Healthcare Law

New Jersey State: Selected Proposed and Adopted Legislation

• P.L. 2017, c. 254 – Adopted – Authorizes establishment of drug donation programs.
• P.L. 2017, c. 269 – Adopted – Establishes Office of Ombudsman for Individuals with Intellectual or Developmental Disabilities and their Families.
• P.L. 2017, c. 300 – Adopted – Requires professionals certifying death to perform any testing and related actions necessary for survivors to claim State and federal benefits.
• P.L. 2017, c. 298 – Adopted – Requires professional boards to provide for online processing of application for licensure or renewal.
• P.L. 2017, c. 377 – Adopted – Allows minors 14 years of age or older to authorize organ donation; requires MVC to provide organ donation registration to certain minors.
• S. 523 – Introduced – Provides that biennial renewal of license or certificate issued by New Jersey Board of Nursing is due on professional’s birthday.
• S. 810 – Introduced – Requires notification to certain medical and dental boards outside of New Jersey of actions against medical or dental licenses or practices.
• S. 462 – Introduced – Requires Commissioner of Health to take certain actions to ensure that residential units are available in assisted living facilities for individuals with special needs.
• S. 55 – Introduced – Establishes patient-centered medical home program.
• S. 551 – Introduced – Named the “New Jersey Health Insurance Marketplace Act,” the bill seeks to provide statutory authorization for the establishment of an American Health Insurance Marketplace in New Jersey and its administrative authority pursuant to the provisions of the federal “Patient Protection and Affordable Care Act.”
• S. 728 – Introduced – Prohibits pharmacy benefits managers from making certain retroactive reductions in claim payments to pharmacies.
• A. 284 – Introduced – Caps noneconomic damages in medical malpractice actions at $250,000.
• A. 1572 – Introduced – Limits settings where certain surgeries may be performed.
• A. 1900 – Introduced – Establishes a Special Medical Malpractice Part in the Superior Court.
• S. 1005 – Introduced – Prohibits bio-analytical laboratories from charging certain patients more than 115% of the applicable Medicare rate.
• S. 1002 – Introduced – Requires health insurers to disclose broker commissions to purchasers.
• S. 1008 – Introduced – Prohibits anti-tiering clauses in managed care health benefits plans.
• S. 1001 – Introduced – Requires healthcare provider participating in carrier network to give notice to covered person of provider’s referral to out-of-network provider.
• S. 890 – Introduced – Permits ambulatory care facilities to deduct Medicaid payments when calculating gross receipts assessment.
• S. 892 – Introduced – Permits ambulatory care facilities to deduct up to $125,000 in Medicare reimbursements when calculating gross receipts assessment.

New Jersey State: Selected Adopted Regulations

• 50 N.J.R. 537(a) – Adopted – Readopts and amends regulations related to screening and screening outreach programs regulated by the Division of Mental Health and Addiction Services.
• 50 N.J.R. 552(a) – Adopted – This regulation is a notice of readoption of the regulations pertaining to the operation standards applicable to blood banks.
• 50 N.J.R. 552(b) – Adopted – This regulation is a notice of readoption of the regulations pertaining to hospital licensing standards, which were set to expire on January 18, 2018. The regulations will now be set to expire on December 18, 2024.
• 50 N.J.R. 578(a) – Adopted – This new regulation provides the limitations on and obligations associated with prescribers accepting compensation from pharmaceutical manufacturers, including the permitted and prohibited forms of gifts and payments prescribers may receive.
• 50 N.J.R. 198(b) – Adopted – These adopted rules set forth the requirements for contracts between a pharmacy benefits manager and a contract pharmacy pursuant to N.J.S.A. 17B:27F-1 et seq., and requires pharmacy benefits managers to certify that new or existing contracts, upon renewal, comply with the requirements set forth in N.J.S.A. 17B:27F-1 et seq.
• 50 N.J.R. 209(a) – Adopted – Adopts N.J.A.C. 13:35-2.6, which now governs the medical standards for screening and diagnostic medical testing in practitioner offices.
• 50 N.J.R. 212(a) – Adopted – These new regulations concern the requirements for becoming a certified homemaker-home health aide (CHHA).
• 50 N.J.R. 260(c) – Public Notice - Notice of certificate of need call for new specialized long-term care beds for ventilator care based on Department of Health’s determination that there is a limited need for additional new facilities in certain regions of the state.
• 50 N.J.R. 261(a) – Public Notice – Postponing certificate of need call for maternal and child health services. The call had originally been scheduled for January 3, 2017, but was postponed to allow the Department of Health to gather and evaluate data, which to date it does not feel it has had sufficient time to evaluate. As such the call is postponed until such time as the Department of Health determines the need for regionalized perinatal services and maternal and child health consortia.

Federal:
Selected Proposed and Adopted Regulations

• 83 FR 4147-01 – Adopted – This regulation announces the extension of statewide temporary moratoria on the enrollment of new Medicare Part B non-emergency ground ambulance providers and suppliers and Medicare home health agencies, subunits, and branch locations in Florida, Illinois, Michigan, Texas, Pennsylvania, and New Jersey, as applicable, to prevent and combat fraud, waste and abuse.

New
Jersey State Litigation

• The New Jersey Appellate Division recently ruled that a hair product company worker must arbitrate his claims against the business despite having an unenforceable arbitration provision in his employment contract because a binding agreement to arbitrate was created when the worker’s lawyer told a defense attorney via email that he would proceed to arbitration and offered to draft a stipulation of dismissal of the complaint. For more information on the suit, see, Jang Won So v. EverBeauty Inc., case number A-3560-16T4, in the Superior Court of New Jersey, Appellate Division.
• Hamilton-based Medical Diagnostic Laboratories, LLC (“MDL”) recently filed a claim against Horizon Blue Cross Blue Shield of New Jersey in New Jersey federal court alleging that the insurer is discriminating against low-income women who are pregnant or may become pregnant by refusing to designate an infectious disease laboratory as an “in-network” provider for a Medicaid-managed care plan. Specifically, MDL, which specializes in testing related to sexually transmitted infections (“STI”), said pregnant or potentially pregnant women are a high-risk group protected by Medicaid, but that if someone is on Medicaid and insured by Horizon, that person does not have access to MDL’s STI tests that Horizon members not on Medicaid can access. For more information on the suit, see, Medical Diagnostic Laboratories LLC v. Horizon healthcare Services Inc. et al., case number 3:18-cv-00616, in the U.S. District Court for the District of New Jersey.

Federal/Other
State Litigation

• A Nonprofit health insurer, Maine Community Health Options, recently argued before the U.S. Court of Federal Claims that the federal government must pay nearly $5.7 million in unpaid reimbursement for so-called cost-sharing reductions it provided to policyholders in the final months of 2017. The suit came after the Trump administration concluded in October that the Affordable Care Act did not appropriate funding for cost-sharing reductions. For more on the suit, see, Maine Community Health Options v. U.S., case number 1:17-cv-02057, in the U.S. Court of Federal Claims.
• An Illinois nursing home network, Alden Management Services Inc., recently hit the Illinois Department of healthcare and Family Services with a putative class action in federal court, alleging that the state’s months-long hold on approving Medicaid eligibility for some of Alden’s patients has delayed payments to Alden’s skilled nursing facilities, putting patient care at risk and hurting Alden’s operations. The complaint alleges that this delay is a violation of federal Medicaid laws governing the speed at which enrollees should be reviewed. For more information on the suit, see, Alden Management Services, Inc. v. Norwood, case number 1:18-cv-00238, in the U.S. District Court for the Northern District of Illinois.
• The U.S. Supreme Court recently declined to review a Florida appellate court ruling that found Kindred Hospitals East LLC’s patient arbitration agreement unenforceable because it ran afoul of state law. The ruling is somewhat surprising given that the U.S. Supreme Court reversed a decision of Kentucky’s high court in May 2017 to uphold the enforceability of a different Kindred unit’s arbitration agreement with a patient. For more information on this suit, see, Kindred Hospitals East LLC v. Estate of Marianne Klemish and Frank Klemish, case number 17-365, in the Supreme Court of the United States.
• The Fifth Circuit recently ruled that CareFirst of Maryland Inc., an independent licensee of the Blue Cross Blue Shield Association, could not collect attorneys’ fees associated with its successful defense against a $39 million ERISA suit brought against it by Victory Medical Center Houston LP. The Fifth Circuit stated that there was no evidence that Victory Medical Center acted in bad faith or that any of the other “Bowen” factors supported awarding CareFirst any fees. For more information on the suit, see, Victory Medical Center Houston LP v. CareFirst of Maryland Inc., case number 15-10053, in the U.S. Court of Appeals for the Fifth Circuit.

In the News

• New York is set to adopt a new law that will delay the running of the statute of limitations for cancer patients’ medical malpractice claims. Previously, cancer patients had been limited to filing claims within 30 months from the date of the alleged negligence for private hospitals and 15 months for public hospitals. Under the new legislation, cancer patients will have 30 months from the date they discover that their cancer was misdiagnosed or should have been diagnosed. Additionally, the legislation will allow revival of claims that expired up to 10 months prior to the bill’s passage.
• OIG recently announced that drugmakers can give free medicines to patients affected by Caring Voice Coalition charity’s decision following OIG’s decision to revoke an advisory opinion that had previously sheltered CVC’s actions from Anti-Kickback Statute liability. OIG gave this blessing to drugmakers via a letter to the general counsel of Pharmaceutical Research and Manufacturers of America. The letter specifically empowered drugmakers to lawfully give away free drugs in 2018 to Medicare and Medicaid beneficiaries who had received CVC’s financial assistance.

The
list above does not include every proposed or adopted
legislation, litigation or guidance document that may impact the healthcare
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.