Riker Danzig Health Care Update June 19, 2017

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Riker Danzig Health Care Update June 19, 2017
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Riker Danzig Health Care Update June 19, 2017
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New Jersey State: Selected Proposed and Adopted Legislation    

  • A. 4751 – Introduced – Requires DOH to issue a license to provide elective angioplasty services to certain qualifying hospitals located in counties of the third class.  
  • A. 4729/S. 3111 – Introduced – Eliminates certificate of need requirement for special care nursing facilities.  
  • A. 4621 – Introduced – Revises scope of practice for surgical technologists to allow them to perform additional procedures involving ligation and skin and tissue closures.  
  • A. 4871 – Introduced – Requires State Board of Medical Examiners to approve procedures and establish a level of supervision necessary for the practice of radiologist assistants.  
  • S. 3131 – Introduced – Requires hospitals to inquire whether patients have substance use disorder and establish protocols for providing or referring to treatment.  
  • S. 3138 – Introduced – Titled the “New Jersey Public Option Health Care Act,” the bill would establish a state health insurance public option.  
  • S. 3203 – Introduced – Requires notification to certain medical and dental boards outside of New Jersey of actions against medical or dental licenses or practices.  
  • S. 278 – Amended/Substituted – Requires surgical practices to be licensed by DHSS as ambulatory care facilities.  
  • P.L. 2017, c. 46 – Adopted – Permits hospitals to establish a system for making performance-based incentive payments to physicians.  
  • P.L. 2017, c. 48 – Adopted – Expands infertility coverage under certain health insurance plans.  
  • P.L. 2017, c. 56 – Adopted – Revises “Massage and Bodywork Therapist Licensing Act” to require certain class study and examination requirements.  
  • P.L. 2017, c. 50 – Adopted – Establishes three-year Medicaid home visitation demonstration project.  
  • P.L. 2017, c. 85 – Adopted – Provides for monitoring and evaluation of transition of mental health and substance use disorder treatment service system and developmental disability system to fee-for-service reimbursement model.  
  • P.L. 2017, c. 69 – Adopted – Establishes “Hazardous Drug Safe Handling Act;” requires promulgation of standards and regulations concerning safe handling of hazardous drugs by certain health care personnel.

Federal: Selected Proposed Legislation

  • H.R. 1652 – Introduced – Provides for the regulation of over-the-counter hearing aids.  
  • H.R. 1565 – Introduced – Provides for the creation of a safe harbor for defendants in medical malpractice actions who demonstrate adherence to clinical practice guidelines.  
  • H.R. 662 – Introduced – Enables hospital-based nursing programs that are affiliated with a hospital to maintain payments under the Medicare program to hospitals for the costs of such programs.  
  • H.R. 2291 – Introduced – Amends Title XVIII of the Social Security Act to expand the coverage of telehealth services under the Medicare program, and provides coverage for home-based monitoring for congestive heart failure and chronic obstructive pulmonary disease under Medicare.  
  • H.R. 2373 – Introduced – Amends Title XVIII of the Social Security Act with respect to the accreditation of osteopathic residency training programs for purposes of graduate medical education payments under the Medicare program.

Federal: Selected Proposed and Adopted Regulations

  • 81 FR 64060-01 – Adopted – Revises and makes corrections to the medical criteria for evaluating respiratory system disorders.  
  • 81 FR 66138-01 – Adopted – Revises the criteria in the Listing of Impairments that the Social Security Administration uses to evaluate claims involving mental disorders in adults and children under Titles II and XVI of the Social Security Act.  
  • 82 FR 16114-02 – Adopted – This final rule addresses the hospital specific limitation on Medicaid disproportionate share hospital (DSH) payments under § 1923(g)(1)(A) of the Social Security Act, and the application of such limitation in the annual DSH audits required under § 1923(j) of the Social Security Act. Specifically, the rule clarifies that the hospital specific DSH limit is based only on uncompensated care costs.  
  • 82 FR 5415-01 – Adopted – This final rule changes the pass-through payment transition periods and the maximum amount of pass-through payments permitted annually during the transition periods under Medicaid managed care contracts and rate certifications.  
  • 82 FR 22895-01 – Adopted – This final rule clarifies May 20, 2017 as the effective date of the rule titled “Advancing Care Coordination Through Episode Payment Models (EPMs); Cardiac Rehabilitation Incentive Payment Model; and Changes to the Comprehensive Care for Joint Replacement Model.”  
  • 82 FR 21014-01 – Proposed – Updates the payment rates used under the prospective payment system for skilled nursing facilities for fiscal year 2018.  
  • 82 FR 20980-01 – Proposed – This proposed rule solicits public comments on potential options CMS may consider for revising the existing skilled nursing facility prospective payment system payment methodology to improve its accuracy, based on the results of CMS’s skilled nursing facility payment models research project.  
  • 82 FR 20690-01 – Proposed – This proposed rule would update the prospective payment rates for inpatient rehabilitation facilities for federal fiscal year 2018.

Federal Litigation

  • A Texas federal judge recently ruled that certain ambulatory surgery centers could not escape Cigna’s claims that they had violated ERISA by waiving payments for out-of-network patients, but billing their insurers as if the patients had in fact paid. The Cigna subsidiaries that brought the suit argued that this practice caused them to overpay the surgical centers by $8 million. For more information on the suit, see Connecticut General Life Insurance Company et al v. Elite Center For Minimally Invasive Surgery LLC et al, case number 4:16-cv-00571, in the U.S. District Court for the Southern District of Texas.  
  • A U.S. Tax Court judge recently upheld an IRS distinction between individual and corporate taxpayers requesting relief based on economic hardship. Specifically, a nursing home in Oklahoma had argued that under 26 U.S.C.A. 6343 the IRS’s levy would create economic hardship on the facility and, therefore, the “taxpayer” was entitled to relief. The IRS rebutted that corporations are not eligible for relief under the law cited by the nursing home. The Tax Court agreed with the IRS’s interpretation. For more information on the case, see Lindsay Manor Nursing Home Inc. v. Commissioner of Internal Revenue, case number 24596-14L, in the U.S. Tax Court.  
  • The Ninth Circuit recently ruled that health care providers’ claims against Blue Cross Blue Shield and Anthem Inc. could not proceed under ERISA, because the providers were not beneficiaries. Specifically, the providers argued that they were assigned the right to receive payment by the beneficiaries of the plans. The Ninth Circuit rejected this argument because remuneration for medical services rendered is not a “benefit” under ERISA. For more on the case, see DB Healthcare LLC et al. v. Blue Cross Blue Shield of Arizona Inc., case number 14-16518, in the U.S. Court of Appeals for the Ninth Circuit.  
  • The Sixth Circuit recently denied the NLRB’s action to require a Michigan nursing home to bargain with a nurses union, saying that, because the nurses had the ability to discipline other employees, the nurses did not qualify for union membership. In other words, the Sixth Circuit held that the nurses in the facility acted as supervisors, not employees, and, therefore, they were not eligible for unionization. For more information on the case, see National Labor Relations Board v. Lakepointe Senior Care & Rehab Center LLC, case number 16-1310, in the United States Court of Appeals for the Sixth Circuit.  
  • A New Jersey federal district court recently ruled that the New Jersey Charitable Immunities Act, which either provides immunity or caps liability at $250,000 for certain charities, applies to a nonprofit federally funded clinic facing a medical malpractice claim even though the facility lacked many of the traditional markers of a hospital, such as an emergency room and inpatient acute care facilities. For more information on the case, see Mary Mendez et al. v. U.S. et al., case number 1:14-cv-07778, in the U.S. District Court for the District of New Jersey.  
  • The Third Circuit recently ruled for Genentech Inc. in an FCA suit brought against the company related to payment for its cancer drug Avastin. Specifically, the Court held that the whistleblower failed to show, in accordance with the U.S. Supreme Court’s decision in United Health Services v. Escobar, that Genentech’s alleged noncompliance was “material” to the government’s payment. For more information on the case, see, U.S. ex rel.Petratos et al. v. Genentech Inc. et al., case number 15-3805, in the U.S. Court of Appeals for the Third Circuit.  
  • The United States Supreme Court recently ruled to overturn the Kentucky Supreme Court’s refusal to send a wrongful death suit to arbitration, stating that the FAA preempts state laws like Kentucky’s, which requires explicit reference to arbitration in a power of attorney document for consent to such arbitration to be valid. For more information on the case, see Kindred Nursing Centers LP v. Clark et al., case number 16-32, in the Supreme Court of the United States.

The list above does not include every proposed or adopted legislation, litigation or guidance document that may impact the health care 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. © 2017 Riker Danzig Scherer Hyland & Perretti LLP.

If you have any questions about the issues discussed in this Update, please contact the following Riker Danzig attorneys:

Glenn A. Clark, Partner

Khaled John Klele, Partner

Stephen M. Turner, Associate