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Tom Shorter

Tom is trusted by healthcare systems, hospitals, research institutions, physician groups and health care associations for his deep understanding of how healthcare operations and the law intersect.

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PHI Covid19 population-based activities

On February 25, 2021, the Wisconsin Legislature enacted 2021 Wisconsin Act 4 (the “Act”), which, in part, grants immunity to business entities from civil liability related to COVID-19 exposure, with certain exceptions.

Specifically, the Act immunizes certain entities from civil liability for any act or omission in the course of performance or provision of the entity’s function or services, that leads to death or injury to an individual or damages caused by an act or omission resulting from or relating to exposure directly or indirectly to COVID-19 (or its variants), or conditions associated with the infectious disease.  However, civil immunity does not extend to acts or omissions that are reckless, wanton conduct, or intentional misconduct.

In the wake of a record number of Covid-19 cases and with flu season around the corner, Governor Tony Evers and Wisconsin Department of Health Secretary Designee Andrea Palm issued a new emergency order on October 1, 2020. Emergency Order #2 is designed to help address an anticipated surge in healthcare staffing needs.

HHS Fund

In June of 2020, Husch Blackwell alerted non-profit healthcare organizations and higher education institutions of the availability of FEMA Public Assistance (PA) Program disaster relief funds pursuant to then published FEMA Guidance.  We have been assisting clients with navigation of their FEMA fund requests, and due to newly published Guidance, we recommend that such organizations closely evaluate potential claims depending upon when the expenses arise to understand which guidance applies.

Virtual Series

Please join Husch Blackwell as we go virtual with our Health Law Conference. The series will include a range of important topics relevant to the healthcare industry. The webinar programs will be offered every Thursday from October 1 through November 19.

Our first session will include a panel discussion on a potential COVID-19 vaccine. The

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In July of 2016, through 2013 Wisconsin Act 236 (Act 236), many of the regulatory provisions of Wis. Admin. Code DHS 124, Wisconsin’s long-standing hospital regulations, were sunset and replaced with the Medicare Conditions of Participation for hospitals (CoPs) as the minimum standards, enforceable by the Department of Health Services (the Department). However, the administrative provisions detailing the approval and plan review processes, fees, waivers and variances, requirements relating to Critical Access Hospitals (CAHs) were retained. Moreover, the Department retained the ability to promulgate additional rules, if necessary,Th to provide safe and adequate care and treatment of hospital patients and to protect the health and safety of the patients and employees.

Private nonprofit (“PNP”) organizations that own and/or operate medical facilities, such as hospitals and long term care facilities, are eligible for FEMA Public Assistance (PA) Program disaster relief funds.  Under the COVID-19 Emergency Declaration, FEMA is authorized to provide assistance for certain emergency protective measures if not funded by other federal agencies.  PNP healthcare organizations can apply for funding for emergency protective measures that are incurred as medical care costs.

Although Wisconsin hospitals have remained busy providing COVID-related treatment and services for the last two months, many Wisconsin health care providers chose to postpone elective surgeries and procedures in compliance with CMS guidance. Notably, Wisconsin never expressly prohibited elective surgeries or procedures at any point during the last few months; however, Emergency Orders #12 and #28 specified that individuals may obtain services at ambulatory surgery centers for response to urgent health issues or related COVID-19 activities. Further, guidance from the Wisconsin DHS Division of Public Health issued on March 20 recommended that dental practices postpone all elective and non-urgent care treatment.  With the issuance of the Badger Bounce Back Plan (the “BBB Plan”), Wisconsin facilities and providers have expressed their intent to prep for elective services and procedures. 

On March 13, 2020 the COVID-19 pandemic was declared a National Emergency by President Trump. This declaration set in motion the availability of FEMA Public Assistance (PA) disaster relief funds to support nonprofit healthcare and higher education organizations, among others, during the recovery. On March 27, 2020, additional FEMA PA disaster relief funds of approximately $45 billion were appropriated through the CARES Act to address the public health emergency. Further, many of the longstanding FEMA policies and procedures are being loosened to streamline and expedite funding for nonprofit healthcare organizations such as hospitals and hospice, as well as certain higher education institutions.

In a Policy Statement released on April 3, 2020, the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services (HHS) announced that it will exercise its enforcement discretion and not impose administrative sanctions under the federal Anti-Kickback Statute (AKS) for certain financial arrangements related to COVID-19 covered by the blanket waivers issued by the Secretary of HHS on March 30, 2020 (the Blanket Waivers). The Blanket Waivers apply to sanctions for potential violations of the federal Physician Self-Referral Law (also known as the Stark Law) with respect to specific “COVID-19 Purposes,” which Husch Blackwell summarized in a recent blog. The OIG’s Policy became effective upon release (while the Blanket Waivers are retroactively effective March 1, 2020), and will terminate upon termination of the Blanket Waivers, unless otherwise specified by the OIG.

hospital buildingOn April 3, 2020 the Wisconsin Department of Health Services (DHS) released DQA Memo 20-001, which establishes the process for hospitals and critical access hospitals (collectively, “hospitals”) to temporarily expand acute care inpatient services in order to maintain the health and safety of hospital patients during the COVID-19 public health emergency. This guidance is provided in conjunction with the blanket waivers recently issued under § 1135 of the Social Security Act by the Center for Medicare and Medicare (CMS). The CMS blanket waivers relieved certain regulatory burdens imposed on healthcare providers, such as the ability to expand inpatient beds to enable healthcare providers to focus on providing care during the current public health emergency.