Archive for May, 2020

Birth to 3 Program Family Communication Published

Friday, May 22nd, 2020

The Wisconsin Department of Health Services (DHS) is committed to keeping families informed during the COVID-19 pandemic. DHS has published a second Birth to 3 Program Family Communication, P-02654, which contains important information about COVID-19 for children and families who access early intervention services through the Birth to 3 Program.

County programs are asked to share this publication with families.

Wisconsin HIPAA Resources –

Thursday, May 21st, 2020

HIPAA Privacy:

Privacy Rule (HHS)
HIPAA Privacy Rule & Public Health (CDC)

HITECH Privacy regulation

Breach Notification for Unsecured Protected Health Information – Interim Final Rule (August 24, 2009)

HITECH Act Enforcement Interim Final Rule (October 29, 2009)

Individuals’ Right under HIPAA to Access their Health Information (February 25, 2016)

Updated Joint Guidance on Application of HIPAA and FERPA to Student Health Records (December 2019 Update) –

Other Privacy Guidance Documents

Privacy and Security Standards –
Security Rule

HIPAA Administrative Simplification Statute & Rules

NIST Security Resource

HHS Office of Civil Rights Security Rule

HHS Office of Civil Rights Security Guidance Documents and Other Important Links

State Confidentiality Law Links:

Wisconsin Stat. § 51.30 – State Alcohol, Drug Abuse, Developmental Disabilities and Mental Health Act –

Wisconsin Stat. § 146.816 – Uses and Disclosures of Protected Health Information –

Wisconsin Admin. Code ch. DHS 92 – Confidentiality of treatment records –

Wisconsin Admin. Code ch. DHS 94 – Patients Rights & Resolutions of Grievances –


Wisconsin Stat. § 49.475 – Information about Medicaid Assistance beneficiaries –
Wisconsin Admin. Code ch. DHS 108 – General Medicaid Administration –

Wisconsin Stat. § 146.81-84 – Miscellaneous Health Provisions (health care records) –
Wisconsin Stat. § 146.816 – Uses and Disclosures of Protected Health Information –
Wisconsin Stat. § 252.15 – Communicable Diseases – Restrictions on Use of HIV Tests –

Long-Term Care (Family Care)

Wisconsin Stat. ch. 46 – Long-term Care (Confidentiality – Exchange of Information) –

Wisconsin Admin. Code ch. DHS 10 – Confidentiality and Exchange of Information (Family Care)
§ DHS 10.23(7) ADRCs
§ DHS 10.45(5)


HIPAA COW (HIPAA Collaborative of Wisconsin) –
Wisconsin Office of Privacy Protection
FTC Privacy Initiatives

CMS Will Hold Lessons from the Front Line

Thursday, May 21st, 2020

CMS COVID-19 Lessons from the Front Lines, Friday, May 22nd, 12:30 – 2:00 PM Eastern

Physicians and other clinicians are invited to share their experience, ideas, strategies, and insights with one another related to their COVID-19 response. There is an opportunity to ask questions of presenters.

This week’s Lessons from the Front Lines will highlight a discussion on COVID-19 therapeutics with FDA Commissioner Stephen Hahn, MD and providers in the field. Include will be providers from the Medical College of Wisconsin.
These are the login details from the CMS website.
Details:Friday, May 22nd at 12:30 – 2:00 PM EasternToll Free Attendee Dial-In: 877-251-0301; Access Code: 6086125Web Link: 

Wisconsin Emergency Order #35 –

Thursday, May 21st, 2020

Tony Evers, Governor of Wisconsin, and Wisconsin Department of Health Services Secretary-designee Andrea Palm have issued another emergency order, Emergency Order #35 (Order #35), directed at suspending certain administrative rules in an attempt to remove unnecessary impediments to the fight against the virus.

A major focus of Order #35 is assuring that Medicaid members retain their coverage eligibility during the COVID-19 pandemic. This provision was required under the Families First Coronavirus Response Act as a condition of eligibility to receive federal funding. Order #35 contains provisions expanding the availability of telehealth in the mental health and substance abuse areas. The order also suspends the requirement that certain mental health and substance abuse services be provided only in a face-to-face setting. This is just one of the many ways in which telehealth received a “shot in the arm” from the pandemic.

A few additional areas touched in Order #35 include:

Temporarily permitting nurses to bill Medicaid for overtime.
Suspension of certain prior authorization requirements, number of refill limitations, and prescription duration limitations.

Waiver of the requirement for parents to make certain payments for the “Birth to 3” program which provides early intervention services for children with developmental delays and disabilities.

Permits supervision of occupational therapists by electronic means in situations where close supervision is required.

Removes the requirement for health departments to conduct a community health assessment resulting in a community health improvement plan at least every five years. The “five-year” requirement is removed but the general obligation remains.

Revises DHS 34.02 (8) relating to emergency mental health services. Reference is directed toward prioritization of services in cases where the need for services outweighs resources.

Extends the time from three months to six months for newly hired mental health training staff who have less than six months experience to complete their 40 hours of documented orientation training.

Makes it easier for volunteers to meet their 40 hour training requirement. Instead of requiring all 40 hours of training be completed before commencing direct client work, trainees must now complete eight hours before starting. Ten additional hours must be completed by the end of the first and second months of volunteer work. The 40 hours of training must be completed within three months of starting volunteer work.

Deleted the minimum staffing requirements for outpatient mental health clinics under Wis. Admin. Code DHS 35. The general requirement the clinic have “a sufficient number of qualified staff members available to provide outpatient mental health services to consumers admitted to care” remains. The two specific options for meeting the minimum staffing responsibility have been removed. Previously, clinics could meet their staffing requirement by meeting any of the three specific staffing scenarios included in the regulation.

This is unlikely to be the last set of waivers issued. Providers who feel they might be restricted by state or federal regulatory requirements during the pandemic should communicate with the regulatory bodies. Federal and state regulators have been sensitive to the needs of providers that are necessary to enable them to address the unprecedented needs created by the COVID-19 virus.

I’ve recapped the highlights, the full Order #35 can be found here.

Wisconsin Announces Residential Renter Assistance, But Details are Scarce

Thursday, May 21st, 2020

Earlier this week, the Wisconsin Department of Administration announced the creation of the Wisconsin Rental Assistance Program. The state has allocated $25 Million to a program to assist residential renters with rent payments and security deposit obligations from the grant the state received under the CARES Act funds issued to all states. My partner, Joe Mella, posted a great article on this that you can access Wisconsin Rental Assistance

CMS Issued Memo on EMTALA Responsibilities in the Midst of COVID-19

Wednesday, May 6th, 2020
EMTALA Emergency Treatment
EMTALA Obligations in COVID-19 Pandemic

CMS issued an update to Memo #QSO-20-15 addressing COVID-19 and Emergency Medical Treatment and Labor Act (EMTALA) requirements for Hospital and Critical Access Hospitals during the COVID-19 pandemic.  The Memo covers a number of topics related to obligations under EMTALA during the pandemic such as questions around patient presentation to the emergency department, EMTALA applicability across facility types, qualified medical professionals, medical screening exams, patient transfer and stabilization, telehealth, and other topics.

The new revisions focus on additional guidance related to the use of telehealth technologies, identification of appropriate triage process and screening examinations, drive through testing sites, and use of telehealth in connection with EMTALA.

For those of you who are not familiar, EMTALA is the federal law that requires Medicare-participating hospitals and critical access hospitals that have a dedicated emergency department to conduct a medical screening exam to all who come to the emergency department, to determine if the individual is in an emergency  medical condition. Emergency medical conditions are medical situations of such severity such that serious impairment of dysfunction can reasonably expected without immediate medical intervention.  If an emergency medical condition exists, the hospital is required to provide necessary stabilizing treatment within the hospital’s capability.  If the hospital does not have the necessary capabilities, there is an obligation to provide for a transfer when appropriate to treat the patient.

The obligations of EMTALA-obligated hospitals apply to patients who present with symptoms indicating that they may have been infected with the COVID-19 virus.  Emergency departments are prepared with appropriate COVID-19 screening criteria to facilitate the prompt identification of potentially infected patients so that they may be isolated and appropriate health officials can be contacted to ascertain next steps.  Most should have implemented the necessary policies and procedures already. 

Patients may experience the impact of COVID-19 on hospital EMTALA obligations.  For example, once initial stabilization occurs a patient could find themselves being transferred to another facility.  This could occur if the initial facility does not have adequate capacity.  A variety of other reason could present themselves in the midst of a pandemic that could necessitate a transfer from an emergency room to another facility once an emergency medical condition has been stabilized.

Hospitals and CAHs are expected to consider the guidance that has been released by the Center for Disease Control –  CDC and other state and local public health officials to guide their decisions about the extent of their capabilities to provide the type of isolation required at each step of the process including the provision of treatment necessary to stabilize an emergency medical condition through decisions on whether to continue to provide care once the medical emergency is ended.

We Received a PPP Loan – Now What?

Tuesday, May 5th, 2020

By John Fisher, JD, CHC, CCEP

We Received a PPP Loan—Now What?

I wanted to direct everyone over to my law firm’s main website for excellent COVID-19 legal development coverage. Ruder Ware COVID-19 Coverage.

With a second round of Paycheck Protection Program (“PPP”) funding coming available last week, a large percentage of small businesses either have already received (or will soon receive) the proceeds of a PPP loan. At only one percent interest over two years, PPP loans present a great opportunity, but, obviously, businesses are most interested in the forgiveness component. Maximizing loan forgiveness is key.

Three of my law partners, Mary Ellen Schill, Amy E. Ebeling and Associate Benjamin E. Streckert have published a great article on what to do one you receive your Paycheck Protection Program check. Check out this article and our other great coverage of COVID-19 legal issues – Ruder Ware COVID-19 Coverage

linkscolor = “000000”; highlightscolor = “888888”; backgroundcolor = “FFFFFF”; channel = “none”;

<!– Please place the above code into your site where you want to have a bookmark/share/publicize link. Please do not change any of the code aside from the link text or image, or

Read more here: Health Law Blog


Badger Bounce Back Plan – COVID-19 Recovery Plan

Tuesday, May 5th, 2020

The Wisconsin DHS has issued a Badger Bounce Back Plan. The plan identifies steps and criteria to guide the reopening of health care and other services in the state.

The Badger Bounce Back Plan identifies 6 areas where COVID-19 will be “boxed in” under the plan.  These areas include

(i) symptoms; showing a downward trajectory in illnesses of a 14-day period;

(ii) cases, fewer and fewer positive tests over a  14-day period;

(iii) health care system; hospitals can treat patients without “crisis care” and there is robust testing;

(iv) testing; every Wisconsin resident with systems is able to get lab tests with results reported to public health within 48 hours of collection;

(v) contact tracing; every individual who tests positive is interviewed within 24 hours and their contacts are interviewed within 48 hours; and

(vi) protective equipment; all health care and public safety entities must have adequate protective equipment.