Health Care Legislation Signed By Governor Walker 

Wisconsin Governor Scott Walker signed 63 new pieces of legislation into law on April 9, 2014, several of which relate to the health care industry.  The new health care legislation includes the following:

1.         HIPAA Harmonization.  The HIPAA Harmonization Act which changes laws relating to behavioral health records to better align Wisconsin laws to federal HIPAA requirements.  Assembly Bill 453.

2.         Hospital Conditions of Participation.  A new law requiring the Wisconsin Department of Health Services to use Medicare Conditions of Participation when surveying hospitals.  This legislation gives DHS the authority to enforce standards that are contained in federal regulations as the minimum standards for Wisconsin hospitals.  The DHS is required to interpret the conditions of participation using guidelines established by the Federal Center for Medicare and Medicaid Services (“CMS”).  The new standards will apply beginning July 1, 2016.  Senate Bill 560.

3.         Physician Residency Requirement.  Post medical school residency requirements for physicians are increased from one to two years.  New medical school graduates will now be required to complete two years of residency unless they receive an unconditional endorsement from the residency program director.  The new law also creates a new “resident educational license” to replace the current “temporary educational permit.”  A new “administrative physician license” is also created which authorizes physicians to hold a license limited to administrative services.  Senate Bill 579.

4.         Mental Health Pilot Program.  A new pilot program in Milwaukee County was created which allows emergency detention without the involvement of law enforcement in certain circumstances.  Under this bill, the authority to initiate emergency detention is expanded to a “treatment director” or their designee, including a licensed social worker, professional counselor, or psychiatric nurse.  The stated purpose of the pilot program is to reduce stigma in mental health by allowing a clinical approach rather than a law enforcement approach to emergency detentions.  Assembly Bill 500.

5.         Volunteer Health Care Programs.  A law to allow an out-of-state health care professional to partner with a non-profit provider to participate in Wisconsin’s volunteer health care provider program.  The health care provider must have a current license to practice in their home state or territory and must only volunteer within their scope of their practice.  Senate Bill 391.

6.         Provider “Apology” Protection.  A new law which allows a health care provider to have full and frank conversations with patients or patients’ relatives that may include apology, benevolence, compassion, condolence, fault, liability, remorse, responsibility, or sympathy, without risk of admissibility in civil action, administrative hearing, disciplinary proceedings, mediation, or arbitration as evidence of liability.  Assembly Bill 120.

7.         Tribal Treatment Facilities.  A new law that permits an approved tribal treatment facility to assess and treat participants in the intoxicated driver program who are either tribal members or relatives of tribal members.  The bill requires a court to notify the person convicted of operating while intoxicated that the offender is eligible for treatment at the facility and the facility must notify the appropriate county assessment agency within 72 hours of assessing the individual.  Assembly Bill 32.

8.         Annual Mental Health Service Reports.  A new requirement that the Wisconsin Department of Health Services provide a report to the Legislature on January 1 of every odd numbered year that describes what mental health services are being provided by the counties.

9.         Fetal Alcohol Syndrome Reports.  A requirement that hospital employees refer infants to a physician if they suspect the infant has fetal alcohol syndrome.  The physician is then required to evaluate the infant for the syndrome if they determine there is a significant risk of fetal alcohol syndrome.  The physician must then report to the agency responsible for investigating cases of child abuse and neglect.  Assembly Bill 675.

If you require further information on any of these legislative enactments, please contact John H. Fisher, II, CHP, CCEP.  Further updates will also be found at http://www.healthlaw-blog.com.

By John Fisher, JD, CHC, CCEP

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By John Fisher, JD, CHC, CCEP

Provider Self Disclosure Decisions – Voluntary Disclosure Process

The decision whether or not to voluntarily disclose to the government can be very difficult.  Not every case is clear.

Clearly not every situation where there has been a billing error amounts to fraud or wrongdoing requiring use of the self-disclosure protocol.  Many over-payments that are identified through audit can be dealt with at the intermediary level.  Where investigation raises questions about whether incorrect bills are “knowingly” submitted, the self disclosure process may provide some mitigation of potential loss.  Situations where the provider perhaps “should have known” raise more difficult issues of analysis.

The situation is also complicated because a potential whistle-blower may view a situation much differently than a provider who finds what it believes to be an innocent mistake through the audit process.  A provider may sincerely believe that there was no “wrongdoing” and that a simple mistake has been identified.  Finding such a mistake may actually be evidence that the provider’s compliance efforts are working.  On the other hand, there is a whole legal profession out there now that is advertising for people to come forward with these types of mistakes.  With potential recover under the False Claims Act of 3 times

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By John Fisher, JD, CHC, CCEP

One area of compliance that is often overlooked involves auditing of physician payments.  Physician contracts are often audited to determine whether they comply with a Stark Law exception.  Compliance should also work in the other direction, from payments that are made back to the existence of a contract that memorializes an applicable Stark Law exception.

Periodic monitoring of payments that are made to physicians should be undertaken.  Payments should be tracked to contracts to assure that the payment is covered by an applicable exception.  If there is no corresponding written agreement or if the written agreement has expired, there could be a potential Stark Law violation.  Further examination concerning the nature and purpose of the payment should be made.  If a Stark Law violation is found, self disclosure should be considered.

Read more here: Health Law Blog