Health Care

A proper estate plan covers not only what should happen upon your death, but also what should happen if you lose your decision-making skills. While planning for incapacity may be as unpleasant as planning for death, it is an important step in the estate planning process. Planning for incapacity ensures that someone you specifically choose and trust can act on your behalf while you are unable to do so for yourself. In another article, we discussed the importance of a Durable Financial Power of Attorney. Here, we discuss why a Power of Attorney for Health Care is equally as…
I. Expansion of Telehealth to Meet Clinical Need Federal and state governments have resolved traditional barriers to telehealth – including  complexity of billing, lower reimbursement and privacy and security concerns – to facilitate the safe provision of medical services during the COVID-19 pandemic.[i]  The first article in this two-part series highlights basic standards for regulatory compliance in the design of telehealth policies.  The second article will address the practitioner’s obligation to minimize patient harm (and thus practitioner liability) with attention to the medical standard of care when assessing when and how telehealth is appropriate for each patient. II. Mechanics…
Late last week, the Department of Treasury and Small Business Administration (SBA) jointly released a new loan forgiveness application for Paycheck Protection Program loans of $50,000 or less. This new streamlined application removes calculations required on prior forms and simplifies documentation requirements, reliving both borrowers and lenders of the prior compliance burdens present in the older form. Pursuant to an interim final rule, the simper one-page application form, SBA Form 3508S, does not require borrowers to reduce their forgiveness amount for any reductions in full-time equivalent (FTE) employees or in salaries or wages. Additionally, the new form does not…
Health care providers who qualify for preferential pricing through the Health Resources and Services Administration 340B Drug Pricing Program are bracing themselves for further reductions in the drugs they can dispense through their contract pharmacy networks. Many manufacturers have announced changes in their policies effective Oct. 1, 2020, (or sooner) that will limit 340B drug discounts to in-house pharmacies or a single contract pharmacy for each qualifying provider. The change comes as drug manufacturers react to statements by the Health Resources and Services Administration Office of Pharmacy Affairs (HRSA OPA) suggesting that guidance it previously issued allowing providers to use…
Recently, the Merit Shop Contractor magazine featured Attorney Joseph Gumina’s article entitled “COVID-19 & Liability.” In the article, Attorney Gumina emphasizes methods for construction employers to prevent and control worksite hazards relating to COVID-19. The article also discusses general safety and health mandates a construction employer should follow in order to help protect themselves from possible COVID-19 litigation. This article is a must read for all construction employers. Read the full article here.…
There are many factors that go into making a decision regarding health care coverage. With the Open Enrollment beginning soon, it is important to know what changes there are, given both issues stemming from the COVID-19 pandemic and changes in the Health Insurance Marketplace during 2020. Open Enrollment The Health Insurance Marketplace Open Enrollment Period runs from Sunday, Nov. 1 through Tuesday, Dec. 15, 2020.1 Coverage begins Jan. 1, 2021.2 If you do not enroll in a plan by Dec. 15, 2020, enrollment is not available at any other time of the year unless you qualify for a…
These days, litigators are routinely taking depositions and participating in hearings over Zoom or other videoconferencing apps and software. Frequently, these depositions and hearings are set up using videoconferencing systems chosen, hosted, and controlled by a court, an arbitrator, or a court reporter. There has been significant discussion and administrative guidance about the use of videoconferencing by health care providers since the pandemic began. Health care litigators should also consider the implications of video depositions or hearings on HIPAA security obligations. Zoom reports that it is HIPAA compliant. However, these features must be requested by the subscriber, typically through a…
On September 11, 2020, the Department of Labor  issued updated regulations regarding the Families First Coronavirus Response Act  and leave available under that law. These updates were issued in response to a recent federal district court ruling out of the Southern District of New York that invalidated portions of DOL’s original rules under the FFCRA because the agency exceeded its authority in issuing certain portions of its rules. These updated regulations are effective on  September 16, 2020. Most notably, the new DOL regulations update the definition of “health care providers” that are excluded from the FFCRA. The original definition included…
Note: This article was originally posted in the McCarty Law blog. COVID-19 has been hard on all of us, but especially on residents of nursing homes. Because nursing homes house our most vulnerable population, extra precautions needed to be implemented to protect them. This resulted in nursing homes being “locked down,” meaning residents were not allowed to leave, nor were they allowed visitors. Early on during the pandemic, we all saw heartbreaking pictures of families waving at a loved one through a window. In addition to worrying about contracting the virus, many nursing home residents also had to worry…
Most private health insurance coverage in the United States is employer-sponsored and governed by a federal law known as the Employment Retirement Income Security Act of 1974 (ERISA). Navigating an appeal of a benefit denial issued by an ERISA-governed health plan can be confusing. A quick review of federal regulations governing ERISA benefit denials, which can be found here, suggests how challenging it may be for health care providers to navigate the ERISA claims landscape successfully. ERISA benefit denials are frequently written by a health insurer or third-party administrator (TPA) that is not the legal entity truly providing the health benefits…
It is a situation that can happen: a licensed health care professional is arrested for a first-offense operating while intoxicated (OWI), and they immediately hire a criminal defense attorney. A first-offense OWI is not a criminal offense in Wisconsin, but rather a traffic violation. Depending on the county, the case may not even show up in CCAP (the Wisconsin Circuit Court Access Program). The health care professional wants to resolve the case quickly, so they stipulate to a guilty plea. The client may not even have to show up to court, because this can all be done electronically or…
It was the first day on the job for my new staff attorney. He did not expect that his first day would be spent at a funeral. But there he was, with me. In the casket was a client of mine. She was beautifully dressed in pink, her face peaceful, and her son and family stood nearby. I paid my respects, and they expressed their joy that the final days of her life had been spent at home. If the local adult protective services (APS) agency had its way, things would have been different. She would have died in a…
Dear members of the Elder Law and Special Needs Section and other interested persons: We’re excited to announce the launch of a new blog for our section! Blogs are designed to deliver the latest news, practical advice, and valuable resources that focus on the issues that we encounter in our practice. We chose to create a blog because they offer more flexibility in providing timely and more frequent communication to our members. Also, posts can be shared on social media and can link to additional information and other related blogs. The Elder Law and Special Needs Journal will continue with…
Today, Wisconsin Governor Tony Evers declared a Public Health Emergency and issued an Emergency Order requiring individuals to wear face coverings. This Emergency Order goes into effect at 12:01 a.m. on Saturday, August 1, 2020 and will expire on September 28, 2020, unless there is a subsequent superseding emergency order. The Emergency Order applies to all individuals over the age of five when they are indoors or in an enclosed space with anyone outside of their household, other than when inside a private residence. “Enclosed space” is defined in the Emergency Order as “a confined space open to the public…