As COVID-19 restrictions are being lifted on national and state levels, health care providers have to start considering that the immunity provided to them regarding COVID-19 may be lifted in the near future. New York already abrogated its immunity and New Jersey is starting to consider doing the same.
In addition, New Jersey has added even more reporting requirements on nursing homes, has made the process for transferring ownership more burdensome, and has increased the restrictions for a third party to manage the nursing home.
Lawson v. Praxair, Inc., Case No. 3:16-cv-2435 (BRM)(DEA)
This case involved a Defendant’s appeal from a magistrate’s order affirming in part and reversing in part a special master’s discovery decision involving invocation of privilege under the New Jersey Patient Safety Act ("NJPSA"). The NJPSA is intended to encourage the disclosure of adverse events and near-misses that threaten the safety of patients in a health care facility by creating a non-punitive culture focused on improvement over blame. To effect this purpose, the NJPSA establishes an absolute privilege for (a) documents received by the Department of Health ("DOH") pursuant to a mandatory requirement or voluntary disclosure, and (b) documents developed by a health care facility as part of a self-critical analysis conducted regarding a preventable or near-miss event
CMS Scales Back Part of the Transparency Rule
The Centers for Medicare & Medicaid Services ("CMS") issued its annual proposed Hospital Inpatient Prospective Payment Systems. Under the proposed rule, CMS seeks to repeal the requirement that acute care hospitals report median payer-specific negotiated rates with Medicare Advantage insurers, which was finalized in 85 FR 58432. This has created some excitement in the industry that CMS may be pulling back its transparency rules.
On April 29, 2021, the Health and Human Services Office of Inspector General ("OIG") issued Advisory Opinion 21-02. The Advisory Opinion addresses a proposed arrangement involving a health system, certain orthopedic surgeons and neurosurgeons employed by that health system, and a management company seeking to invest in an ambulatory surgery center ("ASC").
Governor Cuomo Signs Law Lifting Liability Protections for Health Facilities
Governor Cuomo recently signed S5177 into law, repealing the Treatment Protection Act, which prevented health care facilities, like nursing homes and hospitals, as well as their administrators and executives, from being held accountable for harm in connection with their treatment of patients with COVID‑19.
Every year, New Jersey proposes dozens of statutes that impact health care. The statutes in this post have already passed both the State Senate and Assembly and are on their way to become law unless vetoed by the Governor, with the exception of one statute that has already been approved and is now law.
Proposed Telemedicine Rules
The New Jersey Division of Consumer Affairs introduced a series of proposed rules intended to expand healthcare providers’ ability to engage in telemedicine and telehealth. The proposed rules span a number of healthcare providers, including dentists and dental hygienists, marriage and family therapy counselors, respiratory care practitioners, and occupational therapists.
New Jersey’s Proposed Pharmacy Benefits Manager Licensure and Regulation Act
This bill, A5410, first introduced to the New Jersey Assembly on March 1, 2021, provides for the licensure of pharmacy benefits managers ("PBM"). Under the bill, the Commissioner of Banking and Insurance is to create the application for a license to operate in New Jersey as a PBM and establish the accompanying licensing, fees, application, financial standards, and reporting requirements of PBMs.
New Jersey recently approved several statutes that reinstated the tax exemption for non-profit hospitals, with some caveats, and changed the standard for trauma care. On the federal side, several federal courts enjoined the “most favored nation” payment model rule and The Department of Health and Human Services (“HHS”) issued a notification of enforcement discretion relaxing HIPAA when it comes to arranging for COVID-19 vaccination appointments.
A bill, S3458, is currently being proposed in the State Senate. This proposed statute amends the arbitration provisions of the Out-of-Network Consumer Protection, Transparency, Cost Containment and Accountability Act. Besides increasing the time frames for when parties can attempt to reach a settlement before initiating arbitration, the proposed statute eliminates the requirement that the final offers submitted by the insurer and provider be more than $1,000 apart.