New Jersey is increasingly auditing and seeking to recover payments for inpatient hospital claims that were preauthorized by Medicaid Managed Care Organizations (MCOs), raising important questions about the State’s authority to revisit previously approved claims. In their latest article for Garden State FOCUS, Greenbaum Healthcare practice leader James A. Robertson and counsel Paul L. Croce examine the relevant federal and New Jersey regulations, MCO provider contract provisions, and potential grounds for hospitals to challenge these recoupment efforts. 

Under the terms of legislation signed into law by New York Governor Kathy Hochul on February 6, 2026, the New York Medical Aid in Dying Act was to become effective August 5, 2026. As discussed in this previous blog post, litigation was commenced in the U.S. District Court for the Eastern District of New York to enjoin the enforcement of the law as discriminatory toward disabled individuals and to prevent the Act from going into effect.

On July 31, 2026, Judge Orelia E. Merchant entered an Order dismissing the complaint for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).

In a Memorandum Opinion, Judge Merchant explained that the basis of her ruling was a lack of standing on the part of both the individual plaintiffs who presented themselves as having “life-threatening disabilities,” and the eight organizational plaintiffs which represent and advocate for individuals with life-threatening disabilities. Judge Merchant further noted that to establish standing to invoke federal judicial power under Article III of the Constitution, a plaintiff must demonstrate that an injury that had been or would likely be sustained caused by the defendant could be redressed by a favorable decision of the court. 

One of the individual plaintiffs had a spinal cord injury with paralysis from the neck down while the other was suffering from degenerative conditions including multiple sclerosis and congenital cerebellar ataxia.

The court concluded:

Individual Plaintiffs chiefly fail to allege an injury in fact because their alleged conditions do not establish a realistic danger of sustaining a direct injury. Only a patient with a “terminal illness or condition” may request and self-administer life-ending medication under the Act, and the Act defines a “terminal illness or condition” as “an incurable and irreversible illness or condition that has been medically confirmed and will, within reasonable medical judgment, produce death within six months whether or not treatment is provided.” 

The court rejected the contention that the individual plaintiffs’ conditions qualified because death would occur within six months if they did not receive medical support. It characterized this interpretation of eligibility under the statute as leading to “absurd results” since it would make patients eligible who could otherwise live long lives with medical treatment. Moreover, this contention was directly contradicted by the statutory language that “[n]o person shall qualify for medical aid in dying . . . solely because of age or disability.” 

The court similarly found a lack of standing on the part of the organizational plaintiffs, both under the test for organizational standing and associational standing.  Neither the alleged frustration of the organizations’ purpose to advocate for disabled person nor its expenditure of time, energy, and resources in pursuit of their advocacy objectives was sufficient. Likewise, to the extent that the organizational plaintiffs relied on their association with either disabled individuals generally or to the two individual plaintiffs in the case, the contention failed. The individual plaintiffs failed to plausibly allege an injury in fact, and none of the organizational plaintiffs demonstrated they had members who were eligible for the medical aid in dying services.

With the determination that no plaintiff before the court had standing to advance the claim, the court did not have jurisdiction over the subject matter of the litigation. Fundamentally, there was no “case or controversy” for constitutional purposes. The matter was accordingly dismissed without prejudice because the court lacked subject-matter jurisdiction.

This procedural posture was consistent with controlling Second Circuit Court of Appeals case law that when the court lacks subject-matter jurisdiction, it also lacks the power to dismiss a case with prejudice. A similar view is taken by multiple circuit courts. In contrast to a dismissal with prejudice, a dismissal without prejudice is not a ruling on the merits of the claim, as only a court with proper jurisdiction may adjudicate on the merits. 

The New York Department of Health announced that as of August 5, 2026 the Medical Aid in Dying Act is in effect, and that it has established a website with related resources and guidance.

As previously addressed on this blog, the New York Legislature enacted a Medical Aid in Dying Act in June of 2025 allowing a physician to issue a prescription for lethal medication to be self-administered by a patient who has been diagnosed with a terminal condition expected to lead to death within six months. After working with the Legislature to make certain changes to the bill, New York Governor Kathy Hochul signed it into law on February 6, 2026. One revision was to change the provision that the law “shall take effect immediately” to an effective date six months after signing, allowing the Department of Health to adopt regulations to implement the law and allowing healthcare facilities to properly prepare and train staff for compliance.

In advance of the August 5, 2026, effective date, a lawsuit was filed on June 11, 2026, in the U.S. District Court for the Eastern District of New York (EDNY) on behalf of people with life-threatening disabilities claiming discrimination and seeking to invalidate the Act and enjoin the State of New York defendants from enforcing it. The lawsuit alleges that Medical Aid in Dying is a “deadly and discriminatory system that steers people with life threatening disabilities away from necessary lifesaving and preserving mental health care, medical care, and disability supports, and toward death by suicide under the guise of “mercy” and “dignity” in dying.”

Governor Hochul, the New York State Department of Health, the State Board for Medicine, the State Office of Mental Health, and their respective commissioners are named as defendants in the lawsuit. The lead plaintiff is the Brooklyn Center for Independence of the Disabled, joined by seven other not-for-profit organizations that either provide services to people with disabilities or advocate for the interests of people with disabilities. Two disabled individuals are also plaintiffs in the action – one suffers from a spinal cord injury that leaves him paralyzed from the neck down with limited movement of his arms, and the other is a woman with multiple sclerosis and congenital cerebellar ataxia who is wheelchair bound and almost completely blind.

The grounds asserted in the complaint were that (a) the Act violates Title II of the Americans with Disabilities Act; (b) the Act violates Section 504 of the Rehabilitation Act; (c) the Act violates Section 1557 of the Affordable Care Act; (d) the Act is unconstitutional under the Fourteenth Amendment’s Equal Protection Clause and Article I, Section 11 of the New York State Constitution; and (e) the Act is unconstitutional under the Fourteenth Amendment’s Due Process Clause and Article I, Section 6 of the New York State Constitution.

The complaint was filed along with a motion for a temporary restraining order (TRO) on an ex parte basis without notice to any of the defendants. Pursuant to Federal Rule of Civil Procedure 65(b)(1), a court may issue temporary restraints without written or oral notice to the adverse party “if specific facts in an affidavit or verified complaint clearly show that immediate and irreparable injury” will occur before the adverse party can be heard in opposition. On June 15, 2026, the court sua sponte denied the TRO, noting that while plaintiffs alleged they would suffer irreparable harm if the Act went into effect, because the Act would not take effect until August 5, no irreparable harm would occur before the defendants could be heard in opposition. The court set the matter for a hearing on a preliminary injunction application on June 25, 2026. The New York Attorney General filed opposition to the request for a preliminary injunction, arguing that none of the plaintiffs had standing to bring the case, and addressing the substantive arguments as lacking merit. Judge Orelia Merchant heard oral argument at the June 25 hearing but reserved decision.

The action in the EDNY is one of a series of challenges brought by disability advocates challenging the validity of medical aid-in-dying laws. The same day that the EDNY lawsuit was filed, a nearly identical lawsuit was filed in the U.S. District Court for the Northern District of Illinois, challenging the Illinois Medical Aid in Dying Act, which was signed into law by Governor JB Pritzker on December 12, 2025, with a September 12, 2026, effective date. A responsive pleading on behalf of the defendants in that case has not yet been filed.

The earliest of these related lawsuits was filed in California on April 25, 2023, challenging that state’s End of Life Options Act, which was enacted in 2016 and amended in 2021. In an unpublished opinion issued on March 27, 2024, the District Court for the Central District of California held that the individual plaintiffs lacked standing to advance their discrimination claims.  At the same time, however, it concluded that the organizational plaintiffs had associational standing, but that the plaintiffs did not state a claim for relief under the ADA, the Rehabilitation Act, or the constitutional provisions for due process and equal protection.

The plaintiffs appealed to the Ninth Circuit Court of Appeals, which heard oral argument on March 25, 2025. Rather than rule immediately, the court decided to hold the matter in abeyance pending a final decision in the en banc matter of Arizona Alliance of Retired Americans v. Mayes. That case concerns the subject of associational standing following the Supreme Court’s decision in FDA v. Alliance for Hippocratic Medicine, which rejected the legal theory that standing can be based on frustration of an organization’s mission and diversion of resources. Although relevant to the standing issue, Arizona Alliance is otherwise unrelated to medical aid in dying.

After the enactment of the Colorado End of Life Options Act in 2016, followed by an expansion of the categories of healthcare professionals who could provide medical aid in dying in 2024, an individual patient, along with a similar coalition of disability advocacy groups, challenged the statute in June of 2025 as violating federal disability rights laws and federal constitutional guarantees of due process and equal protection. A motion to dismiss was referred by the district judge to the magistrate for review and recommendation. In a written report dated March 31, 2026, the magistrate judge concluded that neither the individual plaintiff nor any of the organizational plaintiffs had standing to pursue these claims and recommended that the complaint be dismissed. Objections to the recommendation were filed and are awaiting disposition by the district judge.

The last case in this series concerns the Delaware End of Life Options Act, which was signed into law on May 20, 2025, with an effective date of January 1, 2026. A complaint with virtually identical disability-discrimination claims, made by many of the same organizations as in the EDNY lawsuit, was filed on December 8, 2025. Along with the complaint, plaintiffs moved for a TRO to enjoin implementation of the Delaware Act. Defendants filed a motion to dismiss, challenging both the merits of the plaintiffs’ grounds for a TRO and whether any of the plaintiffs had standing under Article III of the Constitution to seek such relief. The District Court held that all plaintiffs lacked standing, and that even if they had standing, the application for a TRO failed on the merits and was dismissed. On January 2, 2026, the plaintiffs filed an appeal with the Third Circuit Court of Appeals. The case is still being briefed. Oral argument has not yet been scheduled.

The plaintiffs in these cases include a recurring core group of organizations: the United Spinal Association, Not Dead Yet, and the Institute for Patients’ Rights. More recently, the National Council on Independent Living has joined in this litigation.

The District Court decisions so far have rejected the disability discrimination claims. The primary ground for dismissal is the lack of standing. However, some courts have analyzed the merits of the claim. It remains to be seen what approach the Eastern District judge utilizes.

The plaintiffs’ claim of discrimination arises out of the way in which they apply the statutory definition of “terminal illness” with an assertion that, with these conditions, they are at risk of being denied medical treatment and instead “steered” toward physician-assisted suicide. The term “terminal illness or condition” is defined in the Act as “an incurable and irreversible illness or condition that has been medically confirmed and will, within reasonable medical judgment, produce death within six months, whether or not treatment is provided.” From the face of the Complaint, the individual plaintiffs do not meet the eligibility threshold to receive medical aid in dying. Under the Act, it is not enough that an illness or condition would be terminal if medical treatment were withdrawn or withheld; it must result in death within six months, even if treatment were provided.  The allegations of the Complaint indicate that each of the individual plaintiffs has lived with their conditions for many years, with no allegation of imminent death. The New Jersey Franciscan Friar Benedict Groeschel reportedly observed “We’ve all got a terminal illness. It’s called life.”

Title II of the ADA states that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination.”  Section 504 of the Rehabilitation Act similarly provides that “no otherwise qualified individual with a disability in the United States … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”  These provisions are reinforced by Section 1557 of the Affordable Care Act, which provides that “an individual shall not, on the ground prohibited under [Section 504 of the Rehabilitation Act], be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance.” There are also non-discrimination provisions in Title III of the ADA concerning places of public accommodation.

Courts in the Second Circuit have routinely addressed claims under the ADA, the Rehabilitation Act, and the ACA using the same liability analysis. The plaintiffs’ argument that they are discriminatorily excluded from suicide prevention services and are instead steered to suicide through medical aid in dying has a fatal flaw. Nothing in the New York Medical Aid in Dying Act denies individuals access to suicide prevention services. Those services remain available. A person seeking the option of medical aid in dying does so voluntarily.

It has been over 30 years since Oregon enacted its Death with Dignity Act as the first instance of medical aid in dying. According to a 2024 Gallup Poll, the percentage of Americans believing doctors should be allowed to provide medical aid in dying at the patient’s request has increased to 66%. Major medical associations, however, have resisted endorsing the practice. The matter remains controversial and likely will always be so.

Guidance on disability discrimination may be forthcoming from either the Ninth or Third Circuit soon. When the Third Circuit issued its opinion in Bryman v. Murphy, upholding the residency requirement in the New Jersey Medical Aid in Dying for the Terminally Ill Act, it noted there was “no easy answer” concerning the policy choices involved in medical aid in dying. The New Jersey legislature had limited doctors’ assistance to prescribing medication that the patient self-administers, along with safeguards like waiting periods between the request and the prescription and bans on insurance companies and other third parties writing contracts that pressure patients to follow through once they ask to die. The point of such safeguards is to help protect terminally ill New Jerseyans from undue influence and preserve their right of choice around self-determination.

When does a nonprofit healthcare provider qualify for complete charitable immunity – and when is it limited to New Jersey’s statutory damages cap? Our latest Client Alert examines Cassandra Gigi Smith v. Newark Community Health Centers, Inc. in which the New Jersey Supreme Court reversed the Appellate Division in an important decision for healthcare providers operating at the intersection of charitable mission and healthcare delivery.

In Englewood Hospital & Medical Center v. State of New Jersey decided in July 2025, the New Jersey Supreme Court acknowledged the decades-old legislative declaration that it is of paramount public interest for the State to take all necessary and appropriate actions to ensure access to and the provision of high-quality and cost-effective hospital care to its citizens. Previously, in its 1982 decision in Right to Choose v. Byrne, while the Supreme Court did not sustain the lower court’s determination that the New Jersey Constitution guarantees a fundamental right to health, it nonetheless “recognize[d] that New Jersey accords a high priority to the preservation of health.”

Improving access to healthcare and keeping people healthy has since been made arguably more difficult with the passage of Federal H.R. 1, commonly known as the One Big Beautiful Bill Act (OBBBA). In information presented to the New Jersey Senate Budget and Appropriations Committee in May 2026, the New Jersey Department of Human Services described the anticipated devastating impact on Medicaid (NJ FamilyCare) and the Supplemental Nutrition Assistance Program (SNAP), along with new barriers to accessing healthcare and food assistance that were projected from the cuts to federal assistance.

As a result of the OBBBA changes, more than 300,000 NJ FamilyCare participants are expected to lose coverage. In addition, healthcare providers can expect funding reductions to federal matching funds and supplemental payments through managed care plans, with annual losses projected to grow to approximately $2.6 billion. The SNAP program will likely also be undermined by the expected reduction in participation of as many as 47,000 people a month. The economic value of the reductions ranges from $240 million in State Fiscal Year (SFY) 2026 to $425 million in SFY 2030.

In response, the American Public Health Association (APHA), along with a nonpartisan coalition of national and community-based groups, is organizing a national week of action called Seven Days in June: HEALTH is Primary. In announcing the effort, set for June 1-7, 2026, the APHA stated:

Medical research, affordable access to healthcare, vaccines, and treatment, and strong public health systems are fundamental to quality of life, economic stability, workforce strength and national security. Budget cuts to Medicaid, the Centers for Disease Control and Prevention (CDC) and the National Institutes of Health (NIH) are threats to the health of all Americans. The cuts passed by Congress last year will not go into effect until after this fall’s election, when they will also cause harm [to] local economies and the loss of more than one million jobs and billions in tax revenue. 

A nationwide candlelight vigil to honor those who have died because of healthcare gaps is planned for June 5.

It is a truism that when people can get care early, they are more likely to stay healthy, making families and communities stronger. Conversely, there is known to be a domino effect from governmental action and sweeping cuts. When health systems are underfunded or destabilized, people suffer, families are driven into bankruptcy, communities lose services, and the nation is less prepared for the next inevitable crisis. Moreover, cutting global health infrastructure exacerbates political instability elsewhere, thereby threatening American security interests.

Consistent with the New Jersey Supreme Court’s observation in Englewood Hospital, and the stated goal of the Seven Days in June undertaking, there is “a civic expectation that health must be treated as a core governing responsibility, regardless of ideology or party.” The challenge of meeting that goal is at hand.

John Zen Jackson, Of Counsel to the firm’s Healthcare practice, was installed as President of the Medical History Society of New Jersey (MHSNJ) on May 6, 2026. He has been a member of the MHSNJ since 2013.

Founded in 1980, the MHSNJ is a non-profit organization devoted to promoting and encouraging historical research, analysis, and publications concerning the history of medicine and related fields. Its main activities include a weekly online newsletter that frequently announces medical history events in the area, monthly Zoom presentations of scholarly papers, and an annual dinner in Princeton with several short presentations and an invited featured lecturer. This year’s lecture was presented by William Summers, M.D., Ph.D. of Yale University.

A frequent author of articles on legal issues, John has also addressed topics associated with medical history since 2012. He focuses his practice on civil litigation including trial and appellate advocacy, primarily in the healthcare area, as well as in healthcare regulatory and compliance matters. He is certified by the Supreme Court of New Jersey as a Civil Trial Attorney, and has authoritative expertise in medical liability, biomedical ethics, and end-of-life issues.

The New Jersey Department of Labor and Workforce Development’s new regulations impacting the “ABC test” used to determine independent contractor status goes into effect on October 1, 2026, and will apply to New Jersey’s Unemployment Compensation Law, the Wage Payment Law, and the Wage and Hour Law, among other statutes. Employers in the healthcare sector who reply on the services of independent contractors should take steps now to evaluate their current worker classifications to avoid future liability or a potential NJDOL audit, as explained in this recent Client Alert from our employment law practice team.

People are increasingly turning to AI for answers and advice, but many don’t understand the significant risks that are involved, particularly in the healthcare sector.  Healthcare providers and healthcare-adjacent businesses who input patient information (PHI) into these tools may be violating HIPAA rules and risk regulatory scrutiny and audit exposure.  Our recent Client Alert examines a recent federal court ruling and offers advice on how to protect yourself from the unintended consequences of AI use.

Last year, we published this blog post about a case filed in the U.S. District Court for the District of New Jersey by two out-of-state physicians alleging that New Jersey’s telehealth licensure requirements were unlawful because they violated the physicians’ freedom of speech by preventing them from communicating with New Jersey residents without a valid in-state or telehealth license. That case was argued and ultimately dismissed by the District Court on May 12, 2025.

Thereafter, the physicians appealed the matter to the U.S. Court of Appeals for the Third Circuit, arguing that the District Court ruled incorrectly and seeking a reversal of the dismissal of their case.
The federal appellate panel in Philadelphia is now tasked with balancing the physicians’ free speech rights and New Jersey’s authority to regulate the practice of medicine. The panel is focused on the key question of how “treatment” should be defined and why a physician’s telemedicine conversation with a patient should not be considered part of the patient’s treatment. The physicians argued that the conversations are merely speech about treatment because you cannot treat cancer by talking. New Jersey’s Attorney General’s Office argued that telemedicine conversations are part of the treatment process and therefore professional conduct that can be regulated.

It remains to be seen how the Third Circuit will rule on the appeal, but the legal precedent and constitutional framework are likely to heavily favor preserving the authority of states to regulate the practice of medicine, which would mean affirming the District Court’s dismissal.

Even if the dismissal is upheld, this case underscores the ongoing push for healthcare across state lines and the efforts of providers to expand their ability to offer services to patients. These efforts will continue to be balanced against states’ obligations to ensure sufficient oversight to protect their residents and regulate the profession. While it is unlikely that the courts will ever eliminate the ability of states to require licenses and oversee the practice of medicine, the various compacts and interstate agreements allowing for telemedicine licenses across state lines are almost certain to continue to expand.

New legislation signed by New Jersey Governor Mikie Sherrill will now exempt certain qualified Advanced Practice Nurses (APNs) from longstanding joint protocol requirements, allowing them to practice independently. This Client Alert from our healthcare team provides an overview of the new law’s provisions, as well as related exceptions, compliance obligations, and key considerations for stakeholders.