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August 18, 2014 Regulatory Developments

August 20, 2014 | No Comments
Posted by Beth Christian

Here are the most recent health care related regulatory developments as published in the New Jersey Register on August 18, 2014:

  • On August 18, 2014 at 46 N.J.R. 1816, the Department of Health published notice of its readoption of its rules governing certificate of need and licensure requirements for regionalized perinatal services and maternal and child health consortia.

OIG Issues Unfavorable Advisory Opinion to Specialty Pharmacy For Support Service Payments

August 18, 2014 | No Comments
Posted by Beth Christian

On August 15, 2014, the OIG issued an unfavorable Advisory Opinion to a specialty pharmacy in connection with the pharmacy’s proposal to pay local retail pharmacies for support services that they provide in connection with patient referrals to the specialty pharmacy.  The specialty pharmacy dispensed specialty pharmaceuticals that are often unavailable to retail pharmacies.  Under the proposed contractual arrangement, the specialty pharmacy would pay local pharmacies for support services, including accepting new patients and recording their demographic information; recording patient-specific medication history and use and providing ongoing medication assessment; counseling patients on appropriate use of their medications and informing them about the specialty pharmacy’s services; obtaining patient consent to transfer the prescription to the specialty pharmacy; and transmitting the prescription to the specialty pharmacy.  The retail pharmacy was paid a “per-fill fee” at the time that the initial prescription was transmitted and upon each subsequent refill.

In evaluating the arrangement which was the subject of Advisory Opinion 14-06, the OIG concluded that the per-fill fees were “inherently subject to abuse” because they were paid only when the support services provided by the retail pharmacy resulted in a referral to the specialty pharmacy.  The OIG concluded that there was significant risk that the per-fill fees would represent compensation for the local pharmacies generating business (including federal health care program business), rather than compensation for bona fide, commercially reasonable services.  The unfavorable Advisory Opinion graphically illustrates the inherent risks in entering into arrangements where payments to the service provider are only made when a referral is generated.

Medicare Joins New Jersey Medicaid In Mandating Pre-Authorization for Non-Emergency Ambulance Transports

August 7, 2014 | No Comments
Posted by Beth Christian

CMS has announced that it will be transitioning to us of a prior authorization requirement for repetitive non-emergency ambulance transports.  New Jersey Medicaid already has a pre-authorization requirement. Under the prior authorization requirement, ambulance suppliers will need submit a request for provisional affirmation of coverage before a non-emergency, repetitive ambulance transport is rendered to a Medicare beneficiary and before a claim for payment may be submitted.  A repetitive ambulance service is defined as medically necessary ambulance transport services that are furnished 3 or more times in a 10 day period or at least 1 per week for 3 weeks.  Repetitive services typically arise for patients who receive dialysis, wound care or cancer treatment.  New Jersey is one of 3 states where the pre-authorization program will be initially implemented.

August 4, 2014 Regulatory Developments

August 5, 2014 | No Comments
Posted by Beth Christian

Here are the most recent health care related regulatory developments as published in the New Jersey Register on August 4, 2014:

  • On August 4, 2014 at 46 N.J.R. 1731, the Department of Banking and Insurance published notice of its proposal of amendments to its rules regarding licensure and certification of organized delivery systems.

Medicare Solvency

July 29, 2014 | No Comments
Posted by Frank Ciesla

As we have in the past years, (http://www.njhealthcareblog.com/2012/04/medicare-solvency-a-continuing-challenge-update/; http://www.njhealthcareblog.com/2013/06/2013-annual-report-of-the-board-of-trustees-of-the-federal-hospital-insurance-and-federal-supplemental-medical-insurance-trust-funds/), the following is our comment on the report recently issued in regard to the solvency of the Medicare program.  In this year’s report, if one were to review pages 276 and 277, which is the actuarial opinion, it points out some of the underlying myths as to the viability of the Medicare program projected in the report.  Obviously, the viability of the Medicare program is important to all health care providers, since a substantial number of beneficiaries of those health care services have those services paid for by the Medicare program.  I suggest that you read the entire attached statement of actuarial opinion.  It is only two pages but again, two highlights are significant.

The report states:

In past reports, the Board of Trustees has emphasized the virtual certainty that actual Part B expenditures will exceed the projections under current law due to further legislative action to avoid substantial reductions in the Medicare physician fee schedule.  Current law would require a physician fee reduction of almost 21 percent on April 1, 2015—an implausible expectation.

The report further goes on to state:

The Affordable Care Act is making important changes to the Medicare program that are designed, in part, to substantially improve its financial outlook.  While the ACA has been successful in reducing many Medicare expenditures to date, there is a strong possibility that certain of these changes will not be viable in the long range.  Specifically, the annual price updates for most categories of non-physician health services will be adjusted downward each year by the growth in economy-wide productivity.  The ability of health care providers to sustain these price reductions will be challenging as the best available evidence indicates that most providers cannot improve their productivity to this degree for a prolonged period given the labor-intensive nature of these services.

As seen by these two examples, in order to provide access to the Medicare beneficiaries, the current law, reducing payments to health care providers, cannot be enforced.  As set forth in the actuary’s opinion, and based upon prior experience, the current law will not be applied, resulting in much higher costs to the Medicare program.  Health care providers must be concerned as to the continued viability of the program since, while the program does not provide the health care, it provides the providers with the financial resources necessary for them to provide the health care.

July 21, 2014 Regulatory Developments

July 24, 2014 | No Comments
Posted by Beth Christian

  • On July 21, 2014 at 46 N.J.R. 1693, the Department of Human Services published notice of its adoption of amendments to its rules governing outpatient psychiatric services under Medicaid.
  • On July 21, 2014 at 46 N.J.R. 1694, the Department of Human Services published notice of its readoption of its regulations governing psychiatric adult acute partial hospital services.
  • On July 21, 2014 at 46 N.J.R. 1695, the Department of Banking and Insurance published notice of its readoption of amendments to its rules governing licensure and registration of third party administrators and certification of third party billing services.

Appeals Courts Issue Conflicting Decisions Regarding Health Care Exchange Subsidies Under the ACA

July 23, 2014 | No Comments
Posted by Beth Christian

Yesterday, two different federal appeals courts issued conflicting decisions regarding the provision of premium subsidies under the Affordable Care Act to individuals who access health insurance coverage in states that use the federal exchange.  A three judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled that language of the Affordable Care Act  unambiguously restricted the subsidies to insurance purchased on exchanges “established by the State,” and vacated an IRS regulation which had extended the subsidies to insurance purchased through the federal exchange.  Several hours later, the U.S. District Court for the Fourth Circuit issued a decision which reached the opposite conclusion concerning the validity of the IRS regulation, finding that the regulation constituted a “permissible exercise of the agency’s discretion.  These two important rulings create a conflict between two federal appeals courts, and are likely to lead to a review of the issue by the United States Supreme Court.

Expanding the Scope of Practice

July 18, 2014 | No Comments
Posted by Frank Ciesla

Consistent with our prior blogs (http://www.njhealthcareblog.com/2014/03/advanced-practice-nurses/; http://www.njhealthcareblog.com/2013/12/no-physician-shortage/; http://www.njhealthcareblog.com/2013/10/expansion-of-the-scope-of-practice-of-non-physicians-a-harbinger-of-things-to-come/; http://www.njhealthcareblog.com/2014/06/scope-of-practice-expansion/), in regard to expanding the scope of practice of the limited licensed practitioners, in the attached article from U.S.A. Today, it is suggested that the current primary care physicians will not meet the demand created by those who are now covered, as a result of the Affordable Care Act, through subsidized private insurance, private unsubsidized insurance or the Medicaid program.

It is also consistent with a recent article attached from Dallas Business in regard to the need for nurse practitioners that the demand is soaring for both nurse practitioners and physician assistants.

In a recent article in the Sunday, July 12th, edition of the Asbury Park Press, the State of Kentucky is permitting nurse practitioners to be able to practice after a period of time without oversight from physicians.

What is clear, again, as we pointed out in the past, is that there is a continued expansion of the scope of practice for limited licensed practitioners.

We will continue to update the inconsistent activities by the various states in regard to expanding the scope of practice.

July 7, 2014 Regulatory Developments

July 11, 2014 | No Comments
Posted by Beth Christian

Here are the most recent health care related regulatory developments as published in the New Jersey Register on July 7, 2014:

  • On July 7, 2014 at 46 NJR 1524, the Department of Human Services published notice of its proposed readoption with amendments to its regulations governing advance directives for mental health care.
  • On July 7, 2014 at 46 NJR 1545, the State Board of Medical Examiners published notice of its proposal of amendments to its regulations regarding prescription, administration and dispensing of drugs.  The proposed amendments would allow physicians to dispense or prescribe opioid antidotes to a person, such as a family member or a law enforcement officer, who may be in a position to assist another individual during an overdose episode.  The amendments were proposed as a result of the 2013 enactment of the Overdose Prevention Act, which encourages witnesses and victims of drug overdoses to seek medical assistance without fear of criminal or civil liability and recognizes the benefits of greater availability of opioid antidotes.  Under the Act, opioid antidotes may be administered by a person who is not at risk of an opioid overdose, but who may be in the position to assist another individual during an overdose.
  • On July 7, 2014 at 46 NJR 1548, the State Board of Respiratory Care published notice of its proposed amendments to its regulations regarding delegation by a respiratory care practitioner to unlicensed persons.  In addition to allowing unlicensed persons to perform certain maintenance assembly and cleaning duties, a respiratory care practitioner may delegate certain activities to an unlicensed assistant in an outpatient setting only.  These duties include demonstrating basic respiratory, non-assisted ventilation and oxygen equipment.  Demonstrations of equipment may not include administration of medication, which would constitute direct patient care.  The proposed amendments will be of particular interest to durable medical equipment providers.
  • On July 7, 2014 at 46 NJR 1642, the Health Care Facilities Financing Authority published notice of its adoption of new rules governing the payment of prevailing wages in Authority projects.
  • On July 7, 2014 at 46 NJR 1644, the State Board of Chiropractic Examiners published notice of readoption with amendments to its regulations governing continuing education, permissible practice structures, and the use of particular diagnostic tests.  Among other things, the amendments add licensed health care facilities and health maintenance organizations as permissible locations where chiropractic physicians may be employed.
  • On July 7, 2014 at 46 NJR 1656, the State Board of Social Work Examiners published notice of its receipt of a petition for rulemaking filed by the New Jersey Association of Mental Health and Addiction Agencies, Inc. which seeks to be approved as a continuing education provider for licensees of the Board of Social Work Examiners.

Sustainable Growth Rate

July 3, 2014 | No Comments
Posted by Frank Ciesla

In an interview, the new president of the American Medical Association, Dr. Robert Wah, set forth that one of the top priorities of the American Medical Association will be the resolution of the Medicare payment system for physicians, particularly the issue around the Sustainable Growth Rate.  As he pointed out in his answer to a question, Congress has just had the 17th patch and they have continued to kick the can down the road.

As we pointed out in numerous prior blogs (http://www.njhealthcareblog.com/2014/04/sgr-patch/; http://www.njhealthcareblog.com/2014/03/sustainable-growth-rate-%E2%80%93-here-we-go-again/; http://www.njhealthcareblog.com/2014/03/sustainable-growth-rate-update/; http://www.njhealthcareblog.com/2014/03/follow-up-on-sustainable-growth-rate/; http://www.njhealthcareblog.com/2014/03/continuing-saga-of-the-sustainable-growth-rate/; http://www.njhealthcareblog.com/2014/03/still-no-sustainable-growth-rate-resolution/; http://www.njhealthcareblog.com/2014/02/sustainable-growth-rate-2/; http://www.njhealthcareblog.com/2014/02/sustainable-growth-rate-an-update-as-to-the-status-of-the-congressional-response/), this will be an ongoing issue and I do not expect it to be resolved until after the November midterm elections, if it is resolved at all.  There is as equal chance they will just kick the can down the road.

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