von Briesen Health Law Blog

On  Wednesday, November 16th, Governor Walker signed SB 212 into law.  2011 Act 70 makes several significant changes to chapter 50 of the Wisconsin Statutes–the statute which sets forth regulations for nursing homes. 

Summary of 2011 Act 70

Prior to this Act, if a nursing home receives Medicare or Medicaid funding, it is subject to both state and federal requirements.  The Act limits the ability of the Department of Health Services (DHS) to subject nursing homes to penalties for violating both state and federal regulations.  The Act prohibits DHS from issuing a notice of a state violation if DHS has cited the home for a violation of federal law, based on the same facts.

The Act allows DHS to seek an injunction to enjoin the nursing home from repeated violations of certain federal requirements.  And, the Act creates a 120-day time limit for DHS to impose a forfeiture for a violation.

The Act extends to 60 days the time period by which a nursing home must pay forfeitures to DHS, and also changes from 10 to 60 days the time period within which a nursing home may pay a forfeiture to have the forfeiture amounts reduced by 35 percent.

The Act extends the deadline for a nursing home to request a hearing on a finding that the nursing home violated a state requirement to 60 days and also extends the deadline for requesting a hearing on a forfeiture to 60 days after notice.  The Act further provides that if the nursing home timely appeals both a finding of violation and a forfeiture, the hearings on the violation and the forfeiture will be consolidated.

The Act expands the standard for DHS issuance of a conditional license for a nursing home to include a continuing violation of federal law that constitutes immediate jeopardy or actual harm not involving immediate jeopardy to a nursing home resident.  

The Act expands the standard for suspension of new admissions to a nursing home to include circumstances under which a nursing home received written notice of a violation that involved immediate jeopardy to a resident; a class A violation; or three or more class B violations or violations that constituted actual harm not involving immediate jeopardy to a resident.  These circumstances must have occurred both in the previous 15 months and in any 15-month period during the 36 months immediately preceding the previous 15 months. Under the Act, a suspension of admissions may begin only 90 days after a nursing home receives its last notice of a violation if DHS determines that the violation in uncorrected 90 days after the last notice. Suspension of admissions must remain in effect until DHS determines that the nursing home has corrected the violation in question.

This Act permits DHS to suspend or revoke a nursing home license if the nursing home has substantially failed to comply with specified state law or with federal requirements related to the operation of a nursing home.

The Act specifies that a nursing home operating under a probationary license must substantially comply with requirements under certain federal regulations related to the operation of a nursing home, if applicable, in order to obtain a regular license.

The Act allows DHS to distribute moneys, including civil money penalties, for innovative projects designed to protect the property and the health, safety, and welfare of nursing home residents and to improve the efficiency and cost effectiveness of the operation of nursing home facilities.  Under the Act, DHS must establish and maintain a quality assurance and improvement committee to review proposals and award moneys for such projects.

 The Act is scheduled to be published on December 1, 2011.  The effective date is the day following publication.

The Supreme Court will hear a challenge to the Patient Protection and Affordable Care Act (ACA), the Court announced today. The Court decided to review three of the five appeals before it, including the U.S. Court of Appeals for the Eleventh Circuit’s decision, which struck down the insurance mandate in a divided three-judge panel.

The Supreme Court will address the following issues:

• The constitutionality of the insurance mandate;
• Whether some or all of the ACA must fail if the insurance mandate is struck down;
• The constitutionality of the Medicaid program expansion; and
• Whether the Anti-Injunction Act bars some or all of the challenges to the ACA.

The cases will not be grouped together. However, the Supreme Court scheduled 5½ hours for oral argument on the above issues, to be held in March 2012. The time allotted for oral argument appears to be a record, with the closest case, a 2003 case involving the constitutionality of campaign finance law, being allotted 4 hours for oral argument.

The Health Law team at von Briesen will continue to monitor and report on the progress of the ACA challenge, including oral argument and the Supreme Court’s decision, which is expected late in June 2012.

The U.S. Court of Appeals for the District of Columbia today upheld the constitutionality of the Patient Protection and Affordable Care Act’s (“ACA”) individual mandate provision. The court found that Congress has regulatory authority in the insurance market and that ACA is constitutional under the U.S. Constitution’s Commerce Clause. However, the timing of the D.C. Circuit’s decision prevents the case from being considered by the Supreme Court when it meets on Thursday to discuss whether to take up any of the ACA lawsuits.

The majority addressed Congress’s regulatory authority in the insurance market and found that, “Broad regulation is an inherent feature of Congress’s constitutional authority in this area; to regulate complex, nationwide economic problems is to necessarily deal in generalities.” Further “The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins.”

The court held that while the individual mandate is an “encroachment on individual liberty… it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family.”

The 2-1 majority opinion was drafted by Judge Silberman, a Regan nominee, and joined by Judge Edwards, a Carter nominee. The dissent, which found that courts do not have jurisdiction to hear the case, was drafted by Judge Kavanaugh, a George W. Bush nominee.

The D.C. Circuit is the fourth U.S. Court of Appeals to hear challenges to the ACA. Previously, the Fourth Circuit dismissed challenges against the ACA, the Eleventh Circuit held the individual mandate was unconstitutional, and the Sixth Circuit upheld the constitutionality of the individual mandate.