New Jersey Vetoes Bill Authorizing Pharmacists to Administer COVID-19 Tests but Passes Bill Imposing Assessments on Entities Issuing Health Plans. Plus, New Final and Proposed Federal Regulations.

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Governor Murphy Vetoes Bill Authorizing Pharmacists to Order and Administer COVID-19 Tests

Bill S2436, which passed both the Senate and Assembly, allows for licensed pharmacists, consistent with federal guidance and waivers, to order or administer to any person any COVID-19 test that the Food and Drug Administration has authorized for use. Under the bill, the pharmacy must distribute personal protection equipment ("PPE") to all pharmacy staff and ensure that policies and protocols are in place to ensure all people presenting at the pharmacy for any reason maintain a level of social distancing appropriate to prevent the transmission of COVID-19.  In addition, the pharmacist is required to ensure compliance with all State and federal requirements concerning a positive test for COVID-19, including reporting and data collection requirements. Governor Murphy vetoed the bill requesting amendments to expand the bill to include testing for COVID-19 antibodies and make sure that administering a test includes collecting or overseeing the collection of a specimen and causing the specimen to be sent to a laboratory with the capacity to perform the test.

New Jersey Approves Assessment Bill

S2676, which recently became law, requires certain entities authorized to issue health benefits plans, including insurance companies, health service corporations, and hospitals, to pay annual assessments based on net written premiums. Specifically, the bill requires these entities to pay an annual assessment that is 2.5% of the entity’s net written premiums as defined by the bill. These entities will also have to annually file with the Commissioner of Banking and Insurance their net written premiums for the preceding year, no later than April 1 of each year, and then the commissioner must calculate and issue to the entity a certified assessment that is 2.5% of the entity’s net written premiums.  Payment of the assessment must be paid no later than May 1 of each year. The Office of Legislative Services ("OLS") estimates that this bill will result in annual State revenue increases of about $390 million starting in calendar year 2021. The bill takes effect on January 1, 2021.

Federal Final Regulation Regarding the Basic Health Program Under the Affordable Care Act

85 FR 49264: Centers for Medicare & Medicaid Services (“CMS”) has finalized a rule setting forth the methodology and data sources necessary to determine federal payment amounts to be made for program year 2021 to states that elect to establish a Basic Health Program (“BHP”) under the Patient Protection and Affordable Care Act. BHPs allow states to offer health benefits coverage to low-income individuals under age 65 who are not otherwise eligible for Medicaid, the Children’s Health Insurance Program, or affordable employer-sponsored coverage. The methodology and data sources are effective January 1, 2021.

Federal Proposed Rule in Calculating Patient Days

85 FR 47723: This rule would establish a policy concerning the treatment of patient days associated with persons enrolled in a Medicare Part C (also known as ‘‘Medicare Advantage’’) plan for purposes of calculating a hospital’s disproportionate patient percentage for cost reporting periods starting before FY 2014. The proposed rule comes in response to the Supreme Court ruling in Azar v. Allina Health Services, which held that the Department of Health & Human Services ("HHS") must provide notice and an opportunity to comment before implementing a rule changing its Medicare reimbursement formula. The proposed rule requests comment on its proposals to include Medicare Advantage patient days in the Medicare fraction for fiscal years before FY 2014, or alternatively, to include Medicare Advantage patient days for dually eligible beneficiaries in the numerator of the Medicaid fraction for those fiscal years.