Riker Danzig Health Care Update July 19, 2017

Riker Danzig Health Care Update July 19, 2017
Riker Danzig Health Care Update July 19, 2017

New Jersey State: Selected Proposed and Adopted Legislation    

  • A. 4895/S. 3056 – Introduced – Eliminates unemployment insurance exemption for interns employed by hospitals.
  • A. 4931 – Introduced – Requires certain hospitals with on-site clinical laboratories to ensure in-network coverage for laboratory services if hospital is in-network.
  • A. 4975 – Introduced – Titled the “New Jersey Respect for Physicians Act,” this bill requires prompt responses by insurers to requests for prior authorization of health care services.
  • A. 4945 – Introduced – Titled the “Healthy New Jersey Act,” this law would establish a single-payer health care system.
  • S. 2650 – Amended/Substituted – Authorizes pharmacists to dispense up to a 90-day supply of certain prescription drugs.
  • S. 1238 – Amended/Substituted – Authorizes certain gestational carrier agreements.
  • S. 103 – Amended/Substituted – Enters New Jersey in multi-state Nurse Licensure Compact.
  • A. 2758 – Amended/Substituted – Permits certain health care professionals to waive health insurance copayments for members of military serving on active duty.
  • A. 1464 – Amended/Substituted – Authorizes health care providers to engage in telemedicine and telehealth.
  • A. 4871 – Amended/Substituted – Provides for licensing of radiologist assistants by DEP under “Radiologic Technologist Act” and requires State Board of Medical Examiners to approve procedures and establish level of supervision necessary for practice of radiologist assistants.
  • P.L. 2017, c. 88 – Adopted – Requires DOH to issue standing order authorizing pharmacists to dispense opioid antidotes to patients without individual prescriptions.

New Jersey State: Selected Proposed and Adopted Regulation  

  • 49 N.J.R. 1430(a), 1433(a), 1438(a) and 1440(a) – Adopted – The State Boards of Medical Examiners, Dentistry, Optometrists, and Nursing adopted regulations affecting the manner in which they may issue prescriptions by placing limitations on the prescription of, administering of, and/or dispensing of controlled dangerous substances. This regulation also places special requirements for management of acute and chronic pain.
  • 49 N.J.R. 1650(a) – Proposed – This proposed regulation will require that, prior to discharge, a hospital must ask a patient if they wish to designate a caregiver and, if they do, the hospital must offer training, live or recorded, to that caregiver to aid them in understanding the discharge plan.
  • 49 N.J.R. 1660(a) – Proposed – This proposed regulation would delineate separate standards for direct requests for specific diagnostic tests and those for referrals for evaluation to determine the appropriate diagnostic tests.

Federal: Selected Proposed Legislation

  • H.R. 2569 – Introduced – Requires all individuals or business entities, including hospitals, physicians, nurses, pharmacies, pharmaceutical manufacturers, dentists, and the insurance entities described in the bill, to publicly disclose, on a continuous basis, all prices for such items, products, services, or procedures in the manner laid out in the bill.
  • H.R. 2797 – Introduced – Amends Title XVIII of the Social Security Act to provide for advanced illness care coordination services for Medicare beneficiaries.
  • S. 1169 – Introduced – Amends Title XIX of the Social Security Act to provide states with an option to provide medical assistance to individuals between the ages of 22 and 64 for inpatient services to treat substance use disorders at certain facilities.

Federal: Selected Proposed Regulations

  • 82 FR 19796-01 – Proposed – This proposed rule revises the Medicare hospital inpatient prospective payment systems (IPPS) for operating and capital-related costs of acute care hospitals for fiscal year 2018.
  • 82 FR 20750-01 – Proposed – This proposed rule would update the hospice wage index, payment rates, and cap amount for fiscal year 2018. Additionally, this rule proposes changes to the hospice quality reporting program, including proposing new quality measures, soliciting feedback on an enhanced data collection instrument, and describing plans to publicly display quality measures and other hospice data.
  • 82 FR 26649-01 – Proposed – This proposed rule would revise the requirements that Long-Term Care facilities must meet to participate in the Medicare and Medicaid programs. More specifically, it would remove provisions that prohibit binding pre-dispute arbitrations.
  • 82 FR 30010-01 – Proposed – The Medicare Access and CHIP Reauthorization Act of 2015 established the Quality Payment Program for eligible clinicians. Under the Quality Payment Program, eligible clinicians can participate via one of two tracks beginning in 2017: Advanced Alternative Payment Models (APMs) or the Merit-based Incentive Payment System (MIPS). This rule would provide updates for the second and future years of the Quality Payment Program.

State Litigation

  • The New Jersey Appellate Division recently affirmed that a gynecologist and his practice weren’t covered under a hospital’s medical malpractice insurance policies, because they weren’t technically employees of the hospital even though the plaintiff alleged that the physician did not meet the definition of an independent contractor. The Appellate Division held that, as the insurance policies were entered into by sophisticated parties that specifically limited the definition of a Clara Maass employee, the policy could not be broadened to include the physician. For more information on the suit, see, Keyko Gil, Individually and as Guardian ad Litem for the infant Kenneth Gil, v. Clara Maass et. al., case number A-4034-14T4, in the Superior Court of New Jersey, Appellate Division.
  • The New Jersey Appellate Division recently upheld the denial of class certification on a Consumer Fraud Act claim brought by persons alleging overbilling by an ambulance company finding that ambulance service providers fit into the “learned professionals” exemption of the Consumer Fraud Act, since the services they administer are within their professional license. For more information, see, Atlantic Ambulance Corp. v. John G. Cullum et al., case number A-1622-16T2 in the Superior Court of New Jersey, Appellate Division.

Federal Litigation

  • CMS recently abandoned its appeal in the Fifth Circuit attempting to overturn a District Court’s decision to block CMS’s ban on mandatory nursing home arbitration. For more information on the case, see, American Health Care Association et al. v. Price et al., case number 17-60005 in the U.S. Court of Appeals for the Fifth Circuit, and case number 3:16-cv-00233 in the U.S. District Court for the Northern District of Mississippi.
  • The Florida Supreme Court recently ruled to strike down a state law that capped noneconomic damages in medical malpractice personal injury suits at $1 million, finding that the law violates the equal protection clause of the Florida Constitution. For more information on the case, see, North Broward Hospital District et al. v. Kalitan, case number SC15-1858, in the Supreme Court of the State of Florida.
  • The Sixth Circuit recently affirmed a lower court’s decision that eight Kentucky-based hospitals are not entitled to a larger tax reimbursement for the services they had provided to uninsured patients living under the poverty line. The hospitals argued that the Department of Health and Human Services violated Medicare statutes in 2009 when it stopped fully reimbursing the “KP-tax.” The Sixth Circuit, while sympathetic to the fact that hospitals are now bearing 55% of the cost of indigent patients, could not find statutory or legal support for their argument that they should be fully reimbursed. For more information, see, Breckinridge Health Inc. et al. v. HHS, case number 16-6269, in the U.S. Court of Appeals for the Sixth Circuit.
  • A Florida federal judge recently rejected a False Claims Act suit that alleged that AIDS Healthcare Foundation Inc. paid kickbacks to employees for referring patients to HIV/AIDS services at the nonprofit’s facilities. The Court found that the Anti-Kickback Statute did not prevent the bonus payments because the payments are exempt under the employee safe-harbor provision. For more information, see, U.S. ex rel. Carrel et al. v. AIDS Healthcare Foundation Inc., case number 0:14-cv-61301, in the U.S. District Court for the Southern District of Florida.
  • A Pennsylvania federal judge dismissed with leave to amend a False Claims Act brought against Medtronic, alleging that Medtronic offered surgical support and other free services as kickbacks to physicians and hospitals in order to woo them into buying Medtronic’s medical implants. Specifically, the Court stated that federal law allows parties, such as Medtronic, to provide support services that are specifically tied to support of the purchased product. For more information, see, United States of America et al. v. Medtronic Inc., case number 5:15-cv-06264, in the U.S. District Court for the Eastern District of Pennsylvania.
  • A Georgia Appellate Division Court recently affirmed a lower court’s decision rejecting a nursing home operator’s attempts to arbitrate a wrongful death suit brought by the daughter of a late patient, because the decedent had not herself signed the arbitration agreement. This decision was largely premised on the fact that a daughter without power of attorney over her mother had signed the arbitration agreement and there was no evidence whatsoever of the decedent’s consent. For more information on the suit, see, United Health Services of Georgia Inc. et al. v. Alexander et al., case number A17A0335, in the Court of Appeals of Georgia, Fifth Division.

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. © 2017 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

Khaled John Klele, Partner

Stephen M. Turner, Associate