Coronavirus – CMS Guidance Part Two

This update is a follow-up to our previous update on COVID-19 and the steps that the federal government has taken to combat the virus.  Most critically, CMS has significantly expanded telemedicine services to Medicare beneficiaries.  For example, CMS has waived the requirement that a physician must have a previous relationship with the patient before providing some services, such as telehealth visits.

Health Care Litigation Update

Fifth Circuit says Texas Hospital Cannot Challenge Medicare Payments Based on Wrong Information

The U.S. Court of Appeals for the Fifth Circuit recently ruled that Texas’ Hendrick Medical Center may not challenge Medicare payments calculated based on wrong information, when it failed to follow administrative rules for correcting the data before the federal agency set the payment rate. 

Coronavirus – An Outline of CMS Guidance

In light of the impact of the Coronavirus (“COVID-19”), The Centers for Medicare & Medicaid Services ("CMS") has provided numerous and diverse responses beyond the travel restrictions that have been imposed, including the issuing of a memo on February 6, 2020 to health care facilities to take critical steps to prepare for and address the virus, issuing guidance to a variety of providers on infection control throughout this period, obtaining commitments from insurance companies to waive co-payments and coinsurance obligations, creating new billing codes, and expanding telemedicine.

Beware of the Telemedicine Trap

When New Jersey enacted the Telemedicine Act, N.J.S.A. 45:1-62 et al. (the “Act”), many physicians celebrated.  Although telemedicine is a good thing for the health care industry, it is not the free-for-all that many physicians believe.  For example, the Act requires that the physician be licensed in the state in which the patient is located.  Many telemedicine statutes implemented by other states are similar to the Act.

Federal Regulatory and Litigation Update

Medicare Program: Comprehensive Care for Joint Replacement Model Three-Year Extension and Changes to Episode Definition and Pricing

85 FR 10516:  On February 24, 2020, CMS proposed a rule intended to revise certain aspects of the Comprehensive Care for Joint Replacement (CJR) model, which was CMS’s first mandatory bundled payment initiative, which began on April 1, 2016 and is set to expire on December 31, 2020.   Specifically, the proposed rule now incorporates the episode of care definition, the target price calculation, the reconciliation process, the beneficiary notice requirements and the appeals process.

Federal Regulatory Update: New Quarantine and Medicare Advantage Regulations

85 FR 7874 – Interim Final Rule - The CDC issued this interim final rule to amend its Foreign Quarantine regulations, to enable CDC to require airlines to collect, and provide to CDC, certain data regarding passengers and crew arriving from foreign countries for the purposes of health education, treatment, prophylaxis, or other appropriate public health interventions, including travel restrictions. Although the rule was not published until February 12, 2020, it became effective on February 7, 2020. 

Federal Regulatory Update, Including Acupuncture Approval to Fight Addiction

On January 30, 2020, CMS issued a new initiative to allow states to carry out demonstrations under Section 1115 waivers converting some of their federal Medicaid funding to block grants.  Under the initiative, states that apply can provide Medicaid coverage using flexible benefit designs under either an aggregate or per-capita cap financing model for certain populations without being required to comply with a list of Medicaid provisions, CMS said.

New OIG Advisory Opinion On Travel Expenses, Changes to Medicare Advantage, and Final Rule On How Pharmacist Input in the NCPDP

OIG Advisory Opinion No. 20-02

In a January 15, 2020 Advisory Opinion, the Office of Inspector General (OIG) weighed in on whether financial assistance for travel, lodging, and other expenses provided by a pharmaceutical manufacturer to certain patients prescribed the manufacturer’s drug, constitutes grounds for imposition of sanctions under the civil monetary penalty provision prohibiting inducements to beneficiaries, § 1128A(a)(5) of the Social Security Act (the “Act”), or under the exclusion authority at § 1128(b)(7) of the Act, or the civil monetary penalty provision at §1128A(a)(7) of the Act, as those sections relate to the commission of acts described in § 1128B(b) of the Act, the federal anti-kickback statute.

Will the Feds Do Anything About Vertical Mergers in Health Care? Read the Latest Guidelines on Vertical Mergers as Well as Other Regulatory and Litigation Updates

Federal Guidelines On Vertical Mergers

In January 2020, the DOJ’s Antitrust Division and the FTC published draft guidelines regarding vertical mergers.   The DOJ has not drafted merger guidelines in approximately 36 years, perhaps indicating that vertical mergers will receive heightened scrutiny in the near future.  Vertical mergers combine two or more companies that operate at different levels in the same supply chain.