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Update on Vaccine Mandate for Healthcare Workers

Month: December 2021

Update on Vaccine Mandate for Healthcare Workers

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For more information about this blog post, please contact Khaled J. Klele, Ryan M. Magee, Labinot Alexander Berlajolli, or Connor Breza.

On December 28, 2021, the Centers for Medicare & Medicaid Services (“CMS”) updated its policy mandating the vaccine for healthcare workers.

Following decisions by the United States Court of Appeals for the Fifth, Eighth, and Eleventh Circuits and the United States District Court for the Northern District of Texas, implementation and enforcement of the CMS Omnibus Rule requiring vaccination for healthcare workers is preliminarily enjoined in the following 25 states: Alabama, Alaska, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, and Wyoming.

However, implementation of the vaccine mandate will be monitored and enforced on a modified timeline—the deadline to receive a single‑dose vaccine or the first dose of a two‑dose vaccine is January 27, 2022, and the deadline to be fully vaccinated is February 28, 2022—in the District of Columbia, U.S. territories, and the following 25 states: California, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, Washington, and Wisconsin.

Georgia Federal Court Dismisses Claims Against Debt Collector for Calls Made to Debtor’s Mother

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The United States District Court for the Northern District of Georgia recently dismissed all claims made against debt collector Capital Link Management (“Capital Link”) for alleged violations of the Fair Debt Collection Practices Act (“FDCPA”) and Georgia Fair Business Practices Act (“GFBPA”) arising from calls made to the debtor’s mother. See Joe v. Capital Link Management, LLC, 2021 WL 4438081 (N.D. Ga. 2021). In the case, plaintiff Debbie Joe (“Joe”) claimed that Capital Link contacted her regarding a debt owed by her daughter Laura Sosa (“Sosa”). Joe told the representative who called her that Sosa now lived out of state, but Capital Link contacted her at least 15 more times requesting that she have Sosa contact them. While the callers gave their names and the name of the company, none of the calls identified Capital Link caller as a debt collector. Joe then brought this action alleging that these communications violated the FDCPA.  Capital Link moved to dismiss, and the Magistrate Judge recommended that two of the three FDCPA claims (§ 1692c(b) and § 1692d(6)) be dismissed, while recommending that the third claim proceed (§1692e(11)). Both parties appealed.

On appeal, the Court adopted in part and declined in part the Magistrate Judge’s recommendation and dismissed all of the claims.  Regarding § 1692c(b), the Court noted that this provision prohibited debt collectors from communicating with a third party, or with any person other than the consumer, about the consumer’s debt without prior consent of the consumer. The Court agreed with the Magistrate’s finding that under the statute, Sosa, and not Joe, was the consumer, and thus this action was Sosa’s to bring, not Joe’s. Regarding § 1692d(6), the Court noted that this section prohibits debt collectors from placing telephone calls without meaningful disclosure of the caller’s identity. Joe argued that because the caller did not identify himself as a debt collector and that any information she gave would be used for debt collection purposes, there was no “meaningful disclosure.” The Court disagreed, noting that the calls identified the name of the caller and the company that they were calling from, and that this was “meaningful disclosure.” Thus, the Court agreed with the Magistrate’s recommendation to dismiss each of these claims.

Regarding § 1692e(11), which provides that “[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt,” the Magistrate allowed this claim to survive because Joe, even as a non-consumer, could maintain a claim. This section also allowed for claims of “general violations” of the FDCPA. The Court agreed with the Magistrate that Joe could, in theory, maintain a claim under this provision, but noted that § 1692e(11) only applied to “initial communications.” Since the communications in question were not alleged to be “initial communications,” and because Joe had not asserted “general violations” of the FDCPA, the Court did not adopt the Magistrate’s recommendation, instead dismissing this claim. With all FDCPA claims dismissed, the Court also dismissed her GFBPA claim, which the parties agreed “rise and fall” with her FDCPA claims.

For a copy of the decision, please contact Michael O’Donnell at modonnell@riker.com, Desiree McDonald at dmcdonald@riker.com, or Kevin Hakansson at khakansson@riker.com.

New York District Court Dismisses FDCPA Action for Lack of Concrete Injury

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The United States District Court for the Eastern District of New York recently dismissed a Fair Debt Collection Practices Act (“FDCPA”) action because the plaintiff could not demonstrate a concrete injury. See Bush v. Optio Sols., LLC, 2021 WL 3201359 (E.D.N.Y. 2021). In this case, the plaintiff claimed that an “alleged debt” was transferred to defendant for collection while the alleged debt was in default. The defendant then caused a single collection letter to be sent to plaintiff, reflecting defendant’s effort to collect a debt of $678.94 from plaintiff for a fuel oil delivery to her home. The plaintiff claimed two causes of action for violations of the FDCPA: (1) the failure of the debt collector to provide unspecified information required under 15 U.S.C. § 1692g, and (2) an alleged deception arising from the fact that the letter, by stating that the “thirty (30) day verification period has passed,” and that plaintiff could “avoid further collection activity on this item by paying in full,” falsely implied that the plaintiff had waived a right to challenge the debt. The plaintiff later amended her complaint to add allegations and a third count charging a violation arising from the defendant’s disclosure of plaintiff’s private and sensitive information to a third-party mailing vendor in sending her the single collection notice.  The plaintiff then filed a bankruptcy petition after filing this action.  In June 2021, the U.S. Supreme Court decided TransUnion LLC v. Ramirez 141 S. Ct. 2190 (2021), a Fair Credit Reporting Act decision that the Bush court said required it to examine whether the plaintiff had alleged a concrete, particularized injury. As such, the Bush court issued an order to show cause directing plaintiff to identify “any concrete, particularized injury in fact from the statutory violations alleged herein.”

After receiving the parties’ responses, the Court lifted the automatic stay and dismissed the action.  The Court held that because the only injury asserted by the plaintiff arose from the “mailing vendor” theory, that plaintiff has failed to identify any injury in fact. The Court reasoned that the “mailing vendor” theory did not appear viable in the wake of TransUnion, and emphasized that the plaintiff’s private and sensitive information had been rendered public information by the plaintiff herself in her bankruptcy petition. As such, the Court found that the plaintiff was not injured in any appreciable way by the communication of this information to a mailing vendor and dismissed the case.

For a copy of the decision, please contact Michael O’Donnell at modonnell@riker.com, Desiree McDonald at dmcdonald@riker.com, or Kevin Hakansson at khakansson@riker.com.

New Jersey Appellate Court Remands Easement Case to Determine Sufficiency of Prior Notice

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The New Jersey Appellate Division recently reversed summary judgment for a plaintiff and remanded the case to determine whether plaintiff was a bona fide purchaser without knowledge of an easement modification. See RRR Newgen, LLC v. RESOL53 LLC, 2021 WL 4143325 (N.J. Super. Ct. App. Div. 2021).  Defendant Peter Riccio (“Riccio”) was the principal of an entity that owned two lots (“Lot 1” and “Lot 2”), along with a parking lot on Lot 2 that sat between the properties. The entity sold Lot 2 and the parking lot in 1987, but reserved an easement allowing its customers to use the parking lot, subject to some restrictions.  Lot 2 was sold again in 2004, and the deed incorporated the same easement language. Riccio later sought to expand the use of the pharmacy on Lot 1, which would require additional uses of the parking lot that were outside the scope of the easement. Riccio negotiated the terms of the modification with Lot 2’s new owner, and the township board approved the expansion of the pharmacy on Lot 1. The terms of the modification (the “2012 Agreement”) were set forth in a letter, but the letter was never incorporated into an easement agreement and was never recorded. Riccio sold the pharmacy to Mahendra Patel in 2014, but maintained ownership of Lot 1. Riccio’s attorney claimed that he met with Patel’s son-in-law Ashish Patel (“Ashish”) shortly after the sale of the pharmacy and at that time told Ashish about the parking lot easement, but Ashish later claimed he did not recall such a conversation. Ashish bought Lot 2 in 2018 and Riccio began leasing the pharmacy on Lot 1 to a new tenant, and the parties quickly got into a dispute about the use of the parking lot, resulting in this lawsuit.  During discovery, the prior owner of Lot 2 said that he believed that he informed Ashish about the 2012 Agreement before the 2018 sale to Ashish, but his testimony was conflicting, and Ashish denied any such knowledge.  The parties cross-moved for summary judgment and the trial court granted Ashish’s motion, rejecting Riccio’s argument that Ashish had notice of the 2012 Agreement.  Riccio appealed.

The Appellate Division overturned the grant of summary judgment regarding the 2012 Agreement, remanding for further discovery as to Ashish’s status as a bona fide purchaser. The Court noted that, though the 2012 Agreement was not recorded, Ashish could still be subject to it if he had actual or constructive notice of the modification.  However, the Court noted that, given the parties’ differing accounts as to Ashish’s notice, summary judgment was inappropriate for either party.  “In sum, [the prior owner of Lot 2], at least in part, testified that he gave or sent the 2012 agreement to Ashish, and spoke to some extent to Ashish about the changes made to the easement, as [the attorney] also alluded to, thus creating a genuine dispute as to plaintiffs’ knowledge. Moreover, it was undisputed that Ashish participated to some extent in the operation of Ray’s Pharmacy while it was located in Lot 1’s building, during which time its customers enjoyed whatever arrangement had been entered into between [Riccio and the prior owner of lot 2].”

For a copy of the decision, please contact Michael O’Donnell at modonnell@riker.com, Desiree McDonald at dmcdonald@riker.com, or Kevin Hakansson at khakansson@riker.com.

Provider Relief Fund Portal Reopens Through December 20, 2021 for Period One

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For more information about this blog post, please contact Khaled J. Klele, Ryan M. Magee, Labinot Alexander Berlajolli, or Connor Breza.

The Provider Relief Fund Reporting Portal was recently updated to reflect a notification from the U.S. Department of Health & Human Services that the Reporting Portal will be reopened for the completion or submission of reports for Reporting Period 1 from 9:00 am on December 13, 2021 to 11:59 pm on December 20, 2021. The message provides that providers who need to correct errors must contact the Provider Support Line (866-569-3522) to gain access to their report, and that any resubmitted reports must also be received by 11:59 pm on December 20, 2021.

Although providers who failed to submit their reports by the previous deadlines may still face penalties for non-compliance, this news presents a great opportunity to allow such providers to file their reports and potentially avoid greater penalties. Providers should additionally be aware that Reporting Period 2 will begin on January 1, 2022.

District Court Grants Summary Judgment for Title Insurer Due to Statute of Limitations

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The United States District Court for the Northern District of California recently granted summary judgment for Commonwealth Land Title Insurance Company (“Commonwealth”), finding that the insured failed to bring the claim within two years of its discovery. See Hayward Prop., LLC v. Commonwealth Land Title Ins. Co., 2021 WL 4503457 (N.D. Cal. 2021). In the case, CNF Properties (“CNF”) owned the property at issue.  The property was originally four parcels before CNF converted it into two parcels (“Parcel One” and “Parcel Two”) in 1997. However, because the tax parcels were not adjusted when the property was converted from four to two parcels, the boundaries of the tax parcels did not follow the lines for Parcel One and Parcel Two.  Parcel One contained some, but not all, of tax parcels 40 and 43.

In 1998, CNF conveyed Parcel One to Consolidated Freightways Corporation of Delaware (“Consolidated”). In 2002, CNF conveyed Parcel Two to Con-Way Transportation Services (“Con-Way”). Plaintiff purchased Parcel One from Consolidated in 2002 and defendant Commonwealth issued plaintiff a title insurance policy for the property. The deed, however, was erroneously recorded with a property description of a property located in a different town in the county. In 2003, the Alameda County Assessor’s Office sent a letter to Plaintiff’s agent noting that (i) the deed named the wrong town, and (ii) the legal description for Parcel One did not describe all of tax parcels 40 and 43 and that if plaintiff intended to purchase all of these parcels, the description needed to change.  A corrected deed naming the correct town was acquired by plaintiff in 2003, but was never recorded. In 2016, a successor to Con-Way sued plaintiff to quiet title among the parcels, claiming that it owned portions of parcel 43. Plaintiff sued Commonwealth for breach of contract and negligence for losses incurred because of the defects in title, arguing that the policy insured title for all of parcel 43.

Commonwealth moved for summary judgment on both counts, and the Court granted the motion. As to the breach of contract claim, Commonwealth showed that plaintiff discovered the alleged title defect in 2003 when it was made aware of the issue with the description of the property and the corrected deed. As such, its claim for breach of the policy was untimely, as California law dictates that an action founded upon a title insurance policy is subject to a two-year statute of limitations, with the period running from discovery of the alleged defect. As to the negligence claim, plaintiff’s claim was based on Commonwealth’s purported role as a title and closing agent. Commonwealth argued in response that it was not, in fact, either a title or closing agent, facts that plaintiff eventually acknowledged. The Court therefore dismissed the claim and denied plaintiff’s motion for leave to amend its negligence counts, noting that even if it could support a claim of negligence on an alternative theory of liability, the action would be time-barred for the same reason the contract claim was.

For a copy of the decision, please contact Michael O’Donnell at modonnell@riker.com, Desiree McDonald at dmcdonald@riker.com, or Kevin Hakansson at khakansson@riker.com.

Eleventh Circuit Finds County Abandoned Easement Through Ordinance Expanding Use

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The United States Court of Appeals for the Eleventh Circuit recently overturned a decision by the United States District Court for the Northern District of Florida, holding that an ordinance (the “Ordinance”) enacted in Walton County (the “County”) terminated an easement that the County held over a strip of land. See A Flock of Seagirls LLC v. Walton County Florida, 7 F.4th 1072 (2021). In 1996, the State of Florida initiated eminent domain proceedings against St. Joe Paper Company (“St. Joe”). The result of the proceedings was the creation of a “permanent public access easement allowing public pedestrian access laterally along the beach” on 75 feet of beach running parallel to the Gulf of Mexico (the “Easement”), although St. Joe retained ownership of the strip of land. The judgment bound the parties as well as their successors and assigns. In 2000, St. Joe established the WaterColor Community Association, and in 2002, St. Joe recorded the Easement. The Easement included an abandonment clause, which provided in relevant part that the County would be deemed to have abandoned the Easement if it attempts to use the Easement for any other purpose.  In 2017, the County enacted the Ordinance, which permitted members of the public to make a number of recreational uses – including sunbathing, picnicking, fishing, swimming, and building sandcastles – of dry sand areas that are owned by private entities, including the land that is subject to the Easement.

Plaintiffs own beachfront lots in the WaterColor community and brought suit claiming that the Ordinance constituted an unconstitutional taking of their property rights and triggered the Easement’s abandonment because it attempted to use the property for purposes other than “a way of passage, on or by foot only.” While the constitutional claim was rendered moot by a bill passed in the Florida legislature, the abandonment claim was heard by the District Court. That court acknowledged that by enacting the Ordinance, the County had attempted to use the Easement for an “expanded purpose,” but held that uses that expand on but are consistent with the purpose of an easement do not evince an intent to abandon.  Because the Ordinance contemplated uses that were consistent with (even if broader than) the Easement’s purpose, the plaintiffs had not shown an intent to abandon and thus had not demonstrated that the County had abandoned the Easement. The Plaintiffs appealed.

In its decision, the Eleventh Circuit considered whether the Ordinance triggered the terms of the Easement’s abandonment clause, and whether any other sources of law forestall or limit the abandonment clause’s operation. The Court answered the first question, stating that the plain language of the Ordinance indicated an abandonment of the Easement, pointing out that the Easement’s purpose as “a way of passage” was for “a locomotive purpose,” rather than the Ordinance’s aim of using the land for “recreational purposes.” As for the second question, the Court disagreed with the County’s assertion that Florida common law, separate provisions of the Easement, and the original judgment limited the abandonment clause.  It instead found that under Florida law, the public’s right to full use of the beaches was not absolute or boundless, and that the County’s interpretation of the “perpetual” and “permanent” nature of the Easement was flawed and the Easement was still subject to conditions that could terminate it. As such, the Eleventh Circuit reversed, holding the Easement was abandoned.

For a copy of the decision, please contact Michael O’Donnell at modonnell@riker.com, Desiree McDonald at dmcdonald@riker.com, or Kevin Hakansson at khakansson@riker.com.

Win for Providers – Somewhat

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On December 10, 2021, President Biden signed the bipartisan Protecting Medicare and American Farmers from Sequester Cuts Act, delaying the impending Medicare pay cuts facing physicians in 2022. Specifically, the bill continues to exempt Medicare from sequestration, which is the process of automatic, across-the-board spending reductions under which budgetary resources are permanently cancelled to enforce specific budget policy goals, until March 31, 2022. Additionally, the bill lays out a revised timeline for payment reduction beginning in April of 2022, modifying the percentage amounts of the reduction as well as increasing the phase-in of reductions from private payor rate implementation. Among other changes related to the federal budget and debt limit, the bill temporarily extends other provisions under Medicare, including a payment increase under the physician fee schedule.

For more information about this blog post, please contact Khaled J. Klele, Ryan M. Magee, Labinot Alexander Berlajolli, or Connor Breza.

NJ PACT Update: New Jersey Announces CO2 Emissions Limits for Stationary Sources

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During the first term of New Jersey Governor Phil Murphy, his administration announced ambitious plans both to reduce emissions of greenhouse gases responsible for climate change and to change land use rules to mitigate the effects of rising sea levels and other effects of climate change.  The State dubs this initiative “NJ PACT—New Jersey Protecting Against Climate Threats.”

On December 6th, in the waning days of Murphy’s first term and before the start of his second term, the New Jersey Department of Environmental Protection (NJDEP) proposed its most significant set of NJ PACT regulations to date, which focus on limiting emissions of carbon dioxide (CO2) from stationary sources.  The proposed rule has three parts.  First, it places emissions limits on CO2 from electric generating units (EGUs), i.e., the combustion or steam-generating equipment that generates electricity at power plants.  These limits will become more stringent over time.  Second, it creates a regulatory presumption that certain large boilers fired by fossil fuels should be replaced by electric boilers when they reach the end of their useful lives.  Finally, the rule bans the sale and use of No. 4 and No. 6 fuel oil in New Jersey.  This rule, each portion of which is described in more detail below, will have a significant impact in the coming years.  Various elements of this wide-ranging rule will impact diverse industries, including energy, manufacturing, commercial real estate, education, and healthcare, to name a few.  Parties that may be affected by the restrictions should consider whether to comment on the proposed rule or even start to plan for potential operational impacts of new regulation.

Emissions Limits for EGUs

The proposed rule sets CO2 emissions limits that gradually ratchet down over time for large fossil fuel-fired EGUs (i.e., EGUs with a nameplate capacity equal to or greater than 25 megawatt electric (MWe)) that provide electricity to the grid.  According to the rule proposal, there currently are 94 individual EGUs at 33 different facilities that could be subject to the new emissions limits.

NJDEP proposes three tiers of emissions limits that these existing EGUs must meet.  The first tier emissions limit is 1,700 lbs. of CO2 per megawatt hour of the EGU’s gross energy output (1,700 lb/MWh), which must be complied with before January 1, 2024.  According to NJDEP, there are 12 EGUs in New Jersey that are fired by either coal, fuel oil, or older, less-efficient natural gas fired turbines that could not meet this limit, and these units meet a small fraction (less than 3%) of the state’s electricity demand.  NJDEP presumes that some of these units will shut down because of the emissions limit, and so the rule proposal addresses the potential effects of “leakage,” which occurs when electricity generated out-of-state replaces in-state generation capacity to meet New Jersey’s demand for electricity.  NJDEP has concluded that because the projected rate of CO2 emissions from the marginal unit in the PJM system, the electric grid serving New Jersey and several other states, would be below New Jersey’s first tier emission limit, leakage, if it occurs, would not lead to higher CO2 emissions.

The second tier emissions limit of 1,300 lb/MWh will go into effect on January 1, 2027, and NJDEP anticipates that it will have similar impacts on existing EGUs as the first tier limit.  The rule proposal states that 14 existing EGUs accounting for less than 1% of New Jersey’s current electricity generation would be affected by the second tier limit.  And, again, NJDEP concluded that leakage resulting from this emissions limit would not increase CO2 emissions.

The third tier emissions limit, 1,000 lb/MWh, becomes effective in 2035.  This emissions limit is based on the current best available control technology, as the most efficient existing natural gas fired EGUs could meet this limit.  NJDEP concluded that this limit would affect 40 existing EGUs that generate 9% of power produced in New Jersey.

The deadlines for compliance with each tier are not absolute.  The proposed rule allows extensions where the New Jersey Board of Utilities, PJM, or NYISO, the grid operator in New York State that fulfills the same role as PJM in New Jersey, designates an EGU as necessary for reliable provision of electricity, or if the EGU is obligated to provide power under a power purchase agreement that was entered into before 2002.

The proposed rule also imposes emissions limits for new EGUs.  Where the new EGU has a nameplate capacity greater than or equal to 25 MWe, its emissions limit for CO2 would be 860 lb/MWh.  NJDEP states in the rule proposal that the most efficient natural gas fired combined cycle units installed in New Jersey after 2010 could satisfy this emissions limit.  For a smaller new EGU with a nameplate capacity less than 25 MWe, the proposed rule imposes a CO2 emissions limit if the unit is located at an “EGU Facility,” which is a facility with more than one EGU where the aggregate capacity of all EGUs at the facility exceeds 25 MWe.  These EGUs will be required to meet a “case-specific” CO2 emissions limit which must be based on technology “that will provide the greatest emission reductions that are technologically and economically feasible”; in addition, these EGUs cannot derive more than 50% of their heat input from coal or fuel oil, unless the EGU meets the emission standard for larger new EGUs, i.e., 860 lb./MWh.

Electrification of Large Boilers

Although it may be less impactful than the regulations on EGUs in terms of the total CO2 emissions that are affected, the portion of the proposed rule concerning commercial and industrial boilers will impact a larger swathe of regulated entities.  The proposed rule applies to boilers with a maximum gross heat input rating equal to or greater than one million BTU per hour (MMBTU/hr) and less than five MMBTU/hr.  Boilers of this size typically are used in commercial, industrial, and institutional contexts, which could include office buildings, manufacturing facilities, schools, or hospitals; the rule also implicates boilers in apartment buildings.  Boilers with a maximum gross heat input rating of less than one MMBTU/hr are considered “insignificant sources” of air emissions under NJDEP’s rules, do not require an air permit under N.J.A.C. 7:27-8, and also are not subject to the proposed rule.  Today, approximately 8,500 boilers would be subject to the proposed rule according to NJDEP.

The proposed rule imposes a presumption that new boilers with a heat rating between one and five MMBTU/hr installed beginning in 2025 should be electric, rather than being fired by fossil fuels such as natural gas.  Facilities will not be permitted to install new fossil fuel boilers of this size unless (1) an electric boiler is “technically infeasible,” or (2) an electric boiler is infeasible for the particular facility because “any interruption in boiler operations caused by an electrical outage could jeopardize public health, life, or safety.”  A hospital is given as an example of a facility that would satisfy the second condition.  It remains to be seen how strictly the Department will interpret these infeasibility exceptions.  For example, the proposed rule notes that a significant number of large boilers are used in schools, so would the temporary loss of heat in a school be considered to jeopardize public health, life, or safety?  The language of the rule proposal suggests a narrow exemption, but it is also open to a broader interpretation that could result in more exemptions.

NJDEP makes clear in the proposed rule that existing permits, including general permits, for such equipment and renewals of those permits will not be affected by the proposed rule, so that the replacement of functioning fossil fuel fired boilers will not be required.  Where the cost of maintaining an old boiler is less than the costs associated with a new, electric boiler, the proposed rule likely will lock in older infrastructure for some period, but eventually it will lead to the electrification of non-residential heating at the end of existing boilers’ life cycle.

Finally, the proposed rule imposes new reporting requirements on approximately 100 “boiler fleet” facilities, which have ten or more fossil fuel fired boilers, at least one of which has a heat input rating greater than one MMBTU/hr and at least one of which has a heat input rating less than five MMBTU/hr.  Beginning in 2024, operators of boiler fleets must submit annual emissions statements to include, among other information, the potential to emit and actual emissions of CO2 from each boiler.

Ban on No. 4 and No. 6 Fuel Oil

As of its effective date, the proposed rule bans any person from selling, storing, delivering, or using No. 4 or No. 6 fuel oil in New Jersey.  However, oil that was stored in New Jersey before the rule becomes effective may be used or sold in New Jersey for two years thereafter.  The ban also does not apply to fuel oil used by ocean-going vessels in order to avoid a conflict with the federal Clean Air Act.

NJDEP contends that this portion of the proposed rule will have limited effects because these heavy fuel oils already largely have been phased out by facilities in New Jersey in favor of lighter fuel oils (i.e., No. 2 fuel oil) or other energy sources.  Nonetheless, those facilities that still use these fuels (which, according to NJDEP, number less than 100) will need to change their operations in the coming years to comply with the ban.

Public Hearing and Comments on the Proposed Rule

A virtual public hearing on the proposed rule will be conducted on the morning of February 1, 2022.  A public comment period for written comments will be open until March 6, 2022.  Those considering a court challenge to the proposed rule would be well-advised to submit public comments, as New Jersey courts typically disfavor challenges mounted by parties who did not participate in the rulemaking process.

Following the close of the comment period, NJDEP will publish its responses to the public’s comments and any modifications it made to the proposed rule, and promulgate the final rule.  Assuming the proposed rule survives any court challenges, operators of EGUs and large boilers and users of the soon-to-be proscribed heavy fuel oils now have several years to prepare for the operational changes that will be mandated by this NJ PACT rule.

For more information, please contact the author Michael Kettler at mkettler@riker.com or any attorney in our Environmental Practice Group.

COVID-19 Vaccine Update, PBM Regulations Upheld, and Advisory Opinion on CRNAs

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For more information about this blog post, please contact Khaled J. Klele, Ryan M. Magee, Labinot Alexander Berlajolli, or Connor Breza.

CMS Halts Enforcement of COVID-19 Vaccine Mandate

On December 2, 2021, Centers for Medicare and Medicaid Services (CMS) released a memorandum announcing that it will not enforce the new rule requiring vaccination of healthcare workers within Medicare and Medicaid‑certified facilities. This announcement follows two court-ordered injunctions prohibiting implementation and enforcement of the mandate, issued on November 29 and 30, 2021, in the United States District Court for the Eastern District of Missouri and the United States District Court for the Western District of Louisiana, respectively. CMS also specified that surveyors shall not survey healthcare providers for compliance with the mandate while the injunctions are in effect.

OIG Advisory Opinion – Permissible Remuneration for CRNA Services

On November 10, the Office of Inspector General (“OIG”) issued an Advisory Opinion regarding a proposed arrangement whereby a physician owner of a pain management practice would retain net profits from services provided by an employed certified registered nurse anesthetist (the “CRNA”) pursuant to a reassignment of billing rights (the “Proposed Arrangement”).

The OIG determined that the Proposed Arrangement implicates the federal Anti-kickback Statute due to the fact that, 1) the physician pays the CRNA remuneration in the form of salary payments in exchange for the CRNA furnishing anesthesia services, and 2) the CRNA’s reassignment of billing rights to the physician owner gives the physician the opportunity to earn a profit from the CRNA’s performance of services because, under the Proposed Arrangement, the physician owner would retain net profits from the escrow account it presently maintains on behalf of the CRNA and all future net profits.

However, notwithstanding the above, the OIG determined that the CRNA’s salary component referenced above would be protected by the employment safe harbor of the federal Anti-kickback Statute, and the reassignment of billing, while not protected by a safe harbor, would present a sufficiently low risk of fraud and abuse and thus the OIG would not impose sanctions as a result.

North Dakota PBM Regulations Upheld

On November 17, the Eighth Circuit Court of Appeals issued a decision to uphold a North Dakota law regulating pharmacy benefit managers (“PBMs”) in the state. This decision stemmed from a 2017 lawsuit filed by a trade group representing PBMs which ended up in the Eighth Circuit after the US Supreme Court issued a decision stating that such laws were not preempted by federal law. The challenged law aims to provide oversight of pharmacy benefit managers, and includes provisions barring gag rules that limit what pharmacists can discuss with patients such as telling them of cheaper drug alternatives. The North Dakota law was backed by Attorneys General from nearly three dozen states.

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