Riker Danzig Health Care Update February 26, 2016
New Jersey State: Selected Proposed Legislation
- A. 1812 – Introduced – Provides civil immunity for certain volunteer physicians, nonprofit clinics, and federally qualified health centers.
- A. 1567 – Introduced – “Medical Philanthropy Act”; provides physicians who provide uncompensated care with $250,000 cap on noneconomic damages in medical malpractice actions.
- A. 685 – Introduced – Requires newly licensed registered professional nurses to attain baccalaureate degree in nursing within 10 years of initial licensure as a condition of renewal of the license.
- A. 523 – Introduced – Requires drug test specimens from drug abuse treatment clinics be analyzed by an independent clinical laboratory.
- A. 1896 – Introduced – Requires health insurers to disclose broker commissions to purchasers.
- A. 2136 – Introduced – Requires physicians and other prescribers to obtain informed consent from parents or guardians of minors for certain medications with “black box warnings."
- A. 669 – Introduced – “Consumer Access to Health Care Act”; eliminates requirement of joint protocol with physician for advanced practice nurses to prescribe medication.
- A. 2209 – Introduced – Permits pharmacists to dispense certain drugs in an emergency without a prescription.
- S. 694 – Introduced – Requires carriers to classify medically necessary procedures as covered benefits and remit certain payments to hospitals for services rendered.
- S. 65 – Introduced – Requires insurers to provide a minimum of 30 days inpatient treatment for substance abuse when physician determines treatment is medically necessary.
- S. 237 – Introduced – Requires Commissioner of DHSS to convene a strategic planning summit to analyze the state’s physician workforce supply.
- S. 463 – Introduced – Requires hospital employees to assist uninsured patients with creating accounts to apply for insurance coverage through the Federally-Facilitated Marketplace.
- S. 377/A. 918 – Introduced – Requires a hospital patient’s medical record to include notation if patient has Alzheimer’s disease and related disorders.
- S. 826/A. 823 – Introduced – Amends the Health Enterprise Zone law to allow municipalities more discretion in granting property tax exemptions to medical offices.
- S. 652/A. 1457 – Introduced – Provides for Medicaid and NJ FamilyCare coverage and reimbursement for health care services provided through telemedicine.
- S. 796/A. 620 – Introduced – Requires health care practitioners to discuss the risk of addiction when prescribing certain drugs to patients who are minors.
- S. 860/A. 840 – Introduced – Establishes minimum certified nurse aide-to-resident ratios in nursing homes.
- S. 821/A. 820 – Introduced – Requires employers and birthing facilities to notify insured pregnant women if their health insurance coverage is not subject to 48-hour maternity law.
Federal: Selected Proposed Legislation
- S. 2438 – Introduced – This bill would amend titles XI and XIX of the Social Security Act to establish a comprehensive nationwide system aimed at evaluating the quality of care received by beneficiaries of Medicaid and the Children’s Health Insurance Program (CHIP) and would provide incentives to improve the quality of that care.
- H.R. 4442/S. 2484 – Introduced – This act, known as the “Creating Opportunities Now for Necessary and Effective Care Technologies (CONNECT) for Health Act,” would amend Titles XVIII and XI of the Social Security Act to promote cost savings and quality care under the Medicare program through the use of telehealth and remote patient monitoring services.
Federal: Selected Proposed Regulation
- 81 FR 6988-01 – Introduced – This proposed rule would change the Confidentiality of Alcohol and Drug Abuse Patient Records regulations, which have not been updated since 1987.
- A health care provider group in Oklahoma, Bristow Endeavor Healthcare LLC, launched a $40 million antitrust lawsuit against Blue Cross Blue Shield alleging that the insurance giant conspired with competitors of Bristow’s to steer patient referrals away from their facilities, fix prices and eliminate Bristow’s competition from the market. See, Bristow Endeavor Healthcare LLC v. Blue Cross and Blue Shield Association et al., case number 4:16-cv-00057, in the U.S. District Court for the Northern District of Oklahoma.
- A multi-employer trust asked the U.S. Supreme Court to decide whether ERISA can preempt state-law breach of contract claims in a case in which the trust said two people received medical benefits they were not entitled to. Specifically, the Ninth Circuit ruled in September that ERISA did preempt such claims. See, Oregon Teamster Employers Trust v. Hillsboro Garbage Disposal Inc. et al., case number 15-929, in the Supreme Court of the United States.
- CMS responded to its D.C. Cir. loss mandating clarification of their “Turbocharge” pay policy. Specifically, CMS explained why the agency, despite identifying 123 hospitals potentially eligible for turbocharge payments, which are payments received for Medicare patients that are unusually expensive to treat, only corrected the payments with respect to 50 turbocharging hospitals. CMS stated that the corrections were intended to simulate adjustment of outlier payments through a reconciliation process and that those 50 hospitals were the only ones that met their criteria for reconciliation. See, District Hospital Partners et al. v. Burwell, case number is 14-5061, in the U.S. Court of Appeals for the District of Columbia Circuit.
- The Texas Medical Board is appealing a federal judge’s decision not to dismiss Teladoc Inc.’s antitrust challenge to the Board’s rule that requires physicians to see patients face-to-face before providing remote healthcare. The case comes in the wake of the U.S. Supreme Court’s ruling in North Carolina State Board of Dental Examiners that held that state boards that primarily are comprised of market participants are not immune from suit. See, Teladoc Inc. et al. v. Texas Medical Board et al., case number 1:15-cv-00343, in the U.S. District Court for the Western District of Texas.
- A Union County based physician who specializes in treating pelvic dysfunction was sued by the federal government on February 10, 2016 for allegedly submitting millions of dollars in false Medicare and Medicaid claims for carrying out thousands of invasive diagnostic tests that the government says were never actually performed. The physician’s claims were more than four times higher than the next highest billing doctor during the relevant time period. See, USA v. Labib E. Riachi MD et al. in the U.S. District Court for the District of New Jersey.
- A Southern District of New York federal judge allowed a proposed class action against Dave & Buster’s, the popular amusement chain restaurant, to proceed. The class action claims that the chain slashed its employees’ hours to avoid potential increased health care costs mandated by certain provisions of the Affordable Care Act. See, Marin v. Dave & Buster’s et al., case number 1:15-cv-03608, in the U.S. District Court for the Southern District of New York.
- On February 9, 2016, the D.C. Circuit decided that a district court has jurisdiction to order the Department of Health and Human Services to slash their massive backlog of disputed Medicare claims. The complaints had been raised by the American Hospital Association (AHA) and several other hospitals saying that the backlog had resulted in their having to cut jobs and delay purchasing new equipment for their facilities. When the complaints had first been raised back in 2014, the backlog was at 800,000 disputed claims. See, American Hospital Association et al. v. Burwell, case number 15-5015, in the U.S. Court of Appeals for the District of Columbia Circuit.
- A nonprofit hospital group in New Jersey challenged an IRS tax bill on administrative fees for a GPO, saying that GPOs are essential to providing more cost-effective care at New Jersey’s teaching hospitals and that the IRS should have allowed write-offs. In all, the hospitals urged the court to remove a not-insubstantial sum of $761,000 from their tax bill. See, New Jersey Council of Teaching Hospitals, case number 2822-16, in the United States Tax Court.
- On February 5, 2016, a nonprofit insurer in Illinois, created under the auspices of the Affordable Care Act, was challenged with a class action suit in state court over its decision to drop the University of Chicago from its provider network. The complaint was brought by patients who only signed up for the provider because of the expectation that the University’s specialists would be part of the network. See, Blumenthal et al v. Land of Lincoln Mutual Health Insurance Co., case number 2016-CH-01508, in the Circuit Court of Cook County, Illinois, Chancery Division.
- The Second Circuit invalidated a Department of Health and Human Services regulation that limited hospitals from being reclassified on multiple occasions as urban or rural for the purposes of drug pricing and wage adjustments. Specifically, the Second Circuit ruled that the Department had gone beyond its statutory grant of authority to issue regulations on this topic and, therefore, the rule regardless of its purpose to curb abuse, could not be upheld. See, Lawrence & Memorial Hospital v. Burwell et al., case number 15-164, in the U.S. Court of Appeals for the Second Circuit.
In the News
- The U.S. Senate Committee on Health Education, Labor and Pensions approved seven medical innovation bills as the first step in its approach to the 21st Century Cures Act. These bills, which will be considered by the whole senate at a later date, are S. 2030: The Advancing Targeted Therapies for Rare Diseases Act of 2015, S. 1622: The FDA Device Accountability Act of 2015, S. 2014: Next Generation Researchers Act, S. 800: The Enhancing the Stature and Visibility of Medical Rehabilitation Research at National Institutes of Health Act, S. 849: Advancing Research for Neurological Diseases Act of 2015, S. 2503: Preventing Superbugs and Protecting Patients Act, and S. 2511: Improving Health Information Technology.
The list above does not include every proposed or adopted legislation, litigation or guidance document that may impact the health care industry. Instead, it includes only a select few chosen by the authors, and any information in this Update is not intended to provide legal advice. If you are concerned that a proposed or adopted legislation, litigation or guidance document may impact your practice, then you should seek legal advice. Nothing in this Update should be relied upon as legal advice in any particular matter. © 2016 Riker Danzig Scherer Hyland & Perretti LLP.
If you have any questions about the issues discussed in this Update, please contact the following Riker Danzig attorneys:
Glenn A. Clark, Partner
Stephen M. Turner, Associate