Healthcare Law

New Jersey State: Selected Proposed and Adopted Legislation

• A. 4268 – Introduced – Requires forms for informed consent for healthcare to be separate from forms related to assignment of insurance benefits or financial arrangements.
• A. 4394 – Introduced – Establishes New Jersey Commission on Health Insurance Network Adequacy.
• S. 3033 – Introduced – “Prescription Drug Consumer Transparency Act;” requires pharmacy benefits managers to disclose certain information to benefit plan purchasers and to establish toll-free telephone number for certain inquiries.
• S. 2614 – Introduced – Expands the types of acts for which certain practitioners incur duty to warn.
• S. 2778 – Introduced – Requires all Medicaid managed care organizations to permit all pharmacies in state to dispense prescriptions for all covered medications.
• A. 4163/S. 2563 – Introduced – Clarifies DCA rulemaking authority over free-standing residential healthcare facilities, and prohibits eviction of residents from such facilities, except for good cause.
• A.C.R. 218/S.C.R. 142 – Introduced – Urges DOH to adopt rules permitting additional facilities to perform elective angioplasty procedures.
• A. 3404 – Amended/Substituted – Permits hospitals to establish a system for making performance-based incentive payments to physicians.
• S. 2724 – Amended/Substituted – 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.
• S. 291 – Amended/Substituted – Authorizes healthcare providers to engage in telehealth and telemedicine.
• P.L. 2016, c. 55 – Adopted – Authorizes certain counties to establish county hospital authorities; amends title of “Municipal Hospital Authority Law."
• P.L. 2016, c. 53 – Adopted – Authorizes medical marijuana for qualifying patients with post-traumatic stress disorder.
• P.L. 2016, c. 72 – Adopted – Requires DHS to develop timeline for use by individuals with developmental disabilities to gain benefit of State and federal programs; requires posting timeline on DHS, DCF, and DOE websites.
• P.L. 2017, c. 28 – Adopted – Requires health insurance coverage for treatment of substance use disorders; places certain restrictions on the prescription of opioid and certain other drugs; concerns continuing education related thereto.
• P.L. 2017, c. 85 – Adopted – Provides for monitoring and evaluation of transition of mental health and substance use disorder treatment service system to fee-for-service reimbursement model.
• P.L. 2017, c. 8 – Adopted – Requires prescribers to discuss addiction risk associated with certain drugs prior to issuing prescription to minor patient.
• P.L. 2017, c. 7 – Adopted – Requires DOH regulations regarding elevated blood lead levels in children, and appropriate responses thereto, to be consistent with latest Centers for Disease Control and Prevention recommendations.

Federal: Selected Proposed and Adopted Regulations

• 48 N.J.R. 1972(a) – Adopted – This regulation places a moratorium on new applications to create long term care facilities in New Jersey until July 1, 2019 based on New Jersey’s failure to reach its targeted annual occupancy rate in nursing homes for multiple years in a row.
• 49 N.J.R. 552(a) – Adopted – This regulation places limitations on prescribing, administering, or dispensing controlled dangerous substances, with specific limitations for opioid drugs, and establishes special requirements for the management of acute and chronic pain.

Federal: Selected Proposed Legislation

• H.R. 6043 – Introduced – Requires reporting regarding certain drug price increases.
• H.R. 5713 – Introduced – Provides for the extension of certain long-term care hospital Medicare payment rules and clarifies the application of rules on the calculation of hospital length of stay to certain moratorium-excepted long-term care hospitals.
• H.R. 6485 – Introduced – Amends the Older Americans Act of 1965 to develop and test an expanded and advanced role for direct care workers who provide long-term services and support to older individuals in an effort to coordinate care and improve the efficiency of service delivery.

 Federal: Selected Proposed and Adopted Regulations

• 81 FR 66919-01 – Adopted – Outlines annual reporting requirements for practitioners who are authorized to treat up to 275 patients with covered medications in an office-based setting.  This final rule will require practitioners to provide information on their annual caseload of patients by month, among other things.
• 81 FR 88334-01 – Adopted – This final rule amends the civil monetary penalty rules of the OIG to incorporate new civil monetary penalty authorities, clarify existing authorities, and reorganize regulations on civil money penalties,  and assessments.
• 81 FR 88368-01 – Adopted – This final rule amends the safe harbors to the anti-kickback statute by adding new safe harbors that protect certain payment practices and business arrangements from sanctions under the anti-kickback statute.
• 82 FR 6052-01 – Adopted – This final rule issued by HHS updates and modernizes the Confidentiality of Alcohol and Drug Abuse Patient Records regulations and facilitates information exchange within new healthcare models while addressing the privacy concerns of patients seeking treatment for substance use disorder.

State Litigation

• The New Jersey Appellate Division recently ruled that a former hospital employee of Our Lady of Lourdes Medical Center could not pursue a religious bias claim against the medical center for exempting certain employees on religious grounds from the vaccination requirement, because the employee herself had not claimed to be a member of a protected class under the NJLAD.  For more on this case, see, Yvonne Lombardo Brown v. Our Lady of Lourdes Medical Center, Inc., and Dr. Alan Pope, case number A-4594-14T2, in the Superior Court of New Jersey, Appellate Division.

Federal Litigation

• An Illinois federal court recently sided with Peoria based St. Francis Medical Center in a $300 million antitrust suit brought by local rival Methodist Medical Center. Specifically, the Court found that the exclusivity agreements St. Francis made with health insurers did not prevent Methodist from competing in the market. For more information on the case, see, Methodist Health Services Corp. v. OSF healthcare System, case number 1:13-cv-01054, in the U.S. District Court for the Central District of Illinois.
• Florida’s Second District Court of Appeals recently adopted the Fourth District Court of Appeal’s position that a state law capping noneconomic damages in medical malpractice personal injury actions is unconstitutional. For more information, see, Port Charlotte HMA LLC v. Suarez, case number 2D15-3434, in the Second District Court of Appeal of Florida.
• A federal judge in Mississippi recently blocked enforcement of CMS’s new regulation banning mandatory arbitration in cases involving nursing homes. Specifically, the regulation would prohibit seniors from agreeing to arbitration as a condition of admission prior to any disputes about quality of care. For more information about the case, see, American healthcare Association, et al., v. Burwell, et al., case number 3:16-cv-00233, in the U.S. District Court for the Northern District of Mississippi.
• A North Carolina federal judge recently ruled against Carolinas HealthCare System’s motion for a judgment on the pleadings against the DOJ’s claims that the hospital engaged in “patient steering” in violation of federal antitrust laws. Specifically, the DOJ charges Carolinas HealthCare System with stopping insurers from steering patients to lower-cost providers, which the DOJ argues drives up insurance prices and limits choice. For more information on this case, see, United States of America et al. v. The Charlotte-Mecklenburg Hospital Authority, case number 3:16-cv-00311, in the U.S. District Court for the Western District of North Carolina.
• A Pennsylvania appeals court recently dismissed a suit brought against a nursing home chain by the state attorney general’s office, which accused the chain of misrepresenting the level of care it provides to patients. The Court said that the marketing statements challenged by the attorney general’s office were mere “puffery,” because they were general statements of optimism and not specific enough to be considered deceptive or false advertising. For more information on the case, see, Commonwealth of Pennsylvania v. Golden Gate National Senior Care LLC et al., case number 336 MD 2015, in the Commonwealth Court of Pennsylvania.
• The FTC recently cleared two central Minnesota healthcare providers to merge, provided that CentraCare Health, the larger of the two providers, permits physicians of St. Cloud Medical Group to be free from their noncompetition agreements if they do not wish to continue with the new entity. For more information on the circumstances surrounding this consent agreement, see, In the Matter of CentraCare Health System, file number 161-0096, before the Federal Trade Commission.
• The Texas Medical Board recently announced that it would voluntarily dismiss its appeal in the Fifth Circuit aimed at barring Teladoc’s, a telemedicine company, antitrust challenges to a state rule that requires physicians to see patients face to face prior to providing care remotely. For more information on the appeal and its dismissal, see, Teladoc Inc. et al. v. Texas Medical Board et al., case number 16-50017, in the U.S. Court of Appeals for the Fifth Circuit.

In the News

• The Kentucky House of Representatives recently advanced a bill that would require that medical malpractice claims filed against physicians and hospitals first be reviewed by expert advisory panels prior to their submission to any court.  Lawmakers hope that the opinions of these panels, while nonbinding, will create speedier resolutions to cases and reduce frivolous lawsuits.

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.