NJ Physician Magazine October 2012

JULY 2012

Also In This Issue:

Hurricane Sandy and Destroyed Medical Records Important Employer Related Provisions of the Patient Protection and Affordable Care Act Scheduled to Begin in 2013GAO Targets Self-Referred Advanced Imaging Services

Visit us now online atwww.NJPhysician.org

OCTOBER 2012

Barnabas HealthTaking Charge in the Fight Against Breast Cancer

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Montdor Medical Media, LLC

Co-Publisher and Managing Editors

Iris and Michael Goldberg

Contributing Writers

Iris Goldberg

Carol Grelecki

Joseph M. Gorrell

Keith J. Roberts

John D. Fanburg

Kevin M. Lastorino

Lani M. Dornfeld

Mark Manigan

Joseph D. Garcia

King & Spalding

Tom Crane & Brian P. Dunphy

Charles Toutant

Layout and Design

Nick Justus

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Publisher’s Letter

With warm regards,

Michael GoldbergCo-Publisher

Dear Readers,

Welcome to the October issue of New Jersey Physician, the voice of the state’s medical community. I hope all of you came through Hurricane Sandy without harm.

I bring up the hurricane issue because it is creating problems for certain physicians. Many are left facing the question of what to do with paper medical records destroyed by fire or flood. There are two basic issues; what can be done to prevent this from happening again, and what must be done now. The American Health Information Management Association has posted guidance on what to do if medical records are destroyed. They suggest salvaging any records you can, and that any outside help understands they must perform in accordance with HIPAA policy. For more details, please see Hurricane Sandy, inside.

The New Jersey Death with Dignity Act, which would permit qualified patients to self administer medication to end their lives has been introduced in both houses of the legislature. New Jersey’s criminal code currently considers it a crime to help another commit suicide.

The Medicare Payment Advisory Commission (MedPAC) voted to recommend lowering Medicare payment caps for outpatient therapy by almost 33 percent. Medicare currently caps combined payments for occupational and physical therapy at $1880, and it caps payments for speech language pathology therapy at the same level. MedPAC will recommend lowering both of these caps to $1270.

The Government Accountability Office (GAO) has found that self referring physicians referred about two times as many advanced imaging services (MRI, CT) on average as providers who did not self-refer. In the upcoming deficit reduction negotiations, these trends will be closely reviewed by Congress and the Administration.

Barnabas Health is at the forefront of breast cancer diagnosis, treatment and prevention. Three of its facilities offer all inclusive dedicated breast centers where patients throughout the state have access to state-of-the-art mammography, technologically advanced diagnostic services and breast health information. Barnabas Health facilities most importantly have multidisciplinary teams of specialists who meet to discuss individual breast cancer patients in order to facilitate evaluation, coordinated treatment and follow up care. Breast radiologists, breast surgeons, pathologists, reconstructive surgeons, medical oncologists, radiation oncologists, geneticists, specialized nurses, nutritionists, psychologists and social workers provide every patient with an individualized treatment plan by the experts within each specialty.

Contents

2 New Jersey Physician

CONTENTS

4

11

1516

HURRICANE SANDY AND DESTROYED MEDICAL RECORDS

HEALTH LAW UPDATE

THE FUTURE OF HEALTH LAW

HEALTH LAW DEVELOPMENTS

12

Barnabas HealthTaking Charge in the Fight Against Breast Cancer

19 NEWS BITS

20 FOOD FOR THOUGHT


Cover Story

Taking Charge in the Fight Against Breast CancerBy Iris Goldberg

Barnabas HealthWe know that progress has been made. More women are being diagnosed with breast cancer early on, when treatments can be curative. For those who are unfortunately in later stages of disease, novel therapies are prolonging life far beyond what was possible even a decade ago. There is still much to accomplish before women can take a collective sigh of relief. The healthcare community at large continues to investigate promising possibilities and embrace innovative developments.

In New Jersey, specifically, Barnabas Health is at the forefront of breast cancer diagnosis, treatment and prevention. Amongst its many facilities offering breast health care, three have all-inclusive dedicated breast centers where patients throughout the state have access to state-of-the-art mammography, technologically advanced diagnostic services and breast health information.

Most importantly, at Barnabas Health facilities, multidisciplinary teams of

M. Michelle Blackwood, MD, FACS

Linda M. Sanders, MD

specialists meet to discuss individual breast cancer patients in order to facilitate evaluation, coordinated treatment and follow-up care. Breast radiologists, breast surgeons, pathologists, reconstructive surgeons, medical oncologists, radiation oncologists, geneticists, specialized nurses, nutritionists, psychologists and social workers participate together in order to provide every patient with the benefit of an individualized treatment plan by experts within each specialty.

Breast surgeon M. Michelle Blackwood, MD, FACS, Director Breast Health and Disease Management, Saint Barnabas Medical Center, discusses the significantly positive outcomes of this policy for patients and physicians. She also shares ways in which Barnabas Health continues to implement programs that specifically further communication amongst specialists within its entire network of facilities, thereby adopting a system-wide approach to the prevention,

October 2012 5

Cutting edge breast imaging technology is available at all Barnabas Health facilities

Michael A. Goldfarb, MD, FACS

diagnosis and treatment of breast cancer that incorporates the most innovative and effective modalities available.

From the perspective of a patient who has had an abnormal mammogram or who has a breast lump that was discovered during self-examination or by a health professional, an expedient multidisciplinary response is imperative, according to Dr. Blackwood. “What we’ve done here is created a seamless approach,” she relates, describing the sequence of events at the Breast Center located in the Barnabas Health Ambulatory Care Center.

“If a woman comes into the center and it looks like breast cancer - our doors are literally connected here. The nurse brings her in. She sees a surgeon. We get the biopsy. We get her on her way,” Dr. Blackwood informs. She goes on to explain that in order to facilitate treatment for breast patients, not only do radiologists, surgeons and oncologists have to engage in ongoing communication but referring gynecologists and internists need to be brought into the loop as well.

As a result of this deliberate effort to establish a multidisciplinary participation in the care of individual patients, cancer can be diagnosed earlier and an anxiety-filled waiting period can be eliminated. This is tremendously appreciated by patients who do receive a diagnosis of breast cancer and certainly by those who are found not to have breast cancer.

Linda M. Sanders, MD, Medical Director of the Breast Center at the Barnabas Health Ambulatory Care Center, expands upon this. “We appreciate the anxiety and stress that women undergo and we have streamlined the process to ease their path,” she relates. As an interventional breast radiologist, Dr. Sanders is pleased to share how dramatically different breast cancer diagnosis is today, than it was in the past. Not only does she refer to the cutting-edge technology available at Barnabas Health facilities that expedite accurate diagnosis but like Dr. Blackwood, Dr. Sanders credits the cooperative effort amongst specialties and the system in place that has been specifically designed to reduce anxiety as much as possible.

“For example, we have an excellent nurse navigation program that takes the patient from one step to the next.

If she needs intervention, the nurse navigator is there to help her through that moment. And if she needs further referral to a breast surgeon because of malignancy, the nurse navigator is there to take her through that process, too,” Dr. Sanders informs.

She also states that in terms of investigating an area of suspicion found on a mammogram, it is important for women to understand that although the process may cause some anxiety, she and the other Barnabas Health breast specialists must utilize the entire gamut of procedures at their disposal to determine if in fact, that area is a breast cancer. However, Dr. Sanders reiterates, this is done through a minimally invasive manner in the overwhelming majority of cases.

“Throughout the entire Barnabas Health system, we do not send patients to surgery for benign disease,” she reports. She explains that this would only happen in the extremely rare instances when the interventional radiologist could not reach the area in question. “Our surgeons are now preoccupied only with operating on breast cancer,” Dr. Sanders states. “They no longer need to operate on benign disease.”

Besides emphasizing the importance of multidisciplinary cooperation amongst specialists within each of its individual facilities in order to diagnose and treat breast cancer more effectively, Barnabas Health is currently involved in furthering the sharing of ideas and services amongst facilities. The goal here is to ensure that patients have access to the highest level of care regardless of where they are treated.

For example, when a novel drug therapy for the treatment of breast cancer is investigated through a clinical trial that is being administered at one


Dr. Goldfarb meets with surgical residents to discuss an upcoming case

Barnabas Health facility, oncologists with appropriate patients at the other facilities are able to participate.

Also, sharing cutting-edge techniques as soon as they become available is a top priority. Recently, a CME-accredited symposium on exciting new advancements in treating lymphedema, an uncomfortable and disfiguring condition that results when axillary lymph nodes are removed during breast cancer surgery, was hosted at the Barnabas Health Ambulatory Care Center for breast specialists throughout the Barnabas Health system.

From a surgical perspective, going forward, Dr. Blackwood foresees an even greater collaborative and supportive effort amongst Barnabas Health breast surgeons. “It’s really helpful to have several experts involved in deciding the best approach,” she candidly shares. With the entire group of Barnabas Health breast surgeons networking together, as Dr. Blackwood points out, breast cancer patients are the true beneficiaries.

Michael A. Goldfarb, MD, FACS, is Chairman and Residency Program Director, Department of Surgery, Monmouth Medical Center. Dr. Goldfarb shares that the multidisciplinary approach to breast cancer was the foundation upon which the Jacqueline M. Wilentz Comprehensive Breast Center at Monmouth Medical Center was created in 1994. He, too, credits the robust weekly meeting of all specialties involved in the care and treatment

of each breast cancer patient with contributing to the excellent outcomes that have been achieved.

Further, like Dr. Blackwood, Dr. Goldfarb touts the significant advantage of several surgeons collaborating in order to devise the best approach for each patient. He explains that a plan is never decided by just one surgeon. “At our center, all of us are on the same page with regards to surgery and patients have the advantage of multiple opinions. Because of this we have instituted many initiatives,” Dr. Goldfarb asserts.

“We, of course, try to do breast conservation surgery whenever possible,” offers Dr. Goldfarb. He does acknowledge that for certain patients, including those young women with a strong family history and/or genetic pre-disposition to breast cancer, surgeons, geneticists and other specialists confer together and may recommend bi-lateral mastectomy with breast reconstruction. “We do what’s right depending upon each individual situation,” Dr. Goldfarb states.

Like the other Barnabas Health dedicated breast centers, at the Jacqueline M. Wilentz Comprehensive Breast Center, providing expedient diagnosis and getting the patient started with her treatment regimen is of paramount importance. For example, if an outpatient fine needle biopsy confirms breast cancer, the patient’s axilla will be scanned that same day. If something suspicious is detected there, that area will undergo fine needle biopsy as well. “Then, once we have our

diagnosis, we can start to figure out what to do from there,” Dr. Goldfarb relates. The important point here is that this is all accomplished under local anesthesia, on an outpatient basis before any surgery is scheduled.

In addition to expedient evaluation and treatment to minimize anxiety for patients, Dr. Goldfarb mentions the tremendous contribution of specialized oncology nurses, nurse navigators and social workers. “This is a very important piece of what we do to help patients through this,” he remarks.

After surgery has been performed the patient is then re-presented to the multidisciplinary panel by the oncologist before any treatment is begun. “Once we have all the information about the tumor, then further decisions can be made concerning chemotherapy and/or radiation, or other treatment,” Dr. Goldfarb notes. “All of this is monitored by our staff and tumor registry,” he adds, referring to the ongoing significance of all the data that is collected.

Particularly after breast conservation surgery, many women undergo a course of radiation therapy. Barnabas Health facilities employ state-of-the-art technologies to deliver precise radiotherapy while minimizing damage to healthy tissue. Rajesh V. Iyer, MD, is Chairman, Department of Radiation Oncology, Community Medical Center.

“We’ve been very proud to be offering our patients cutting-edge treatments available in radiation oncology for breast

October 2012 7

Rajesh V Iyer, MD

Alice J Cohen, MD, FACP

Seth Cohen, MD

cancer,” Dr. Iyer shares. As an example he points to intensity modulated radiation therapy (IMRT), which is a technology that precisely aims radiation to the target, minimizing side effects such as irritation to the surrounding skin, which is common with more diffuse radiation delivery.

Dr. Iyer also discusses brachytherapy, which is a way of delivering localized radiation internally for appropriate patients having lumpectomy. Sometimes known by the brand names of Mammosite or SAVI, these procedures involve the placement of a balloon device in the lumpectomy cavity by the breast surgeon. The balloon is attached to a catheter exiting the breast through a small incision, through which a high dose of focused radiation is delivered right at the site of the tumor, significantly limiting the exposure to normal, healthy surrounding tissue.

For those breast cancer patients who, unfortunately, have disease that has spread to distant areas, such as the spine, the head or various organs, Dr. Iyer shares that the CyberKnife, which is a robotic radiosurgery system that delivers beams of high dose radiation to tumors with extreme accuracy, is a good option. “This is another way of delivering pinpoint radiation and is effective for metastatic tumors in other parts of the body,” Dr. Iyer explains.

To prevent recurrence of breast cancer that has been removed or to treat breast cancer that unfortunately has recurred, Barnabas Health oncologists are at the forefront of the latest developments in the medical treatment of breast cancer. Alice J. Cohen, MD, FACP, is Director of the Division of Medical Oncology, Newark Beth Israel Medical Center. Dr. Cohen shares that her facility serves as a principal investigator as part of the National Surgical Adjuvent Breast and Bowel Project (NASBP), a group that has been in existence since the late 1960s.

“We were the first site in New Jersey and we are the core site to enroll patients on clinical trials after breast cancer surgery to determine the newest and most effective treatments to prevent recurrence of breast cancer,” Dr. Cohen states. She goes on to reiterate that all Barnabas Health facilities participate in these trials as well, either at their own sites or by sending patients to a facility with an open trial.

In fact, patients outside of the Barnabas Health system can also be referred in.

Dr. Cohen is passionate about ensuring that women from some of the disadvantaged communities served by Newark Beth Israel Medical Center have access to the highest level of breast care. Through grants to Newark Beth Israel from Komen for the Cure and the Avon Foundation, breast cancer patients in the surrounding communities receive psychosocial support as well as education to make them aware of the treatment options available to them regardless of their insurance status or financial situation. “We accept anyone at Newark Beth, despite their ability to pay,” Dr. Cohen reports.

Also, Newark Beth Israel Medical Center provides an annual free breast screening program each October. Patients receive a breast exam by a health professional and are educated about self-breast examination. If medically indicated, a mammogram appointment will be scheduled. Those women who are not covered by insurance will receive their mammogram free of charge. “This program has actually identified early breast cancers that might have otherwise been missed,” Dr. Cohen is pleased to share. “We want to be able to offer the Newark Beth community all of same screening, diagnostic and treatment modalities that anyone would have access to regardless of the ability to pay,” she reiterates.

Oncologist, Seth Cohen, MD, Director of Clinical Research, Monmouth Medical Center, reports a similar situation at the Jacqueline M. Wilentz Comprehensive Breast Center. He is particularly proud of being able to help patients within the community who might not otherwise have access to novel therapies for breast cancer. “As many people as we can put on trials, we attempt to do,” Dr. Cohen strongly states.

As an example of the effort expended on behalf of patients by him and his colleagues at the Wilentz Center, Dr. Cohen shares the case of a woman in her mid-thirties with metastatic breast cancer, who is positive for the HER-2/neu gene, which is often associated with more aggressive disease. Having gone through the standard treatments for a patient such as this, Dr. Cohen was eager to try a novel targeted drug therapy,


Richard A Michaelson, MD

Private infusion rooms allow for maximum comfort during infusion sessions

The breast oncology staff at Newark Beth Israel Medical Center

TDM-1, which has not yet received FDA approval.

“There were no trials of this drug available to this particular patient for various reasons. Through our own initiative and requiring hours and hours of work, we were able to obtain the drug for her as a one-person clinical trial,” Dr. Cohen happily relates. “She has had four doses and is doing well,” he adds, sharing that she was recently able to take a trip and can enjoy the time she spends with her husband and small children.

“Our goal as a clinical research division is not to get typical trials but to go well beyond the call of duty and get patients on drugs that are not readily available and really coordinating the care to get these therapies,” Dr. Cohen explains. “Our hospital has taken on this cause to serve the community and that’s just what we’re doing,” he continues. “We’re serving the community by treating patients who can’t afford it. We’re serving the community by allowing trials that are just as good as anywhere else in the country and we’re serving the community by giving excellent oncology care,” Dr. Cohen emphasizes.

Chief Medical Director, The Cancer Center of Saint Barnabas and Chief Medical Director, Oncology, Barnabas Health, Richard A. Michaelson, MD, describes some of the unique attributes of The Cancer Center. For example, private infusion rooms allow for maximum comfort during chemotherapy sessions. Also, there is the absence of partitions between patients and receptionists. “We want our patients to know that we’re all in this together,” Dr. Michaelson states.

Besides the important emphasis on finding the most effective medical treatments for breast cancer, as a result of research and ongoing clinical trials, Dr. Michaelson

points to the important issues regarding all aspects of survivorship for breast cancer patients. “The reality is that when treatment is completed, that’s when many patients have the most difficult time,” he reveals.

Dr. Michaelson mentions difficulties with relationships, sexual problems, deterioration of self-image and financial challenges as just a few of the devastating situations breast cancer patients face, even when they are no longer under treatment. He is pleased to share the attention given to this at The Cancer Center at Saint Barnabas Medical Center through Project Hope, which offers rotating programs that

October 2012 9

James M Orsini, MD

Tomosynthesis enables radiologists to see breast cancers more clearly in dense breast tissue.

Dr. Sanders reviews clear, highly focused, three-dimensional images provided by digital breast tomosynthesis.

focus on helping patients throughout the community at large cope with some of the overwhelming consequences associated with having breast cancer.

Within The Cancer Center at Saint Barnabas Medical Center and in fact, throughout the Barnabas Health system at large, Dr. Michaelson observes a special feeling that is shared by all who treat cancer patients. “The philosophy here is that for those who choose to be treated here, we will become their advocates and their support system. Our job is not just to provide medication to treat the illness but also to treat the whole person,” he says with conviction.

James M. Orsini, MD, is Director of Oncological Cancer Services, Clara Maass Medical Center, where the opening of its impressive new cancer center, with a specifically dedicated area for breast cancer patients, is imminent. There, all patient information will be coordinated and nurse navigators will guide breast cancer patients through each step of the treatment process.

Like his colleagues in the other Barnabas Health facilities, Dr. Orsini points to the necessity of a multidisciplinary approach to provide the most effective and successful breast cancer care and treatment. “We present all of our patients at a breast cancer tumor board in a prospective and/or retrospective presentation and decide which therapies would be best suited to offer every patient the opportunity to be cured of their disease,” he informs.

In terms of ongoing research in breast cancer at Clara Maass Medical Center, Dr. Orsini also cites utilizing a dual targeted approach to combat the overexpression of HER2. “We’re using Herceptin® in a dual HER2/neu blockade which is now becoming a very interesting approach to the management of those patients who express the HER2/neu gene,” he says, referring to the combination of the anti-HER2 monoclonal antibody, trastuzumab and hormonal therapy instead of using traditional chemotherapy.

Of course, the most crucial factor determining the likelihood of a successful outcome is when breast cancer is first detected. In terms of imaging capabilities, Barnabas Health facilities are equipped with the most current technology available today. The standard screening mammography process includes digital screening mammograms with triple-

assurance in conjunction with the strong commitment of Barnabas Health to promote the early detection of breast cancer.

Two views are taken of each breast. The films are then processed by a computer-aided detection system (CAD), which uses computerized algorithms for identifying suspicious areas of interest. Two dedicated breast radiologists independently review these films. This technology greatly assists imagers to recognize subtle changes in breast tissue that could indicate the presence of cancer or warrant further examination.

Tomosynthesis is a newer form of

conventional mammography that is particularly useful for women with dense breasts. It takes multiple low dose x-rays of each breast from many angles. The breast is positioned in the same way as in a conventional mammogram but there is less pressure applied. The x-ray tube moves in an arc around the breast and several images are obtained in just a few seconds. The information is then sent to a computer, where it is assembled to produce clear, highly focused 3-dimensional images throughout the breast. This new breast imaging technique enables radiologists to see breast cancers more clearly in dense breast tissue.

Clara Maass Medical Center

Women’s Health Center

1 Clara Maass Drive, Belleville, NJ 07109

973.450.2890

Center for Breast Health and Disease Management

200 South Orange Avenue, Livingston, NJ

973.322.7020

173 Essex Avenue, Metuchen, NJ

732.494.0415

33 Main Street, Suite 103, Chatham, NJ

973.701.6901, press 5

50 Newark Avenue, Belleville, NJ

973.844.1000

Community Medical Center

The Women’s Imaging Center (Off-site location)

368 Lakehurst Road, Suite 102, Toms River, NJ 08755

732.557.8150.

Jacqueline M. Wilentz Breast Center

at Colts Neck Mammography & Laboratory Services

310 Route 34 South, Second Floor, Colts Neck, NJ 07722

732.923.7700 - Mammography Scheduling

732.462.1793 - Laboratory and Site Information


at Howell Mammography Services

59 Kent Road, Village Square Shopping Center,

Howell, NJ 07731

732.923.7700


at Kimball Medical Center

600 River Avenue

Lakewood, NJ 08701

Monmouth Medical Center

The Jacqueline M. Wilentz Comprehensive Breast Center

300 Second Avenue, Long Branch, NJ 07740

Breast Center Main Number: 732.923.7700

Newark Beth Israel Medical Center

Radiology Department

201 Lyons Avenue at Osborne Terrace, Newark, NJ 07112

973.926.7466

Barnabas Health Ambulatory Care Center

The Breast Center


(Across from the Livingston Mall)

973.322.7800

Barnabas Health Family Imaging

and Breast Center at Bedminster

1 Robertson Drive, Suite 16, Bedminster, NJ 070921

973.322.7020

Saint Barnabas Medical Center

The Breast Center


973.322.7800

*Outpatient services performed at the

Saint Barnabas Ambulatory Care Center

*Walk-ins are welcome at all locations.


Jorge G Pardes, MD

Standard screening mammography at Barnabas Health facilities include digital screening mammograms with triple-assurance

Jorge G. Pardes, MD, Director of Breast Imaging, Jacqueline M. Wilentz Comprehensive Breast Center at Monmouth Medical Center and at the three Wilentz satellite Breast Centers located in Howell, Colts Neck and also at Kimball Medical Center in Lakewood, shares that it was the somewhat unique situation of having comprehensive breast services available at one dedicated facility that first drew him to Monmouth Medical Center. Dr. Pardes discusses tomosynthesis, as well as other innovative imaging and diagnostic modalities offered.

“Tomosynthesis allows you to scroll through thin slices of the breast that are as thin as one millimeter,” Dr. Pardes explains. “You scroll through the entire breast and if there is anything that’s hiding behind normal tissue, with tomosynthesis it can be found,” he adds. Dr. Pardes goes on to note that conversely, if there is something that looks abnormal on a conventional mammogram, tomosynthesis will, at times, reveal it to be nothing concerning at all.

Usually performed as a follow-up to an abnormal screening mammogram or when there are other clinical indications, such as dense breast tissue, tomosynthesis provides obvious benefits. Breast cancers that are missed by conventional mammogram can be detected earlier, when they can be treated more effectively. The number of call backs is reduced, thereby sparing patients needless worry and having to undergo unnecessary procedures such as further diagnostic imaging and/or more invasive studies, such as needle biopsy, for example. Also, costs for additional investigation are saved as well.

Automated whole breast ultrasound (ABUS) is an innovative modality that scans the breast with ultrasound in a systematic fashion, obtaining strips of images through each breast in a reproducible way, so that both breasts are fully covered. This is another technology that is particularly useful for dense breast tissue and can serve to complement the finding of cancers.

For some who have had biopsy results that are positive for breast cancer, breast- specific gamma imaging (BSGI) is a nuclear medicine study that uses an injected radioactive substance to obtain four images of the breast. Areas

of abnormal uptake allow radiologists to determine the extent of disease. This is important to show whether there are additional cancer sites within the breast that was biopsied, perhaps warranting more extensive surgery and also to determine if as yet undetected cancer is present in the other breast as well.

Women who are at high risk for developing breast cancer often undergo breast MRI in addition to screening mammography. Barnabas Health prioritizes the need for genetic testing and counseling in order to identify those patients that require more aggressive monitoring. Patients

visiting any of the facilities for screening mammogram are provided with questions related to their breast history and family history of breast cancer.

Through the impressive programs at each of its locations, Barnabas Health remains a leader in the ongoing fight against breast cancer. Fortunately, for patients in New Jersey, until this disease is conquered once and for all, there is a Barnabas Health facility nearby, providing the highest level of care for the diagnosis, treatment and prevention of breast cancer available today.

For more information on mammography and breast wellness, please contact the facility in your area.

October 2012 11


Hurricane Sandy and Destroyed Medical Recordsby Abrams Fensterman Fensterman Eisman Formato Ferrara & Einiger LLP

In the aftermath of Hurricane Sandy, many physicians are left facing the question of what to do with paper medical records that were destroyed by fire or flood. It is essential to look at what should be done in the future to try and prevent this from happening again, but more importantly, what to do now.

According to the administrative requirements of the HIPAA Privacy law, physicians and other health care "covered entities" must maintain reasonable and appropriate administrative, technical, and physical safeguards to prevent intentional or unintentional use or disclosure of protected health information ("PHI"). These safeguards may include securing medical records with lock and key or placing them in a water or fire proof room. While the goal of the safeguards is to avoid disclosure of protected health information, health care providers may now want to look at other options that serve a dual purpose so that the records are protected from the elements of a natural disaster while ensuring that protected health information is not found floating down a street or outside the confines of the covered entity's secured location.

Although recovery of PHI is not addressed in the HIPAA Privacy Law, it is imperative to understand that patient access to medical records for personal use and for disclosure of other uses, is vital to the continuity of patient care and the right to access medical records, amend medical records and receive an accounting of disclosures. PHI must be quickly and efficiently restored to a usable format with communication available to those that request it with information related to the length of time for restoration and/or recovery of information.

The American Health Information Management Association (AHIMA) has posted guidance on what to do if medical records are destroyed. First, try to salvage any records that you can. If a damage restoration company is used, ensure that you enter into a business associates agreement with that company to ensure that any and all services are performed in accordance with the HIPAA privacy and security rules for third party contractors.

If the records are totally unsalvageable, and cannot be reconstructed by either electronic data recovery or through a damage restoration company, reconstruction of the records must be attempted. This can be done by reprinting documents from computer systems, pharmacy records with physician orders, laboratory and radiology databases and other data backup services. If possible, re-transcribe documents from a dictation system if available and check with consultants or other physicians for copies of dictated progress notes or consultative reports. In addition, obtain copies from recipients of previously distributed reports, documents, discharge summaries, and emergency room reports from other physician offices, hospitals, or other healthcare facilities.

If reconstruction is impossible, the health care provider must document the date, the information lost, and the event that caused the loss of patient information. In addition to documentation of loss in the individual patient record, a detailed record must be prepared that includes at a minimum, a list of patient records lost, recovery efforts undertaken and the outcome of such efforts. If any of the affected charts are requested for disclosure for any reason, the documentation of recovery efforts and loss must be sent with that disclosure. Accurate and comprehensive documentation is key to assist with billing and patient care issues.

It should be noted that Medicaid and Medicare providers who are subject to a Payment Error Rate Measurement (PERM) or a Comprehensive Error Rate Testing (CERT) review, may obtain administrative relief from the Department of Health and Human Services Centers for Medicare and Medicaid Services (DHHS) if records are completely or partially destroyed due to a natural disaster. This means that providers that are subject to a review may be entitled to a shift in the time period of the claims being reviewed to a later time period and a suspension of the review for a t least thirty (30) days with appropriate documentation of the disaster as required by DHHS. It is possible that in the case of complete destruction of medical records where no backup records exist, DHHS would accept an attestation that no medical records exist and consider the services covered and correctly coded. In the case of partial destruction, providers should reconstruct the records as best as they can. In either case, providers must note on the face sheet of the medical records that "This record was reconstructed because of disaster." In addition, during a natural disaster, DHHS is required to do all it can do to make sure that Medicare and Medicaid beneficiaries receive the emergency or urgent services that they need and that providers receive payment for all covered services.


HEALTH LAW Update

Assisted Suicide Legislation is Born The “New Jersey Death with Dignity Act,” which would permit qualified patients to self-administer medication to end their lives, has been introduced in both houses of the legislature. If passed, New Jersey would become the third state (the other two being Oregon and Washington) to adopt such a law. The legislation would provide terminally ill patients (those with less than six months to live) with a right to receive and self-administer life-ending medication if they previously expressed a wish to die. The bill would amend New Jersey’s criminal code, which currently considers it a crime to help another person commit suicide.

For additional information, contact:

Carol Grelecki /973.403.3140 /[email protected]

Joseph M. Gorrell /973.403.3112 /[email protected]

Emergency Physician Group Held Vicariously Liable for Acts of Its Independent Contractor The New Jersey Appellate Division recently reversed and remanded a trial court’s finding that a physician engaged by an emergency medicine group providing hospital ED services on an independent contractor basis was, in fact, an employee for purposes of imposing vicarious liability against the group.

By way of background, an emergency medicine group entered into a contract with a hospital to provide physicians and staff for the hospital’s emergency room. The group also contracted with each physician it provided to the hospital. Such contracts established independent contractor arrangements that allowed the group to terminate the contract, set the physician’s compensation and prohibited the physician from competing with hospitals staffed by the group. After a medical malpractice suit was filed against the group and one of its physicians, the group argued that it could not be held vicariously liable for the physician’s alleged malpractice because he was not an employee, but an independent contractor.

While the trial court agreed with the group, the Appellate Division found otherwise. In reaching its decision, the Appellate Division used the four-factor control test from the New Jersey case, Lowe v. Zarghami, 158 N.J. 606 (1999). The control test assesses the following factors in determining a worker’s status: (1) the degree of control exercised by the employer of the means of completing the work; (2) the source of the worker’s compensation; (3) the source of the worker’s equipment and resources; and (4) the employer’s termination rights. Applying this test, the Appellate Division concluded that the physician was an employee of EPA because EPA retained significant authority over the physician, including EPA’s employment of the physician’s supervisors (i.e., the Chief of the Emergency Department), obligation to pay the physician for his services at the hospital, and ability to terminate the physician’s employment.


Keith J. Roberts /973.364.5201 /[email protected]

John D. Fanburg /973.403.3107 /[email protected]

OIG Allows for Hospital ED Per Diem On-Call Arrangement The U.S. Department of Health and Human Services Office of Inspector General (OIG) has approved an arrangement under which a hospital pays a per diem fee to physicians for providing on-call coverage in the hospital’s emergency department (AO 12-15). An independent group of emergency physicians provides basic staffing to the ED. At times, the services of specialist physicians are required, and, therefore, it is necessary to have these specialists on-call. Some specialties, like obstetrics, have restricted call arrangements, which require the physician to be physically present at the hospital during call hours; most other specialties are subject to unrestricted, or off-site, call duty. The arrangement would provide for a per diem fee to those physicians who provide unrestricted call, pursuant to a written agreement. Compensation per specialty is determined by a formula, taking into account the likely number of days per month the specialty would be called, the likely number of patients the specialty would see, and the likely number of patients requiring inpatient care and post-discharge follow-up in-office care. Payment would be made regardless of whether the specialist is contacted by the ED to treat a patient during his or her period of coverage.

The OIG cautioned that many on-call arrangements implicate fraud and abuse laws, since these arrangements may be misused to entice physicians to join or remain on a hospital’s medical staff or to generate additional business for the hospital, and that such arrangements may be used to disguise unlawful remuneration. The OIG approved the proposed arrangement, however, stating that it potentially fits within the safe harbor for personal services and management contracts, and the hospital had instituted a number of other safeguards against fraud and abuse.


Kevin M. Lastorino /973.403.3129 /[email protected]

Carol Grelecki /973.403.3140 /[email protected]

October 2012 13

Assisted Suicide Legislation is Born What Must Health Care Providers Disclose Under the Fraud and Abuse Laws?The Patient Protection and Affordable Care Act (ACA) imposes disclosure requirements to combat fraud and abuse.

Mandatory Disclosure: Providers are required to not only report, but also return, any overpayment under Medicare, Medicaid, or other federal healthcare program. Providers must do so no later than (1) 60 days after the date on which the overpayment was identified, or (2) for those providers filing cost reports, the date any corresponding cost report is due. Many providers have questioned when an overpayment is “identified” and how far back providers must look for overpayments. In response, CMS recently proposed that an overpayment is “identified” when the provider has actual knowledge of the existence of the overpayment or acts in reckless disregard or deliberate ignorance of the overpayment. CMS has also proposed a 10-year look-back period. Given that these proposals are unsettled and subject to future rulemaking, providers must comply with the mandatory disclosure requirements in good faith until further guidance is published.

Voluntary Disclosure: Providers may voluntarily disclose potential or actual violations of the federal prohibition against physician self-referrals (known as the Stark Law). Upon submitting appropriate information, a provider may enter the CMS self-referral disclosure protocol. In reviewing such disclosure, CMS may consider (1) the nature and extent of the improper or illegal practice, (2) the timeliness of such disclosure, (3) the cooperation in providing additional information related to the disclosure, and (3) other factors, as appropriate.

OIG Voluntary Self-Disclosure Protocol: In addition to the mandatory and voluntary disclosures under ACA, providers should be mindful of the longstanding voluntary disclosure protocol for self-reporting potential fraud, including illegal kickbacks and other remuneration. Providers may voluntarily disclose such matters to the OIG. However, given the recent changes to the self-disclosure landscape, OIG has requested comments in connection with updating its voluntary self-disclosure protocol; therefore, changes may be ahead.


Lani M. Dornfeld /973.403.3136 /[email protected]

Mark Manigan /973.403.3132 /[email protected]

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Important Employer-Related Provisions of the Patient Protection and Affordable Care Act Scheduled to Begin in 2013Joseph D. Garcia

Following the United States Supreme Court’s 5 to 4 decision this summer in National Federation of Independent Business et al. v. Sebelius, __ U.S. __, 132 S. Ct. 2566 (2012) and the recent presidential election, it is now certain that the Patient Protection and Affordable Care Act (the “Affordable Care Act”) is going to be part of the employment landscape. It is impractical to think the law will be repealed or overturned in the next four years, if ever. Instead, employers should prepare to meet the challenges and opportunities that health care reform will bring.

Most of the lynchpin provisions of the Affordable Care Act are scheduled to begin on January 1, 2014. These include the play-or-pay mandate for employers with over 50 full-time employees, tax credits for small business who provide health care coverage to employees and the effect of state health insurance exchanges on the overall marketplace. Employers should be evaluating how these provisions will affect their businesses right now. But some of the provisions of the Affordable Care Act are set to begin in 2013 will have a substantial effect on employers. Here is a quick summary of those changes.

W-2 Reporting Requirements

The Affordable Care Act will require employers to provide information about the aggregate cost of employer-sponsored coverage on the W-2 Form for the 2012 tax year. 26 U.S.C. § 6051(a)(14). This new requirement does not apply to amounts contributed to any health savings account, salary reduction contributions to flexible spending accounts or Archer MSAs. This provision was originally set to begin for the tax year 2011, but the IRS pushed back the date by one year. IRS Notice 2010-69.

FSA Limitations

Effective after December 31, 2012, the Affordable Care Act will decrease the amount of money that can be aside for use in a flexible spending account (“FSA”) to reimburse qualified medical expenses from $5,000 to $2,500. 26 U.S.C. § 106(c). The main benefit of an FSA is that money set aside from an employee’s paycheck for this purpose is tax deductible to both the employee and the employer, neither of whom must pay income or payroll taxes on the amount deducted. The FSA can be used for medical expenses such as co-pays for doctor visits, prescription drugs and other types of medical expenses. Following 2013, the amount of the contribution limit will be tied to a cost-of-living adjustment.

Automatic Enrollment in Employer Sponsored Plans

Beginning in October 2013, employers with more than 200 full-time employees who offer one or more health benefit plans must automatically enroll new employees in one of the plans offered by the employer. The “automatic enrollment program shall include adequate notice and the opportunity for an employee to opt out of any coverage the individual or employee were automatically enrolled in.”

Increased Tax Withholdings on Higher Income Earners

The Affordable Care Act will increase the Medicare Hospital Insurance Tax (“HI”) on high-income employees by 0.9 percent on an individual’s income over a certain threshold amount after December 31, 2012. The HI tax is currently 1.45 percent of an employee’s wages, and it is matched by the employer at 1.45 percent. 26 U.S.C. § 3101(b). The new 0.9 percent increase in the HI tax will only apply to the following threshold amounts: $250,000 for married couples filing jointly, $200,000 for single individuals, and $125,000 for married couples filing separately. The Affordable Care Act does not increase the amount of taxes that the employer will pay for purposes of the HI tax. For example, if an employee makes $220,000/year, the employer will pay a matching 1.45 percent on all $220,000, but the employee will pay 1.45 percent on all income up to $200,000 and 2.35 percent on all income over $200,000. For withholding purposes, an employer may disregard the amount of wages earned by an employee’s spouse, and the employee is responsible for any owed amount that is not remitted by the employer.

Notice of State Exchange Rights for Employees

The Affordable Care Act also provides that, as of March 2013, employers must provide written notice to all full-time employees, including new employees at the time of hiring, regarding the existence of the state health insurance exchange (the “exchange”), availability of individual credits through the exchange and the effect that purchasing a health plan through the exchange will have on employer-provided health coverage. Exchanges are intended to be state-specific web-based insurance markets, similar to travel comparison websites (“Priceline.com”), in which an individual or small business is able to compare insurance coverage options and price, calculate available subsidies and tax credits, and purchase coverage.

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October 2012 15

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MedPac Recommends Significant Cuts to Medicare Payment Caps for Therapy by Nearly 33 Percent

Health Law Developments

by King & Spalding

During its November 2 meeting, the Medicare Payment Advisory Commission (MedPAC) voted to recommend lowering Medicare payment caps for outpatient therapy by almost 33 percent. Medicare currently caps combined payments for occupational and physical therapy at $1,880, and it caps payments for speech-language pathology therapy at the same level. MedPAC will recommend lowering both of these caps to $1,270.

According to a transcript released by MedPAC, Commission Chairman Glenn M. Hackbarth stated that the recommendation “seeks to strike an appropriate balance” between “limit[ing] Medicare spending and ensuring quality of care by “[d]oing away with hard caps yet tak[ing] steps to manage that cost insofar as possible and, in effect, have . . . a rate of spending that is lower than is happening as we speak.” Currently, beneficiaries can seek exception from the caps if the beneficiary’s provider attests that the outpatient therapy is medically necessary. Nevertheless, Congress is required to reauthorize the exceptions process each year, and the current “exceptions process sunsets at the end of 2012,” according to a presentation released by MedPAC in connection with its November 2 meeting. MedPAC believes that “caps without exceptions may impede access to necessary treatment.”

“Currently, we have a system effectively with no caps because there are open-ended exceptions to the caps. So that’s the current high level of spending, if you will,” Hackbarth added. “If we allow hard caps to go into effect, there would be a dramatic drop down beginning January 1. I’m looking for a line somewhere in between those two levels that can help assure appropriate access to needed services while keeping the cost below an unrestrained level of spending.”

MedPAC’s November 2 recommendation to lower outpatient therapy caps was part of a Congressionally-mandated report entitled “Improving Medicare’s payment system for outpatient therapy services.” MedPAC is an independent Congressional agency established by the Balanced Budget Act of 1997 to advise Congress regarding issues that affect Medicare.


Health Law Developments


Here are the most recent health care related regulatory developments as published in the New Jersey Register

October 2012 17

GAO Targets Self-Referred Advanced Imaging Servicesby Mintz Levin - Health Law

author: Tom Crane and Brian P. Dunphy

In a recently issued GAO Report entitled, “Higher Use of Advanced Imaging Services by Providers Who Self-Refer Costing Medicare Millions,” the Government Accountability Office (GAO) identified significant utilization trend data and potential Medicare cost savings that may be reviewed closely by Congress and the Administration in the upcoming deficit reduction negotiations.

The GAO generally found that, in the study period, “[S]elf-referring physicians referred about two times as many advanced imaging services [magnetic resonance imaging (MRI) and computed tomography (CT) services], on average as providers who did not self-refer.” Of particular note, the GAO focused on self-referral patterns of MRI and CT services by physicians the year after they began to self-refer – a group the GAO characterized as “switchers.” The GAO found that, “[o]verall, the switcher group of providers who began self-referring in 2009 increased the average number of MRI and CT referrals they made by about 67 percent in 2010 compared to the average in 2008.”

Although the so-called Stark Law generally prohibits physicians from referring Medicare patients to providers that furnish advanced imaging testing services and other designated health services (DHS) where the referring physician has an ownership interest in the DHS provider, the Stark Law permits self-referral within the physician’s own practice under a tight set of rules known as the in-office ancillary services exception. Based, in part, on previous reports from the GAO and Medicare Payment Advisory Commission, in the Affordable Care Act, Congress amended this in-office ancillary exception to require referring physicians to provide certain disclosures to patients receiving MRI and CT testing performed in the office regarding the availability of alternative sources of suppliers providing these services.

Based on the GAO’s utilization findings, it estimated in the GAO Report that, “Medicare spent about $109 million more in 2010 than the program would have if self-referring providers referred advanced imaging services at the same rate as non-self-referring providers of the same specialty and provider size.” Senator Max Baucus (D-MT), one of five Senate and House bipartisan members who requested the GAO Report, commented in a statement that these findings were “eye-opening.”

In the GAO Report, the GAO recommended that CMS take the following three actions:

• Insert a self-referral flag on its Medicare Part B claims form and require providers to indicate whether the advanced imaging services for which a provider bills Medicare are self-referred or not.

• Determine and implement a payment reduction for self-referred advanced imaging services to recognize efficiencies when the same provider refers and performs a service.

• Determine and implement an approach to ensure the appropriateness of advanced imaging services referred by self-referring providers.

In its formal response to the GAO Report, CMS only concurred on the third recommendation, and noted that depending on the strategy, for example imposing a prior authorization requirement, it will need additional statutory authority. Atypical for the GAO, the GAO Report reacted to CMS’ response with the following comment: “[W]e are concerned that neither HHS nor CMS appears to recognize the need to monitor the self-referral of advanced imaging services on an ongoing basis and determine those services that may be inappropriate, unnecessary, or potentially harmful to beneficiaries.”

Putting these issues in the larger context, the GAO noted that there are, “challenges to the long-range fiscal sustainability of Medicare….” In this light, and through the upcoming budget deficit negotiations in Washington, it is worth watching to see whether Congress and the Administration seek Medicare savings based on the GAO’s findings.

Here are the most recent health care related regulatory developments as published in the New Jersey Register

Here are the most recent health care related regulatory developments as published in the New Jersey Register on November 5, 2012:

• On November 5, 2012 at 44 N.J.R. 2431, the Department of Youth and Families published notice of its readoption with amendments to its rules governing children’s partial care programs.

• On November 5, 2012 at 44 N.J.R. 2442, the Department of Corrections published notice of its proposal of a new rule regarding the provision of a medical discharge summary to inmates prior to their release from a state correctional facility.

• On November 5, 2012 at 44 N.J.R. 2447, the State Board of Medical Examiners and the Genetic Counseling Advisory Committee published notice of its proposal of new rules governing the licensure of genetic counselors.

• On November 5, 2012 at 44 N.J.R. 2453, the Division of Consumer Affairs published notice of its proposed amendments to its rules governing the New Jersey Uniform Prescription Blanks program and the printing specifications for prescription blanks.


• On November 5, 2012 at 44 N.J.R. 2917, the State Board of Medical Examiners published notice of its receipt of a petition for rulemaking filed by the New Jersey Hospital Association seeking to permit licensed physicians to be employees of corporations which are wholly controlled subsidiaries of a licensed hospital. Under the proposal, the activities of the subsidiary corporation would be monitored through a quality assessment and performance improvement program and the structure of the program would be made available to the Board for review upon request. In addition, a hospital would not exercise control over employee physicians’ independent medical judgments, and would have, as part of its governance structure, a committee comprised solely of licensed physicians who have sole responsibility for all corporate decision making involving the exercise of independent medical judgment.

On October 15, 2012 at 44 N.J.R. 2327, the Department of Human Services published notice of its proposal of amendments to its rules and the proposal of new rules governing community care residences for individuals with developmental disabilities, which are licensed by the Department to serve the developmentally disabled in private homes.

• On October 15, 2012 at 44 N.J.R. 2352, the State Board of Marriage and Family Therapy Examiners published proposed amendments to their rules governing experience requirements needed for licensing.

• October 15, 2012 at 44 N.J.R. 2353, the State Board of Medical Examiners published notice of its proposal of new rules governing the prescribing, administering and dispensing of anabolic steroids and human growth hormone. The proposed rules would restrict prescriptions for these substances unless there is a bona fide relationship with the patient; a medical history has been obtained; a full physical examination has been performed; and the prescription is for a valid medical indication and necessary as set forth in the regulations.

• October 15, 2012 at 44 N.J.R. 2356, the State Board of Polysomnography published notice of proposed amendments to its rules governing applications for licensure as a polysomnographic technologist.

• On October 15, 2012 at N.J.R. 2365, the Department of Banking and Insurance published concurrent notices of its amendments to its policy forms to comply with state and federal law under the Individual Health Benefits program and the Small Employer Health Benefits program

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October 2012 19

News Bits

Failure To Tell DYFS a Child Drank Cologne May Leave Doctor LiableBy Charles Toutant

New Jersey Law Journal

A published appeals court decision that an emergency room doctor must stand trial for not telling child welfare authorities that a 2-year-old ingested cologne is making heads turn.

The obligation to report possible abuse or neglect to the Division of Youth and Family Services "does not require the potential reporter to possess the quantum of proof necessary for an administrative or judicial finding," the Appellate Division said in reversing summary judgment dismissal of the complaint in L.A. v. DYFS, A-2726-11.

All that is required under the statute is a "reasonable cause to believe," the panel said, noting that a reasonable jury could blame the child's actions on reckless or negligent conduct by a parent and find the doctor breached the standard of care by failing to report it.

The ruling "puts doctors in a very difficult position, if these are all going to be jury questions," says Abbott Brown, writer and lecturer on medical malpractice law. "If I were counsel to family doctors, pediatricians or emergency room doctors, I would make sure they read this and understood this."

The child in the case, S.A., was abandoned by her mother soon after birth and in 2000, at the age of 2, was sent by DYFS to live with her father. On Jan. 13, 2001, other relatives brought her to the emergency room at Jersey Shore University Medical Center in Neptune. The child was described to a nurse as vomiting and walking with an unsteady gait and was observed as lethargic and weak with an unusual odor on her breath.

Dr. Daniel Yu conducted an extensive examination, ran tests for blood-sugar and carbon monoxide poisoning, and ordered blood work, a chest X-ray and urinalysis. The child had a blood-alcohol concentration of 0.035 percent.

Based on the test results, the cologne odor and accounts by the child's relatives, Yu concluded that S.A. had ingested cologne. Three hours after she arrived, S.A. was alert and able to walk normally, and was discharged.

In March 2001, DYFS received reports that S.A. had been burned and beaten and removed her from her father's care in April after she was found with chemical burns on her vagina, foot, leg and buttocks, along with bruises and belt marks.

An individual identified as L.A. adopted S.A. in April 2006 and a year later sued DYFS, state officials, Jersey Shore and Yu on behalf of the child.

The suit alleged that Yu was negligent for failing to abide by N.J.S.A. 9:6-8.10, which requires any person who has reasonable cause to believe a child has been subject to abuse to contact DYFS. The claims against the hospital were premised on Yu's liability.

Mercer County Superior Court Judge Paul Innes awarded summary judgment to Yu and Jersey Shore in August 2010. Innes found that the mere fact that the child ingested a foreign substance is not sufficient to give reasonable cause to believe child abuse occurred.

The case went to trial and last Dec. 16, a jury assessed $3.25 million in damages against DYFS. Facing a claim for attorney fees because of a civil rights allegation, and a separate trial on punitive damages, the state agreed to settle for $5 million that day.

Appellate Division Judges Alexander Waugh, Carmen Alvarez and Jerome St. John reversed Innes' ruling releasing Yu and Jersey shore from the case.

They concluded that a reasonable jury could find that the child's condition was the result of "reckless" or "grossly or wantonly negligent" conduct or inaction by a parent or guardian.

They also concluded that Yu fell short of his obligations by failing to report the matter to DYFS. "[A] physician has 'reasonable cause to believe' that there has been abuse if a 'probable inference' from the medical and factual information available ... is that the child's condition is the result of child abuse," Waugh wrote for the panel.

"The inference need not be the 'most probable,' but it must be more than speculation or suspicion," he added.

Brown, who represents medical malpractice plaintiffs but was not involved in the case, says the appeals court's failure to set a bright line on when doctors should contact DYFS is "problematic." The decision "seems to suggest a jury could place a pretty low standard" on what cases warrant reporting, he says.

A jury's finding of liability against Yu would shake up the medical profession, but it's more likely the physician will be exonerated, says Brown, of Bendit Weinstock in West Orange.

The lawyer for S.A. and L.A., David Mazie of Mazie, Slater, Katz & Freeman in Roseland, was not available for comment Monday.

Richard Amdur of Amdur, Maggs & Shor in Eatontown, for the hospital, and Michael Opacki of Buckley Theroux Kline & Petraske in Princeton, for Yu, did not return a reporter's calls.


Food For Thought

Although originally located in West Orange from 1996, I had never tried Sweet Basil’s. Since recently re-locating to Livingston, Sweet Basil’s has received a lot of positive buzz around town. Not too long ago, on a Friday night, Michael and I and three other Livingston couples who happen to be some of our oldest and dearest friends, met for dinner.

Like the menu, the décor is casual – a nice atmosphere to meet and greet. I was disappointed to be seated at a long table instead of a round one as it is difficult to have eye contact and speak comfortably. We decided to place the four women, facing each other, at one end and the men at the other. The place was filled to capacity and more than a bit noisy with many of the tables, much like ours, immersed in animated conversation. The festive mood was certainly appropriate. It’s Friday night, you’re with friends and the wine (BYOB) is flowing. It doesn’t get much better than that.

I really enjoy eateries that offer an eclectic menu. Especially with a large group, it’s great when everyone can find something tempting to order. At Sweet Basil’s, you can start with anything from Tapas-style small plates of hot food such as mussels in tomato broth with chorizo sausage and cherry peppers or pulled pork sliders, to a variety of bruschetta made with ingredients such as gorgonzola cheese, apples and walnuts or braised cannellini beans and arugula, for example. The small plates are $5.00 each and the bruschetta, $3.00 apiece and three for $8.00.

There are warming appetizers such as littleneck clam chowder with fresh whole clams, thick-cut bacon, new potatoes and a touch of sherry or perhaps some mac and a blend of manchego, aged cheddar and gruyere, served bubbling in a cast iron skillet.

I did not choose any of these but rather decided to keep things on the light side and started with a walnut-crusted goat cheese salad of mixed greens, dressed with a Portobello and herb vinaigrette. One of the other women chose a salad of roasted beets, caramelized onion, arugula, bleu cheese and shallot vinaigrette. The salads were great but we would have enjoyed some bread to go with. After we inquired, a bread basket was brought to the table.

The dinner menu offers a light meal such as an entrée sized salad surrounding yellowfin tuna, steak, shrimp or perhaps a crab cake. There are sandwiches, a creative array of burgers and pastas with meat or seafood. Meat entrees include comfort food like pork Osso Bucco, country fried chicken and shepherd’s pie. There are an assortment of seafood dishes with fresh fish of the day as well as king salmon, filet of tilapia and a hearty seafood boulliabase. I chose the tilapia, which was served over white beans with tomato and baby arugula. The fish was well-prepared - moist and tender with a delicate hint of herb crusting.

Livingston, New Jersey

By Iris Goldberg

I must be honest and share that when I get together with these people, I don’t focus too much on the food. After so many years we still find so much to laugh about and as time passes, more things to be sad about - but mostly we laugh. We laugh about the idiosyncracies of our spouses. We delight in sharing entertaining stories about our children, our grandchildren and about trying to age gracefully. We commiserate about the stresses of our jobs and the aches and pains that have become a part of life. Often, we reassure one another that a certain amount of memory loss is normal for people our age. We chew and talk and sip and talk. This night, we shouted to those seated at the other end of the table but could not always hear the response.

Now that Sweet Basil’s is so close to home, I think we will go often. The atmosphere is comfortable. The menu offers many interesting dishes to explore. In fact, known particularly for its scrumptious breakfasts, brunch and lunch offerings, Sweet Basil’s may become a regular dining spot for us. If you live in the area, check it out. Maybe, we’ll see you there.

Sweet Basil’s is located at 498 South Livingston Avenue, Livingston, NJ 07039. (973) 994-3600

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