Once Again, CMS Retracts Major Policy Decision

CMS Continues to Reverse Some Policy Decisions With Its Release of the Outpatient Prospective Payment System Proposed Rule

Centers for Medicare & Medicaid Services (“CMS”) released its Outpatient Prospective Payment System (“OPPS”) proposed rule for 2022, which reverses some of last year’s major policy changes that were applauded by ambulatory surgery centers (“ASCs”). Significantly, CMS proposes reinstatement of the inpatient‑only (“IPO”) list. Under the proposed rule, the 298 services removed from the IPO list this year would be added back to the IPO list in 2022. CMS also proposes eliminating the 258 procedures added to the ASC covered procedures list in January 2021.

Fifteen New Statutes in New Jersey Impacting Healthcare

As a follow-up to our previous post, below is a list of fifteen New Jersey Statutes that either have been approved by the Governor or await the Governor’s approval.

New Jersey Approves Hospital Wrap-Around Services    

S1676: As noted in our previous update, Governor Murphy previously issued a conditional veto of this bill, which allows hospitals to provide wrap-around services for individuals who are homeless or housing insecure. After factoring in the Governor’s comments, the bill has now been approved.

New Jersey Poised to Pass New Telemedicine and Nursing Home Statutes

In recent years, numerous laws have been proposed and enacted in New Jersey that impact health care.  This year is no exception, with some benefiting providers or patients and others that increase regulatory burdens on providers.  In the past few months, the New Jersey State Senate and Assembly have passed approximately twenty statutes that relate to health care in New Jersey.  The below discusses two of those statutes. The first is the much anticipated telemedicine statute that maintains the equal pay rates for telemedicine and in-person visits.  The second involves a statute that imposes additional obligations on nursing homes and other facilities that care for seniors. 

New Decision May Assist Providers in Alleged Overpayment Clawbacks

If you have ever been entangled in a billing audit, you should read a recent decision issued by the United States District Court for the District of New Jersey (the “DNJ”) that addressed the practice commonly known as cross-plan offsetting, and provides new arguments to health care providers in clawbacks of alleged overpayments and recoupments.

Federal Update: From Proposed Rules to Litigation

CMS Delays Best Drug Price Reporting Rule

Pursuant to 86 FR 28742, the Centers for Medicare and Medicaid Services (“CMS”) seeks to delay for 6 months the January 1, 2022 effective date of a final rule that requires drugmakers to report the best prices for drugs when offered as part of a value-based purchasing (“VBP”) arrangement. CMS stated that the delay was necessary to provide CMS, states, and manufacturers more time to make necessary system changes to implement the new best price and VBP program.

Supreme Court Declines to Hear HHS Site-Neutral Policy

On Monday, the U.S. Supreme Court declined to hear a challenge to the U.S. Department of Health and Human Services’ (“HHS”) site-neutral payment policy, allowing Medicare reimbursement cuts to hospitals to continue.

The case stemmed from a final rule issued in 2018 that made $600 million in cuts to hospitals when services are provided at off-site outpatient clinics. Before the final rule, the Centers for Medicare and Medicaid Services (“CMS”) would pay hospitals a hospital rate, as opposed to the lower physician office rate, for services that are provided in an office setting operated by a hospital. In an attempt to overturn the final rule, the American Hospital Association (“AHA”) and dozens of hospitals sued CMS, arguing that it exceeded its authority when it finalized the cuts.

Recent New Jersey Decision on MSOs and Succession Agreements

A recent decision issued by the New Jersey Appellate Division addressed the issue of the corporate practice of dentistry and succession agreements. 

In Galkin, et al. v. SmileDirectClub, LLC, et al., Docket No. A-2867-19, the New Jersey Appellate Division considered whether the nature of the defendants’ relationship violated the New Jersey Dental Practice Act. 

New Jersey Legislation From Nursing Homes to COVID-19 Task Forces

New Nursing Home Legislation Regarding Statewide Assessment

S3032, which passed both the Senate and Assembly, requires the Department of Health (“DOH”) to conduct a statewide nursing home infection control and prevention infrastructure assessment and, based on that assessment, develop a statewide nursing home infection control and prevention infrastructure improvement plan. The statute expressly requires the DOH to request recommendations from the New Jersey Task Force on Long-Term Care Quality and Safety established pursuant to P.L.2020, c.88. 

NJDOH Eliminates COVID-19 Testing Requirement For ASCs and Hospitals, but DCA Has Not For Surgical Practices

On June 16, 2021, the New Jersey Department of Health (“NJDOH”) updated its guidance, Executive Directive 20-016, on the resumption of elective surgeries at licensed Ambulatory Surgical Centers (“ASC”).  Among other changes, pursuant to the updated guidance, patients no longer have to obtain COVID-19 testing or self-quarantine prior to a surgical procedure at an ASC if the patient has been fully vaccinated for two weeks.  Similarly, patients who tested positive for COVID-19 in the last ninety (90) days before their procedure, completed the appropriate isolation and are asymptomatic no longer have to obtain COVID-19 testing or self-quarantine.

Telemedicine and the End of New Jersey's Public Health Emergency

As noted in our June 9, 2021 Health Care Law Update, Governor Murphy signed A5820 into law, ending the COVID‑19 public health emergency. With the exception of fourteen executive orders specifically identified in A5820, all executive orders issued in response to the public health emergency are set to expire 30 days following the effective date of the law, i.e., July 4, 2021.  With certain exceptions, under A5820, any administrative orders, directives, or waivers issued by a State agency that relied on the existence of the public health emergency are extended until January 11, 2022.