Health Law Blog | Health Law Section

This blog delivers the latest news, practical advice, and valuable resources for those who practice in the health law field. Topics cover issues such as regulation and operation of health care organizations, bioethics, managed care, accountable care, privacy, and risk management. Published by the State Bar of Wisconsin's Health Law Section.

This section has an email list, sponsors CLE seminars including a joint institute with the Labor & Employment Law Section, publishes a newsletter, and monitors legislation and administrative rules.

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As many labor attorneys predicted, 2023 was a huge year for labor organizations in the U.S. We saw a continued uptick in union organizing campaigns and high profile strikes in the health care, auto, and film industries.

In 2023, we saw several remarkable wins at the bargaining table for unions, and significant legal decisions favoring organized labor from the National Labor Relations Board (NLRB).
Strikes and Organizing Campaigns
Health care organizations have not been immune to the rise of
Continue Reading The Rise of Labor in Health Care: Labor Law Developments in 2023

The Wisconsin Prescription Drug Monitoring Program (WI PDMP) is a program that collects and discloses information relating to the prescribing and dispensing of monitored prescriptions drugs.1
What is a Monitored Prescription Drug?
Under Wis Admin. Code § CBS 4.02(12)(a), a monitored prescription drug means:

  • a controlled substance included in Wis. Stat. section 961/385(1)(ag);
  • a drug identified by the Wisconsin Controlled Substance Board as having a substantial potential for abuse (including scheduled II, III, IV, or V in

Continue Reading Why the Wisconsin ePDMP Is Important

Prior to July 1, 2023, the Wisconsin Medical Examining Board (MEB) required self-employed physicians to have chaperone policies for sensitive exams, and make them available to patients.

Recently enacted changes to the rule mean better clarity for both patients and physicians regarding the physician’s policies for sensitive exams.
A Two-year Process
The original rule mandated that a chaperone be present when doctors performed sensitive exams, except in limited circumstances.

In 2021, the MEB proposed changes to the chaperone rule
Continue Reading Now in Effect: New Rule for Medical Chaperones

The pandemic revealed that pharmacists played a critical role in a patient’s health care. It demonstrated that pharmacists are essential to providing the necessary care for patients during a time when accessibility to health care became limited. In Wisconsin, the 2021 Wisconsin Act 98 allows reimbursement for pharmacy-related services rendered to Medicaid patients. The proposed Equitable Community Access to Pharmacist Services Act (H.R. 7213), introduced in the House on March 24, 2022, outlines the expansion of reimbursable services
Continue Reading How Will Expanded Pharmacist Provider Status Impact Our Communities?

On Feb. 15, 2023, the Center for Medicaid & Medicare Services (CMS) published a proposed rule with the goal of increasing transparency between nursing homes and consumers.1

According to the recent Federal Register publication, the proposed rule would implement portions of the Affordable Care Act “which require the disclosure of certain ownership, managerial, and other information regarding Medicare skilled nursing facilities (SNFs) and Medicaid nursing facilities.”2

This is the second time that CMS proposed requiring additional
Continue Reading CMS Proposes Rule to Increase Nursing Home Ownership Transparency

On April 13, 2023, the White House took the unprecedented step of declaring xylazine-laced fentanyl an official emerging drug threat to the nation. The declaration is to be followed by a focused, 90-day response to this drug combination. While fentanyl is well known and ripe for diversion in health care settings, lesser-known xylazine, also called “tranq,” is a veterinary sedative used illicitly as a low-cost cutting agent to extend a user’s high. New stories accompanying the White House’s announcement
Continue Reading As Deadliest Opioid Gets ‘Even Deadlier,’ Care Opportunities Emerge

The U.S. Department of Justice (DOJ) recently announced that it recouped over $2.2 billion through the enforcement of False Claims Act (FCA) settlements and judgments in fiscal year (FY) 2022.

This is less than half of the prior year’s recoupment of more than $5.6 billion from civil FCA claims.However, the DOJ noted “the government and whistleblowers were party to 351 settlements and judgments,” which made FY 2022 the second highest for the number of settlements and judgments in one
Continue Reading False Claims Act: DOJ Recoups Over $2 billion in 2022

This article was originally published in the Healthcare Law Insights blog on the Husch Blackwell website, and is published here with the author’s permission. Blog has been edited for publication on WisBar, with author approval.​

A medical school applicant recently filed suit, alleging that several Texas medical schools improperly rejected him by basing their admissions decisions on race and gender. The complaint asserts that these schools (along with “nearly every school and university in the United States”) participate
Continue Reading The Future of Affirmative Action in Medical School Admissions

As every licensed attorney in Wisconsin is likely aware, on June 24, 2022, the U.S. Supreme Court ruled on the case Dobbs v. Jackson Women’s Health Organization and overturned the constitutional right to an abortion. As such, a woman’s ability to obtain an abortion now falls in the hands of each individual state. Abortion law currently varies from state to state, as does the enforcement (or lack thereof) of abortion-related statutes. While the scope and sophistication of state abortion
Continue Reading Wisconsin Post-Dobbs: Challenges for Health Care Providers (and their Lawyers)

Have you ever paid the price for a hotel room that is listed on the back of the door? Me neither. It’s common knowledge that the market price of a room is typically less than what is posted.

Similarly, most patients and payers don’t pay the price listed on a hospital’s chargemaster. Accordingly, when hospitals were first required to disclose their chargemasters publicly, the data just didn’t mean much.1

The actual cost of health care services is most
Continue Reading Price Transparency Laws Reveal Negotiated Prices between Providers and Health Plans

In mid-April, juries in Texas and Colorado found health care company executives not guilty of criminal antitrust charges brought by the U.S. Department of Justice Antitrust Division (DOJ).

Despite the two losses, DOJ continues to move forward with similar charges brought against other health care companies. Employers in the health care industry (and beyond) should be aware that human resources (HR) practices that restrain competition in the labor market may be investigated or prosecuted by antitrust enforcers.
DOJ Prosecutes
Continue Reading Two Strikes for DOJ: Health Care Executives Not Guilty of Antitrust Conspiracies

Licensed health care professionals are required to comply with both state and federal rules regulations within their practice. In Wisconsin, health care providers are aware they need to renew their license through the Department of Safety and Professional Services. Many providers realize employment termination or a criminal conviction can impact their professional licenses. What a large majority of these licensed health care professionals don’t know is the consequence an adverse legal action may have on their ability to
Continue Reading Medicare Exclusion: A Guide for Health Care Providers

What a past year for the Department of Justice (DOJ) and its False Claims Act (FCA) settlements and judgments.

In February 2022, the DOJ released a statement detailing the efforts by the agency for fiscal year 2021 (FY 2021), including the recoupment of more than $5.6 billion from civil FCA claims – making this the second largest annual total to date and the largest since fiscal year 2014.

Out of the $5.6 billion, over $5 billion related to
Continue Reading False Claims Act: Department of Justice Recoups Second Highest Total in Claims in 2021

On Jan. 13, 2022, the U.S. Supreme Court issued two decisions, both with respect to the various vaccine mandates issued by the Biden administration.In the first opinion, the Court held that Centers for Medicare & Medicaid Services (CMS) may implement its vaccine mandate through its Interim Final Rule (IFR).1However, in its second opinion, the Court held that Occupational Safety and Health Administration (OSHA) is prohibited from enforcing its vaccine-or-test Emergency Temporary Standard (ETS), which would have affected
Continue Reading Yes and No: U.S. Supreme Court Rules on COVID Vaccine Mandates

Stresses on Wisconsin’s medical systems have prompted re-evaluation of provider licensing requirements. Three recent pieces of legislation seek to remove barriers to practice and expand access to medical care. This article discusses recent changes and highlights considerations for health insurers, physician clinics, and hospitals in response to these new credentialing standards.Wisconsin Act 23 Regarding Physicians AssistantsThe passage of Wisconsin Act 23 updated and expanded the licensure of physicians assistants (PAs) practicing in Wisconsin.Prior to the Act’s publication on
Continue Reading Three Licensure Changes to Watch in 2022

For health lawyers, COVID issues remain relentless. Recently, speculation about the impact about the Omicron variant has spiked. And on the eve of a key December deadline, a flurry of judicial activity has delayed and created uncertainty about the fate of the Centers for Medicare & Medicaid Services (CMS) vaccine mandate for health care workers.Although COVID issues can feel all-consuming, we know that other legal issues – including new lawmaking – hasn’t gone away. Here are a few other
Continue Reading Three Recent Non-COVID Legal Health Law Updates