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.

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One in four large employers sought to expand their Centers of Excellence (COE) offerings last year.

Although the format of Centers of Excellence programs vary, the term is generally used to describe the efforts of an employer or other payer to steer patients to high quality, cost efficient providers. These programs frequently target specialty and surgical care, in part because of their high financial and clinical impact, and in part because of the likelihood that such care can be
Continue Reading State Regulation of Centers of Excellence Programs: Where a National Trend Meets Local Law

Long-term care services and supports are important to assist older adults in achieving their wishes to remain living in their own home as long as possible.1

One long-term care option in Wisconsin is IRIS (Include, Respect, I Self-Direct), a Medicaid self-directed program created in 2008 for eligible individuals, including older adults. IRIS allows individuals the freedom to decide what goods, support, and services will meet their needs to help them lead a meaningful life.

According to the Wisconisn
Continue Reading IRIS: Self-directed Care for Wisconsin’s Aging Residents

In 1996, the Journal of the American Medical Association published a study on nuns and their unique writing styles. Before joining a nunnery, the School Sisters of Notre Dame, young women were asked to write brief autobiographies. Many decades later, their medical information, autobiographies, and other personal attributes were studied.

Researchers noticed that distinctions in the nuns’ writing styles “predicted with uncanny accuracy” which of them would become severely afflicted with Alzheimer’s disease 60 years later.1

Results like
Continue Reading Legal Considerations for Adopting Predictive AI

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
Continue Reading Post Papa: What’s Next for Medicaid Recoupment in Wisconsin

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
Continue Reading HHS’s Proposed Rule on Guidance Documents Would Clarify Agency Expectations

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
Continue Reading Drug Manufacturers Cut Off 340B Pricing for Contract Pharmacies

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
Continue Reading When Health Care Workers Are Arrested: Health, Criminal, and Employment Law Issues

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
Continue Reading Providers Beware: Avoiding the Pitfalls in Regulatory Flexibilities and Relief Funds

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
Continue Reading Top 10 Takeaways from CARES Act Revisions to Substance Use Disorder Record Protections

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
Continue Reading Hello COVID-19, You Broke My Supply Chain – Now What?

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
Continue Reading What You Need to Know about Supported Decision-Making Agreements

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
Continue Reading Health Plan Reference-based Pricing: Is It Really a Bargain?

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.
Continue Reading Risk Corridors and Promised Payments: Massive Government Bait and Switch?

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
Continue Reading Modernizing Stark: Centers for Medicare & Medicaid Service’s Proposal

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
Continue Reading Family Care: Supporting the Independence of Wisconsin's Aging Residents

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
Continue Reading Forest Park Medical Center and the Travel Act: Different Road, Same Destination