD
Board Certified in Physical Medicine and Rehabilitation
the spinal cord to deliver electrical current to the area of pain with the aid of fluoroscopy and then secured with sutures. The patient is then asked to provide feedback regarding sensation at different stimulation settings. This will be used a bit later on to help the physician correctly program the pulse generator in order to provide optimal pain relief. Once the leads are in place an extension wire is passed under the skin from the spine, around the torso to the abdomen, where the pulse generator will be implanted. Another
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Jersey Rehab, P.A. - Locations Essex County
15 Newark Avenue Belleville, NJ 07109 973-844-9220
481 Kinderkamack Road Oradell, NJ 07649 973-844-9220
443 Northfield Avenue West Orange, NJ 07052 973-844-9220
234 Mount Prospect Avenue Newark, NJ 07104 973-482-9850
57 Route 46 East Hackettstown, NJ 07840 973-844-9220
Bronx, New York 3146 East Tremont Avenue Bronx, NY 10461 718-792-6503
Health Law Update
Provided by Brach Eichler LLC, Counselors at Law
Proposed Legislation Requiring Surgical Practices to be Licensed Referred Out of Assembly Committee with Amendments Legislation that would require surgical prac-
they must register with the DHSS and obtain ei-
ment. As amended, the bill provides, however,
tices to be licensed by the NJ Department of
ther certification by the Centers for Medicare &
that surgical practices in operation prior to the
Health and Senior Services (DHSS) as ambula-
Medicaid Services (CMS) as an ambulatory sur-
date of its enactment will not be subject to the
tory care facilities was recently reported from
gery provider or ambulatory care accreditation
ambulatory care facility assessment or to DHSS
the Assembly Health and Senior Services Com-
from an accrediting body recognized by CMS.
regulations pertaining to physical plant and
mittee, with amendments, and now heads to the full Assembly for consideration.
functional requirements for ambulatory care This bill, A-4099, would repeal the registration
requirement and instead mandate that all surgiUnder the current “Codey Law,” surgical prac-
cal practices be licensed by the DHSS as ambu-
The bill’s counterpart in the Senate, S-2780, was
tices are not required to be licensed. Instead,
latory care facilities within one year of its enact-
passed by the Senate earlier this year.
Lawsuit Alleges UMDNJ Required Nurses to Assist with Abortions Despite their Objections A group of nurses at the University of Medi-
performance of abortions for religious or moral
The lawsuit also alleges that UMDNJ violated
cine and Dentistry of New Jersey (UMDNJ)
reasons and prohibits entities that receive fed-
New Jersey law, N.J.S.A. 2A:65A-1, which pro-
filed a lawsuit and a request for a temporary
eral funds from discriminating against them for
vides that no person shall be required to per-
restraining order against the hospital, alleg-
doing so. The nurses argue that despite their
form or assist in the performance of an abor-
ing they were forced to assist in abortions in
objections, UMDNJ, which receives approxi-
violation of federal law. In Danquah v. Univer-
mately $60 million dollars each year in federal
sity of Medicine and Dentistry of New Jersey,
health and research funding, refused to follow
A temporary restraining order preventing the
11-cv-06377, the plaintiffs allege that UMDNJ
the law and instead threatened all of them with
hospital from requiring unwilling nurses to as-
violated 42 U.S.C. 300a-7(c), which permits in-
termination if they did not agree to assist in the
sist with abortions was granted pending a full
dividuals to refuse to participate or assist in the
performance of abortions at the hospital.
hearing. UMDNJ has denied any wrongdoing.
NJ Medicaid Fraud Division Releases 2012 Work Plan The Medicaid Fraud Division in the Office of
organizations to determine the suitability of
the State Comptroller recently released its Fis-
billing, medical necessity, documentation
cal Year 2012 Work Plan. Initiatives include:
and care plans to support Medicaid billing
• Auditing of home health and hospice agencies, nursing facilities, hospitals, laboratories, medical transportation services, physicians, partial care, pharmacies, personal care services and managed care
• S pot checks of hospital records •C ompliance with new Affordable Care Act obligations related to overpayments
• Provider training on abusive and wasteful billing practices • Oversight of self-disclosures of Medicaid overpayments • Review of qui tam complaints in collaboration with the Attorney General
•P ublication of compliance guidance in adult medical day care December 2011
New Jersey Statehouse EHR incentive payments doubled in last three months of 2011 By Joseph Conn
Total payments to hospitals through the Medicare and Medicaid electronic healthrecord system incentive programs more than doubled from October through December to more than $1.9 billion, according to the CMS’ latest monthly report on payment and registration support. Combined payments to physicians and other so-called eligible professionals jumped 99% over the same period to nearly $570.4 million. There were 176,049 active registrants in the programs by the end of December, up 27%
since October, according to the CMS’ data. Among them, 98% were eligible professionals; 2% were hospitals. About 75% of eligible professionals receiving payments—10,530 of them—are physicians, with nurse practitioners, dentists, certified nurse midwives and physician assistants accounting for the rest, according to the CMS. To put those numbers in context, there are 565,024 office-based physicians in the U.S., according to the American Medical Association, and 5,754 hospitals, according to the American Hospital Association.
Final participation numbers for the two federal information technology incentive programs for their first year of operation won’t be available until later this year, Dr. Farzad Mostashari, head of the Office of the National Coordinator for Health IT, said last week. Although the initial qualification period for hospitals ended with the federal fiscal year on Sept. 1, 2011, the qualification period for eligible professionals didn’t end until Dec. 31, and they have 60 days beyond that to compile their data and submit applications for payment.
Vitale-Weinberg Bill Permitting the Sale of Syringes without a Prescription Signed into Law Measure Will Decrease the Spread of Blood-borne Diseases Legislation sponsored by Senator Joseph F. Vitale and Senate Majority Leader Loretta Weinberg that allows pharmacies in New Jersey to sell hypodermic syringes and needles without a prescription was signed into law today by Governor Chris Christie. “While New Jersey needs to do more to help State residents suffering from substance abuse fight their addiction, restricting access to sterile needles only succeeds in driving New Jersey’s illegal drug trade further underground, and leads to dangerous health practices, such as sharing needles,” said Senator Vitale (D-Middlesex), Chairman of the Senate Health, Human Services and Senior Citizens Committee. “Through this law, we’re
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not seeking to condone drug use or create a gateway to legalize otherwise illegal drugs. We’re trying to advance sound health policy which would reduce the spread of blood-borne diseases such as HIV/AIDS and hepatitis C, and address a significant public health epidemic in the Garden State.”
would continue to be an illegal activity, but last I checked, substance abuse didn’t carry a mandatory death sentence, and as long as our laws continue to encourage addicts to swap needles, they’ll continue putting themselves at risk of catching a fatal disease in order to get high.”
“New Jersey is one of only two states in the entire nation where the sale of clean needles and sterile syringes is restricted under law,” said Senator Weinberg (D-Bergen). “We have to look at this issue with an open mind, absent moral judgment, and recognize that what drug addicts need most in New Jersey is access to clean, safe needles and treatment to help beat their addiction. Obviously, drug crime
The law, S-958, permits licensed pharmacies to sell hypodermic needles and syringes, as well as other instruments adapted for the administration of drugs by injection, to individuals without a prescription in the Garden State. Under the law, a person will have to be over 18 years old to purchase sterile needles in a pharmacy, and will be limited to 10 or fewer needles per purchase. The supply of needles
Statehouse will be kept behind the sales counter, and pharmacists will, at the time of sale, provide people with information printed in English and Spanish concerning the safe disposal of needles, including local disposal locations or a telephone to call for that information, and information concerning substance abuse treatment, including a telephone number to all for assistance in obtaining treatment. The law amends current law so that individuals are allowed to possess a hypodermic syringe or a needle without a prescription. The Senators noted that the law makes it easier for individuals
with diabetes to obtain syringes – previously, people with diabetes needed a prescription to obtain syringes at the pharmacy. “When New Jersey enacted needle exchange legislation sponsored by myself and Senator Vitale a few years back, we took a significant step forward to slow the spread of HIV/AIDS,” said Senator Weinberg. “However, through this legislation, needle exchange programs have only made an impact in five cities around the State. We need to recognize that substance abuse is a Statewide problem, not just confined to the five largest urban centers in the Garden State.”
“Not only does this law have the potential to save lives and slow the spread of blood-borne diseases in New Jersey, but it would also reduce public health costs as well,” said Senator Vitale. “We pay an enormous societal cost to provide access to health care for individuals infected by HIV/AIDS or other diseases who were first exposed through intravenous drug use. It’s time to adopt smarter health care policies regarding substance abuse treatment, and that means providing access to addiction treatment as well as clean needles to slow the spread of blood-borne infections.”
State Legislation and Actions Challenging Certain Health Reforms, 2011 In response to the federal health reform law, now known as the Affordable Care Act (ACA), and separate state reform initiatives, some members of at least 45 state legislatures have proposed legislation to limit, alter or oppose selected state or federal actions. In general many of the opposing measures, in 2010 and 2011: • Focus on not permitting, implementing or enforcing mandates (federal or state) that would require purchase of insurance by individuals or by employers and impose fines or penalties for those who fail to do so. • Seek to keep in-state health insurance optional, and instead allow people to purchase any type of health services or coverage they may choose. • Contradict or challenge specific policy provisions contained in the 2010 federal law. The language varies from state to state and includes statutes and constitutional amendments, as well as binding and nonbinding state resolutions. For 2011-12, there are several new approaches: • Several states considered bills that would prohibit state agencies or officials from
applying for federal grants or using state resources to implement provisions of the Affordable Care Act, unless authorized to do so by adopted state legislation. • 1 6 states considered measures to create an “Interstate Freedom Compact,” joining forces across state lines to coordinate or enforce opposition; four states now have
enacted laws. For information, see NCSL article: Some States Pursue Health Compact (Updated edition 11/21/2011). • S everal states considered bills that propose the power of “nullification,” seeking to label the federal law “null and void” within the state boundaries.
Perminova names Alaigh to advisory board Dr. Poonam Alaigh, a former health and senior services commissioner for New Jersey, joined the advisory board of cardiovascular-surgery software vendor Perminova.
Alaigh is a board-certified internist, according to a Perminova news release. In addition to her experience as a state health commissioner, she has served as executive medical director of Horizon Blue Cross and Blue Shield of New Jersey, national medical director of
GlaxoSmithKline Pharmaceuticals, medical director of Vytra Health Plans of New York and associate medical director of the Long Island (N.Y.) Medical Care Group. She is an assistant professor in the family-practice department at UMDNJ-Robert Wood Johnson Medical School. December 2011
Avoid Civil Liability Under the Cullen Act By Anthony M. Rainone, Esq.
The Appellate Division, in Senisch v. Carlino, -- A.3d ---- (N.J. App. Div. Dec. 1, 2011), found that the civil suit immunity provisions of the Cullen Act barred a former employee’s claims against a doctor for responding to a hospital’s request for information in connection with a credentialing application. In 2005, the New Jersey Legislature adopted the Health Care Professional Responsibility and Reporting Enhancement Act as a result of a nurse who worked in several hospitals and intentionally caused the death of numerous patients. Commonly known as the Cullen Act, it prohibits any health care entity in New Jersey from withholding certain information about current or former employees from another health care entity. Health care entities under the Cullen Act include health care facilities licensed pursuant to the Health Care Facilities Planning Act (which includes hospitals, diagnostic centers, treatment centers, rehabilitation centers, extended care facilities, nursing homes, home health care agencies, and residential health care facilities), HMO’s authorized to operate under the Health Maintenance Organizations Act, carriers offering managed care plans under the Health Care Quality Act, and state or county psychiatric hospitals, state developmental centers, staffing registries, and home care services agencies. A health care entity must, upon request from another health care entity, provide truthful information about a current or former employee’s job performance as it relates to patient care and, where applicable, the reason for the employee’s separation. “Job performance” under this law refers to the suitability of the employee for re-
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employment at a health care entity, and the employee’s skills and abilities as they relate to suitability for future employment at a health care entity. The failure of the health care entity to comply with a request or truthfully disclose the information to the requestor subjects the entity to penalties by the Department of Health and Senior Services, which include license suspension and revocation and monetary penalties of $2,500-$10,000. The Cullen Act also provides the health care entity with immunity from any civil lawsuits arising out of its response to a request where the entity acts and provides the information in good faith and without malice. In Senisch, Deborah Heart and Lung Center (DHLC) employed Michael Senisch from 1995 to 2000 as a physician’s assistant (PA) in the cardiology department. In January 2000, the Chair of the Department of Cardiology terminated Senisch’s employment because of deficiencies in a 1999 performance evaluation. After the termination, Senisch filed a lawsuit alleging the health care entity terminated him in violation of New Jersey’s Conscientious Employee Protection Act (CEPA) and Law Against Discrimination (LAD). In January 2003, Senisch and DHLC entered into a confidential settlement of the lawsuit. In 2007, Senisch applied for a position at a surgical orthopedic practice in Woodbury, New Jersey, which required PA credentials at Underwood Memorial Hospital (Underwood Memorial). Therefore, in February 2007, Underwood Memorial requested information from DHLC about Senisch during the credentialing process. Dr. Lynn McGrath, who did not supervise Senisch at DHLC, provided a written
response setting forth Senisch’s work history and performance based upon the written evaluations in his personnel file, including that he was terminated after unsuccessful attempts to improve his performance. McGrath also wrote that Senisch had worked on inpatient cardiac floor services and McGrath could not assess his current level of competence because the privileges requested at Underwood Memorial were for orthopedic surgery service. Finally, McGrath noted that Senisch disagreed with the negative assessments of his performance and that some of the attending staff seemed more favorably disposed towards Senisch than others. McGrath concluded the letter by stating that Senisch was not eligible for re-employment at DHLC. Senisch’s new employer, the Woodbury orthopedic practice, warned him that he would be terminated if he did not obtain credentials at Underwood Memorial. Concerned about receiving a negative credentialing decision, Senisch withdrew his application for credentials and then resigned his employment from the orthopedic practice. Senisch then filed a lawsuit against Dr. McGrath and DHLC alleging that McGrath provided a negative reference in retaliation for his prior lawsuit against DHLC. Senisch also claimed that the negative reference defamed him and tortiously interfered with his employment at the Woodbury orthopedic practice and all future employment as a PA. The trial court dismissed the case after over one year of litigation. On appeal, the Court found that McGrath properly relied upon the documented performance evaluations
Legal Issues in Senisch’s personnel file in providing the information to the requesting health care entity. The letter did not contain any false information about the circumstances of Senisch’s termination. Because the letter was truthful and accurate, the Court dismissed all three of Senisch’s claims against McGrath and DHLC based upon the civil suit immunity provision in the Cullen Act. The employee’s personnel file allowed a subsequent doctor at DHLC, who never supervised Senisch, to provide accurate and truthful information about a former employee in response to a request DHLC was required to respond to under the Cullen Act. The accurate records of Senisch’s employment history undercut his argument that the information was false, which may have triggered an exemption to the civil suit immunity provision of the Cullen Act. Absent that exemption, DHLC and McGrath were faced with tort liability for defamation and tortious interference, in addition to liability under CEPA, which provides for the award of punitive damages, attorneys’ fees, and costs to a successful plaintiff. There are several lessons for health care entities and doctors from this lawsuit: • At a minimum, conduct annual written employee performance evaluations, signed by the evaluator, and maintain a written record of all other employee performance issues and conduct. A person uninvolved with the employee’s performance should be able to understand the basis of the performance issue, any improvement plan required of the employee, and whether the employee completed the improvement plan. • Provide employees the opportunity to review and respond to the written evaluation. • In responding to a Cullen Act request, ensure that your response is based upon documented performance evaluations in the employee’s personnel file and includes the employee’s response, if any to the performance evaluation.
The Cullen Act’s civil suit immunity provision worked as it was intended in this case. It is a model for health care entities and doctors to follow when responding to requests for information about past employees from another health care entity.
Anthony Rainone is a member of the Employment Law Practice Group of Brach Eichler L.L.C., based in Roseland.
Hackensack Names Sawczuk CMO Hackensack University Medical Center has promoted Dr. Ihor Sawczuk to the post of executive vice president and chief medical officer, replacing Dr. Peter Gross. Sawczuk, 59, is a kidney cancer expert and joined HUMC in 2001 as the chair of the urology department. He has also held the titles of vice president, chief academic officer and urologic oncology division chief at the John Theurer Cancer Center, according to an HUMC news release.
Before his tenure at HUMC, Sawczuk was on the medical staff at the College of Physicians and Surgeons of Columbia University, NY. He is a past board member of the Children of Chernobyl Relief Fund and was recognized by the office of First Lady Hilary Rodham Clinton in 1996 for his Chernobyl relief efforts
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New Realities in Physician Compensation The Shift From “Volume to Value”via Pay For Performance (P4P) Programs Has Begun By Leslie A. Thomas, CPA, Supervisor in Tax/ Healthcare Business Services @ Nisivoccia LLP
•C linical - preventative, conditions and
elevate hospital service line quality and
complications; preventative services
ing world I often try to
efficiency. Physician practices and hospitals
(i.e. immunizations); common clinical
apply the basic tried
maintain separate entities. Medical directorship
conditions (cholesterol, diabetes, heart
and true business strat-
services paid on a per-hour fee to run a quality
rate, blood pressure, pregnancy, newborns,
egy of minimizing over-
service line, and a fee/bonus for achievement
mammograms), or complications (surgical
head, and maximizing
of specific measurable quality and efficiency
revenue. While switching to my “doc-speak”
objectives (i.e. re-admission rates for certain
hat, I discuss maximizing RVU’s and ancillary
procedures are reduced by a set percent).
income billed for, incentives applied for, and
infections). •C linical - medical care processes and outcomes; medical care processes (i.e. number of diabetic patients who had a foot
the process of collections tried for.The evolu-
Clinical Integration(CI) network models
exam in the past 12 months); outcomes (ie.
tion of Pay for Performance (P4P) programs
where two or more entities are separate but
number of diabetic patients with HbA1c less
has created a significant change in the direc-
part of a joint venture for commercial con-
tion that medical payments are taking; shaping
tracting strategies, typically with aspirations of
earlier volume based fee-for-service models, or
forming an ACO. CI’s are not required to have
taking into account patient satisfaction
DRG-based payment systems to now include
“at risk” shared savings as a component of the
scores (i.e. average time for getting a
quality or value metrics. Advising on how to
jointly negotiated insurance contract, but the
physician appointment). Concerns over
maintain or increase revenue when payments
ACO’s that they hope to morph into do have
physicians treating the metric rather than
are predicated on quality of care ischallenging
such “at risk” parameters.
the patient have arisen when it comes to
to say the least. My broad brush approach be-
than 7% over the past year). •C linical – patient experience measures;
this measure, for fear of being thrown to the 50th percentile from the 90th percentiledue
physician compensation canvas of the numer-
Overview of Performance Quality Measures
ous physician-hospital alignment models out
Performance quality measures assess the
medical decisions were made that they
there which employ P4P in some manner,
quality of care patients received, and overall
didn’t like. Something to keep an eye on.
while overviewing the quality performance
clinical performance. There are many types
measures with a slightly smaller brush of detail.
of performance measures, and physicians
low is an attempt to give a big picture on the
to a few aggravated patients when sound
have been finding that when they start using
Options For Implementing Performance Quality Measures
Physician-hospital alignment strategies
their beloved EMR systems to track certain
Besides CMS quality incentives via the
metrics (ie. tracking cholesterol levels for
PhysicianQuality Reporting System (PQRS)
This subject is an article or two unto itself, but
high cholesterol patients) they are not hitting
and the Center for Medicare and Medicaid
I want to point out that the common thread
national benchmarks, and not doing as well
Innovation center (CMMI) Bundled Payments
amongst all of the strategies listed here is the
as they thought they were. Thereby leading to
Pilot, health plans offer performance based
focus and payment for improved quality and
care team reorganization around the measure
incentives as well. Typically insurers measure
cost management objectives.
(in this example it’s cholesterol) and yielding
performance through use of administrative
improved results, in some cases just six months
data (claims, pharmacy, referral and lab order
Hospital employment where physicians
with better coordinated care. Maybe there is
data), as design-wise that is all the health plan
in a practice work directly for the hospital.
something to this whole act of measuring one’s
systems can really measure. Accordingly, the
Compensation formats can be fixed salary,
own performance. A layout and examples of
AMA physician consortium developed CPT
some of the measures is to follow:
Category II codes in order to enable physicians
according to sliding scales, with incentives
• Structural -readiness of clinic to provide
the ability to report clinical measuresalong with
for clinical quality, patient experience, cost
optimal patient care (ie. adoption of EMR to
their CPT and ICD-9/10 coding data. Besides
management, and charge ticket lag times.
track patient data).
the additional CPT codes, physicians can look
New Jersey Physician
Financial into Pay For Performance (P4P) programs
P4P process, some useful resources are listed
the ability to effectuate care improvement to
through the National Committee for Quality
what data metrics have revealed. The PQRS
Assurance (NCQA), in particular via a non-
•C MS (Physician Quality Reporting System-
and BTE programs are a good way to embark
profit organization called Bridges to Excellence
PQRS, formerly PQRI) -
on managing the system of clinical care and
(BTE) that has launchedP4P programs with
quality improvement of a practice. The other
various health plans all over the U.S.In some cases physicians and administrators need to contact their health plans to find out what P4P program availability they have, as well as if the health plan will sponsor the practice in
•C PT Category II Code listing -
I’m hoping everyone has surmised) is that
really embracing those beloved EMR systems,
•N CQA – Physician Practice Connections www.ncqa.org or 888-275-7585
the rigorous Physician Practice Connection
•B ridges to Excellence (BTE) -
application process with NCQA. Individual or
medical group clinician applicants can apply to some of the BTE care recognition programs without having health plan sponsorship. The
commonality streaming through all of this (that
be paramount for survival.
•C MS’s CMMI Bundled Payments Pilot - www. hci3/node/3675 •B TE – Care Recognition Clinician
Healthcare Incentives Improvement Institute
Assessment Guides -
(HCI3) and BTE website with the “Care
Recognition Clinician Assessment Guides” the
and reexamining office and care processes will
for asthma, cardiac, congestive heart failure,
COPD, coronary artery disease, diabetes,
measures and programs that employ them
depression, hypertension, spine and medical
are certainly still evolving, it is clear they are
homesare very informative, and lay out the
here to stay. Survival in this new world of
involved process pretty succinctly. To aid in
value focused healthcare will hinge on being
navigating the challenging but worthwhile
able to capture and analyze data, and having
Leslie A. Thomas, CPA is a Supervisor offering 20+ years of tax and healthcare advisory experience in the Healthcare Business Services segment at Nisivoccia LLP, a multidimensional CPA firm with offices in Mt. Arlington and Newton, NJ. The firm offers traditional tax, accounting and audit services, and maintains practice specialties in sectors including health care, technology, municipal government, education, nonprofit and financial services. Contact her at firstname.lastname@example.org or (973)-328-1825.
Let Brach Eichler’s Health Law Practice Group Help You Chart a Strategic Course For Your Health Care Business Health care providers have long come to rely on the attorneys of Brach Eichler to navigate the regulatory environment at both the state and federal levels. Now that health care reform is being implemented, Brach Eichler is ready to help you make sense of the significant changes, the statutory framework and the ramifications for health care providers in New Jersey. Health Law Practice Group Todd C. Brower Lani M. Dornfeld
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Diagnosis Food for Thought
D IAGNOSIS Famed Infectious Disease Specialist Leon Smith, MD has suggested we start a contest. He will submit symptoms and the correct diagnosis will win a New Jersey Physician T-Shirt, as well as getting honorable mention in our column. Case I A 65 year old farmer in western New Jersey was rocking in a chair on his porch at dusk. A bird flew down and bit him on the lip. 30 days later, he developed a fever of 103F and severe body aches and pain in December. He went to the Emergency Room and was told he had the Flu. A few days later he developed coma, general grand mal seizure, and a rigid neck. CSF
was normal, CBC and SMA12-60 was normal. The patient died Case II 35 year old white male lawyer developed fever, chills and a dry cough (non-productive). Chest X-Ray: 5 lobe pneumonia. WBC 36,000, PMN 95% Oxygen saturation-very poor. Placed on a respirator and treated with Vancomycin, Rocephin, and Azithromycin without response.
Looks like we went a bit easy on you in the October issue. We have four winners for case 1, and two for case 2. The correct diagnosis for case 1 is Kawasaki Syndrome: Sent to us by Drs. Anjuli Suda, Kishan Agarwal, Ernest Leva, and Thomas Stack. The correct diagnosis for case 2 is Psittacosis: Offered by both Dr Stack and Dr. Suda. Congratulations to all of you! Letâ€™s see if we can offer a bit more challenging choice this month.
Diagnostic studies Pneumococcus sp., Legionella, Q-Fever, MRSA, Hemophilus sp., Klebsiella Pneumonia, Influenza, Adenovirus, CMV, Pneumocystis, Nocadia, T.B., R.S.V. were all negative.
Warning, there is a most surprising finding in this case.
Please send responses to MGoldberg@NJPhysician.org 16
New Jersey Physician
Call for Nominations
New Jersey Physician Magazine invites all medical practices to submit nominations for cover stories. Practices should include a brief description of what makes the practice special. Please contact the publisher Iris Goldberg at igoldberg@NJPhysician.Org December 2011