Riker Danzig Health Care Update March 28, 2018
New Jersey State: Selected Proposed and Adopted Legislation
P.L. 2018, c. 1 – Adopted – Provides Medicaid coverage for family planning services to individuals with incomes up to 200 percent of the federal poverty level.
- S. 1325 – Introduced – Limits rescheduling, cancellation, and no-show fees providers of health care services may charge in certain circumstances.
- A. 2667 – Introduced – Requires DOBI to develop a system to require carriers to consult with health care providers on tiered network managed care plans.
- A. 2242 – Introduced – Called the “Medical Philanthropy Act,” it provides physicians who provide uncompensated care with a $250,000 cap on noneconomic damages in actions alleging medical malpractice.
- A. 3173 – Introduced – Provides civil immunity for certain volunteer physicians, nonprofit clinics, and federally qualified health centers.
- A. 3298 – Introduced – Requires forms for informed consent for health care to be separate from forms related to assignment of insurance benefits or financial arrangements.
- A. 3367 – Introduced – Requires certain hospitals with on-site clinical laboratories to ensure in-network coverage for laboratory services if hospital is in-network.
- S. 1738 – Introduced – Establishes cap on amount that hospital can charge patients for laboratory services to 150% of Medicare.
- S. 1865 – Introduced – Requires health insurers to limit patient cost-sharing and provide appeal process concerning certain prescription drug coverage.
- A. 2713 – Introduced – Expands scope of claims subject to “Health Claims Authorization, Processing and Payment Act,” and modifies certain claims procedures.
- S. 1766 – Introduced – Expands wrongful death act to allow recovery for mental anguish, emotional pain and suffering, loss of society and loss of companionship.
- S. 1612 – Introduced – Establishes minimum certified nurse aide-to-resident ratios in nursing homes.
- S. 1762 – Introduced – Requires all prescriptions to be transmitted electronically, subject to certain exceptions.
- S. 1641 – Introduced – Requires health insurance carriers to use standard explanation of benefits form.
- S. 1962 – Introduced – Clarifies DHS authority to regulate sober living homes and halfway houses as residential substance abuse aftercare facilities.
New Jersey State: Selected Adopted and Proposed Regulations
- 50 N.J.R. 815(a) – Adopted – Makes changes to N.J.A.C. 8:96-1.1 et seq., which concerns Hospital Financial Transparency, including requirements to submit financial statements to the Department and enforcement remedies for failure to do so.
- 50 N.J.R. 821(a) – Adopted – Readopting the rules for licensing Nursing Home Administrators and the rules regulating Nursing Home Administrators Licensing Board under N.J.A.C. 8:34, which were set to expire on March 2, 2018 and will now extend through 2025.
- 50 N.J.R. 829(a) – Adopted – Making amendments to N.J.A.C. 11:22-1.1 et seq., which concerns, among other things, provision for the prompt payment of claims by carriers to providers.
- 50 N.J.R. 899(a) – Adopted – This adoption provides the family maintenance standard, medical cost standard, tuition deduction standard and the cost of care and maintenance rates that shall be utilized in the determination of eligibility and the contribution to care and maintenance of individuals residentially placed by the Division of Developmental Disabilities and their legally responsible relatives for Calendar Year 2018 under N.J.A.C. 10:46D-3.2.
- 50 N.J.R. 906(a) – Adopted – Readopting without comments the general licensure requirements for registered professional nurses and licensed practical nurses and requirements for certification of advanced practice nurses with minor changes to educational requirements.
- 50 N.J.R. 869(a) – Public Notice – The department is inviting certificate of need applications on a full review basis to establish 53 new adult acute care psychiatric beds in accordance with the provisions of N.J.A.C. 8:43G-26 and N.J.S.A. 26:2H-1 et seq.
- 50 N.J.R. 870(b) – Public Notice – The Department of Human Services is providing notice of the availability of grants and its desire to receive Requests for Proposal. More information can be found at http://www.state.nj.us/humanservices.
- 50 N.J.R. 883(b) – Executive Order – Requiring all state entities that regularly interact with the public to undertake reasonable measures to the extent permitted by law and budgetary constraints to provide information to the public regarding the Affordable Care Act marketplace and ways to enroll.
Federal: Selected Proposed and Adopted Regulations
- 83 FR 7437-01 – Proposed – This rule contains proposals amending the definition of short-term, limited duration insurance for purposes of its exclusion from the definition of individual health insurance coverage. The purpose of this action is to lengthen the maximum period of short-term, limited-duration insurance, which will provide more affordable consumer choice for health coverage.
- 83 FR 8173-01 – Adopted – This rule contains final regulations that provide rules for the definition of a covered entity for purposes of the fee imposed by section 9010 of the Patient Protection and Affordable Care Act, as amended. The final regulations supersede and adopt the text of temporary regulations that provide rules for the definition of a covered entity. The final regulations affect persons engaged in the business of providing health insurance for United States health risks.
Federal: Selected Proposed and Enacted Legislation
- H.R. 5052 – Introduced – Amends Title XVIII of the Social Security Act to provide for patient protection by establishing safe nurse staffing levels at certain Medicare providers, and for other purposes.
New Jersey State Litigation
- The New Jersey Appellate Division recently ruled in a published opinion that the state’s Small Employer Health Benefits Board’s decision to repeal “obsolete standards” for determining the amount of allowable charges for the voluntary use of out-of-network benefits, which was challenged by the New Jersey Spine Society, met the definition of the type of action that the board was entitled to take pursuant to its expedited rulemaking powers. For more information on the case, see, New Jersey Spine Society v. New Jersey Small Employer Health Benefits Program Board, case no. A-1723-16T4, in the Superior Court of New Jersey, Appellate Division.
Federal/Other State Litigation
- The Federal Circuit overturned an earlier U.S. Court of Federal Claims ruling under Sec. 3102(b) of the Internal Revenue Code that had said that the term “indemnify” only provided immunity from liability and did not apply to monetary claims. The Federal Circuit said the plain meaning of the word “indemnified” includes monetary compensation. As such, the hospital got one step closer to retrieving the $6.6 million in withheld payroll taxes that the hospital had to return to medical residents. For more information on the suit, see, New York and Presbyterian Hospital v. United States, case number 2017-1180, in the U.S. Court of Appeals for the Federal Circuit.
- A Massachusetts federal judge recently ruled against a failing insurer’s claims that the rules governing the Affordable Care Act’s risk adjustment programs were arbitrary and capricious. Specifically, the rules for the program, which causes insurers with healthier members to pay a percentage of their earnings to fund subsidiaries for insurers with less healthy ones, caused this Massachusetts insurer to fork over 71 percent of its revenue in 2014, 39 percent of its Massachusetts revenue in 2015 and 40 percent of its New Hampshire revenue for the same year. As a result, the insurer is now in receivership. For more information on the case, see, Minuteman Health Inc. v. U.S. Department of Health and Human Services et al., case number 1:16-cv-11570, in the U.S. District Court for the District of Massachusetts.
- The DOJ recently joined Marion HealthCare LLC’s side of an antitrust lawsuit against Southern Illinois Healthcare LLC, a system which operates a handful of hospitals in Southern Illinois. Specifically, Marion alleged that SIH negotiated insurance contracts that carve competitors like Marion out of providers networks and making their services impossible to afford on an out-of-network basis. For more information on the suit, see, Marion HealthCare LLC v. Southern Illinois Healthcare, case number 3:12-cv-00871, in the U.S. District Court for the Southern District of Illinois.
- UnitedHealth Group, Inc. was recently criticized by the DOJ for systematically ignoring thousands of invalid diagnoses and improperly keeping hundreds of millions of dollars in related payments from Medicare Advantage. UnitedHealth sought to avoid the False Claims Act suit under the U.S. Supreme Court’s Escobar decision. However, the District Court judge disagreed and said the FCA creates liability for anyone who “knowingly and improperly avoids or decreases an obligation to pay” money to the government. For more information on the ongoing lawsuit, see, U.S. ex rel. Poehling v. UnitedHealth Group Inc. et al., case number 2:16-cv-08697, in the U.S. District Court for the Central District of California.
- An Ohio federal judge recently held that prescription reminder calls are exempted from liability under the Telephone Consumer Protection Act’s “emergency purposes” exception. The court found that the calls were made for the “health and safety of consumers” and, therefore, the exception applied. In so holding, the court noted that the Federal Communications Commission has recognized that the exception should be interpreted broadly and should not be limited to large scale emergencies, as plaintiff suggests. For more information on the case, see, Lindenbaum v. CVS Health, case number 1:17-cv-1863, in the U.S. District Court for the Northern District of Ohio.
In the News
- The Centers for Medicare and Medicaid Services recently announced a new voluntary bundled payment model called “Bundled Payments for Care Improvement Advanced” (BPCI Advanced), which will begin on October 1, 2018, when the current BPCI initiative expires. The goal of BPCI Advanced is to incentivize financial accountability, care redesign, data analysis and feedback, provider engagement, and patient engagement through the use of bundled payments, care redesign activities and accountability for performance on quality measures.
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. We send these Updates to our clients and friends to share our insights on new developments in the law. Nothing in this Update should be relied upon as legal advice in any particular matter. © 2018 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: