A recent post on this blog previewed the issues raised in the case of Govatos v. Murphy related to the residency requirement in the New Jersey Medical Aid in Dying for the Terminally Ill Act. 

On September 18, 2024, the Honorable Renée Marie Bumb, the Chief Judge for the U.S. District Court for the District of New Jersey, filed a 59-page opinion along with an Order dismissing the complaint in Govatos challenging the constitutionality of the Act’s residency requirement. Judge Bumb rejected the claim that the State’s requirement that a person be a resident of New Jersey to receive medical aid in dying violates three provisions of the United States Constitution: (1) the Privileges and Immunities Clause of Article IV, § 2; (2) the dormant Commerce Clause of Article I, § 8; and (3) the Equal Protection Clause of the Fourteenth Amendment.

Judge Bumb framed the issue before her as whether the Constitution requires a state to extend to non-residents a non-fundamental privilege to access medical aid in dying that it affords to its own residents pursuant to the New Jersey statute. The opinion analyzes the contention that the Privileges and Immunities Clause is violated by the statutory residents-only provision because it burdens the fundamental right to interstate travel with the denial of the medical aid in dying services to non-residents. The court’s examination of this issue sensibly begins by formulating what the Privileges and Immunities Clause covers. It reviewed interpretations of the clause dating back to 1823. It concluded that the court must engage in a two-step process in evaluating a claim that a state law unjustifiably discriminated against non-residents. The first was a determination of whether the non-resident’s claimed interest was “sufficiently fundamental” to be within the purview of the Clause. If the discriminatory law did affect a fundamental privilege, it was necessary to consider whether there was a substantial reason for the difference in treatment and whether the discriminatory action bore a substantial relationship to the state’s objective.

In concluding that there was no fundamental right to medical aid in dying, the court found the Supreme Court’s 1997 decision in Washington v. Glucksberg to be dispositive in concluding that there was no right to assistance in committing suicide under the Due Process Clause. It also referred to the companion case of Vacco v. Quill decided the same day, which rejected a challenge under the Equal Protection Clause to a statute making assisting someone to commit or attempt suicide a crime as reaching the same conclusion. In Vacco, the court distinguished its 1990 decision in Cruzan v. Director, Missouri Department of Health in which it had assumed that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment but emphasized that a right to refuse treatment was not grounded in a general and abstract “right to hasten death” as an exercise of personal autonomy, but rather was premised on well-established, traditional rights to bodily integrity and freedom from unwanted touching. The right to refuse treatment does not necessarily transform into a right to demand a particular treatment.

The Govatos court followed that reasoning in ruling that the “right” to medical aid in dying in New Jersey statute was a qualified right subject to conditions, such as the confirmed presence of a terminal condition with a life expectancy of less than six months. This “right” was derived entirely from statutory authorization, not constitutional protection. It also observed the comment in Kligler v. Attorney General that no state supreme court “has concluded that physician-assisted suicide constitutes a fundamental right” as a matter of state constitutional law. The Kligler decision was the subject of commentary in a January 2023 post on this blog.   

The Govatos court further rebuffed the plaintiffs’ argument that the residency requirement burdened their fundamental right to travel within the United States that had been recognized in Shapiro v. Thompson. It did not accept the attempt to bootstrap the non-fundamental privilege of medical aid in dying to the fundamental right of interstate travel. It rejected the analogy to Doe v. Bolton in which the Supreme Court struck down a Georgia statute criminalizing abortion unless several conditions were met. Among those conditions was that the procedure could only be performed on a woman who resided in Georgia. In distinguishing Doe, the court noted that the Supreme Court had found no basis for this residency requirement. In contrast, the State of New Jersey had several justifications beginning with its observation that medical aid in dying was “legally indistinguishable from the criminal act of suicide” and was not general medical care. Next, the two plaintiff-patients sought to obtain medication that they could self-administer to end their lives in their home states of Delaware and Pennsylvania. Assisting suicide was a criminal act in both Delaware and Pennsylvania. The State had a legitimate interest in protecting New Jersey healthcare providers from liability in another state for conduct that would be a crime there. Moreover, the State had a justifiable interest in ensuring that the self-administration of the lethal medication was completely voluntary and that the provisions of the Medical Aid in Dying Act that provided additional safeguards were followed. The situation before the court was unlike the circumstances of laws such as in Texas that aimed to prevent its citizens from traveling to another state to obtain an abortion legal in that other state but not in Texas and could adversely affect its own citizens’ ability to return to their own state after seeking access to abortion services.

The court found that the Govatos plaintiffs did not have a cognizable Dormant Commerce Clause claim. This Clause provided protection against economic protectionism from measuring benefiting in-state interests and burdening out-of-state competitors. The court concluded that the New Jersey Medical Aid in Dying Act did not discriminate or burden interstate commerce. It also quickly disposed of the Equal Protection Clause challenge because the residency requirement did not target a suspect class and did not infringe on a fundamental right. Thus, it was subject to review under the rational basis test. The residency requirement was rationally related to legitimate governmental objectives. The protection of healthcare providers from either criminal or civil liability in another state based on having provided a person with lethal medication to end their life was a legitimate purpose. The New Jersey Medical Aid in Dying Act provided physicians with broad criminal and civil immunity but only if the terms of the statute were complied with. Otherwise, assisting suicide is still a crime in New Jersey. It was also a criminal offense in both Delaware and Pennsylvania with statutes that punished conduct outside the state where the result occurred within the state.

The Govatos ruling, in combination with the Massachusetts decision in Kligler, illustrates the limits of attempts to establish a right to physician assistance in dying through a constitutional adjudication. Govatos documents the widespread opposition to physician aid in dying with the court repeatedly making the observation that this medical practice is “indistinguishable from the criminal act of assisting suicide.” Only a few states have enacted legislation to permit the practice and eliminate the risk of criminal exposure. The practice of medical tourism by individuals living in states that do not permit medical aid in dying is a matter of continuing risk. While the ethical justification is well-established for accepting and acting on a patient’s right to refuse care whether it involves withholding or withdrawing care, the same cannot be said of physician assistance in dying. 

The federal Corporate Transparency Act (CTA) requires many business entities to disclose information about their business ownership to FinCEN.  Healthcare entities should note that the CTA does not have an exemption for healthcare practitioners, and so small to mid-size healthcare practices of all kinds, as well as practices falling into the “friendly PC” model, are likely to be required to report under this law. This lunch hour complimentary webinar will provide practical guidance for those businesses including a review of key points of the CTA and helpful pointers to ensure legal compliance for entities with reporting requirements. Additional program information and registration link at: bit.ly/47scrMq

The NJ Board of Public Utilities (BPU) has scheduled a stakeholder meeting for Tuesday, September 17, 2024, for the purpose of receiving comments and input regarding the Competitive Solicitation Incentive (CSI) component of the New Jersey solar energy renewable energy certificate program, sometimes referred to as the Successor Solar Incentive (SuSI) Program. Alternatively, stakeholders are invited to submit comments in writing no later than September 24. This Client Alert by our partner Barbara J. Koonz provides related details.

Since being enacted in 2019, the New Jersey Medical Aid in Dying Act has had a threshold condition on a patient’s request for medication under the Act: that they be an “adult resident of New Jersey.” The physician’s record must contain documentation of the patient’s status as a resident of New Jersey, whether in the form of a driver’s license, voter registration or tax returns. This “residency” requirement is a common factor in the laws of other states that have enacted similar legislation authorizing the dispensation of lethal medication to end a person’s life. Only two states currently do not have this requirement.

Focusing on a Pennsylvania resident, the article “Traveling to Die: The Latest Form of Medical Tourism,” originally appearing in the August 20, 2024 issue of KFF Health News and republished in the August 21 issue of Medscape, reviews the experience of individuals who live in states that have not legalized and authorized medical assistance for dying and who travel to one of the two locations which have dispensed with the residency requirements: Oregon and Vermont. This is seen by some as an “emerging trend.” However, the subject of medical tourism, sometimes referred to in this context as “circumvention tourism,” has been a matter of controversy.

The residency requirement presents several obstacles for patients. These include having to find cooperative doctors in a new state since every state requires confirmation of the terminal condition and limited prognosis by two physicians. In addition, there is a need to arrange for a place in the new state to ingest the medication and die. Moreover, the residency requirement imposes a burden of traveling “when too sick to walk to the next room, let alone climb into a car.” The practical burdens of the trip are increased by statutory requirements for a waiting period intended to give a patient the opportunity to calmly reflect and deliberate on their decision.  Not only does this result in the need to obtain housing or engage in repeat travel, but the waiting period also presents the risk of the underlying condition progressing to a point where an individual loses capacity for decision-making and can no longer participate or where an individual dies before the waiting period is over while suffering throughout that time from the underlying condition that brought them to make the request for a physician-assisted death. In New Jersey, like most other states, the waiting period is 15 days. Several states have modified their laws to either shorten the waiting period or provide exceptions in the event of imminent death. A bill to eliminate the 15-day waiting period under the New Jersey Medical Aid in Dying Act was introduced in the 2022-2023 session of the legislature, but not acted upon. It was introduced again on January 9, 2024 in the 2024-2025 session but remains in committee.

The changes to the residency requirements in Oregon and Vermont resulted from the settlement of federal lawsuits challenging these requirements as violating the privileges and immunities clause of the United States Constitution with resulting legislative action to remove the requirement. New Jersey’s residency requirement is being questioned in the case of Govatos v. Murphy. On August 29, 2023, a complaint was filed in the United States District Court for the District of New Jersey asserting a challenge to New Jersey’s residency requirement as violating the Privileges and Immunities Clause (Art. IV, § 2), the Commerce Clause (Art. I, § 8), and the Equal Protection Clause (Amend. XIV, § 2) of the United States Constitution. The State has moved to dismiss the complaint. The motion has been fully briefed and is awaiting disposition and a decision by the court.

If the New Jersey residency requirement is declared constitutionally invalid, there likely will be an increase in the utilization of the Medical Aid in Dying Act. Travel to New Jersey is relatively easy from the abutting states of New York and Pennsylvania which do not permit medical assistance in dying. The Delaware legislature passed a bill to authorize medical assistance with dying and awaits action by the governor. Whether or not the governor will sign the bill is uncertain. However, the Delaware statute as passed would only allow an adult resident of Delaware to request and self-administer medication to end the individual’s life, leaving New Jersey as a probable destination for an individual seeking a physician-assisted death.

An article co-authored by Greenbaum attorneys John Zen Jackson and Madeline B. Gayle, recently published in the Widener Law Review, reviews the tragic circumstances surrounding Charles Cullen, the killer nurse who became known as the “Angel of Death” following the discovery of his role in the deaths of between 40 and 400 patients in New Jersey and Pennsylvania.  Limited pre-employment vetting and background checks combined with the lack of thorough investigations of suspicious circumstances allowed Cullen to change employment at several healthcare institutions without detection for approximately 15 years until his arrest in 2003. The article examines the ensuing litigation, as well as New Jersey’s legislative response which included the enactment of laws imposing a duty to disclose medical errors and report misconduct as well as an obligation on the part of healthcare entities to provide and obtain meaningful background and performance information concerning prospective employees. Mr. Jackson and Ms. Gayle also evaluate the limitations and unintended consequences of the Health Care Professional Responsibility and Reporting Enhancement Act (HCPRREA), also known as the Cullen Law.

On June 24, 2024, the U.S. Department of Health and Human Services (HHS) released a final rule establishing stringent financial penalties, referred to as “disincentives,” for healthcare providers found to have committed information blocking.

In instances where the HHS Office of Inspector General (OIG) finds a healthcare provider has committed information blocking and refers the matter to the Centers for Medicare and Medicaid Services (CMS), HHS has established several disincentives to be applied as follows:

  • Under the Medicare Promoting Interoperability Program, an eligible hospital or critical access hospital (CAH) that has committed information blocking will not be a meaningful electronic health record (EHR) user during the calendar year of the EHR reporting period in which OIG refers its determination to CMS. This means the hospital will not be able to earn three quarters of the annual market basket increase they would have been able to earn for successful program participation. Moreover, for critical access hospitals, payment will be reduced to 100% of reasonable costs instead of 101%. This disincentive will be effective 30 days after publication of the final rule.
  • Under the Promoting Interoperability performance category of the Merit-based Incentive Payment System (MIPS), a MIPS eligible clinician (including a group practice) who has committed information blocking will not be a meaningful EHR user during the calendar year of the performance period in which OIG refers its determination to CMS. If the MIPS eligible clinician is not a meaningful EHR user, they will then receive a zero score in the MIPS Promoting Interoperability performance category. The MIPS Promoting Interoperability performance category score is typically a quarter of an individual MIPS eligible clinician’s or group’s total final score in a performance period/MIPS payment year, unless an exception applies, and the MIPS eligible clinician is not required to report measures for the performance category. CMS has modified its policy for this disincentive to clarify that if an individual eligible clinician is found to have committed information blocking and is referred to CMS, the disincentive under the MIPS Promoting Interoperability performance category will only apply to the individual, even if they report as part of a group. This disincentive will be effective 30 days after publication of the final rule.
  • Under the Medicare Shared Savings Program, a healthcare provider that is an Accountable Care Organization (ACO), ACO participant, or ACO provider or supplier who has committed information blocking may be ineligible to participate in the program for a period of at least one year. Consequently, the healthcare provider may not receive revenue they might otherwise have earned through the Shared Savings Program. CMS also finalized in this final rule that it will consider the relevant facts and circumstances (e.g. time since the information blocking conduct, the healthcare provider’s diligence in identifying and correcting the problem, whether the provider was previously subject to a disincentive in another program, etc.) before applying a disincentive under the Shared Savings Program. This disincentive will be effective 30 days after publication of the final rule; however, any disincentive under the Shared Savings Program would be imposed after January 1, 2025.

The final rule also reserves the right of HHS to establish additional disincentives through future rulemaking.

While HHS Secretary Xavier Becerra sees this new rule as a “critical step” for ensuring that patients have access to their electronic health information, many in the industry have raised concerns that these disincentives have gone too far and will unnecessarily harm healthcare providers. In a recent article authored by Andrea Fox of Healthcare IT News, she discusses concerns expressed by the American Hospital Association and the Medical Group Management Association that the disincentives are excessive. Time will tell how aggressive the OIG and CMS will be in imposing these penalties.

Given these significant financial consequences for information blocking, healthcare providers should continue to be vigilant in their efforts to implement proper policies and procedures to ensure timely and proper access, exchange, and use of electronic health information. Given the complexity of the regulations surrounding this area of the law, consultation with healthcare counsel is critical to ensuring full compliance with the law.

On June 25, 2024, the Final Rule issued by the Office of Civil Rights (OCR) that amended the Privacy Rule of the Health Insurance Portability and Accountability Act (HIPAA) became effective as a means of further protecting personal health information (PHI) related to reproductive healthcare privacy. Following the 2022 U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization holding that the right to an abortion is not a fundamental right protected by the U.S. Constitution, OCR responded by promulgating new regulations to protect the integrity of the provider-patient relationship as a means of preserving a person’s expectation of privacy for reproductive healthcare services. As of this date, covered entities and business associates have 180 days, or until December 22, 2024, to comply with the provisions of the Final Rule.

The first part of the Final Rule limits the use and disclosure of PHI related to healthcare if it is for certain non-healthcare purposes. A covered healthcare provider, health plan, or healthcare clearinghouse, or its business associate, is prohibited from using this PHI to (1) conduct a criminal, civil, or administrative investigation into, or to impose criminal, civil, or administrative liability on any person seeking, obtaining, providing, or facilitating reproductive healthcare if, under the circumstance, such healthcare is lawful in the state in which it is provided, or (2) from identifying any person for the purpose of conducting such investigation or imposing such liability.

This prohibition applies when one or more of the following has been reasonably determined:

  • The type of reproductive healthcare is lawful in the state where such healthcare is provided and under the circumstances under which it is provided;
  • The type of reproductive healthcare is protected, required, or authorized by federal law, including the U.S. Constitution, regardless of the state in which such healthcare is provided; and
  • The type of reproductive healthcare is provided by a person other than the covered healthcare provider, health plan, or healthcare clearinghouse (or business associates) that has received the request for PHI with the presumption that the reproductive health care provided is lawful.

In other words, a healthcare provider, health plan, or healthcare clearinghouse, or its business associate, is prohibited from disclosing PHI related to reproductive healthcare received by a resident of one state who traveled to another state to receive reproductive healthcare, such as an abortion, when it is lawful in the state where such healthcare was provided. A covered entity and business associate is also prohibited from disclosing PHI related to reproductive healthcare if the use of the reproductive healthcare, such as contraception, is protected by the U.S. Constitution. 

Alternatively, the Final Rule does not prohibit the use or disclosure of PHI related to reproductive healthcare if the purpose is to investigate alleged violations of the False Claims Act, federal nondiscrimination laws, or abusive conduct, such as sexual assault, if it occurs in connection with reproductive healthcare, in addition to audits conducted by the Office of Inspector General initiated to protect the integrity of the Medicare or Medicaid programs.

The second part of the Final Rule requires attestation from the requestors that they are not seeking PHI related to reproductive healthcare for a prohibited purpose. It also requires providers to obtain attestation before using or disclosing PHI related to reproductive healthcare for health oversight activities, judicial and administrative proceedings, law enforcement purposes, or to aid coroners and medical examiners. Concisely stated, the provider is required to obtain an attestation before using or disclosing PHI for audits, and investigations, a court order, laws requiring reporting of certain types of wounds or injuries, and before identifying a deceased person or cause of death.

Lastly, the Final Rule requires changes to the Notice of Privacy Practice (NPP) provisions of the regulated entities by February 16, 2026.

We previously provided information on this blog regarding the Garden State Commercial Property Assessed Clean Energy (C-PACE) program, which is poised to become a popular option for hospitals and other healthcare sector entities looking to rehabilitate facilities or adopt clean energy initiatives while seeking to avoid the upfront capital expenditures typically required for such projects. The program was established by the New Jersey Economic Development Authority (EDA) as a mechanism to finance commercial renewable energy projects, energy efficiency initiatives, electric vehicle charging stations, microgrids, power purchase agreements, and water efficiency and other authorized improvement projects.

Greenbaum attorney Maura E. Blau has just published this new update providing details on the EDA’s updated program guidelines (issued on May 29, 2024) and draft supplemental guidelines, which once finalized would expand the C-PACE program to include not only retrofits, but also new construction projects, gut rehabilitation and refinancing. In addition, changes to the draft program guidelines include the addition of water conservation, flood resistant construction, and microgrids as C-PACE eligible improvement categories.

On June 28, 2024, the Supreme Court of the United States issued its decision in the cases Loper Bright Enterprises, et al. v. Raimondo, et al. and Relentless Inc. et al. v. Department of Commerce, et al., overruling its 1984 landmark decision in Chevron U.S.A. v. Natural Resources Defense Council. For the past forty years, what is commonly referred to as the “Chevron doctrine” or “Chevron deference” has required courts to defer to a regulatory agency’s interpretation of the statutes it administers if those interpretations were “permissible.”

Under Chevron, a court reviewing an agency’s interpretation of a statute was required to engage in a two-part analysis. First, the court had to determine whether Congress had directly spoken on the issue. If Congress had done so, courts would apply the statute as directed by its plain language.  However, if the statute was silent or ambiguous, courts were required to defer to the implementing agency’s interpretation of the statute if it was “based on a permissible construction of the statute” even if that interpretation was different than, or even contrary to, what the court would have ruled in the absence of agency guidance.

In analyzing the issue, the Supreme Court provided a history of the judiciary’s role in interpreting statutes beginning with the Federalist Papers, through the Court’s early decision in Marbury v. Madison, the rapid expansion of the administrative process which took place during the New Deal era, and ultimately the adoption of the Administrative Procedures Act (APA). That history demonstrates that while courts should provide “due respect” to the executive branch’s interpretation of federal statutes, no specific deference to that interpretation was required, or expected, prior to the Chevron decision.

While this history helped form the Supreme Court’s decision, its primary focus was on the incongruence between the APA and the holding in Chevron. Pursuant to the APA, a “reviewing court” is required to “decide all relevant questions of law” and “interpret . . . statutory provisions.”  The Court found that the APA requires courts to exercise independent judgment to determine the best interpretation of the statute, and that this obligation could not be reconciled with Chevron’s directive to defer to “permissible” agency interpretations. As the Court noted, “[i]n the business of statutory interpretation, if it is not the best, it is not permissible.”

Ultimately, the Court overruled Chevron, finding that it “was a judicial invention that required judges to disregard their statutory duties.” Under the new standard of review, “court’s must exercise their independent judgment in deciding whether an agency has acted within its statutory authority, as the APA requires.” While the Court acknowledged that “[c]areful attention to the judgment of the executive branch, may help inform that inquiry,” that judgment is provided with no more significant weight than any other rule of statutory interpretation.

Nevertheless, the Court acknowledged that Congress may delegate authority to agencies in the statutes it adopts, and where it has done so, within constitutional limits, courts must respect that delegation, while ensuring that the agency acts within it. In such circumstances, courts must fix the boundaries of the authority delegated and determine whether the agency, acting within the scope of that delegation, engaged in “reasoned decision making.” However, in the absence of such a delegation, courts must exercise their own independent judgment when interpreting statutes.

The Loper Bright decision represents a seismic shift in how courts will review agency action.  Courts are no longer bound by the decisions of the implementing agency. Rather, courts are free, and indeed obligated, to determine for themselves what Congress intended when it adopted the statute. The decision will likely lead to an influx of litigation challenging agency action, as the arguments raised by the regulated public regarding the best interpretation of the statutes implemented by the agencies will be placed on equal footing with the interpretations asserted by the agencies.

A recently decided case, In the Matter of the License of Pemberton, M.D., is an example of the deference New Jersey courts give to decisions made by the New Jersey State Board of Medical Examiners. On June 10, 2024, the New Jersey Appellate Division upheld the Board’s decision to suspend a doctor’s license after he tested positive for illegal substances during a failed remediation plan, finding the Board’s decision to be well-reasoned and supported by substantial credible evidence as a whole. Given the doctor’s systemic use of illegal substances coupled with several positive blood and urine tests, the Appellate Division agreed that the Board did not have to wait for the doctor to cause harm to a patient before it suspended his license because the evidence clearly demonstrated that as the doctor was using illegal substances, his ability to practice medicine was likely to be impaired.

This case brings awareness to doctors, who should know that the Board has the power to suspend or revoke a doctor’s license if the doctor engages in drugs or uses alcohol within the previous 365 days in a manner likely to impair his/her ability to practice medicine with reasonable skill and safety.  N.J.S.A. 45:1-21(1). Doctors should also be aware that the Board’s authority is broad enough to revoke a medical license if the doctor poses a risk of harm to the next patient. Simply stated, the Board need not wait until the doctor causes harm before taking action. 

Additionally, this case highlights remedial action plans that hospitals can take to rehabilitate complaints related to a medical staff member’s conduct and poor quality of care if it stems from purported substance abuse.  The hospital can place the doctor on a remediation plan that could include a referral to the Professional Assistance Program of New Jersey (PAP).  The PAP works in tandem with the Board’s Impairment Review Committee (IRC) by providing services to doctors with chemical dependencies or other impairments. It is authorized by statute to enter into letter agreements with these doctors detailing their plan for recovery and each doctor’s obligations. Therefore, hospitals must also be aware that the PAP is obligated to report immediately the identity of any doctor that has not complied with the terms of this letter agreement, and to report to the IRC if that doctor has tested positive for the presence of a substance that was not appropriately prescribed for a legitimately documented reason, or if the doctor demonstrates a relapse. This is a separate avenue from the hospital’s corrective action, collegial intervention, or summary suspension.

Courts will only reverse the Board’s decision if it was arbitrary, capricious, or unreasonable or, if it was not supported by substantially credible evidence. The Appellate Division evaluated the Board’s decision using the following three criteria to determine whether the Board’s decision should be given substantial deference:

  1. whether the Board followed the law;
  2. whether the record contained substantial evidence to support the Board’s decision; and
  3. whether the Board’s decision was clear error because the conclusion could not have reasonably been made based on the relevant facts.

Ultimately, the Appellate Division found no merit in the doctor’s arguments that the State failed to demonstrate proof that he was impaired and determined that the Board’s thorough and well-reasoned decision was supported by the record. Read together, New Jersey courts will not disturb well-reasoned administrative decisions unless the decision is shown to be arbitrary and capricious.  Here, it was not.