Healthcare Law

• S. 1164 – Adopted – Exempts intraoperative monitoring services rendered during neurosurgical, neurological, and neuro-radiological surgical procedures from physician self-referral restrictions.
• A. 3841 – Adopted – Allows School of Osteopathic Medicine at Rowan University to maintain principal clinical affiliation with either osteopathic or allopathic hospitals.
• A. 1447 – Introduced – This bill recently advanced out of committee to the whole assembly.  It will expand the availability of insurance coverage for infertility-related health benefits to certain women that are currently denied coverage.
• A. 1807 – Introduced – This bill requires certain health insurance plans to provide coverage for off-label uses, or medically-appropriate uses that deviate from the original intent designated by the FDA.
• A. 3962 – Introduced – This bill was approved recently by the Higher Education Committee and will now go to the whole assembly.  It establishes a tuition reimbursement program for psychiatrists who work in underserved areas of the state.

• H.R. 5841 – Introduced – Amends Title XVIII of the Social Security Act to establish a population-based payment demonstration project under which Patient Care Networks are paid prospective monthly capitated payments for coordinated care furnished to Medicare beneficiaries.
• H.R. 5837 – Introduced – Amends Title XIX of the Social Security Act to remove the exclusion from medical assistance under the Medicaid program of items and services furnished in an institution for mental diseases in the case of inpatient, non-hospital substance use disorder treatment facility services furnished for nonelderly adults.
• H.R. 5927 – Introduced – Delays for one year the release of the Overall Hospital Quality Star Ratings.
• H.R. 5942 – Introduced – Amends Title XVIII of the Social Security Act to establish a demonstration program to provide integrated care for Medicare beneficiaries with end-stage renal disease.

• 81 FR 52056-01 – Adopted – Updates the prospective payment rates for inpatient rehabilitation facilities (IRF) for federal fiscal year 2017.
• 81 FR 51970-01 – Adopted – Updates the payment rates used under the prospective payment system for skilled nursing facilities for fiscal year 2017.  In addition, it specifies a potentially preventable readmission measure for the Skilled Nursing Facility Value-Based Purchasing Program, and implements requirements for that program, including performance standards, a scoring methodology, and a review and correction process for performance information to be made public, aimed at implementing value-based purchasing for SNFs.
• 81 FR 52144-01 – Adopted – Updates the hospice wage index, payment rates, and cap amount for fiscal year 2017.
• 81 FR 50794-01 – Proposed – Implements three new Medicare Parts A and B episode payment models under section 1115A of the Social Security Act.  Acute care hospitals in certain selected geographic areas will participate in retrospective episode payment models targeting care for Medicare fee-for-service beneficiaries receiving services during acute myocardial infarction, coronary artery bypass graft, and surgical hip/femur fracture treatment episodes.  All related care within 90 days of hospital discharge will be included in the episode of care.
• 81 FR 56762-01 – Proposed – Revises the Medicare hospital inpatient prospective payment systems (IPPS) for operating and capital-related costs of acute care hospitals.
• 81 FR 57554-01 – Proposed – This request for information seeks public comment regarding concerns about healthcare providers and provider-affiliated organizations steering people eligible for or receiving Medicare and/or Medicaid benefits to an individual market plan for the purpose of obtaining higher payment rates.
• 81 FR 62560-01 – Proposed – Amends the Social Security Administration’s medical evidence rules by, among other things, redefining several key terms related to evidence, revising the administration’s list of acceptable medical sources, revising who can be a medical consultant and psychological consultant.

• The Appellate Division recently ruled to revive a law allowing hospitals with comprehensive trauma centers to take over exclusively the ambulance services in their host towns.  The trial court had previously ruled that the law was unconstitutional.  For more information on the case, see, Virtua Health Inc. et al. v. New Jersey et al., case number A-1744-15T3, in the Superior Court of the State of New Jersey, Appellate Division.

• In a recent Texas appellate court decision, the Court found that the relator of an FCA suit against her former employer’s client, which resulted in the former employer losing the client, was not liable to her former employer for the fallout of the FCA suit.  Specifically, the Court found that the former employer had failed to show a link between the former employee’s conduct and the loss of the contract and business.  For more information on the case, see, MJS and Associates LLC v. Judy Master and Matthew Master, case number 12-15-00219-cv, in the Twelfth Court of Appeals of Texas.
• UnitedHealthcare has cut certain aspects of its dialysis scheme suit in a recent amended complaint, stating that it appears that only UnitedHealthcare’s Florida plan paid fraudulent claims, i.e., claims where the dialysis provider bolstered its profits by convincing their patients to switch from government-sponsored healthcare to commercial plans to try to collect more reimbursements.  For more information on the case, see, UnitedHealthcare of Florida Inc. et al. v. American Renal Associates Holdings Inc. et al., case number 9:16-cv-81180, in the U.S. District Court for the Southern District of Florida.
• SpecialtyCare IOM Services LLC, a surgery monitoring company in Tennessee, recently won a suit for $19 million against a competitor whom they alleged illegally poached nine employees subject to restrictive covenants from a company that the surgery monitoring company had just acquired.  For more information on the suit and the restrictive covenants involved, see, SpecialtyCare IOM Services LLC v. Medsurant Holdings LLC and Medsurant LLC, case number 15-695-II, in the Chancery Court of Davidson County (Tennessee).
• Mount Sinai Health System in New York City recently agreed to settle a case brought against it by paying $3 million to resolve allegations that they violated the False Claims Act by retaining Medicaid overpayments for more than 60 days after they learned of them.  This is the first lawsuit and settlement regarding the Affordable Care Act provision where it was alleged that a provider  identified overpayments, but did not return them within 60 days.  For more information on the case, see, Kane v. Healthfirst Inc. et al. and U.S. v. Continuum Health Partners Inc. et al., case number 1:11-cv-02325, in the U.S. District Court for the Southern District of New York.
• A California judge recently ruled that a group of prominent L.A. restaurants cannot avoid an antitrust class action against them, which argues that the eateries orchestrated a price-fixing conspiracy to cover the costs of employee healthcare required under the Affordable Care Act by imposing a 3% surcharge across the board at all of their restaurants starting in 2014.  For more information on the case, see, Margaret Imhoff v. Suzanne Goin et al., case number BC593161, in the Superior Court of California for the County of Los Angeles.
• The Eleventh Circuit recently ruled that private insurers offering Medicare Advantage plans can sue primary insurers under the Medicare Secondary Payer Act.  This was a victory for Humana Medical Plan Inc. in its suit against Western Heritage Insurance Co. over who should have to cover the cost of an injury at a Florida condominium.  The Medicare Secondary Payer Act provides that when more than one insurer is liable for an insurance cost, private insurers are treated as primary payors and Medicare as a secondary payor.    For more information about the suit, see, Humana Medical Plan, Inc. v. Western Heritage Insurance Com, case number 15-11436, in the U.S. Court of Appeals for the Eleventh Circuit.
• The Aetna-Humana and Anthem-Cigna antitrust suits were recently separated by a Washington D.C. federal judge into two separate suits in an effort to expedite the results of the suits so that the insurers can meet their contractual deadlines to finalize the deal or pull out of the deals.  The cases are U.S. et al. v. Anthem Inc. et al., case number 1:16-cv-01493, and U.S. et al. v. Aetna Inc. et al., case number 1:16-cv-01494, both in the U.S. District Court for the District of Columbia.
• Two nonprofit health insurers recently filed suit against the Obama administration in Massachusetts and New Mexico challenging how payments are calculated in the ACA’s “risk adjustment” program, which is supposed to transfer money from insurers with healthier-than-average policyholders to insurers with sicker-than-average policyholders.  For more information on the cases, see, Minuteman Health Inc. v. U.S. Department of Health and Human Services et al., case number 1:16-cv-11570, in the U.S. District Court for the District of Massachusetts, and New Mexico Health Connections v. U.S. 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.

• CMS recently announced its intention to extend and expand a temporary ban on nonemergency ambulance suppliers and home healthcare agencies in six states in their continued efforts to curb alleged fraud in the federal healthcare system.  The six states that are subject to the temporary ban are New Jersey, Pennsylvania, Texas, Illinois, Florida, and Michigan.

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. Nothing in this Update should be relied upon as legal advice in any particular matter. © 2016 Riker Danzig Scherer Hyland & Perretti LLP.