New Jersey - Volume XII, Number 4 - April, 2003

HIPAA NOW IN EFFECT – ENFORCEMENT RULE RELEASED

As of April 14, 2003 all physicians’ offices should be compliant with the HIPAA Privacy Rules. If you are not in full compliance, call Denise Sanders at Kern Augustine for assistance. Virtually concurrent with the effective date of the HIPAA Privacy rules, the U.S. Department of Health & Human Services (HHS) issued an interim rule advising physicians and other regulated entities of its approach to enforcement and imposition of civil money penalties on those who violate HIPAA rules. The rule sets forth the procedures for investigational subpoenas and inquiries, bases for assessing penalties and penalty amounts, hearing rights, discovery rules, and settlement authority. Note: Kern Augustine’ Physician Advocacy Program, endorsed by the Medical Society of New Jersey, includes a HIPAA defense component. Contact Bill Somers at 908-704-8585 for information.

EMPLOYMENT DISCRIMINATION LAWS EXPANDED TO PROTECT INDEPENDENT CONTRACTORS

The New Jersey Law Against Discrimination (NJLAD) protects “employees” against discrimination and harassment in employment based upon a host of protected categories, e.g., race, age, sex. New Jersey courts have now extended these protections, for the first time, to independent contractors. In a recent case two pathologists claimed that their exclusive contract with a hospital was not renewed due to their ages, in violation of NJLAD. The court found that the doctors were independent contractors and, based on a little used provision of the NJLAD that prohibits a “refusal to contract,” concluded that the contractors could pursue a NJLAD claim for age discrimination. Every practice hiring personnel as independent contractors should reevaluate the benefits of doing so, given this ruling. At a minimum, all employment manuals, personnel practices, and policies should be revised to include independent contractors. Moreoever, when deciding not to contract, or to terminate a contract, with an independent contractor, the practice must have a “legitimate business reason” for the decision, as a defense against a potential NJLAD discrimination claim. Contact Dennis Alessi at Kern Augustine with employment law questions and for assistance in implementing employment documents and policies needed to protect you practice.

NEW JERSEY MEDICAL BOARD POSTS ANESTHESIA INCIDENT REPORT FORM AND NOTICE REGARDING ALTERNATIVE CREDENTIALING

The New Jersey State Board of Medical Examiners (Board) has posted on its website, www.nj.gov/lps/ca/home.htm, a notice regarding the compliance dates and timeframe for personnel changes necessitated by the Board’s rule governing in-office surgeries and anesthesia. The rule provides the eligibility requirements and the mechanism for physicians lacking pertinent hospital privileges to apply to the Board for alternative privileges for in-office practice, and the requirements for the personnel (such as CRNA’s) that will be authorized to assist a physician with these in-office procedures, once alternative privileges are granted. In conjunction with the rule, the Board has also posted the form “Confidential Report of an Incident Related to Anesthesia Services,” to be utilized in the mandatory reporting of all deaths in anesthetizing locations, and all events, related to surgery, special procedures or anesthesia services, that occur within 48 hours of same and result in transport of the patient to the hospital for observation or treatment for a period in excess of 24 hours, or which result in other complications.

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