E264 December 19, 2007

NJ Laws Email E264 December 19, 2007 Kenneth Vercammen, Attorney at Law 732-572-0500 In this issue: 1. More Holiday cheer at this great site: http://holidays.blastcomm.com/ 2 Recent cases: Lack of Notice to Victim Not Grounds to Vacate Plea.

3. 3rd DWI Requires 90 Consecutive Days in jail, no weekends.

4. Police Can Use An Electronic Tracking Devise to Trace a Stolen Cell Phone

5. Balance Billing between the Medicaid program and the Medicare program 6. More articles added to website njlaws.com

1. More Holiday cheer at this great site: http://holidays.blastcomm.com/ HAPPY HOLIDAYS & SEASON'S GREETINGS WORLDWIDE: Wesoly Siat, Bozega Narodzenia [Merry Christmas in Polish} FROHE WEIHNACHTEN PRÓSPERO AÑO NUEVO HAPPY NEW YEAR FRIEDEN GLÜCKLICHES NEUES JAHR JOYEUX NOËL PRETTIGE KERSTDAGEN GELUKKIG NIEUWJAAR BUON NATALE BONNIE ANNEE HYVÄÄ JOULUA 2 Recent cases: Lack of Notice to Victim Not Grounds to Vacate Plea. State v.

Means 191 NJ 670 (2007).

A trial court may not set aside a plea agreement solely because the prosecutor failed to notify the victims prior to entering into the plea agreement.

3.

3rd DWI Requires 90 Consecutive Days in jail, no weekends. State v. Kotsev ___ NJ Super. ___ (App. Div. Decided July 23, 2007) A-3256-05T5.

1. N.J.S.A. 39:4-50 mandates a minimum of ninety consecutive days incarceration for a third or subsequent conviction for driving while intoxicated (DWI). Sheriff's Labor Assistance Programs (SLAP) and weekend service are not substitute sentencing for third or subsequent offenders.

2. The 1993 statute mandated a third or subsequent offender to serve 180 days incarceration "except that the court may lower such term for each day, not exceeding ninety days, served performing community service." No other options are available.

3. The 2004 amendment to N.J.S.A. 39:4-50, commonly referred to as Michael's Law, similarly mandates 180 days incarceration but allows a reduction of one day for each day, not exceeding ninety days, in an inpatient rehabilitation program.

A third or subsequent DWI conviction, under the current statute requires a defendant to serve a minimum of ninety consecutive days of incarceration.

4.

Police Can Use An Electronic Tracking Devise to Trace a Stolen Cell Phone.

State v. Laboo ___ NJ Super. ___ (App. Div. Decided August 28, 2007) A-3746-06T5.

Three individual committed a string of armed robberies over the course of a onehour period, taking items that included two cell phones. Approximately thirty hours after the last robbery, police used a tracking device to track one of the stolen cell phones to a three-family home located in a high crime area. Three officers entered the building and used a handheld tracking device to determine the exact apartment. An officer knocked on the apartment door and announced that he was a police officer. The officer then heard a young female yelling and a man's voice saying "shut up, shut up, 5-0," and scurrying inside the apartment. Without obtaining a warrant, the officers forcibly entered the apartment, wherein they found evidence from the robberies.

The Court reversed the law division's order suppressing the evidence. The search was justified because the exigent circumstances, although police-created, arose as a result of reasonable investigative conduct. The Court held that the police were not required to procure a warrant because a delay presented a real potential danger to the officers and public, under the circumstances.

5. Balance Billing between the Medicaid program and the Medicare program

By: Thomas D. Begley, Jr., Esquire

There is a significant difference on the issue of balance billing between the Medicaid program and the Medicare program.

1.

Medicaid. Medicaid reimbursement rates are very low and as a result it is often difficult to obtain services because providers refuse to accept Medicaid. It is not possible for the patient to pay the difference between the private pay rate and the Medicaid pay rate. This is known as balance billing. Medicaid participating providers must accept the Medicaid payment as “payment in full.”[1] This means that providers accepting Medicaid waive their right to bill Medicaid beneficiaries for any amounts over the Medicaid payment.

Several states have refused to allow providers to assert liens against Medicaid beneficiaries where there is clear third party liability and the Medicaid beneficiary has obtained a significant tort recovery.

In Illinois,[2] the hospital brought an action against the Medicaid agency to allow it to refund the Medicaid reimbursement so that it could sue the Medicaid beneficiary who had obtained a substantial tort judgment. The Seventh Circuit held that the hospital could not refund the Medicaid payment to the Medicaid agency and sue the Medicaid beneficiary. The Court noted, “Medicaid is a payer of last resort.” The state can seek reimbursement from third parties, but private providers may not.

In a similar case in Florida,[3] the hospital placed a lien on the settlement award, but the court held that when a Medicaid patient obtains a tort recovery in excess of the medical expenditures paid by Medicaid, that recovery is meant to go to the injured party, not the provider. A similar result was reached in another Florida case.[4] A federal appellate court has found that a hospital’s lien on the proceeds of a malpractice settlement was invalid and unenforceable because the hospital had already accepted Medicaid payments for the care provided to the patient.[5] “By accepting Medicaid payments, Spectrum waived its right to its customary fee for services provided to Bowling...” “Although Medicaid rates are typically lower than a service

provider’s customary fees, medical service providers must accept stateapproved Medicaid payment as payment in full and may not require that patients pay anything beyond that amount.”

California invalidated two state statutes authorizing provider liens against Medicaid beneficiaries.[6] The statutes authorized providers to file liens against recoveries obtained by Medicaid beneficiaries even after the provider received Medicaid. The court found that the state statutes were preempted by federal legislation banning balance billing.

2.

Medicare.

Previously, Medicare had a prohibition against billing Medicare beneficiaries in excess of the payment made by Medicare. Participation has been limited to providers who agreed to accept Medicare as payment in full. Recent changes in the Medicare law[7] now permit a provider to bill a Medicare beneficiary or assert a lien against the beneficiary's recovery obtained from the tortfeasor by way of settlement or award.[8] In the seminal case,[9] a hospital sought to recover from the Medicare patient more than it received from Medicare reimbursement. The 1st Circuit held that the fact that the patient recovered more than Medicare reimbursed the hospital did not entitle the hospital to charge the patient the difference between its full fee and Medicare's lower flat fee. The agreement between Medicare and the hospital was that in exchange for Medicare guaranteeing payment to the hospital, there would be no additional payment required from the Medicare beneficiary.

The recent changes now allow providers to bill the liability insurer or place a lien against the Medicare beneficiary's recovery.

142 U.S.C. §1396a(a)(25)(c); 42 C.F.R. §447.15; 42 U.S.C. §1320a-7b(d) .

2 Evanston Hospital v. Hauck, 1 F.3d 540 (7th Cir. 1993).

3 Mallo v. Public Health Trust of Dade County, 88 F.Supp.2d 1376 (S.D. Fla. 2000).

4 Public Health Trust of Dade County v. Dade County School Board, 693 So.2d 562 (Fla. Dist. Ct. App. 1996).

5 Spectrum v. Bowling, 410 F.3d 304 (6th Cir. 2005).

6 Olszewski v. Scripps Health, 135 Cal. Rptr. 2d 1 (Cal. 2003).

7 68 Fed. Reg. 43940 (July 25, 2003).

8 42 C.F.R. 411.54(c)(2).

9 Rybicki v. Hartley, 782 F.2d 260 (1st Cir. 1986).

Copyright 2007 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm

with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, Martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law. The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-7227.

6. More articles added to website njlaws.com http://www.njlaws.com/alphabetical_index.htm: 1. Bail Bonds

Bail rights If Charged With A Criminal Offense Birth Injury Cases Breath machine (Alcotest 7110) BRESOCNIK v. GALLEGOS (The Hand Delivery of This Letter To Ex-Wife Is Not 'Harassment'.)

6. Burglar's Tools 2C:5-5 7. CDS Public Property 2C:35-7.1 8. CDS fraud 2C:35-13 9. Car Accident (What to Do in an Accident) 10. Careless Driving Proof Child Abuse 11. Child Day Care Injuries 12. Child Support continues after age 18 13. Chun Facts (Judge King releases findings regarding 7110 Alcotest DWI machine) 14. Cigarettes (Sale of cigarettes to persons under age 19) 2C:33-13.1 15. Civil Arbitration 16. Client Testimonials 17. Confidential (Attorney- Client Confidential Relationship) 18. Contempt (Judge cannot hold lawyer in contempt without OSC and hearing.)

19. Contempt of Domestic Violence Restraining Order 2C:29-9b 20. Credit Cards 2C:21-6 21. Criminal Attorney (Fines for Criminal Charges in New Jersey) 22. Cross Examination 2.

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KENNETH VERCAMMEN & ASSOCIATES, PC ATTORNEY AT LAW 2053 Woodbridge Ave. Edison, NJ 08817 (Phone) 732-572-0500 (Fax) 732-572-0030 website: www.njlaws.com Admitted to practice law in New Jersey, New York, Pennsylvania, US Supreme Court and Federal District Court