Publications: Health Care


  • Wisconsin Court of Appeals Strikes Down Noneconomic Damages Cap in Medical Malpractice Cases

    July 10, 2017

    On July 5, 2017, the Wisconsin Court of Appeals ruled that Wisconsin’s cap on noneconomic damages in medical malpractice cases (found in Wis. Stat. § 893.55) is unconstitutional on its face. The court ruled that the Plaintiff Ascaris Mayo, should receive her jury award of $15 million in noneconomic damages and her husband, Antonio Mayo, should receive his jury award of $1.5 million for his loss of society and companionship. See Ascaris Mayo v. Wisconsin Injured Patients and Families Compensation Fund (accessed at https://www.wicourts.gov/other/appeals/caopin.jsp?docket_number=2014AP002812). We expect this ruling will be reviewed by the Wisconsin Supreme Court. The current statutory cap, which...



  • U.S. Abandons Ban On Nursing Home Arbitration Agreements

    June 6, 2017

    The federal government’s effort to ban pre-dispute arbitration agreements in nursing homes is essentially over, given a proposed revised rule released on June 5, 2017. Last fall, the U.S. Centers for Medicare and Medicaid Services (CMS) issued a regulation banning such agreements in nursing homes and other long-term care facilities participating in Medicare or Medicaid. However, yesterday CMS proposed a revised rule that drops the ban. Just three days earlier, the U.S. Court of Appeals for the Fifth Circuit granted the government’s motion to dismiss its own appeal of a preliminary injunction against the ban. The ban was issued in the final...



  • U.S. Supreme Court Rebuffs Challenge to Nursing Home Arbitration Agreements

    May 15, 2017

    The U.S. Supreme Court on Monday issued a ruling which further demonstrates the Court’s view that federal law trumps efforts in the states to attack nursing home arbitration agreements. Monday’s ruling overturned the Kentucky Supreme Court, which had declined to enforce two arbitration agreements executed by residents’ family members who held powers of attorney. In the view of the Kentucky court, the agreements were invalid because the powers of attorney did not specifically grant the representative the power to waive the resident’s right to a jury trial. Because that rule specifically targets arbitration agreements, the U.S. Supreme Court held Monday that the...



  • Nursing Home Arbitration Rule Put on Hold

    November 8, 2016

    A federal rule that was to have banned pre-dispute arbitration agreements in nursing homes and other long-term care providers was put on hold by a federal judge on Monday. The new rule, which would apply to facilities participating in Medicare or Medicaid, was to go into effect on November 28, 2016. The rule was postponed indefinitely by Monday’s ruling by U.S. District Judge, Michael P. Mills of the Northern District of Mississippi. The ruling granted a preliminary injunction preventing the U.S. Centers for Medicare and Medicaid Services (CMS) from enforcing the rule. CMS had published the new rule only a month...



  • Nursing Home Arbitration Rule Challenged in Court

    October 19, 2016

    The nation’s largest association of long-term care providers filed a lawsuit this week asking a federal court to block enforcement of new federal regulations that will prohibit pre-dispute arbitration agreements in nursing homes and other long-term care facilities participating in Medicare and Medicaid. The Centers for Medicare & Medicaid Services (CMS) published the new regulations on October 4, 2016. The rules allow post-dispute arbitration agreements, but such agreements may only be entered into voluntarily, and not as a condition of remaining at the facility. The rules also require facilities to take other steps to help ensure the resident’s understanding and not...



  • New Federal Regulations Prohibit Pre-Dispute Arbitration in Long-Term Care

    October 6, 2016

    Disputes over care in nursing homes and other long-term care facilities will increasingly be decided in litigation, rather than arbitration, as a result of new federal regulations banning pre-dispute arbitration agreements in facilities that participate in the Medicare and Medicaid programs. The Centers for Medicare & Medicaid Services (CMS), an office of the U.S. Department of Health and Human Services, on Tuesday published new, sweeping regulations that govern long-term care. In addition to the new rule on arbitration agreements, the regulations make major revisions to rules regarding staffing, care planning and many other aspects of long-term care. The regulations set standards...



  • Sweeping New Rules Govern Long-Term Care

    October 6, 2016

    Nursing homes and other long-term care facilities across the country must meet stringent, wide-ranging and costly regulatory requirements in order to participate in Medicare and Medicaid programs, under a new rule issued Tuesday by the U.S. Department of Health and Human Services and its Centers for Medicare and Medicaid Services. The new regulations will cost each facility, on average, about $63,000 to implement in the first year. They will be phased in over the next three years. Among the most significant for long-term care operators will be the new regulations regarding staffing and care planning (the new regulations also prohibit pre-dispute arbitration...



  • EEOC Releases Final ADA Wellness Program Rules and Sample Notice

    June 30, 2016

    Workplace wellness programs have been a complex and controversial topic in recent years with Equal Employment Opportunity Commission (EEOC) lawsuits, proposed rules, and now final rules. On May 17, 2016, the EEOC issued a final rule (the “Rule”) to amend the regulations and guidance implementing Title I of the Americans with Disabilities Act (ADA) as they relate to employer wellness programs. EEOC Final Rule Requires Wellness Plans to be “Voluntary” Wellness programs commonly gather health information through voluntary health risk assessments or biometric screenings that include medical examinations. In order to comply with the ADA, according to the Rule, any workplace...



  • Final ACA Regulations Provide Clarity, Allow Employers to Ease In to Compliance

    February 24, 2014

    On February 10, 2014, the Internal Revenue Service (IRS) issued final regulations that provide additional guidance and significant transition relief with respect to the “pay-or-play” rules (also called the employer shared responsibility rules) under the Affordable Care Act (ACA). The final rules retain the core structure of the prior rules, but modify deadlines and certain aspects of coverage. These modifications are intended “to ensure a gradual phase-in” and to assist affected employers in implementing pay-or-play policies and procedures. Some of the most significant transition provisions are summarized below. Pay-or-Play Penalty Refresher In order to avoid a penalty under the ACA...



  • Tort Reform Will Change Wisconsin's Litigation Landscape

    February 3, 2011

    Governor Scott Walker signed into law on January 27, 2011, a “tort reform” package of measures that significantly change the litigation landscape in Wisconsin. These measures limit punitive damages, limit non-economic damages against long-term care providers, limit disclosure or use of certain information of health care providers, and raise standards for allowing expert witness testimony.These new laws took effect February 1, 2011. Here are the key provisions: Punitive damagesPunitive damages will be limited to twice the amount of compensatory damages recovered by the plaintiff, or $200,000, whichever is greater. Previously there was no statutory cap on the amount of punitive...



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