Among Us/ On the Move

Pursuant to Article VI Sec. 2(6) of the SCBA’s Bylaws, the Nominating Committee has submitted the following report of names of the candidates to be placed in nomination for the election to be held at the Annual Meeting which report has been submitted in writing to the Secretary of the SCBA Hon. John J. Leo, who hereby notifies the members of the Suffolk County Bar Association. AMONGUS

See the SCBA’s new Administrative Assistant Ms. Faith Hallock, the daughter of SCBA staff member Andrea Hallock and her husband Rob.

SCBA member Karen Lee Dunne and Richard C. Kesnig just became proud new grandparents to Beau Patrick Murphy, who was born on February 9th weighing in at seven pounds, nine ounces, 20.5 inches.

SEND INFO TO:jane@scba.org

The Annual Meeting date for the Election of the Slate is Monday, May 3, 2021: Congratulations to the SCBA’s new slate for the 2021-2022 Administrative Year:

President Elect

Vincent J. Messina, Jr.

First Vice President

Cornell V. Bouse

Second Vice President

Patrick McCormick

Treasurer

Hon. John J. Leo

Secretary

Robin S. Abramowitz

Directors

(terms expiring 2024) Diane C. Carroll Hon. Chris Ann Kelley Matthew J. Martinez Jason A. Stern

Nominating Committee

(terms expiring 2024) Hon. Caren Loguercio Hon. Derrick J. Robinson Arthur E. Shulman

ontheMOVE

Joseph A. Quatela, Esq. managing partner of Quatela Chimeri PLLC, with offices in Hauppauge and Garden City, is proud to announce Nicole J. Brodsky has been named partner to the firm, concentrating in matrimonial and family law. With the firm since 2013, Ms. Brodsky is honored in the legal community being named a New York Super Lawyers “Rising Star,” and recipient of “Celebrate Long Island’s Young Professionals” ’30 under 30’ Award from the Chamber of Commerce. J oseph A. Quatela, Esq. is also proud to announce Alexander E. Sendrowitz has been named partner to the firm, concentrating in the areas of general civil litigation, state and federal court practice, business and commercial litigation and municipal defense. Mr. Sendrowitz represents the firm’s business and commercial clients on a broad range of transactional and litigation matters. Upon receiving his Juris Doctor from Hofstra University School of Law in 2015, he joined the firm as an associate and earned the role of partner with his extensive knowledge, multidisciplinary nature and commitment to clients.

Congratulations to SCBA long time member

Elliott M. Port-

man, Portman Law Group, P.C. who was re-elected as Vice President of the New York State Creditor’s Bar Association (NYSCBA) for a two-year term.

Submit your movers to: jane@scba.org

From Little Acorns or For Want of a Nail...

By James G. Fouassier

Awhile back a story broke in the Chicago Tribune about a man who was locked up for not paying his hospital bill. The article constituted the proverbial pebble rolling downhill; an avalanche followed. The end result, at least as of this date, is legislation adopted by New York and many other states, as well as at the federal level, to protect patients against what colloquially are referred to as “surprise” and “emergency” medical bills.

The Suffolk Lawyer has published several of my articles on the details of the different legislation, to which I respectfully refer the interested reader for the sake of keeping this one within editorial limits. Suffice it to recite the gist. Health care providers must advise patients if they participate in the patient’s health insurance or plan network, meaning that they are contractually bound to accept rates of payment previously negotiated with those companies and plans.

If without the patient’s prior consent the network provider secures the services of a non-contracted provider to perform any of the required services (network hospital and non-network anesthesiologist is the classic example) the patient is held harmless against any balance due between the actual billing submitted by the non-contracted provider (that’s the “surprise”) and what the plan paid, except for standard patient shares, which would be whatever the patient would have had to pay if the other provider were in network.

In the case of “emergency” bills, since there obviously can be no meaningful disclosure (because the patient has no choice but to accept the providers assigned by the hospital or lead clinician) the patient is held harmless from anything other than the “in network” out of pocket, period.

The patient is taken out of the fight between the provider and the health insurer or health plan, and several similar independent resolution processes are established to determine whether the payment made is fair and reasonable.

Back to the rolling stone. The patient in question was uninsured. Although the hospital had no formal financial as(Continued on page 27 ) James Fouassier

Associate Administrator, Department of

Managed Care, Stony Brook University Hospital

James is Former Co-Chair of the Association’s Health and Hospital Law Committee.

His opinions are his own. He may be reached at: james.fouassier@stonybrookmedicine.edu www.scba.org • the legalBrief 9

New York passed The Consumer Access to Physical Therapy more than 15 years ago. The law allows people direct access to the services of an experiencedlicensed physical therapist for evaluation and treatment for up to (a) 10 visits or (b) 30 days (whichever comes first) without a referral or prescription from a medical doctor. New Yorkers are surprised to learn they can pursue physical therapy directly. The purpose of this article is to broaden knowledge of the law since too few people are aware of the law’s expanded medical benefits.

For people who have private health insurance there is the possibility that physical therapy treatment without a referral from a physician may not be paid for by their plan — so it is always good practice to coordinate benefits with your carrier before proceeding to receive any medical services. Medicare, however, does not require patients to obtain a physician referral for PT services. It does require physiciansto certify the physical therapists’ plan of care within 30 days of the initial therapy visit. The plan of care must include, at a minimum, a diagnosis, longterm treatment goals and the type, quantity, duration, and frequency of therapy services.

Direct access makes physical therapy more accessible to those in need. Health care systems in other countries (and the US military) have a long history of direct access, with evidence supporting both safety and efficacy. The current evidence reports similar findings in the civilian US health care system. Most of the research involves direct access for patients with spine related musculoskeletal disorders. The authors found that “direct access to physical therapy is more cost effective, results in fewer visits than physician first access, in the US, with greater functional improvement.”

There is also evidence that direct access patients are at minimal to no risk for negligent care. Other criticisms of direct access include potential over utilization of services, increased costs and inappropriate care. Researchers found that PTs, in the United Kingdom, who rely on effective evidence-based practice can reduce costs; improve clinical outcomes; and decrease use of prescription medications, MRI and injections. An additional benefit is reducing delays. Delays result in higher costs, decreased functional outcomes and patient frustration. Direct access allows Physical Therapists to function autonomously — improving patient outcomes and lower overall healthcare costs.

ChristinPaglen,Esq.

Of Counsel to the law firm Messina Perillo & Hill Christin was a Vice President with Northwell Health. She and Dr. Hayes are colleagues at Touro College School of Health Sciences. She is the Co-Director of the PA Masters' Completion program and co-chairs SCBA’s Health Law Committee.

Dr. Hayes is a graduate of The University of Pennsylvania and Touro College. He completed his Doctorate in Physical Therapy at The Massachusetts General Hospital Institute of Health Professions. He is board certified in orthopedics by the American Physical Therapy Association.

Dr.Joseph Hayes

New York State licensed Physical Therapist

MOLST is Not an Advance Directive on Steroids

Patricia Bomba, MD, MACP, FRCP, NY MOLST and eMOLST Program Director, 2001-present

Advance care planning is a process that supports all adults 18 years of age and older in clarifying and sharing personal values and life goals, as well as choosing and preparing another trusted person or persons to make medical decisions in the event the person can no longer make his or her own decisions. The goal of advance care planning is to help ensure that people receive medical care that is consistent with their values and goals. The program Community Conversations on Compassionate Care combines storytelling and Five Easy Steps to help people through the process. Advance directives are completed at the end of the process.

Advance Directives

The New York Health Care Proxy (HCP) is the key advance directive and ensures a health care agent (HCA) may make decisions for the patient determined to lack capacity. The HCP must include a statement indicating “my HCA knows wishes about artificial hydration and nutrition” in order to empower the HCA to make these decisions. Special requirements exist for proper completion of a HCP for an individual with intellectual or developmental disabilities.

In the absence of a HCP, the decision falls to a surrogate identified in Family Health Care Decisions Act (FHCDA). This may be an individual that the patient would not have chosen to make medical decisions for them. Both HCAs and surrogates are required to make decisions according to the patient’s known wishes or best interests.

A Living Will outlines preferences for life-sustaining treatment, if a patient is in a terminal or irreversible condition. While living wills provide “clear and convincing evidence” and are recognized under case law, living wills cannot be followed in an emergency and are difficult to interpret in the acute care setting due to the coexistence of a terminal illness and potentially reversible acute illness. For that reason, MOLST was created. A living will is useful for individuals who have no one, not even a close friend, to appoint as a HCA.

MOLST

MOLST is a set of medical orders that defines lifesustaining treatment the patient wants to receive or avoid today. MOLST is not for everyone. Rather, MOLST is appropriate for patients with advanced illness, including advanced frailty who might die within the next year; reside in a nursing home or receive long term care services in the home or assisted living; or individuals, typically of advanced age, who want to avoid or receive any or all life-sustaining treatment.

MOLST is created after a thoughtful discussion between the patient (or HCA or surrogate) with a physician, NP or PA, using the 8Step MOLST Protocol that supports the voice of the patient and ensures shared decision-making. Medical orders must be followed by all health care professionals in all settings. New York’s public health laws (PHL) integrate the ethical framework for making such decisions and provide broad patient and provider protections under HCP law and FHCDA, as well as the process outlined §SCPA 1750-b for individuals with intellectual and developmental disabilities (I/DD) who lack capacity. Physicians, NPs and PAs have authority and accountability for MOLST for the general population; but only a physician has authority for MOLST decisions for individuals with I/DD who lack capacity. The NY DOH MOLST Checklists and OPWDD Checklist outline PHL.

eMOLST eMOLST is a secure website, NYeMOLSTregistry.com,that serves as a statewide registry of eMOLST forms and a standardized online completion system. eMOLST combines the 8-Step MOLST Protocol, the DOH and OPWDD MOLST Checklists. Integration with EMRs is available but not required. eMOLST is a risk management tool that improves quality, patient safety, accuracy, and provides access to MOLST medical orders and a copy of the discussion in an emergency, as well as, promotes coordinated, person-centered care by improving workflow within and across facilities. Providers can print a PDF of MOLST form. The value of advance care planning has been demonstrated during the COVID19 pandemic.

Personal Recommendation

As a board-certified geriatrician, trained, licensed and practicing in New York for more than forty years, the recent emergence of litigation for providing unwanted lifesustaining treatment is no surprise. For decades, all life-sustaining treatment was provided, as death viewed as failure could potentially result in a lawsuit. I anticipate more litigation as baby boomers are avid consumers of health information, recognize inadequacies in our health care delivery system, are proactive setting expectations with their physician, NP or PA, and serve as their own self advocates.

As a knowledgeable baby boomer physician, I know my rights. I have a Health Care Proxy and annual family discussions for the past 30 years.

When I am appropriate for a thoughtful MOLST discussion, I will speak with my physician and include my health care agent and family virtually. I will insist my physician 1) complete my MOLST in NYeMOLSTregistry.com explaining eMOLST is a risk management tool, and 2) include my personal statement in ‘Other Instructions’ section MOLST form, “If my MOLST orders are not followed, my attorney will sue for battery, pain and suffering, and make sure the insurance company does not pay for unwanted treatment.”

Patricia Bomba

MD, MACP, FRCP, NY MOLST & eMOLST Profram Director Patricia is a nationally & internationally recognized palliative care/end-oflife expert, currently serves as Senior Medical Director, Geriatrics and Palliative Care for Excellus BlueCross BlueShield (BCBS).

1. MOLST is not a traditional advance directive, like the NY Health Care Proxy. 2. MOLST is a set of medical orders that reflects treatment the patient wishes to receive today and must be honored by all health care professionals in all settings. 3. MOLST is voluntary and should be offered to patients who are appropriate. a. Patients whose physician, NP or PA would not be surprised if they die in the next year b. Patients who live in a nursing home or receive long-term care services at home or assisted living c. Patients who want to avoid or receive any or all life-sustaining treatment today d. Patients who have one or more advanced chronic conditions or a new diagnosis with a poor prognosis e. Patients who have had two or more unplanned hospital admissions in the last 12 months, coupled with increasing frailty, decreasing functionality, progressive weight loss or lack of social support 4. MOLST is not for everyone. a. Healthy people are not appropriate for MOLST, should complete a Health Care Proxy and have a discussion with family/loved ones about what matters most. b. Patients who have a chronic condition or multiple chronic conditions, but have a long-life expectancy are not appropriate for MOLST. c. Patients who are receiving post-acute care in a skilled nursing facility should be screened, as they may or may not be appropriate for MOLST. 5. MOLST is created after a thoughtful MOLST discussion(s) using the 8-Step MOLST Protocol and the appropriate DOH or OPWDD MOLST Checklist. 6. MOLST is based on the patient’s or decision maker’s understanding of the patient’s current health status, prognosis, and goals for care 7. A thoughtful MOLST discussion emphasizes shared medical decision-making and helps the patient understand what can and cannot be accomplished. 8. MOLST represents “clear and convincing evidence” of patient’s preferences for withholding life-sustaining treatment. If the patient loses capacity to make MOLST decisions, the decisions must be made based on the patient’s values, beliefs and goals for care – not what matters most to the Health Care Agent or Surrogate. a. If the patient loses the ability to make MOLST decisions and the patient has already made decisions to withhold certain life-sustaining treatment, e.g. Do Not Resuscitate (DNR) and Do Not Intubate (DNI), the health care agent or surrogate cannot undo the patient’s decision. b. If the patient loses the ability to make MOLST decisions and the patient has requested full treatment, the health care agent or surrogate can make a decision to withhold and/or withdraw other life-sustaining treatment on the MOLST for which the patient requested full treatment, as full treatment represents the standard of care. 9. eMOLST is a secure website that serves as a statewide registry of eMOLST forms and ensures MOLST is completed correctly and in accordance with PHL 10. For more information, visit MOLST.org and CompassionAndSupport.org. View MOLST and eMOLST videos in playlists on the CompassionAndSupportYouTubeChannel.