Riker Danzig Healthcare Update August 15, 2017

August 15, 2017

New Jersey State: Selected Adopted Legislation

P.L. 2017, c. 120 – Adopted – Amends and repeals sections of “Respiratory Care Practitioner Licensing Act.”
P.L. 2017, c. 94 – Adopted – Eliminates certificate of need requirement for inpatient psychiatric hospital beds for treatment of psychiatric and substance use disorder dual diagnosis.
P.L. 2017, c. 100 – Adopted – Clarifies the role of health service corporations, revises membership of board of directors, regulates surplus, and requires timely publication of certain information by DOBI.
P.L. 2017, c. 111 – Adopted – Requires alternative payment models to register with DOH; permits healthcare practitioners to refer patients to healthcare service in which the practitioner has beneficial interest when related to alternative payment model.
P.L. 2017, c. 107 – Adopted – Requires DOH to permit certain healthcare facilities to use shared clinical space when providing primary healthcare and behavioral healthcare for mild to moderate behavioral health conditions.
P.L. 2017, c. 126 – Adopted – Establishes tuition reimbursement program for certain psychiatrists who work in underserved areas of psychiatric hospitals in New Jersey.
P.L. 2017, c. 153 – Adopted – Requires healthcare professionals engaged in prenatal care to provide parents of newborns with information on health insurance coverage for newborn children.
P.L. 2017, c. 117 – Adopted – Authorizes healthcare providers to engage in telemedicine and telehealth.
P.L. 2017, c. 135 – Adopted – Allows hospice care programs to accept unused prescription medications for disposal under certain circumstances.
P.L. 2017, c. 161 – Adopted – Requires Medicaid coverage for diabetes self-management education, training, services, and equipment for patients diagnosed with diabetes, gestational diabetes, and pre-diabetes.
P.L. 2017, c. 121 – Adopted – Revises statutes regarding practice of physical therapy.
P.L. 2017, c. 176 – Adopted – Prohibits health insurers, SHBP, SEHBP, certain healthcare providers, and Medicaid from discriminating in providing coverage and services based on gender identity.

New Jersey State: Selected Proposed and Adopted Regulation

49 N.J.R. 1911(a) – Adopted – This final rule adopted amendments to N.J.A.C. 13:33-5.1 and 5.5, affecting the definition and scope of practice of ophthalmic dispensers.
49 N.J.R. 1782(a) – Proposed – This proposed rule would readopt and amend the licensing standards for dementia care homes, which are set to expire on November 27, 2017.

Federal: Selected Proposed Legislation

H.R. 3178 – Introduced – Amends Title XVIII of the Social Security Act to improve the delivery of home infusion therapy and dialysis and the application of the Stark rule under the Medicare Program.
H.R. 3098 – Introduced – Amends Title XVIII of the Social Security Act to provide for coverage of certified adult day services under the Medicare program.
H.R. 3111 – Introduced – Amends Title XVIII of the Social Security Act to provide for coverage of dental, vision, and hearing care under the Medicare program.
S. 1533 – Introduced – Amends Title XIX of the Social Security Act to cover physician services delivered by podiatric physicians to ensure access by Medicaid beneficiaries to appropriate quality foot and ankle care, also amends Title XVIII of the Social Security Act to modify the requirements for diabetic shoes to be included under Medicare.

Federal: Selected Proposed and Adopted Regulations

82 FR 31158-01 – Adopted – This final rule will update the Medicaid Eligibility Quality Control and Payment Error Rate Measurement programs based on the changes to the Medicaid and the Children’s Health Insurance Program eligibility under the Affordable Care Act.
82 FR 31729-01 – Adopted – This final rule delays the effective date of the final rule entitled “Medicare and Medicaid Program: Conditions of Participation for Home Health Agencies” from July 13, 2017 to January 13, 2018.
82 FR 35067-01 – Adopted – The FDA is classifying the oral removable palatal space occupying device for weight management and/or weight loss into class II (special controls).
82 FR 35065-01 – Adopted – The FDA is classifying the adjunctive cardiovascular status indicator into class II (special controls).
82 FR 35071-01 – Adopted – The FDA is classifying the closed loop hysteroscopic insufflator with cutter-coagulator into class II (special controls).
82 FR 31190-01 – Proposed – This rule proposes an update and revisions to the End-Stage Renal Disease Prospective Payment System for calendar year 2018.
82 FR 33558-01 – Proposed – This proposed rule would revise the Medicare hospital outpatient prospective payment system and the Medicare ambulatory surgical center payment system for calendar year 2018.
82 FR 33950-01 – Proposed – This rule would make major revisions to the payment policies under the Physician Fee Schedule and other revisions to Part B for calendar year 2018.
82 FR 35270-01 – Proposed – This proposed rule would update the home health prospective payment system payment rates, including the national, standardized 60-day episode payment rates, the national per-visit rates, and the non-routine medical supply conversion factor.

State Litigation

The New Jersey Appellate Division recently ruled to keep alive a personal injury claim against a physician who disclosed a patient’s HIV-positive status without the patient’s consent. Specifically, the Court held that the two-year statute of limitations for personal injury claims applied to this case, rather than the one year statute of limitations for defamation. For more information, see, John Smith v. Arvind R. Datla, et al., case number A-1339-16T3 in the Superior Court of New Jersey Appellate Division.
CarePoint Health’s Bayonne Medical Center, Hoboken University Medical Center and Christ Hospital have told the District of New Jersey that they have reached a tentative deal with Horizon healthcare Services Inc. to resolve their claims that Horizon owes them more than $125 million for out-of-network services and that Horizon had made false and misleading statements about the hospitals in an effort to drive them into bankruptcy. For more information on the suit, see, Hudson Hospital OPCO LLC et al v. Horizon healthcare Services Inc., case number 2:16-cv-05922, in the U.S. District Court for the District of New Jersey.
The New Jersey Supreme Court recently reversed the Appellate Division and found that “Tier 2” hospitals in Horizon’s Omnia Alliance system should be allowed to obtain discovery on the agreements between the “Tier 1” hospitals and Horizon. For more information on the suit, see, Centrastate Medical Center Inc. et al. v. Horizon healthcare Services Inc. and Saint Peter’s University Hospital v. Horizon healthcare Services Inc., consolidated case number 077998, before the New Jersey Supreme Court.
Atlantic Health System’s Overlook Medical Center and the City of Summit reached an agreement to end the City’s appeals in the State Tax Court and Atlantic Health System’s counterclaims related to the nonprofit, tax-exempt status of the medical center. Atlantic Health System will pay the City of Summit $5.56 million over the next six years to resolve the claims.

Federal Litigation

A Wisconsin appeals court recently struck down a state law limiting noneconomic damages in medical malpractice suits at $750,000 as unconstitutional. For more information on the case, see, Ascaris Mayo v. Wisconsin Injured Patients and Families Compensation Fund et al., case number 2014AP2812, in the Wisconsin Court of Appeals, District I.
A Texas federal judge recently ruled to wipe out nearly all of a Houston based hospital’s and its affiliates’ claims against Humana that it violated the Texas Prompt Payment of Physicians and Providers Act by paying late on claims arising from Medicare Advantage plans and fully insured ERISA plans. With respect to the Medicare Advantage claims, the judge found that CMS regulations preempted state law on the issue. With respect to the ERISA claims, the judge found that it was preempted by federal law. For more information on the case, see, Houston Methodist Hospital et al. v. Humana Insurance Co. et al., case number 4:16-cv-01469, in the U.S. District Court for the Southern District of Texas.
The Third Circuit recently ruled to revive Aetna’s suit against a Pennsylvania based surgical center, wherein Aetna argued that the forms that the facility had been submitting to Aetna were fraudulent. For more information on the case, see, Aetna Life Insurance Company v. Huntingdon Valley Surgery Center, case number 16-1468 in the Court of Appeals for the Third Circuit.
The D.C. Circuit Court recently ruled to overturn a lower court’s decision and find that CMS acted improperly when it changed its method for calculating reimbursement to hospitals for uncompensated care in 2012. Specifically, the Court found that CMS failed to provide for a proper notice-and-comment period before putting in place the change to the reimbursement formula. For more information on the case, see, Allina Health Services et al., v. Thomas Price, case number 16-5255, in the U.S. Court of Appeals for the District of Columbia Circuit.

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. © 2017 Riker Danzig Scherer Hyland & Perretti LLP.

Glenn A. Clark
Of Counsel

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