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Riker Danzig Healthcare Update April 27, 2018

April 30, 2018

New Jersey State: Selected Proposed and Adopted Legislation  

  • A.3380/S.1877 – Passed both Houses – New Jersey Health Insurance Market Preservation Act.
  • A.1704/S.482 – Passed both Houses – Authorizes certain gestational carrier agreements.
  • S. 2331 – Introduced – Establishes procedures for individuals arrested for drug intoxication offenses to be transported to substance abuse treatment, and for municipal court to commit such individuals to treatment in lieu of prosecution.
  • S. 2178 – Introduced – Qualifies certain assisted living facilities for certain EDA incentives.
  • S. 2295 – Introduced – Exempts specialty heart hospitals from 0.53 percent hospital assessment under certain circumstances.
  • S. 2144 – Introduced – “New Jersey Insurance Fair Conduct Act”; concerns certain practices in the business of insurance.
  • S. 2122 – Introduced – Provides that routine foot care services covered under certain insurance policies include coverage of services provided by podiatric physicians.
  • S. 2133 – Introduced – Mandates health benefits coverage for fertility preservation services under certain health insurance plans.
  • A. 3670 – Introduced – Provides for designation of acute stroke ready hospitals, establishes Stroke Care Advisory Panel and Statewide stroke database, and requires development of emergency medical services stroke care protocols.
  • A. 3615 – Introduced – Allows charitable assets set aside from the sale of nonprofit hospital to for-profit entity to be allocated to successor nonprofit charitable entity that is establishing and operating equivalent nonprofit hospital.
  • A. 3630 – Introduced – Makes certain changes to hourly reimbursement rate for personal care services reimbursed by Medicaid.
  • A. 3587 – Introduced – “Healthcare Industry Representative Certification Act”; establishes requirements for certification of healthcare industry representatives.
  • A. 3511 – Introduced – Establishes “New Jersey Community Health Worker Program” in DOH to facilitate linking medically underserved communities with healthcare resources.
  • A. 3510 – Introduced – Establishes patient-centered medical home program.

New Jersey State: Selected Adopted and Proposed Regulations  

  • 50 N.J.R. 934(a) – Proposed -  This proposed rule would amend the Prescription Monitoring Program, N.J.S.A. 45:1-45 et seq., by including, among other things, a statutory definition for “mental health practitioner” and requirements for licensed mental health practitioners.

Federal: Selected Proposed and Enacted Legislation

  • S. 2553 – Introduced – Amends Title XVIII of the Social Security Act to prohibit health plans and pharmacy benefit managers from restricting pharmacies from informing individuals regarding the prices for certain drugs and biologicals.
  • S. 2453 – Introduced – Amends Title XVIII of the Social Security Act to require hospitals to provide the Secretary with information on the hospital’s acquisition costs for 340B drugs and the total revenues received by the hospital for such drugs.
  • H.R. 5247 – Engrossed – This bill would authorize the use of eligible investigational drugs by eligible patients who have been diagnosed with a stage of a disease or condition in which there is reasonable likelihood that death will occur within a matter of months, or with another eligible illness. 
  • H.R. 5343 – Introduced – Amends the Public Health Service Act to nullify certain contractual provisions prohibiting or penalizing a pharmacist’s disclosure of the availability of therapeutically equivalent alternative drugs, or alternative methods of purchasing the prescription drug, that are less expensive.
  • H.R. 5150 – Introduced – Amends Title XVIII of the Social Security Act to require drug manufacturers to pay a Medicare Part B rebate for certain drugs if the price of such drugs increases faster than inflation.
  • H.R. 5160 – Introduced – Amends Title XVIII of the Social Security Act to provide for coverage of cancer care planning and coordination under the Medicare program.

Federal: Selected Proposed and Adopted Regulations    

  • 83 FR 12696-01 – Proposed – This proposed rule would amend the process for states to document whether Medicaid payments in fee-for-service systems are sufficient to enlist providers to assure beneficiary access to covered care and services consistent with the statute.  The proposal is in response to concerns from states over the administrative burdens associated with the current requirements, particularly for states with high rates of Medicaid managed care enrollment.
  • 83 FR 13677-01 – Approved – This document announces the deletion of four healthcare Common Procedure Coding System (HCPCS) codes from the Master List of Items Frequently Subject to Unnecessary Utilization that could be potentially subject to Prior Authorization as a condition of payment.  These codes are E0260 (Hospital bed semi-electric (head and foot adjustment) with any type side rails with mattress); E0601 (Continuous Airway Pressure (CPAP) Device); E1390 (Oxygen Concentrator); K0004 (High strength, lightweight wheelchair).

Jersey State Litigation

  • The New Jersey Supreme Court recently declined to consider a state appellate decision that tossed a cardiologist’s malicious prosecution lawsuit against her former employer, Deborah Heart and Lung Center.  The cardiologist had argued that her former employer engaged in malicious prosecution by disclosing to the New Jersey Board of Medical Examiners and other hospitals that she had resigned while being investigated by the facility for professional misconduct.  The Appellate Division had held that such actions by Deborah Heart and Lung Center were required under the New Jersey healthcare Professional Responsibility and Reporting Act, also known as the Cullen Act.  For more information on the suit, see, Christine Gasperetti M.D. v. Deborah Heart And Lung Center et. al., case no. A-0244-13T2, in the Superior Court of New Jersey, Appellate Division.

State Litigation

  • A New Jersey federal judge recently ruled to dismiss a putative class action against Quest Diagnostics Inc. brought by customers who alleged that Quest overcharges customers for tests not covered by insurance.  Specifically, the judge ruled that the complaint as alleged did not support the plaintiff’s claims of deceptive trade practices.  However, the judge did leave the door open for the plaintiffs to refile their complaint if they can address “other factors relevant to whether Quest’s pricing is deceptive or fraudulent.”  For more information on the claim, see, Leslie et al v. Quest Diagnostics Inc., case number 2:17-cv-01590, in the U.S. District Court for the District of New Jersey.
  • The Pennsylvania Supreme Court recently analyzed and rendered a decision taking a narrow view of the protection afforded by the Pennsylvania Peer Review Protection Act, which establishes confidentiality for medical providers’ peer review proceedings.  In a 4-3 decision, the court affirmed a finding by a lower court that the Act did not shield the contractor for the hopsital, Emergency Resource Management, Inc., from handing over performance reviews that a supervisor drafted for a physician facing claims that he negligently treated an emergency room patient experiencing chest pains.  Specifically, the court found that Emergency Resource Management, Inc. did not meet the definition of “professional healthcare provider” as used in the statute.  For more information on the suit, see, Eleanor Reginelli et al. v. Marcellus Boggs et al., case numbers 20 WAP 2016, 21 WAP 2016, 22 WAP 2016 and 23 WAP 2016, in the Supreme Court of the State of Pennsylvania.
  • A New Mexico federal judge recently ruled in favor of a New Mexico-based, nonprofit ACA co-op that filed suit against the Department of Health on the grounds that its formula for determining charges to insurers with “less-risky” patients and payments insurers with “high-risk” patients under the risk adjustment program is arbitrary and capricious.  Specifically, the judge agreed with the co-op that the agency’s decision to use the statewide average premium as the basis for determining charges and payments was based on the incorrect assumption that the risk adjustment program is supposed to be budget neutral.  However, the judge stated that the agency could have justified its decision if it had argued that keeping the program budget-neutral was a worthy policy goal.  For more information on the suit, see, New Mexico Health Connections v. United States Department of Health and Human Services, et al., case number 1:16-cv-00878, in the U.S. District Court for the District of New Mexico.
  • The Second Circuit recently ruled in favor of upholding a lower court’s award of summary judgment to Montefiore Medical Center in its ERISA suit against Local 272 Welfare Fund, an employee welfare benefit plan sponsored by Local 272 Garage Employees Union and the Metropolitan Parking Association.  Specifically, Montefiore Medical Center, which isn’t in the fund’s provider network, had argued that the summary plan description required the fund to look at what it would have paid in-network providers for the same thing and then reimburse it the highest possible amount.  The lower court and the Second Circuit agreed.  For more information on the suit, see, Montefiore Medical Center v. Local 272 Welfare Fund, case number 17-1303, in the U.S. Court of Appeals for the Second Circuit.

In the News

  • The Center for Medicare & Medicaid Services recently announced a new initiative, MyHealthEData, aimed at empowering patients by giving them control of their healthcare data and allowing them to take it with them from doctor to doctor, or to their other healthcare providers.  The goal is for patients to be able to choose the provider that best meets their needs and give that provider secure access to their data, leading to greater competition and reducing costs.  CMS also announced the launch of Medicare’s Blue Button 2.0, a new and secure way for Medicare beneficiaries to access and share their personal health data in a universal digital format.  Medicare’s Blue Button 2.0 will allow a patient to access and share their healthcare information, previous prescriptions, treatments, and procedures with a new doctor.  CMS also called on all healthcare insurers to follow CMS’s lead and give patients access to their claims data in a digital format.
  • A coalition of 17 attorneys general recently submitted joint comments to the U.S. Department of Labor, saying a proposed rule that would let businesses in the same industry or geographic area form healthcare associations - subject to the Employee Retirement Income Security Act’s looser restrictions on health plans serving large groups of workers – would remove important consumer protections and invite fraud.  The DOL has said the proposed rule would cut costs for businesses and workers by helping them leverage economies of scale to reduce administrative costs and bargain for lower prices.

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.

Our Team

Glenn A. Clark

Glenn A. Clark
Of Counsel

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