Health Law Section | State Bar of Wisconsin

The Health Law Section addresses areas of interest to health law practitioners including issues such as regulation and operation of health care organizations, bioethics, managed care, accountable care, privacy, and risk management.

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On July 9, 2020, the Wisconsin Supreme Court handed a landmark victory to Medicaid providers who were subject to an exacting payment recoupment standard imposed on them by the Wisconsin Department of Health Services (the department). In Papa v. Wisconsin Dep’t of Health Servs.,1 the Court unanimously agreed with the Waukesha County Circuit Court that the department lacked statutory authority for what courts have termed its “perfection policy,” by which it had recouped Medicaid reimbursement payments made to providers when audits turned up even minor reporting errors unrelated to the actual and appropriate provision of services. Medicaid Recoupment and…
The federal government relies heavily on nonbinding, subregulatory guidance when regulating health care entities, which can cause confusion. In response to an Executive Order1 that sought to address this problem across all federal agencies, the Department of Health and Human Services (HHS) proposed a rule2 that requires HHS components to inform the public when issuing a “guidance document” and to clarify the document’s legal impact. Heather Mogden, Marquette 2012, is an associate with Hall Render Killian Heath & Lyman in Milwaukee, where she represents health care providers in state and federal courts. James Junger, U.W. 2014, is an…
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…
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…
The federal and state responses to COVID-19 have resulted in a dizzying and ever-evolving array of executive orders, waivers, flexibilities, emergency declarations and enforcement discretion (collectively referred to as “regulatory flexibilities”) that significantly change the rules governing health care providers. Although regulatory flexibilities and relief funds are in part intended to shield front-line responders from liability and mitigate financial losses, taking advantage of these accommodations comes with independent risks. While not exhaustive, health care providers should be aware of the following six pitfalls and practical takeaways to avoid them. Pressures on Health Care Staff Increase Whistleblower Potential Beyond the Norm…
The president signed the Coronavirus Aid, Relief, and Economic Security (CARES) Act into law on March 27, 2020. Among its many provisions are significant modifications to the Public Health Services (PHS) Act,1 which contains the federal confidentiality protections currently afforded to substance use disorder (SUD) records. The Substance Abuse and Mental Health Services Administration (SAMHSA) will need to incorporate these changes into its regulations contained at 42 C.F.R. Part 2 (Part 2) through the standard rulemaking process, so it is yet to be seen how these changes will be implemented and enforced against SUD treatment programs subject to Part…
By now, the novel coronavirus and COVID-19 has impacted everyone’s jobs, families, and daily lives as we learn how to operate in the new environment and timeline set by COVID-19. Health care supply chains are vital in supporting the daily operations of any health care organization. With the global COVID-19 pandemic, supply chains are being disrupted, resulting in shortages of personal protective equipment (PPE), ventilators, and other medical equipment. As health care systems, providers, and workers (collectively, Providers) are flooded with COVID-19 patients, maintaining necessary supplies and materials is becoming more and more difficult. Analyzing Gaps As the disruption continues,…
Individuals accustomed to working with surrogate decision makers such as activated power of attorney agents and guardians should prepare for an additional – and different – individual at the table: a supporter. The Supporter’s Role Enacted in April 2018, 2017 Wisconsin ACT 345 provided for supported decision-making agreements. com ruedinger uwalumni Leah Ruedinger, Mitchell Hamline 2013, has worked on the payor and provider side of health care for the past six years. As a party to the supported decision-making agreement, the supporter provides an opportunity for an adult with a functional impairment (the adult) to have assistance in understanding the…
Journey with me back to your 1L contracts law class, to discussions of carbolic smoke balls, offers, acceptance, and the “meeting of the minds.” My contracts law professor had a habit of referencing horses in nearly every hypothetical, which is a topic for another time. She also had a habit of using the language of the Restatement to describe deals between parties as a “bargain.” More on that later. These days, in health care, it seems a bargain is hard to come by. Health care spending continues to outpace economic growth and costs continue to climb. Employers are the…
Many health insurers and the federal government are waiting for the U.S. Supreme Court’s decision involving risk corridors. The issue is whether the federal government is required to pay health insurers money under the risk corridors statute. This case has implications far beyond even the $12 billion in dispute. At stake is whether the government can be a trusted business partner to pay private entities when that entity already performed its statutory obligations and is entitled to payment. This article provides background on the risk corridors statute and government actions that led to both a higher than expected amount of…
The Centers for Medicare & Medicaid Services (CMS) recently published its Proposed Rule, 84 Fed. Reg. 55766 (Oct. 17, 2019), for modernizing the Physician Self-Referral Regulations (Stark). In this article, we focus on the portion of the Proposed Rule in which CMS addresses attacks on compensation practices that until recently have been considered to be perfectly permissible. CMS provides guidance on fundamental terminology regarding compensation arrangements, specifically the definition of “commercial reasonableness,” the “volume or value” standard pertaining to physician referrals, and the definition of “fair market value” (FMV). Here are three key takeaways: Commercial reasonableness of an arrangement does…
Demographics in the U.S. are changing, as 10,000 baby boomers turn 65 each day through the year 2030, says the Pew Research Center. According to the 2015 National Council on Aging’s United States of Aging Survey, 75% of older adults prefer to continue living in their own home as they age. Long-term care services are thus vital to assisting these individuals live in their home for as long as possible. Family Care, a Medicaid long-term care program in Wisconsin, was created in 1999 to offer services to eligible individuals, including older adults, to support independence and quality of…
Editor’s note: This article was published April 23, 2019, in the Legal News blog on the website of von Briesen and Roper. Health care fraud convictions are news. When the convicted parties are the physicians, investors, and staff of a physician-owned surgical hospital who now face up to 65 years in a federal penitentiary, that is big news. And when some of those convictions were based, in part, on a relatively obscure federal law that appears to expand the reach of federal prosecutors to include commercial and private-pay business that many assumed would fall outside of federal jurisdiction, that…