Friday, January 29, 2016

Education Law Blog | Callagy Law

A closer look into the world of education law. 




The following article was written by Ben Light, Partner at Callagy Law, and will focus on many common questions and concerns surrounding new developments, legal matters, and other procedures within the practice area of School / Education Law. Our mission is to answer any questions and give knowledge to many different aspects of these matters.



 


 


Welcome to the initial entry of the Education Law blog.  Simply put, Education Law is the body of federal and state constitutional, statutory and common law that governs and affects your child’s education through the age of 21 – and even through college is some cases.  Some of the laws at issue are the Individuals with Disabilities Education Act (IDEA) and Section 504 of the Americans with Disabilities Act.  Education Law includes: special education; disability, race and sexual discrimination; student discipline; student bullying and other cases.


 


Your author is an education attorney with fifteen years of experience in the field.  I have relationships with some of the best pediatric specialists in the area and operate a non-profit dedicated to filling the gaps in the special education system for emotionally disturbed children.  I have tried many special education due process positions before the Office of Administrative Law both in Newark and Trenton.  I have also handled student discipline and student sexual abuse cases in Federal Court.


 


As we all grow older, we realize that the early experiences and education we had have shaped us into who we are.   As a parent of child having some sort of conflict in the education system you are probably worried about the long-term effect of the outcome of this dispute.  You should.  Being a parent is the single most important thing you will ever do so the pressure is natural.  One of my favorite feelings is seeing a client realize that time is going much slower in reality than it is in their heads.  That is not to say you should wait if you feel there is a problem, but once you start working on the problem, your child’s situation will improve within a few months if you continue to act.


 


Because of a recent case am I going to discuss student discipline in this initial entry.  A client came to me with a son at a very competitive university.  The student had been caught with an old flip phone in his pocket during an exam and the university had imposed an ethical sanction in his record, which would forever prohibit government and other employment.  All because he had an old cell phone in his pocket which he used as an alarm clock and to keep his schedule.  The university conceded that he was not cheating or attempting to cheat with the phone.  Patently ridiculous, right?


 


The client said, “Ben, this university has been sued 24 times to reverse a discipline decision and has never lost.  I think if I pay you to fight them it will be a waste of money.  Why do you think you can win?”


 


I told him we would win because we were right.   I guess I convinced him.  Thirty days later the university had rescinded the discipline because it was unlawful disability discrimination based on the student’s ADHD, as I described in the single letter I drafted on the case.


 


So here’s the initial lesson:  Your limiting beliefs are probably not an accurate predictor of any outcome unless you let them prevent you from acting.   Just because something has been wrong for a long time does not make it become right.


 


Through this blog I will address one topic at a time.  If you have any topics that you would like to see addressed, please e-mail me and I will either get back to you or write about it.


 


Next week I intend to address the issue of the appropriate metric to apply to assess educational progress by special education students and I think you will see that school districts are advocating for a very low bar.



 


 


The Team at Callagy Law hopes the information in this article was helpful in either your personal or professional life.. Callagy Law, is a multidisciplinary law firm, headquartered in Paramus, NJ owned and operated by Sean Callagy. We practice law in the areas of healthcare recovery, business law, litigation, school / education law, family law, and more! We are committed to providing legal representation and advice to our clients at additional law offices located across the United States. Please note that the information posted here should not be used as a legal argument of defense. If you find yourself needing legal advice pertaining to your unique situation, you can contact us at here. Feel free to search us on Facebook, Twitter or LinkedIn! Additionally you can subscribe to our daily videos on YouTube.



 


 


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Education Law Blog | Callagy Law

Wednesday, January 27, 2016

Medical Provider Applications In New Jersey Workers’ Compensation Courts

The Effect of the 2012 Amendment




The following article was written by Callagy Law’s Legal Team, and will focus on many common questions and concerns surrounding new developments, legal matters, and other procedures within the field of healthcare law Medical Revenue Recovery, PIP, Workers Compensation, and Commercial Insurance. Our mission is to answer any questions and give knowledge to many different aspects of these matters.



 


The New Jersey Workers’ Compensation courts provide a forum for healthcare providers to challenge inadequate reimbursements from workers’ compensation insurance carriers where the underlying claim is for a patient injured within the course of their employment.  It was not until 2012 that the New Jersey Workers’ Compensation courts gained exclusive jurisdiction over these types of claims.  The majority of cases that are filed in the Workers’ Compensation courts involve the injured worker’s (i.e. Petitioner) claim against his/her employer’s workers’ compensation insurance carrier (Respondent).


The 2012 Amendment to N.J.S.A. 34:15-15 effected a significant change in the rights of medical providers who have provided authorized treatment to injured workers in New Jersey. As a recent addition to the Workers’ Compensation Act, however, the language of the Amendment has not been interpreted in any prior decision in New Jersey.  The full text of the Amendment provides:


 


Fees for treatments or medical services that have been authorized by the employer or its carrier or its third party administrator or determined by the Division of Workers’ Compensation to be the responsibility of the employer, its carrier or third party administrator, or have been paid by the employer, its carrier or third party administrator pursuant to the workers’ compensation law, R.S.34:15-1 et seq., shall not be charged against or collectible from the injured worker. Exclusive jurisdiction for any disputed medical charge arising from any claim for compensation for a work-related injury or illness shall be vested in the division. The treatment of an injured worker or the payment of workers’ compensation to an injured worker or dependent of an injured or deceased worker shall not be delayed because of a claim by a medical provider.


 


N.J.S.A. 34:15-15.


 


Prior to this Amendment, the state of the law in New Jersey with respect to medical provider claims in workers compensation matters was extensively reviewed by the New Jersey Supreme Court in Univ. of Mass. Mem’l Med. Ctr., Inc. v. Christodoulou, 180 N.J. 334 (2004). As discussed in Christodoulou, while the Workers Compensation Act with limited exceptions provides an exclusive remedy to employees injured the course of their employment, the Act “does not purport to establish an exclusive remedy for a hospital or physician that, pursuant to a contract, has provided medical services to a patient who may or may not have suffered a job-related injury.” Id. at 346. Thus, medical providers asserting claims arising from treatment provided to injured workers previously had the option to pursue their claims either in the Division of Workers Compensation, as authorized by N.J.S.A. 34:15-15, or in a common law collection action in Superior Court. Id. at 353. If a claim by a medical provider was asserted in Superior Court while a related claim by an injured worker was pending in the Division, the medical provider action was to be transferred to the Division to facilitate the resolution of all claims in a single forum. Id. at 352.


 


The 2012 Amendment to N.J.S.A. 34:15-15 changed existing law by vesting exclusive jurisdiction for any disputed medical charge arising from any claim for compensation in the Division, thus eliminating the option to pursue a common law collection action in Superior Court. The 2012 Amendment also changed existing law by providing that fees for treatments authorized by a workers’ compensation carrier shall not be charged against or collectible from the injured worker. Prior to the 2012 amendment, there was no statutory prohibition against a medical provider asserting its common law contractual right to payment for services provided.  In the event the workers compensation carrier failed to make payment, or as is more common, made only a partial payment, and the petitioner settled its compensation claim without providing for payment of outstanding medical bills, the petitioner was exposed to potential liability for the balance.  The 2012 amendment eliminated the practice of “balance billing” by requiring the medical provider to seek payment exclusively from the workers compensation carrier, with no contribution from the employee.  With respect to medical provider claims covered by the 2012 Amendment, the statute thus significantly altered the medical provider’s rights by making a claim against the employer and its workers compensation carrier in the Division pursuant to N.J.S.A. 34:15-15 the exclusive remedy of the medical provider, supplanting its right to pursue its common law remedies in Superior Court.



 


 


Learning from others and seeking to find information is the first step to success. Whether you need questions answered about Medical Revenue Recovery, PIP, Workers Compensation, and Commercial Insurance., Callagy Law is here to assist you every step of the way. We are headquartered in Paramus, NJ and we are full service law firm that specializes in serving businesses, healthcare providers and individuals. Sean Callagy has assembled a team of attorneys that are exceptional leaders in their legal expertise and have been commended for providing exceptional legal services at every level. If you need a true hands of experience with a legal team, feel free to contact us at here and come meet with Sean Callagy himself. There is no substitute when it comes to working with a lawyer and law team that cares deeply about their clients. Feel free to search us on Facebook, Twitter or LinkedIn!



 


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Medical Provider Applications In New Jersey Workers’ Compensation Courts

Tuesday, January 26, 2016

Codes Not On ASC Fee Schedule Possibly Reimbursement | Callagy Law

Are CPT Codes not listed on the ASC Fee Schedule compensable in New Jersey PIP arbitration matters?




The purpose of this post is to help assist those with questions they have concerning their business or medical practice. The Callagy Law team is knowledgeable in many law practice areas and will frequently post topics ranging from Medical Revenue Recovery, PIP, Workers Compensation, and Commercial Insurance. We hope to have this blog shed a light on many common questions.



 


This issue of whether certain codes not listed on the ASC fee schedule are reimbursable to the ASC is currently a hotly contested one.  The ASC fee schedule is located at N.J.A.C. 11:3-29.1(b), Appendix Exhibit 1, and is colloquially referred to as the ASC fee schedule.  However, not all procedures performed at an ASC are listed on the ASC fee schedule.  This often results in insurance carriers denying payment for such fees to these facilities.


 


To support their denials, the carriers refer to N.J.A.C. 11:3-29.5(a).  On its face, that subsection clearly states that “codes that do not have an amount in the ASC facility fee column are not reimbursable when performed in an ASC.”  Seemingly, it was DOBI’s intent to place certain codes on the ASC fee schedule that DOBI had affirmatively considered, and to also include those codes which DOBI had considered should not be performed at an ASC, but to leave those codes with no amount of reimbursement.  However, for codes that do not appear on the ASC fee schedule, DOBI has not made such a consideration. Simply, DOBI has not considered such codes, and therefore, DOBI has not determined that such should not be performed at an ASC.


 


This firm takes the position that the ASCs should be entitled to UCR when hosting a procedure that is not listed at all on the ASC fee schedule.  In accordance with N.J.A.C. 11:3-29.4(e) “the insurer’s limit of liability for any medical expense for any service or equipment not set forth in or not covered by the fee schedule shall be a reasonable amount considering the fee schedule amount for similar services or equipment in the region where the service or equipment was provided. … Only when there is no similar service in the fee schedule does the regulation state that “the insurer’s limit of liability for any medical expense benefit for any service or equipment not set forth in the fee schedule shall not exceed the usual, customary and reasonable fee.”  Therefore, an ASC should be reimbursed at the usual, customary and reasonable (“UCR”) fee for codes that do not appear on the ASC fee schedule.


 


Several awards from arbitrators support our position, including the most recent award from DRP Nanci Stokes.  In the matter of Gloucester Surgery Center a/s/o C.S. v. Plymouth Rock Assurance of New Jersey, NJ-1628906, DRP Stokes agreed with the ASC claimant’s position, whereby she found the following:


 


In this matter, I find that the claimant is entitled to reimbursement for CPT 24665… the overwhelming scheme of reimbursement as to an ASC is based upon Medicare’s determination and judgment relative to patient safety. This is specifically acknowledged by the Appellate Division in upholding the regulation at issue… The regulation specifically advises that CPT codes appearing on the Physician and ASC Fee Schedule …that do not have an amount in the ASC facility fee column are not reimbursable. The code at issue is not listed on the fee schedule. As such, there is no clear prohibition for reimbursement in the actual wording of the regulation regardless of the Department’s response relied upon by respondent.  Accordingly, given Medicare’s allowance of CPT 24665 in an ASC and acknowledgment by the Department that Medicare’s determination adequately “ensures the safety of patients and the quality of services”, I find reimbursement is permitted.


As the code is not contained on the fee schedule, reimbursement is subject to a usual customary and reasonable analysis.


 


This firm completely agrees with DRP Stokes’ analysis, as well as similar rulings from some of her DRP brethren which also found that codes which are not listed on the ASC fees schedule are still reimbursable to ASCs. 


 


This is still an evolving issue, but so far, the majority of DRPs have agreed with the Claimant’s position.  As such, this firm is thrilled to be able to recover additional money for our ASC clients.



 


We hope you found the information provided in this article helpful to various questions you may have had concerning the healthcare industry. For information pertaining to our services for medical providers, please click here. Please note, Callagy Law has recovered over $185,000,000 for medical providers, and that number grows daily. Please free to reach out to Sean Callagy of Callagy Law at any time for questions you may have concerning personal and business matters. Callagy Law offices are located conveniently in Paramus, NJ. Beyond the scope of information, Sean Callagy has developed multiple areas of our healthcare legal practice and business coaching. Feel free to connect with us on Facebook, Twitter or LinkedIn! Additionally you can subscribe to our daily videos on YouTube.



 


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Codes Not On ASC Fee Schedule Possibly Reimbursement | Callagy Law

Friday, January 22, 2016

Is Ted Cruz “Born To Run?” | Callagy Law

The Controversy over Ted Cruz’s Eligibility for President and the Vicissitudes of Constitutional Law




The purpose of this post is to help assist those with questions they have concerning their business or medical practice. The Callagy Law team is knowledgeable in many law practice areas and will frequently post topics ranging from Medical Revenue Recovery, PIP, Workers Compensation, and Commercial Insurance. We hope to have this blog shed a light on many common questions.



 


Whatever you may think about his politics or personality, Donald Trump has injected an interesting debate into the election year discourse. Although it may have been a mere distraction tactic, Trump’s questioning whether presidential candidate Senator Ted Cruz is constitutionally eligible to serve as President has generated countless headlines in the news media and has prompted the country’s foremost legal scholars to enter the fray. And, as is often the case, the only consensus appears to be that the answer isn’t clear cut. Why that is reveals a telling feature of Constitutional law.


First, background: Ted Cruz was born in Canada in 1970. His father was a Cuban-born, Canadian citizen and his mother was an American-born U.S. citizen. He held citizenship from both nations until he voluntarily renounced his Canadian citizenship in 2014.


According to Article II, Section 1, Clause 5 of the Constitution, among the requirements to be eligible to serve as President is that one must be a “natural born citizen.” The phrase sounds simple enough, but what it actually means is anything but.


On one side you have those who argue that, if the word “natural” is to have any meaning at all, the phrase must mean more than merely someone who is a citizen at birth. Otherwise, why not just say “born citizen”? Could the founders have been so carelessly verbose?


Evidence to support this view comes from the founders’ purported own understanding of the word “natural.” At the time it meant something not created by statute—i.e., not a law enacted by Congress (or, in pre-revolutionary times, the British Parliament)—as in “natural rights,” which were part of the judge-made common law stretching back through the history of England to the Magna Carta and incorporated into early American law.


At common law, “natural born” meant born within the nation’s sovereign territory. The only exception was for those born to public officials serving the nation in a foreign land—for example, the child of a diplomat serving in France. So, the argument goes, by including the word “natural” in “natural born citizen” the Founders meant that only those born within the sovereign territory of the United States or to public officials serving abroad could become President. Under this theory, then, Ted Cruz is ineligible.


On the other side you have those who argue that, because the Constitution gives Congress the authority to determine the requirements of citizenship (Article I, Section 8), a “natural born citizen” is whatever Congress says it is at any given time.


In 1970, when Cruz was born, section 301 of the Immigration and Nationality Act, which is still in effect today, provided that “a person born outside the geographical limits of the United States. . . of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States . . . for . . . not less than five years, at least two of which were after attaining the age of fourteen years” is a citizen of the United States. Under this theory, then, Ted Cruz could be the next Commander in Chief – if he gets elected, of course.


Brilliant legal minds are scattered on both sides of the debate. Harvard law professors disagree with each other while two former solicitors general – one appointed by George W. Bush, the other by Barack Obama – completely agree with one another. It’s quite a mess. But what it tells us is that the essence of the law, and Constitutional law in particular, is debate itself.


It is a debate the Supreme Court will enter only if Senator Cruz is threatened with government action against him because of the issue—for example, if a state official, believing Cruz to be ineligible on account of his birthplace, refuses to put Cruz’s name on a ballot. One recent lawsuit filed by a retired Texas federal prosecutor, suing on behalf of all registered voters, will almost certainly be dismissed for lack of standing. Until the Supreme Court decides the issue, it will continue to be a debate more academic than practical.


Regardless, the debate is important because it reveals the nebulous nature of Constitutional law and the enormous power of the Supreme Court—deciding the meaning of words written hundreds of years ago to determine who may and may not lead this country.



 


We hope you found the information provided in this article helpful to various questions you may have had concerning the healthcare industry. For information pertaining to our services for medical providers, please click here. Please note, Callagy Law has recovered over $185,000,000 for medical providers, and that number grows daily. Please free to reach out to Sean Callagy of Callagy Law at any time for questions you may have concerning personal and business matters. Callagy Law offices are located conveniently in Paramus, NJ. Beyond the scope of information, Sean Callagy has developed multiple areas of our healthcare legal practice and business coaching. Feel free to connect with us on Facebook, Twitter or LinkedIn! Additionally you can subscribe to our daily videos on YouTube.



 


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Is Ted Cruz “Born To Run?” | Callagy Law

Thursday, January 21, 2016

Effects of PPACA on Workers’ Compensation

A closer look into the Universal Healthcare System



The purpose of this post is to help assist those with questions they have concerning their business or medical practice. The Callagy Law team is knowledgeable in many law practice areas and will frequently post topics ranging from Medical Revenue Recovery, PIP, Workers Compensation, and Commercial Insurance. We hope to have this blog shed a light on many common questions.


 


This week, Democratic Presidential Candidate Bernie Sanders unveiled his universal healthcare plan aimed to guarantee healthcare as a fundamental right for every American.  The Sanders healthcare strategy is to expand medicare and creating a single payer health care system for every American. Sanders, a supporter of the Patient Protection and Affordable Care Act (PPACA), does not feel the PPACA goes far enough to provide the nation with adequate healthcare coverage. To fund the cost of the plan, Sanders plans to increase the top marginal tax rate to 52% for income over ten million dollars and by imposing a 2.2% flat tax on all income beyond the standard deduction.


 


The PPACA, also known as “Obamacare”, was enacted in 2010. Obamacare had no direct affect on the United States’ workers’ compensation system. The PPACA is targeted at health insurance, which provides coverage for non-work injuries and illness.  The act also does not make any changes to the control states have over their workers’ compensation system. However, some experts believe that the PPACA will have long term indirect effects on the workers’ compensation system. The first of these effects is a decrease in fraudulent workers’ compensation claims. The reasoning behind this effect is that as health care is made more available there will be less motivation to cheat the workers’ compensation system into paying for non-work related injuries. A second effect is that in theory a healthier US population would be less likely to suffer work injuries and, thus, the number of workers’ compensation claims would decrease. Additionally, those workers that do file workers’ compensation claims would need less treatment due to improved overall health. A final and concerning indirect effect is that an increased in the number of insured individuals may overwhelm the healthcare industry and cause greater delays in treatment.


 


According to a report by the Centers for Disease Control and Prevention there were roughly 11.4 million uninsured Americans as of 2014. Senator Sanders’s “Medicare for All” plan would cover these individuals. Like the PPACA, there seems to be no mention of any direct effects on workers’ compensation but due to the additional number of participants in the system, the indirect effects are likely to be magnified.



 


We hope you found the information provided in this article helpful to various questions you may have had concerning the healthcare industry. For information pertaining to our services for medical providers, please click here. Please note, Callagy Law has recovered over $185,000,000 for medical providers, and that number grows daily. Please free to reach out to Sean Callagy of Callagy Law at any time for questions you may have concerning personal and business matters. Callagy Law offices are located conveniently in Paramus, NJ. Beyond the scope of information, Sean Callagy has developed multiple areas of our healthcare legal practice and business coaching. Feel free to connect with us on Facebook, Twitter or LinkedIn! Additionally you can subscribe to our daily videos on YouTube.



 


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Effects of PPACA on Workers’ Compensation

Tuesday, January 19, 2016

Reimbursement For Fewer Than All CPT Codes Billed | Callagy Law

IS THIS PERMISSIBLE UNDER NEW JERSEY PIP REGULATIONS?



 


After searching various sources, we have found many people have questions when it comes to Medical Revenue Recovery, PIP, Workers Compensation, and Commercial Insurance.. Do you have questions pertaining to reimbursement? Do you know what to do if problems arise? With articles written by Callagy Law’s law team, this blog will focus on many common questions and concerns surrounding legal matters which can arise in the field of healthcare law.



 


Let’s say someone injured their right knee in a motor vehicle accident and underwent physical therapy but still had residual pain and deficit of function.  The patient went to an orthopedist, who recommended and performed a right knee arthroscopic surgery.  The doctor billed two CPT arthroscopic knee surgery codes, Codes 29875 (limited synovectomy) and CPT Code 29877 (debridement/shaving of articular cartilage, or chondroplasty).   The Operative Report even shows both these procedures were performed as part of the knee surgery.  Why, then, did the PIP insurer only reimburse the doctor for treatment under CPT Code 29875?  Isn’t the doctor entitled to separate reimbursement for the procedures performed under CPT Code 29877?  The short answer is no, as discussed below.


Reimbursement under New Jersey PIP law is generally governed by N.J.A.C. 11:3-29.4,  “Application of medical fee schedules.”  This regulation states providers and payors shall use the National Correct Coding Initiative (NCCI) Edits as updated by CMS (The Centers for Medicare & Medicaid Services.)   Under the NCCI Edits, one CPT Code may be considered bundled into another Code, and payment will only be due for the one Code.  Other times, a modifier may be required in the billing of the second Code and documentation to show the second procedure was “over and above” the treatment provided under the first Code.  Other times, Codes are listed but there is no conflict and no barrier (from this perspective) to separate reimbursement for both Codes.


More specifically, the governing PIP regulation, N.J.A.C. 11:3-29.4 (g)(1) states:


Artificially separating or partitioning what is inherently one total procedure into subparts that are integral to the whole for the purpose of increasing medical fees is prohibited. Such practice is commonly referred to as “unbundling” or “fragmented” billing. Providers and payors shall use the National Correct Coding Initiative (NCCI) Edits, incorporated herein by reference, as updated quarterly by CMS and available at http://www.cms.hhs.gov/NationalCorrectCodInitEd/. Modifier 59 and other NCCI-associated modifiers should not be used to bypass an NCCI edit unless the proper criteria for use of the modifier are met. Documentation in the medical record must satisfy the criteria required by any NCCI-associated modifier used. For more information on the criteria for the use of modifiers, see the NCCI Policy Manual and Modifier 59 Article referenced in (g) above.


 


Therefore, to determine if a medical provider is entitled to separate reimbursement for multiple CPT Codes, the NCCI Edits must be reviewed.  Information on NCCI Edits may be found at https://www.cms.gov/Medicare/Coding/NationalCorrectCodInitEd/index.html.


A pair of codes must be looked up to determine if there is an NCCI edit.  If the codes do appear on the list of NCCI edits, check if the edit was in effect the date the treatment was performed.  There is a column for “effective date,” as well as “deletion date.”


Let’s assume your pair of codes are on the NCCI edit list and the edit was in effect when the treatment was provided.  The next issue is whether the edit is designated a “0”, a “1” or a “9.”  If your pair has a “9” designation, there is no conflict.  If your pair has a “0” designation, you are not entitled to separate reimbursement for both codes.  If, however, your pair has a “1” designation, you may be entitled to separate reimbursement if the conditions for separate reimbursement are met.  The conditions are billing with a proper modifier (often a -59 modifier) and having the proper documentation to support separate reimbursement.  The type of documentation generally required for separate reimbursement is proof the second treatment was “over and above” or “separate and distinct” from the treatment provided under the first code.


 


In our example above, CPT Code 29877 is not separately reimbursable from CPT Code 29875.  The NCCI edit conflict is set forth below, and contains a designation of “0,” meaning no modifier and documentation will overcome the bundled designation of the second code.








Column 1Column 2* = In existence prior to 1996Effective DateDeletion Date

*=no data
Modifier

0=not allowed

1=allowed

9=not applicable

 








2987529877*20030401*0

 


 


An example of a “1” designation is billing for an arthroscopic shoulder surgery under CPT Code 29827 (rotator cuff repair) and 29825 (lysis and resection of adhesions).  The pair of these codes has a “1” designation.  Use of a -59 modifier with adequate documentation justifying the second code may result in separate reimbursement.


 








298272982520030701*1

 


 


It is important to be familiar with current NCCI Edit conflicts and requirements to obtain separate reimbursement, when applicable.



 


We hope you found the information provided in this article helpful to various questions you may have had concerning the healthcare industry. For information pertaining to our services for medical providers, please click here. Please note, Callagy Law has recovered over $175,000,000 for medical providers, and that number grows daily. Please free to reach out to Sean Callagy of Callagy Law at any time for questions you may have concerning personal and business matters. Callagy Law offices are located conveniently in Paramus, NJ. Beyond the scope of information, Sean Callagy has developed multiple areas of our healthcare legal practice and business coaching. Feel free to connect with us on Facebook, Twitter or LinkedIn! Additionally you can subscribe to our daily videos on YouTube.



 


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Reimbursement For Fewer Than All CPT Codes Billed | Callagy Law

Monday, January 18, 2016

A Closer Look into Amendments | Callagy Law

15 Million Civil Lawsuits Are Filed Each Year in the United States | More insight into amendments




The following article was written by Callagy Law’s Legal Team, and will focus on many common questions and concerns surrounding new developments, legal matters, and other procedures within business and commercial litigation. Our mission is to answer any questions and give knowledge to many different aspects of these matters.



 


 


According to the latest polls, 15 million civil lawsuits are filed each year. That is one lawsuit for every twelve adults in America and one filing every two seconds. One overarching flaw that a majority of these complaints and their corresponding answers have in common is that they fail to name all the proper parties or assert all the proper claims or defenses. The mechanism to fixing these mistakes is called an amendment.


 


In the trial level court of New Jersey, called the Superior Court, one of the rules governing amendments is 4:9-1. Specifically this rule allows a party to amend their pleading once at any time before the opposing party responds. After a party a responds, there are then only two avenues to amend: one is by consent of the other party and the other is by leave of court which “shall be freely given in the interest of justice”


 


The phrase “in the interest of justice” is quite broad and may leave many readers wondering what courts will look to decide if an amendment fits into this phrase. While there a handful of factors that a court analyzes in reaching this conclusion, the overwhelming consideration is the prejudice that will be suffered by the other party if the amendment is granted.


 


In Keller v. Pastuch, the Plaintiff, who were husband and wife, brought suit against an automobile driver after the car the wife was riding in was struck by the Defendant. 94 N.J. Super. 499, 501 (App. Div. 1967). On the opening day of trial the defendant sought leave of court to amend his answer to include a new defense. Id. Subsequently, the court granted a mistrial and heard, later on that same day, oral arguments on whether the amendment should be granted. Id.


The plaintiffs argued that they would be substantially prejudiced due to the lateness of the defendant’s proposed amendment. Id. In response, the defendant argued that he did not know this defense was available to him until a recently conducted interview. Id. at 503. The court sided with the plaintiff and held that the defendant could have asserted the defense earlier, which in turn would have allowed the plaintiff’s to preserve their rights.


 


By contrast, in Sheppard v. Braun the court granted plaintiff’s motion to amend to add two new parties. No. ATL-L-1900-05, 2005 WL 2560782, at *1 (N.J. Super. Ct. Oct. 7, 2005). The plaintiff, a car accident victim, sought to add the Borgata Hotel after he recently learned that the hotel may have been serving alcoholic beverages that contributed to the accident. Id.  The court summarily granted the motion, due to the fact that it was unopposed and no trial or arbitration date had been set. Id.


 


Thus, as a litigant it is important to act swiftly when amending a pleading, so as to ensure that the opposing party is not prejudiced and thereby causing the court to deny the amendment.



 


Sean Callagy, the owner and President of Callagy Law is an attorney, business coach, public speaker, and entrepreneur; and is dedicated to the personal and business growth. Please reach out to us here with any questions or comments regarding personal or business matters. We will to continue to provide daily updates with helpful information on our website and social media. Please feel free to contact Callagy Law at anytime. Feel free to connect with us on Facebook, Twitter or LinkedIn! Additionally you can subscribe to our daily videos on YouTube by clicking here.



 


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A Closer Look into Amendments | Callagy Law

Upcoming Shortage of Physicians | Callagy Law

Difficulties Facing the American Healthcare System – What You Need To Know!



 


The purpose of this post is to help assist those with questions they have concerning their business or medical practice. The Callagy Law team is knowledgeable in many law practice areas and will frequently post topics ranging from Medical Revenue Recovery, PIP, Workers Compensation, and Commercial Insurance. We hope to have this blog shed a light on many common questions.



 


There are many difficulties facing the American healthcare system, but perhaps chief among them is a possible shortage of physicians.  The Association of American Medical Colleges (AAMC) predicts that an approximate shortage of 90,000 – 130,000 physicians will occur in the US by the year 2025.  There are many factors contributing to this problem, including inadequate enrollment in medical schools.


Many new allopathic (M.D. granting) and osteopathic (D.O. granting) medical schools have been established in recent years, with overall medical school enrollment expected to increase by 30% by 2019. New Jersey has recently started Cooper Medical School of Rowan University and Seton Hall School of Medicine to help meet the health care needs and many other states are following suit.


While increasing the number of medical schools would help to alleviate this shortage, perhaps a more important and overlooked issue is reduction in the fund of residency positions. A residency is a multi-year education program medical school graduates must complete before they can become practicing physicians or surgeons. In 1997, Congress capped the number of Medicare-supported residency positions. In other words, even if we add medical school graduates by increasing the number of medical schools, we will not add to the number of practicing physicians unless we also add to the number of residency training programs.  A bill was introduced that would increase residency positions in 2012, but Congress has yet to act on the bill.


The AAMC urges all Americans to rally for support of this bill, and while it will not entirely fix the projected physician shortage, it seems to be a step in the right direction.


Sources



 


We hope you found the information provided in this article helpful to various questions you may have had concerning the healthcare industry. For information pertaining to our services for medical providers, please click here. Please note, Callagy Law has recovered over $175,000,000 for medical providers, and that number grows daily. Please free to reach out to Sean Callagy of Callagy Law at any time for questions you may have concerning personal and business matters. Callagy Law offices are located conveniently in Paramus, NJ. Beyond the scope of information, Sean Callagy has developed multiple areas of our healthcare legal practice and business coaching. Feel free to connect with us on Facebook, Twitter or LinkedIn! Additionally you can subscribe to our daily videos on YouTube.



 


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Upcoming Shortage of Physicians | Callagy Law

Thursday, January 14, 2016

Section 20 Settlements

The purpose of this post is to help assist healthcare providers and owners with questions they have concerning their business or relevant knowledge in the field. The Callagy Law team is knowledgeable in many law practice areas and will frequently post topics ranging from Medical Revenue Recovery, PIP, Workers Compensation, and Commercial Insurance. We hope to have this blog shed a light on many common questions.



 


 


Section 20 Settlements


 


According to N.J.S.A. 34:15-20, the parties to a workers’ compensation claim petition may settle the claim where (1) jurisdiction, liability, causality and/or dependency are disputed; (2) the parties wish to resolve the claim with a lump sum settlement; (3) the parties consent to the settlement; (4) the parties are represented by Counsel; and (5) a judge of compensation determines that the settlement is fair and just under the circumstances.  Notably, once the settlement is approved, it shall have the force and effect of a dismissal of the claim petition and shall be binding on the employee and employee’s dependants.  Id. Such settlements are commonly referred to as “Section 20 Settlements” based on N.J.S.A. 34:15-20.  In relevant part, N.J.S.A. 34:15-20 states:


 


34:15-20. Dispute; submission to division; order approving settlement.


 



 


After a petition for compensation or dependency claims has been filed, seeking compensation by reason of accident, injury or occupational disease of any employee, and when the petitioner is represented by an attorney of the State of New Jersey, and when it shall appear that the issue or issues involve the question of jurisdiction, liability, causal relationship or dependency of the petitioner under this chapter, and the petitioner and the respondent are desirous of entering into a lump-sum settlement of the controversy, a judge of compensation may with the consent of the parties, after considering the testimony of the petitioner and other witnesses, together with any stipulation of the parties, and after such judge of compensation has determined that such settlement is fair and just under all the circumstances, enter “an order approving settlement.” Such settlement, when so approved, notwithstanding any other provisions of this chapter, shall have the force and effect of a dismissal of the claim petition and shall be final and conclusive upon the employee and the employee’s dependents, and shall be a complete surrender of any right to compensation or other benefits arising out of such claim under the statute.


Parties should be aware of the availability of Section 20 settlements when defending/pursuing workers’ compensation claims as an option to avoid protracted litigation. Indeed, Section 20 Settlements are particularly appealing where the costs of defending against or pursing a claim are not sensible in light of the value claim. However, when entering into a Section 20 settlement, the parties should be mindful of the fact that such a settlement will likely bar any subsequent claims by the petitioner and such employee’s dependants.



 


 We hope you found the information provided in this article helpful to various questions you may have had concerning the healthcare industry. For information pertaining to our services for medical providers, please click here. Please note, Callagy Law has recovered over $175,000,000 for medical providers, and that number grows daily. Please free to reach out to Sean Callagy of Callagy Law at any time for questions you may have concerning personal and business matters. Callagy Law offices are located conveniently in Paramus, NJ. Beyond the scope of information, Sean Callagy has developed multiple areas of our healthcare legal practice and business coaching. Feel free to connect with us on Facebook, Twitter or LinkedIn! Additionally you can subscribe to our daily videos on YouTube.



 


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Section 20 Settlements

Why Not with Sean Callagy #32 | Welcome to 2016



Why Not?! – Episode 32


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The Daily Why Not Huddle is for you if you want to exponentially increase your money, time, or fulfillment. The Why Not Huddle with business coaching expert, successful entrepreneur, and attorney Sean Callagy provide the essential daily ingredients for you to create and achieve your destiny.



Why Not with Sean Callagy #32 | Welcome to 2016

Wednesday, January 13, 2016

Section 40 Liens | Callagy Law

The purpose of this post is to help assist healthcare providers and owners with questions they have concerning their business or relevant knowledge in the field. The Callagy Law team is knowledgeable in many law practice areas and will frequently post topics ranging from Medical Revenue RecoveryPIPWorkers Compensation, and Commercial Insurance. We hope to have this blog shed a light on many common questions.


Section 40 Liens


Under Section 40, a petitioner is obligated to reimburse the workers’ compensation insurance company two-thirds of whatever they paid you (temporary benefits, medical benefits and Perm benefits) less $750.00. The general theory is that an injured worker is not allowed to a “double recovery.” In Workers’ Compensation, when someone is injured on the job, the employer pays temporary disability benefits, provides medical care, and also provides permanent disability benefits based on the nature and extent of the injured worker’s permanent injuries. The employer pays this regardless of fault.  However, when there is a liable third party, the law allows the employer to seek reimbursement of a portion of the benefits that they paid out from that third party.


Specifically, Section 40 (N.J.S.A. 34:15-40) provides in pertinent part: “Where a third person is liable to the employee or his dependents for an injury or death, the existence of a right of compensation from the employer or insurance carrier under this statute shall not operate as a bar to the action of the employee or his dependents, nor be regarded as establishing a measure of damage therein. In the event that the employee or his dependents shall recover and be paid from the said third person or his insurance carrier, any sum in release or in judgment on account of his or its liability to the injured employee or his dependents, the liability of the employer under this statute thereupon shall be only such as is hereinafter in this section provided.”


In Greene v. AIG Casualty Company, A-6287-11T4 (App.Div. October 16, 2013), the only published case on this issue, the Appellate Division provided that is does not matter that the compensation case is ultimately found non-compensable: the employer still can enforce its lien rights as to prior payments made. The Court went on to state that its holding is consistent with the remedial purpose of the Act by “making benefits readily and broadly available to injured workers through a non-complicated process.” Tlumac v. High Bridge Stone, 187 N.J. 567 (2006).  The court said that this policy encourages employers to make prompt voluntary payments because it provides much needed medical and wage loss benefits to claimants while their claim is being investigated.  In addition, the court said that its decision is consistent with the policy in New Jersey against double recoveries.


Parties should be aware of the availability of Section 40 liens when defending/pursuing workers’ compensation claims as an option to avoid protracted litigation.


 We hope you found the information provided in this article helpful to various questions you may have had concerning the healthcare industry. For information pertaining to our services for medical providers, please click here. Please note, Callagy Law has recovered over $175,000,000 for medical providers, and that number grows daily. Please free to reach out to Sean Callagy of Callagy Law at any time for questions you may have concerning personal and business matters. Callagy Law offices are located conveniently in Paramus, NJ. Beyond the scope of information, Sean Callagy has developed multiple areas of our healthcare legal practice and business coaching. Feel free to connect with us on Facebook, Twitter or LinkedIn! Additionally you can subscribe to our daily videos on YouTube.



Section 40 Liens | Callagy Law

Tuesday, January 12, 2016

MAKING NO-FAULT NO PROBLEM | Callagy Law

A closer look into No-Fault, PIP and other important information



 


After searching various sources, we have found many people have questions when it comes to Medical Revenue Recovery, PIP, Workers Compensation, and Commercial Insurance.. Do you have questions pertaining to reimbursement? Do you know what to do if problems arise? With articles written by Callagy Law’s law team, this blog will focus on many common questions and concerns surrounding legal matters which can arise in the field of healthcare law.



 


Car accidents can be overwhelming, one minute you’re on your way to work, the next minute you’re sorting through medical bills and trying to determine if you have enough insurance coverage for accident related injuries. This is why an understanding of medical benefit coverage under your New Jersey automobile insurance policy is crucial.


In the New Jersey No- Fault System, a patient’s medical claims are paid under the Patient’s First Party Policy, even if the motor vehicle collision is the patient’s own fault.  All personal car insurance policies in New Jersey must contain No Fault coverage.  These No- Fault Benefits are known as Personal Injury Protection or “PIP.”


The benefit of the PIP System is that the determination of liability has no bearing on the Insurance Company’s responsibility to pay the insured’s medical bills, which allows for a medical provider to receive payment prior to the underlying issue of liability being resolved. Basically, this system allows a patient to receive their necessary treatment, and a doctor to receive prompt payment.


As payment is made under the patient’s own policy, it is important that owners of private vehicles make prudent decisions when choosing their PIP Policy Coverage Limits.


The State of New Jersey allows for the election of PIP coverage in lesser amounts ($150,000.00, $75,000.00, $50,000.00 or $ 15,000.00).


Ideally, every patient would be insured under a $250,000.00 PIP Policy, meaning a patient’s medical bills would be covered up to a total of $250,000.00.


However, a patient may be enticed to select a Basic Policy, which provides only limited coverage in the amount of $15,000.00. While a limited policy may seem great at first glance, as the premiums are lower, if a patient is in a significant collision, their policy may be quickly exhausted leaving the patient on the hook for thousands in medical bills.


For example, subsequent to a motor vehicle collision, a patient may be transported to a Hospital for Emergency Room Treatment; thereafter, an extended period of chiropractic care for neck/back injuries will be recommended; and the patient may be further referred for MRIs, EMGs, pain management care and even surgery, which will easily exceed $15,000.00.


Additionally, in New Jersey, an automobile owner may choose a Health Insurance Primary Policy wherein a motor owner designates his/her health insurance policy is primary for a reduced premium.


When a patient is insured under a Health Insurance Primary policy it very important that the Medical Provider bill the Patient’s Health Insurance Provider first. After a denial is received from the Health Insurance Carrier, the Medical Provider must submit the Health Insurance Denial as well as the Providers bill to the patient’s PIP Carrier for payment.


In sum, it is important for a patient to research their options and be aware of the consequence that may follow when selecting PIP coverage for a reduced amount at a lower premium.



 


The Team at Callagy Law hopes the information in this article was helpful in either your personal or professional life. The legal world pertains to all walks of life and more specifically, various types of healthcare providers. Callagy Law, is a multidisciplinary law firm, headquartered in Paramus, NJ owned and operated by Sean Callagy. We are committed to providing legal representation and advice to our clients at additional law offices located across the United States. Please note that the information posted here should not be used as a legal argument of defense. If you find yourself needing legal advice pertaining to your unique situation, you can contact us at here. Feel free to search us on Facebook, Twitter or LinkedIn! Additionally you can subscribe to our daily videos on YouTube.



 


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MAKING NO-FAULT NO PROBLEM | Callagy Law

Monday, January 11, 2016

THE REMEDY FOR DESTRUCTION OF EVIDENCE | Callagy Law

SANCTIONS AND SPOLIATION: A closer look into Making A Murderer



 


If you have found yourself (as I have) captivated by the Netflix original documentary “Making A Murder”, you certainly see the importance and value of evidence in a legal action. Evidence – or the lack thereof – can either make or break your case. For example, when police investigators “discovered” the keys for a victim in Steven Avery’s house, that was one of the most compelling pieces of physical evidence linking Steven Avery to the crimes he was charged with. What’s more, it was his DNA on those keys that was likely the most condemning evidence of all.


 


But what about the victim’s DNA? Shouldn’t the victims DNA be on her keys?


 


The answer is maybe. If the keys were found to be tampered with and Steven Avery’s DNA added to those keys, not only would that evidence potentially exonerate Steven Avery from the crimes he committed, but it would also inculpate the investigators who discovered those keys, as well as others.


 


While we allow the story of Steven Avery to unfold, we have to ask about evidence in our own cases. Most of us do not have kinds of challenges Steven Avery faced in his trials. Most of our legal concerns are limited to civil lawsuits.


 


So what remedy do we have available to us when our adversaries may have tampered with or destroyed evidence that we need to prove our case or disprove our adversary’s case in the civil context? In addition to discovery sanctions, we have additional remedies for “Spoliation of Evidence.”


 


With regard to discovery sanctions, almost each and every state has specific rules regarding the preservation and production of evidence. For example, Rule 4:23-5 of the New Jersey Court Rules provides an outline for how to obtain sanctions, including dismissal of the Complaint or suppression of an Answer and Defenses, for failure to appropriately produce evidence requested.


 


Additionally, where appropriate, a Court may enter an Order allowing the jury (or the Judge) to accept as true that the contents of a document or the state of a piece of physical evidence is what the party seeking that Order says it is. Courts have ordered adverse inferences for spoliation of evidence, especially when that conduct is found to be intentional or reckless. To obtain an adverse inference due to spoliation of evidence, the moving party must show the evidence was essential and the spoliation was the result of an intentional act or bad faith. For example, in a product’s liability case involving a defective safe guard on power tool that malfunctioned, where the defendant destroys the power tool preventing the Plaintiff from having an expert analyze it to opine that it was defective, the Plaintiff may be entitled to an Order stating that the jury can find that the power took was defective without further discussion or deliberation.


 


While these remedies may not fully cure the harm caused by the destruction of evidence, it may go a long way towards making a litigant whole after the intentional or reckless conduct that resulted in the destruction of a key piece of evidence.



 


We hope you found the information provided in this article helpful to your everyday life and business. Please free to reach out to Sean Callagy or the Callagy Law team at any time for questions you may have concerning personal and business matters. Callagy Law’s headquarters is located conveniently in Paramus, NJ. Beyond the scope of information, Sean Callagy has developed multiple areas of business legal practice and business coaching, if you need help with anything, please reach out to us by calling 201-261-1700 or by emailing us here. Feel free to connect with us on Facebook, Twitter or LinkedIn! Additionally you can subscribe to our daily videos on YouTube by clicking here.


 


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THE REMEDY FOR DESTRUCTION OF EVIDENCE | Callagy Law

Saturday, January 9, 2016

Custody Involving A Non-Parent: The Psychological Parent

An In Depth Look and Rights and Circumstances.



 


The following article was written by Callagy Law’s Legal Team, and will focus on many common questions and concerns surrounding new developments, legal matters, and other procedures within the practice area of Family Law. Our mission is to answer any questions and give knowledge to many different aspects of these matters.



 


Contested custody and parenting time disputes between divorcing parents is, unfortunately, a common occurrence in litigated matrimonial matters.  Most people have some familiarity, either directly or indirectly, with the general notion that courts will decide custody and parenting time conflicts between parents based upon a determination of what is in the child’s best interests.  However, how much consideration is given to potential custody and parenting time disputes between a parent and a non-parent, third party?   Probably very little, yet given the ever-evolving nature of “family,” which may include unmarried cohabitants, domestic partners, step-parents, extended family members such grandparents, aunts, uncles, etc., custody and parenting time disputes between a legal parent and a third party is a very real possibility which may become a more frequent occurrence.  Fortunately, through developing case law our courts have established legal principles that have addressed such a situation, balancing intrinsic parental rights while remaining resolute in protecting the best interests of minor children.


 


A Parent’s Fundamental Right


 


A legal parent has a right to the care and custody of his or her minor child.[i]  These rights are so basic and fundamental to the parent-child relationship that they are constitutionally protected, providing a parent with the right to raise their child without government interference.[ii]  However, such rights are not absolute.  Parental rights are routinely confined and abrogated in “issues of custody, visitation, child support and myriad other aspects of domestic relations.”[iii]  The recognition that such parental rights are not absolute reflects the long-standing principal that courts in family law matters are charged with parens patriae authority, the right of the state to protect a child’s wellbeing.  Such authority permits a court to issue an order as to the care and custody of a child based upon a showing that the order is in the child’s best interests.[iv]


 


A custody dispute between legal parents is a rather straightforward, at least in terms of the legal process.  At the outset, a presumption exists that both parents are equally entitled to the care and custody of their minor child.[v]  As neither legal parent has a greater right to the care and custody of their minor child, the focus of such a dispute is fixed upon the best interests of the child.[vi]  When determining what custodial arrangement will be in the minor child’s best interests, as between the child’s legal parents, the court is required to make factual findings considering the fourteen (14) factors enumerated in N.J.S.A. 9:2-4.  While such litigation is more often than not fraught with acrimony to the great emotional and financial costs of the litigants and the minor child, the basic legal framework is uncomplicated.  The “best interests of the child” standard is applied to custody disputes between legal parents, with both parents standing on equal-footing and a statutory structure to guide attorneys and the judiciary toward a resolution.


 


Rights of A Third-Party Against A Legal Parent


 


However, when a non-parent seeks custody of a minor child over the objection of a legal parent, the same legal standards do not apply, at least not initially.  As a general principle, third parties have no legal rights to the care and custody of a minor child.  For example, through prior case law it has been clearly established that grandparents, siblings or stepparents have no “inherent” rights to custody of the child.[vii]


 


In the context of a custody dispute between a legal parent and a third party, a presumption of custody exists in favor of the legal parent.[viii]  However, that presumption can be overcome.  Importantly, the “best interest standard” applicable in custody disputes between legal parents, cannot be utilized to rebut the presumption in favor of a legal parent in a custody dispute with a third party, non-parent.[ix]  In other words, a non-parent cannot simply assert that custody should be granted to the non-parent over the legal parent based upon the “best interests of the child” standard.  In short, “strangers may not compete with fit parents on the basis that they might be a‘ better’ parent.[x]  In recognition of the fundamental right of the legal parent to the care and custody or his or her child, a higher standard is required before a third party can assert a right to custody or parenting time with a minor child.


 


The standard that controls a custody dispute between a third-party and a legal parent involves a two-step analysis.  The first step requires application of the “parental termination” standard or a finding of Aexceptional circumstances.@[xi]


 


The “parental termination” standard requires a showing by clear and convincing evidence of parental abandonment, unfitness or gross misconduct.[xii]  The Aexceptional circumstances@ category contemplates the intervention of the court in the exercise of its parens patriae power to protect a child.[xiii]  The “exceptional circumstances” inquiry is the proverbial “catchall” category which permits a court to act in circumstances which do not rise to the level of abandonment, unfitness or gross misconduct (the “parental termination” standard).  However, as it was noted in Watkins v. Nelson, the “exceptional circumstances” inquiry is not the same as the best interests inquiry, stating


 


A significant difference between the child’s best interests test and the parental termination or “exceptional circumstances” standard is that the former does not always require proof of harm to the child.  In contrast, the latter always requires proof of serious physical or psychological harm or a substantial likelihood of such harm.[xiv]


 


In fact, as the focus of the “exceptional circumstances” standard is solely on the possibility of harm to the child, “exceptional circumstances” does not even require a showing that the legal parent is unfit.[xv]  Even if a legal parent is “deemed to be a fit parent,” a showing of “exceptional circumstances” can rebut the presumption in favor of a legal parent in a custody dispute with a third party.[xvi]  It is the probability of serious psychological harm to child, not the parent’s unfitness that may deprive a parent of custody.[xvii]


 


“Exceptional Circumstances”: The Psychological Parent


 


Within the category of Aexceptional circumstances@ is the concept known as Apsychological parent.@  The idea of a “psychological parent” grew out of our Supreme Court decision Sorentino v. Family & Children’s Soc. Of Elizabeth which recognized that there is a “serious potential for psychological harm to young children if they are removed from a foster home where they had lived and been nurtured during their early years.[xviii]  It is that “possibility of serious psychological harm to the child…which transcends all other considerations.”[xix]


 


A “psychological parent” is the legal term utilized when a third party has stepped in to assume the role of the legal parent who has been unable or unwilling to undertake the obligations of parenthood.[xx]  As it was held in V.C. v. M.J.B.,


 


at the heart of the psychological parent cases is a recognition that children have a strong interest in maintaining the ties that connect them to adults who love and provide for them.  That interest, for constitutional as well as social purposes, lies in the emotional bonds that develop between family members as a result of shared daily life.[xxi]


 


To successfully be recognized as a psychological parent and rebut the presumption in favor of the legal parent, the third party must satisfy the four (4) prong test established in V.C. v. M.J.B.   These four essential requirements are designed “to evaluate whether a third party has become a ‘psychological parent’ to a child of a fit and involved legal parent, and thus has standing to bring a custody suit.”[xxii]  However, the Supreme Court further held that establishing psychological parenthood is not an easy task and the standards “should be construed and scrupulously applied in order to protect the legal parent-child relationship.”[xxiii]


 


First, the legal parent must have consented to and fostered the relationship between the third party and the child.  Importantly, consent to create the psychological bond need not be explicit.[xxiv]  A legal parent who is voluntarily absent from the child, either physically or emotionally, or is incapable of performing parental duties may, by that action, consent to and foster a parent-like relationship between the child and a third party.[xxv]  Essentially, the legal parent is voluntarily and knowingly conveying to the third party parental authority that the third party would not otherwise warrant.  Moreover, without such a requirement, a paid nanny or babysitter could theoretically qualify for parental status.[xxvi]  Thus, this first prong makes the legal parent a participant in the creation of the bond and once created, the third party=s status as a psychological parent cannot be unilaterally terminated by the legal parent.[xxvii]


 


Moreover, consent is only needed from one legal parent.[xxviii]  In the case of K.A.F. v. D.L.M., the legal parents contested the application for “psychological parent” status by the child’s step-parent asserting that both legal parents must consent to the relationship between the third party and the child.  The Appellate Court quickly dispatched with this argument finding that such a requirement would subvert the “fundamental policy” of preventing serious psychological harm to the child “where one of the child’s legal parents colorably claims lack of consent, in circumstances where the other legal parent has consented.”[xxix]  If the consent requirement mandated consent of both legal parents, “a court would be powerless to avert harm to a child through the severance of the child’s parental bond with a third party.”[xxx]


 


Second, the third party must have actually lived with the child in the same household in a “family setting.”[xxxi]  In the matter of A.F. v. D.L.P., the Appellate Court found that the plaintiff and defendant concealed their romantic relationship from family and friends, concluding that “if the parties did not hold themselves out to the world at large as a family unit, how then can a court conclude that plaintiff lived with defendant’s child as part of a family unit, thereby satisfying the second prong of the V.C. test.”[xxxii]


 


The third prong requires the third party to have actually functioned as a responsible parent and assumed the obligations of parenthood.  Evidence of the third party taking on significant responsibilities for the child’s care, education and development will satisfy this prong.  Examples such as the third party providing clothing and shelter for the child without the expectation of reimbursement; taking the child to the doctor when the child is ill; accompanying the child to extra-curricular activities; participating in the child’s school activities; and, sharing in the child’s milestones such as birthdays, holidays, vacation, etc., support a finding that the third party has actually functioned as a parent and assumed the obligations of parenthood.[xxxiii]


 


Finally, to achieve the status of “psychological parent,” a third party must establish that a parental-bond has been forged between the third party and the child.  The Supreme Court in V.C. v. M.L.B. found this to be “the most important factor” which will generally require expert testimony.[xxxiv]


 


The Appellate Court in P.B. v. T.H. addressed this fourth prong and the evidence to support the establishment of parental-bond by quoting testimony from the trial court’s summary regarding the relationship between the child and the third party, stating


 


She’s her mom, she’s the one [the child] turns to, the one she looks for if she falls down and gets hurt, the one she goes to get support.  They have a very loving relationship; they love each other very much…not only mother daughter, but also friends, someone that you could talk to, that you can express your feelings to, that you can share your ideas with.[xxxv]


 


Addressing this prong requires an inquiry into not only the third party’s role, but the child’s emotional attachment to the third party.  Establishing that the child relies upon the third party for emotional support and turns to the third party for comfort in times of sadness; for protection in times of insecurity; for support in times of distress and uncertainty; and, for companionship in times of joy and happiness, will satisfy the forth prong of the “psychological parent” standard.  It is establishing through testimony and expert analysis that the third party is a parent in the eyes of the child.


 


The Rights of a Psychological Parent


 


So, what does it mean to achieve the status of “psychological parent?”  If the Aexceptional circumstances” prong is satisfied, the second step requires the court to decide whether awarding custody to the third party would promote the best interests of the child.[xxxvi]  If a third party achieves the status of “psychological parent,” thereby satisfying the “exceptional circumstances” requirement, he or she then stands in parity with the legal parent.[xxxvii]  Custody and parenting time issues between the “psychological parent” and the legal parent are then to be determined utilizing the “best interests” standard and a weighting of the factors set forth in N.J.S.A. 9:2-4.


 


However, the legal parent’s status is a significant factor in the best interests analysis, so much so, that when the evidence concerning the child’s best interests between the legal parent and the psychological parent is in equipoise, custody will be awarded to the legal parent.[xxxviii]  In other words, if the child’s best interests will equally served in both the legal parent’s custody and the psychological parent’s custody, the legal parent will be awarded custody.  This result reflects the superior, fundamental and constitutionally protected rights of legal parents to the care and custody of their children.  Yet, and again, the courts are ever committed to protecting the best interests of the minor child.  So, despite the mandate that a legal parent will be awarded custody in situations when the legal parent and psychological parent are in equipoise, parenting time between the psychological parent and the child “will be the presumptive rule, as would be the case if two natural parents were in conflict.”[xxxix]


 


Importantly, the process in a contested matter from establishing “psychological parenthood” to a final custody/parenting time determination is a difficult and arduous process, both emotionally and financially.  When a material factual dispute exists as to the status of a third party as a “psychological parent,” the court will be required to conduct a hearing, take testimony of witness, including expert testimony from mental health professionals, to first determine if the third party is a “psychological parent.”  If the third party is deemed a “psychological parent” and the matter remains contested, the court will be then be required to determine what custody and parenting time arrangement will serve the child’s best interests, again involving testimony, potentially from additional experts, and evidence related to the factors set forth in N.J.S.A. 9:2-4.  The emotional and financial toll on the litigants, the child, the attorneys and the court through the process is substantial.  As with any custody decision, even involving a third party, the parties reaching their own decision, rather than relying upon the court to make such a decision, often times provides a greater service to the child’s best interests then any decision rendered by a court.


 


Conclusion


 


The law, like family structure, is an ever evolving and changing process adaptable to the many circumstances and situations that confront our society.  Family situations involving domestic partners, step-parents, unmarried cohabitants, extended family, etc., are prevalent giving rise to the potential establishment of a parent-child relationship between a child and a third party.  The emergence of parental bonds between a third party and a child touches upon fundamental rights of parents and the most basic function of our judicial system, to protect the emotional and physical well being of minor children.  Fortunately, New Jersey courts have struck a balance between parental rights and the psychological well being of children which serves both interests and provides those involved in such situations with a road map toward resolution.



 


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[i] V.C. v. M.J.B., 163 N.J. 200 (2000); Watkins v. Nelson, 163 N.J. 235, 245 (2000).


[ii] Watkins v. Nelson, supra; Moriarty v. Bradt, 177 N.J. 84, 101 (2003) certif.. denied, 540 U.S. 1177, 124 S. Ct. 1408 (2004)(natural parent’s right to the care, custody and control of his or her child is a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment to the United States Constitution).


[iii] In re Adoption of Child by W.P., 163 N.J. 158, 195 (2000).


[iv] V.C. v. M.J.B., supra at 227.


[v] N.J.S.A. 9:2-4.


[vi] Kinsella v. Kinsella, 150 N.J. 276, 317-318 (1997).


[vii] Watkins, supra at 245.


[viii] Id at 253.


[ix] Id at 237.


[x] Id. at 254-255; P.B. v. T.H., 370 N.J. Super. 586, 598 (App. Div. 2004)


[xi] Id at 246; V.C. v. M.J.B., supra at 219;


[xii] Watkins, supra at 246; K.A.F. v. D.L.M. 437 N.J. Super. 123, 134 (App. Div. 2014).


[xiii] Sorentino v. Family & Children’s Soc. of Elizabeth, 72 N.J. 127, 132 (1976).


[xiv] Watkins, supra at 248.


[xv] V.C. v. M.J.B., supra at 219.


[xvi] Watkins, supra 246-248.


[xvii] Ibid.


[xviii] Sorentino v. Family & Children’s Soc. Of Elizabeth, surpa at 132; Zack v. Fiebert, 235 N.J. Super. 424, 430 (App. Div. 1995);


[xix] Ibid.


[xx] Ibid.


[xxi] Id. at 221, citing Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 844 (1977); see also K.A.F. v. D.L.M., supra at 133.


[xxii] P.B. v. T.H., supra at 595.


[xxiii] V.C. v. M.J.B., supra at 230.


[xxiv] K.A.F. v. D.L.M., supra at 139.


[xxv] V.C. v. M.J.B., supra at 233 n.6.; see also P.B. v. T.H., supra at 598.


[xxvi] See A.F. v. D.L.P., 339 N.J. Super. 312, 322 (App. Div. 2001).


[xxvii] V.C. v. M.J.B., supra at 224-225(end of relationship between legal parent and third party does not end the bond that the legal parent fostered and that actually developed between the child and the psychological parent).


[xxviii] K.A.F. v. D.L.M., supra at 135.


[xxix] Ibid.


[xxx] Ibid.


[xxxi] A.F. v. D.L.P., supra at 323.


[xxxii] Ibid.


[xxxiii] P.B. v. T.H., supra at 603.


[xxxiv] V.C. v. M.L.B., supra at 226.


[xxxv] P.B. v. T.H., supra at 604.


[xxxvi] Watkins, supra at 254.


[xxxvii] V.C. v, M.L.B., supra 227.


[xxxviii] Id. at 228.


[xxxix] Ibid.



Custody Involving A Non-Parent: The Psychological Parent