New Jersey's Massive Behavioral Health and Opioid Law goes Live in fewer than three Months

While Congress bickers over national health care initiatives, New Jersey is moving forward with huge changes to the way health care is practiced and reimbursed in the State. Governor Christie recently signed into law a new bill that overhauls the current insurance requirements for behavioral health and substance dependence coverage. The bill also severely limits a provider's power to prescribe opioid medications, and creates rules, documentation requirements, and educational requirements related to opioid prescription. Also included in the bill are unrelated provisions that better define the roles of advanced practice nurses.

The bill operates by amending several existing laws related to insurance, prescription practices, continuing education for health care providers, and related laws. The bill amends these laws to target three major areas: insurance coverage for behavioral health and substance dependence; prescription limits on opioids; and education requirements for the use and prescription of opioid medications.

With respect to insurance coverage, health insurers will be required to provide unlimited impatient and outpatient benefits for coverage of substance use disorders at in-network facilities. The first 180 days of treatment must be covered without pre-authorization and providers are prohibited from requiring prepayment. If no in-network treatment facility is "immediately available," the insurer must make an exception to their current network to ensure admission within 24 hours. This requirement is listed under the section covering both inpatient and outpatient care.

As far as impatient care goes, the insurer must cover the first 28 days without retrospective or concurrent review of medical necessity. The patient is entitled to remain in care without discharge until all of the internal and external appeals are exhausted.

Insurers are also required to provide prescription benefits for the treatment of substance use disorder without prior approval. No insurer can deny coverage for substance dependency treatment based on the presence of concurrent diagnoses, whether related or unrelated to the dependency diagnosis. Finally, the law exempts insurers that provide coverage to patients receiving benefits under certain state-sponsored medical assistance programs.

The next major section of the bill applies to providers. This section restricts the initial prescriptions of opioid medications to a "five-day supply" when being used for acute pain. Providers will be required to complete a list of actions outlined in the bill before "issuing an initial prescription of a Schedule II controlled dangerous substance or any other opioid drug" for treatment of acute or chronic pain. Providers must take similar steps before issuing a third prescription, including but not limited to entering into a "pain management agreement" with the patient. These requirements do not apply when treating patients receiving hospice, palliative care, and cancer treatments.

The third major section of the bill establishes or directs a professional licensing board to establish educational requirements related to opioid dependency. Examples of professions impacted by these educational mandates are doctors, advanced practice nurses, registered nurses, dentists, and pharmacists.

The bill also creates and specifies requirements for advanced practice nurses and their collaborating physicians. It grants authority to advanced practice nurses to perform certain tasks, order studies, and make diagnoses. This section of the bill is not specifically related to substance dependency or behavioral health.

Because the Legislature wants to address substance abuse problems quickly, the Division of Consumer Affairs is given the authority to adopt interim regulations without going through the normal process under the Administrative Procedures Act. These temporary regulations remain in effect until the Division creates rules through the regular process. The Division must adopt its interim regulations no later than 90 days after the effective date of the bill. The bill will become effective on or about May 16, 2017.

New Rules for Prescribing Schedule II Drugs to Minors

New Jersey is continuing its fight against prescription drug abuse by placing additional requirements on providers. Last month Governor Christie signed into law a bill that requires prescribers to discuss the risks of abuse when prescribing Schedule II opioid drugs to minors. The prescriber must discuss such risks with either an emancipated minor or the parents or guardians on a non-emancipated minor. The law defines a "minor" as a person under the age of 18. This requirement applies to health care prescribers when writing a script for "an opioid drug which is a schedule II controlled and dangerous substance." Based on the wording of the law, the new requirements will apply when a minor is prescribed a drug that is both an opioid and a schedule II controlled and dangerous substance. Examples of such drugs include but are not limited to: Fentanyl; morphine; Demerol; Dilaudid; and combination drugs like Endocet and Percocet.

Specifically, the prescriber must explain the "risks of developing a physical or psychological dependence" on the medication and provide an option for alternative treatments if available, and if the prescriber deems such alternative treatments to be appropriate. This discussion must be documented in the patient's medical record. The new law does not list any specific penalties for failure to comply with the discussion requirement, but non-compliance could result in a finding by a judge or jury that the physician fell below the standard of care. In other words, if a physician prescribes a Schedule II opioid to a minor patient and the patient later becomes addicted to opioids and sues the physician for malpractice then the physician's failure to have or document the conversation required under this law could be used as a basis for finding the physician negligent. Although not prevalent at the moment, the medical community is likely to see an increase in suits against providers based on opioid dependence. Following this law will help providers guard against such future legal trends.   

Prescribers writing these medications for patients receiving hospice care form a licensed hospice are exempt from the new law's requirements. The law took effect immediately, so providers should already be having this conversation with their patients and documenting it in the medical record.

Flag Flying Trump Supporter wins Municipal Court Case

In my previous blog I explained the constitutional issue presented by a Trump supporter who faced a fine or jail time for flying his Trump flag, purportedly in violation of municipal law. Since my previous post, the American Civil Liberties Union joined the fight in defense of the Trump supporter. Following a court hearing on May 18th, the municipal court judge found that the ordinance was vague. According to the Associated Press, Judge Louis Garippo Jr. dismissed the case in the interest of justice.

As expected, the municipal court dismissed the case without reaching the constitutional issues. And while Judge Garippo did the right thing by disposing of the case without the need for a more in-depth constitutional analysis, he left open the issue of whether such municipal restrictions on political speech are enforceable. Another interesting facet of this case is that, according to an OPRA request provided to the Coco Law Firm, Hornick was the only resident ticketed under the political sign ordinance in the past five years. This fact could have led to a selective enforcement defense. 

It looks like we will need to wait until the next case to resolve some of these more fundamental liberty issues. 

I'm Gonna set your Flag on Fire: Can a neighbor really have you thrown in jail for flying a political flag?

Last week I provided some practical advice for readers interested in voting in this year's heated Primary Election. It turns out that the election war has moved from online social media advocacy to neighborhood disputes. On Friday of last week, New Jersey Advanced Media reported that West Long Branch resident and Donald Trump supporter, Joseph Hornick, was cited for flying a flag in front of his home. The flag at issue is inscribed with the word "Trump" and contains Trump's campaign slogan: Make America Great Again. Unfortunately for Mr. Hornick, not everyone in his neighborhood is a Trump fan. According to media accounts, former Democratic councilman Brian Hegarty reported Hornick for violating the town's political sign ordinance. Hornick later received a citation and faces a $2000 fine, up to 90 days in jail, or both. Hornick has vowed to fight the citation in municipal court on April 20th. Regardless of who you support for political office, now or in the future, Hornick's citation raises an important First Amendment issue.

The town ordinance at issue states "No political sign shall be displayed sooner than thirty (30) days prior to the date of the election or the decision of the issue is scheduled," and appears in the "police" section of the town's code book under the heading "Political Signs." The town's code book defines a "political sign" as "a sign which directs attention to an issue, issues, candidate or candidates for public consideration in an election, including the name of a political party." Advanced Media reports that Hornick will contend that his flag is not a "sign," and while this argument has some teeth and is the most practical one for a municipal court hearing, the more important and interesting issue is whether a town can fine or jail a person for flying a political banner in front of his house.

This issue raises two fundamental questions. The first is whether a local ordinance can prevent a homeowner from displaying on sign or flag with a political message. Although West Long Branch municipal prosecutor appeared confident in media reports, the town will face an uphill battle if Hornick or another resident brings his challenge up the appellate ladder. Free speech, political speech in particular, is protected by both the State and federal constitutions. The State Supreme Court (NJSC) and the Supreme Court of the United States (SCOTUS) have opined on similar issues related to free political speech on one's property. And none of those cases went well for the entity imposing a restriction on free speech.

The most recent challenge to political signage in our State Supreme Court came in 2012 when a local political candidate challenged an HOA rule limiting political signs in the development. That case, Mazdabrook Commons v. Kahn, resulted in a victory for the homeowner. While ruling in favor of the homeowner, NJSC recognized that "Political speech in support of one's' candidacy for public office is fundamental to a democratic society." Although the Kahn case involved a private HOA contract, the ruling is beneficial to Hornick and other homeowners because those who enter into HOA contracts voluntarily limit certain free speech and property rights; unlike the situation with Hornick, who never entered into such an agreement. In other words, courts are more inclined to allow restrictive HOA provisions like the one invalidated by NJSC in Kahn; but less likely to uphold a similar restriction when enacted and enforced by local governments.

 In 2008, NJSC addressed a similar issue in which a municipal ordinance in Lawrence Township prohibited the display of balloons, except during "Grand Openings" and other specific occasions. When a union was prohibited by the township from displaying an inflatable rat, NJSC struck down the ordinance as a burden on free speech. The Court reasoned, in part, that the ordinance was content-discriminatory because it allowed balloons for certain advertisements but not others. That case, State v. DeAngelo, would also be beneficial to anyone fighting an ordinance similar to West Long Branch's.

Finally, SCOTUS faced the issue of prohibiting political lawn signs in the 1994 case, City of Laude v. Gilleo. The defendant homeowner in Gilleo fought a city law that prevented her from posting certain lawn signs on her property, which included an anti-war sign that she displayed. In finding the law unconstitutional and rejecting the City's time, place, and manner argument, the Justices wrote "Displaying a sign from ones' own residence carries a message quite distinct from placing the same sign someplace else, or conveying the same text or picture by other means, for it provides information about the speaker's identity, an important component of many attempts to persuade." Thus, SCOTUS recognized that making a political statement with a sign in front of one's own home deserved strong protection under the federal constitution. Although many of the foregoing cases involved complete bans on lawn signs, towns that restrict political signage in any way will face an uphill battle when defending their ordinances.

The second fundamental question in the Hornick case will involve selective enforcement. If a town uses an ordinance to shut down signs for some candidates and not others, that would raise serious constitutional issues. This claim, however, would require the homeowner to show bias (by collecting information on similar citations) and animus towards the defendant or political candidate. An adjunct yet interesting issue related to this case is whether a selective enforcement claim can be made on the basis of selective complaints. For example, if a town only enforces its anti-sign ordinance when someone complains and people only complain about a certain political candidate or party (in this case Donald Trump), is such enforcement constitutionally sound?

As you can see, this case raises important constitutional and free speech issues, but there is probably enough of an argument at the "definition level" to allow a municipal court to rule in Hornick's favor and allow the courts (and towns) to dodge the constitutional issues (at least for now). For example, the definition of "sign" quoted above appears to apply specifically to traditional campaign signs and not banners. Also, if a flag is a sign, is a shirt or a bumper sticker? Can a resident wear a candidate's shirt while standing in front of her home prior to 30 days before an election without being subject to arrest? Further, there is no definition of the term "election," and, an argument could be made that a resident can display a sign 30 days prior to New York's Primary Election, which is on April 19th. These arguments alone will likely end this case in municipal court, which is in a way unfortunate because it leaves the questions related to political signage open to dispute.   

I have filed an OPRA request with West Long Branch in an effort to obtain more information on this issue. I intend to follow this case and will post updates here for anyone interested. 

Just Vote: Easier said than done in New Jersey's Primary

        Your teachers in school might have told you that voting is both important and easy. Bumper stickers, tee-shirts, and other slogan-littered novelties will tell you to "just vote" or to register to vote. But voting might not be as easy as you were led to believe. In fact, voting in primary elections and other special elections can be somewhat complicated and if you do not understand the rules, then you risk being turned away on election day. To be fair to my eleventh grade history teacher, voting can be easy if done in the general election in November. The average voter is most familiar with the November election, but voters are also entitled to choose candidates for their own respective political parties in June (the Primary Election).

            Primary Elections are sometimes ignored by voters as inconsequential and, dare I say - boring. But this year's primary is creating a media frenzy of coverage and warring posts for and against candidates on social media. Voters in both the Democratic and Republican parties seem to be very active in this year's Primary Election. For example, I watched a video the other day posted by a Facebook friend encouraging me to "just vote" for a specific candidate running in the Primary Election. Some people, unfortunately, will learn the hard way that this is easier said than done. In other words, you might be stumping for your favorite candidate for six months only to get to the voting booth and realize that you are not qualified to vote, even if you are a registered voter. But how can this be?

            The New Jersey Primary Election is a "closed primary," which means that only those voters who have declared a party affiliation are permitted to vote. You may have declared a party affiliation when you first registered to vote, but do not even realize you are registered with a particular party. If you did not choose a party affiliation or you selected the no-affiliation option, then you are considered an unaffiliated voter. Here's where things get tricky. If you seek guidance from the New Jersey Division of Elections voting page, it will tell you that you must register twenty-one days before the Primary Election, or by May 17, 2016, to vote in this year's June 7th primary. But this information is a bit misleading. If you are not currently registered to vote, then you can register 21 days in advance of the election. If, however, you are already registered and affiliated with a political party and you wish to vote the primary election of a different political party, then you must switch your party affiliation fifty-five days prior to the June 7th primary (by April 13, 2016). If, for example, you affiliated with the Democratic Party when you first filled out your voter registration and you wish to vote in the Republican primary, you should change your party affiliation immediately and well before the purported twenty-one day registration deadline.

            There is some good news when it comes to New Jersey's Primary Election. If you are an unaffiliated voter, you can vote in either primary (but not both). Technically, you are declaring your party affiliation at the voting booth. This process, however, creates another trap for the unwary. By voting in a Primary Election as an unaffiliated voter, you are automatically switched to an affiliated voter of that particular party. In other words, if you selected "unaffiliated" and thought you were an unaffiliated voter but voted in any Primary Election since your voter registration or subsequent Party Declaration Form was completed, then you are affiliated with the party you voted for in the last Primary Election. If you wish to remain an unaffiliated voter, you must re-designate yourself as such after voting in each Primary Election.

            Now for the practical advice. If you are not sure whether you are registered or whether you are affiliated with a specific party, you can find out by logging onto the New Jersey Division of Elections Website and clicking "Am I registered." To determine if you are affiliated with a specific party, click on the Voter Information Page and sign up for an account. If you are not registered, you can register by filling out the voter registration form

            If you are registered but would like to change your party affiliation, fill out the Party Declaration Form

            You must send the Party Declaration Form to the Commission of Registration in your respective county. If you live in Mercer County, address for the Commissioner of Registration in Mercer County is as follows:

The Commissioner of Registration
640 S. Broad St
PO Box 8068
Trenton, NJ 08650.

            After you vote, remember to switch your party affiliation back to unaffiliated if you wish to keep your options open for voting in the next Primary Election. Happy voting New Jersey!