Physician Edition


May 2, 2018

Volume 6-Issue 9

WI Supreme Court Hears Arguments on Medical Liability Cap

On April 19, the Wisconsin Supreme Court heard oral arguments in Ascaris Mayo v. IPFCF, which focuses on the constitutionality of Wisconsin’s $750,000 medical malpractice non-economic damage cap enacted with bipartisan support in 2006.

During oral arguments, Attorney Kevin St. John and Solicitor General Misha Tseytlin defended the constitutionality of the Legislature’s policy decision to enact a $750,000 non-economic damage cap, and emphasized the real and demonstrated impacts that having a cap on non-economic damages has on physician recruitment and access to care in Wisconsin communities.

In January, WHA filed an amicus brief with the Supreme Court in support of the cap. A significant emphasis of that brief focused on the impact of the cap on access to care in Wisconsin.

“Disregarding the Legislature’s informed judgment about the way to reduce the disincentives for physicians to practice in Wisconsin jeopardizes the continued viability of Wisconsin’s medical liability system….[and] impairs the ability of WHA members to recruit and retain health care professionals in the communities they serve,” stated WHA’s amicus brief, authored by Timothy Feeley and Sara MacCarthy, attorneys with Hall, Render, Killian, Heath & Lyman P.C.

“The Legislature’s actions have continued the viability of a medical liability system that helps protect all Wisconsin communities’ needs for accessible health care,” said WHA’s brief. “To conclude that the Legislature’s basis for implementing the cap bears no rational relationship to providing access to affordable, quality health care for all Wisconsin residents ignores the evidence and the rational basis test.”

Consistent with other arguments made in WHA’s amicus brief, Attorney St. John and Solicitor General Tseytlin also emphasized that unlike other plaintiffs in Wisconsin and unlike any other state in the nation, plaintiffs in medical liability cases in Wisconsin are guaranteed recovery of economic damages, such as lost wages and medical expenses, that are awarded by a jury due to the Legislature’s decision to have both a non-economic damage cap and a mandatory, unlimited Injured Patients and Families Compensation Fund. The attorneys argued that the constitutionality of the non-economic damage cap should not be reviewed as if the unique benefit to injured plaintiffs of guaranteed recovery of economic damages did not exist.

“Wisconsin’s unique, balanced medical malpractice system that includes a cap on non-economic damages is a key policy that has helped Wisconsin retain and attract high-quality physicians to Wisconsin communities,” said WHA President/CEO Eric Borgerding. “The Legislature understood in 2006 and understands today that without a sufficient supply of physicians in communities throughout the state, Wisconsin’s high rankings in health care quality and access would not be achievable.”

“To protect access to quality care, WHA fought hard 12 years ago to enact the bipartisan legislation establishing the current cap, and we are continuing that advocacy effort by supporting the Legislature’s sound policy decision in the courts,” said Borgerding.

WHA is anticipating a decision in the case this summer.

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WHA Members Discuss Strategies for Maximizing Telehealth Opportunities

Telemedicine Work Group meeting focused on removing barriers to expand patient access

The WHA Telemedicine Work Group met April 25 to provide input as WHA continues to refine its telehealth agenda, which is broadly aimed at facilitating sustainable reimbursement for telehealth services, supporting a regulatory infrastructure conducive to the use of telehealth, and providing education to WHA members on innovative telehealth strategies to improve patient access to high-value health care.

Andrew Brenton, WHA assistant general counsel, led the Work Group through a discussion of Wisconsin and federal laws regulating telehealth and governing the reimbursement of telehealth services. Work Group members noted that regulatory barriers exist within Medicare and Medicaid that prevent hospitals and health systems from maximizing the use of telehealth.

For example, Work Group members noted Medicare does not pay for delivery of telehealth services to patients located in urban areas, and neither Medicare nor Medicaid pay for telehealth services provided to the patient’s home. Members explained that enabling payment for telehealth to the home can increase the likelihood of care plan adherence; avoid more expensive emergency department visits and hospitalizations; and remove transportation burdens, especially for patients with chronic care management needs.

The Work Group also discussed telehealth educational programs that would be valuable for WHA to offer to its members in 2018. “Our goal at WHA is to provide educational content on innovative telehealth strategies that advance WHA members’ ability to maximize opportunities for utilizing telehealth to provide more accessible, cost-effective care,” said Brenton.

Among the uses of telehealth that Work Group members are interested in exploring in more detail through WHA-provided education is the use of telehealth in long-term care facilities to reduce transfers to the emergency room or inpatient settings.

WHA’s Telemedicine Work Group will continue to meet throughout 2018.

For more information, contact Andrew Brenton, WHA assistant general counsel, at or 608-274-1820.

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WHA-Developed Medicaid Emergency Department Care Coordination Program Signed into Law

Care Coordination bill signingLegislation designed to incentivize Wisconsin hospitals to offer care coordination services for high utilizers of hospital emergency departments was signed into law by Gov. Scott Walker April 16. The legislation, now known as 2017 Act 279, was recommended to the legislative authors, Rep. Jessie Rodriguez (R-Oak Creek), Rep. Joe Sanfelippo (R-New Berlin) and Sen. Alberta Darling (R-River Hills), through work done by WHA members as part of WHA’s 2016 Medicaid Workgroup. The program provides a payment of up to $1,000 per patient for a 12-month period to provide intensive care coordination services to certain Medicaid enrollees, as well as a shared savings component for hospitals and health systems that are able to demonstrate savings to the Medicaid program.

Over the next several weeks, WHA will work with the state’s Medicaid program to discuss implementation of this legislation. WHA staff will also develop an Act summary of the legislation, which will be made available in the member portal soon.

Contact WHA’s Kyle O’Brien at or Lisa Ellinger at or 608-274-1820 for more information about the legislation or if your organization is interested in applying to be an eligible provider in the program.

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Public Policy Council Discusses Dental Workgroup, Physician Assistant Legislation

Top political operatives debate outcome of November elections

Ticket splitters are going to decide Wisconsin’s statewide elections in November, according to two of Wisconsin’s top political operatives with Republican and Democratic campaigns who joined a meeting of WHA’s Public Policy Council April 19. Tanya Bjork, a consultant to campaigns like the Presidential campaigns of Barack Obama and Hillary Clinton, and Keith Gilkes, a top consultant to conservative candidates and longtime adviser to Gov. Scott Walker, offered their perspectives in an engaging 90-minute question and answer session with Council members.

The two spent most of their time discussing Wisconsin’s gubernatorial race in 2018, where Walker faces an opponent who will come out of a crowded field of potential Democratic candidates. Gilkes pointed to what he believes is Walker’s strongest characteristic, that “when the Governor says he’s going to do something, he then does it.” Gilkes believes that is a characteristic Wisconsin voters respect. When asked about health care, Gilkes discussed Walker’s recent reinsurance proposal as a proactive way that—regardless of Washington’s inability to act—Wisconsin can do things to stabilize its own health insurance marketplace.

Bjork responded by saying that health care is an important issue for voters in this election cycle, not just in Wisconsin, but also nationally. She said the Affordable Care Act (ACA) is becoming increasingly popular with the electorate, and she believes the Republican brand is not good on health care issues—most recently because of multiple attempts to repeal and replace the ACA.

Bjork pointed to elections across the country, including Wisconsin’s 10th State Senate District, where traditionally Republican legislative and Congressional seats have flipped from Republican to Democrat as a sign that 2018 could be a good year for Democrats.

WHA’s 2018 legislative agenda accomplished, Association now prepares for 2019

While the remaining portions of WHA’s advocacy agenda for 2018 have been enacted into law, WHA has already begun to shift its focus to develop the Association’s proactive agenda for the next legislative session, according to WHA President/CEO Eric Borgerding. Borgerding reviewed the Association’s goals for 2018 and pointed to those areas where staff will be working with WHA members to develop policy recommendations, especially in Medicaid reimbursement, workforce and behavioral health care. The Public Policy Council will play an important role in vetting these policy recommendations as they are created by various WHA member workgroups.

Kyle O’Brien, WHA senior vice president, government relations, reviewed several WHA priorities that were achieved in the final weeks of the legislative session. Key among the victories was again defeating a proposed fee schedule in worker’s compensation. The legislation, which was a top legislative priority for the Wisconsin Manufacturers and Commerce, was soundly defeated. In the Senate, it received a hearing in committee, but no vote. The proposal was not even considered in the Assembly.

Legislation creating a WHA-backed Medicaid care coordination pilot program was also signed into law after being vetoed in the state budget (see related story above).

Another WHA-initiated proposal enacted in the final weeks of session was a package of important, three-years in the making reforms to the emergency detention process, including important protections for physicians and providers serving at-risk patients.

Borgerding commended the entire WHA public policy and advocacy staff for their tireless efforts and commitment these past 15 months. “The record speaks for itself,” Borgerding said. “WHA’s members are served by one of the absolute best advocacy teams in Madison.”

WHA’s Special Needs Dental Workgroup focuses on barriers to care

Laura Rose, WHA vice president, policy development, described WHA’s growing involvement in dental access issues, with a focus on dental patients with special needs who require care under general anesthesia in operating rooms. Rose presented to the Council on WHA’s Special Needs Dental Workgroup, which has identified barriers to treating patients, including significant financial losses from government payers and locating a dentist or other practitioner who is willing and able to care for the patient. Rose said the workgroup will develop policy recommendations at its next meeting May 11.

Proposal changes supervision relationship between physicians and physician assistants

WHA Vice President of Workforce and Clinical Practice Ann Zenk gave a presentation to the Council on a draft bill designed to change the existing supervision relationship between physicians and physician assistants. During its discussion, the Council reaffirmed the importance of ensuring state clinician licensure laws do not become misaligned with Medicare payment rules and the importance of ensuring that hospitals and employers maintain the right to determine the terms of employment for that provider, regardless of any practitioner’s licensed scope of practice. Council members also noted this latest proposal may create confusion by creating overlapping or inconsistent obligations for employers. For more information about this proposal, contact Ann Zenk at or 608-274-1820.

Wisconsin Hospitals State PAC and Conduit Kicks Off 2018 Campaign

WHA Vice President, Advocacy Kari Hofer reported to the Council that the Wisconsin Hospitals State PAC & Conduit kicked off its campaign in March and has begun fundraising efforts for another important election year. Hofer discussed several statewide elections, including races for Governor, U.S. Senate, Lieutenant Governor, Attorney General, as well as numerous races for the state Senate and state Assembly, indicating 2018 will be a busy year for disbursing funds from the Wisconsin Hospitals State PAC & Conduit.

The Wisconsin Hospitals State PAC & Conduit will only remain the top disbursing conduit in the state with the help of leaders across Wisconsin who support Wisconsin hospitals. If you haven’t already done so, please make your annual contribution at or contact Hofer at 608-274-1820 or

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Federal Grants Available for Hospitals to Expand Delivery of Telehealth Services

The U.S. Department of Agriculture, Office of Rural Development, is accepting applications for Distance Learning and Telemedicine Grants that can help hospitals and health systems build infrastructure to expand the use of telehealth services to provide more accessible, high-value health care.

According to the federal agency, the grants are designed to help hospitals and other eligible organizations acquire equipment, technology, or other assistance to better allow “rural residents [to] tap into the enormous potential of modern telecommunications and the Internet for . . . health care,” which the agency describes as a key “to economic and community development.”

Among other uses, grant recipients may use funds to acquire broadband transmission facilities, audiovisual and interactive equipment, computer hardware and software, network components, and similar infrastructure.

The deadline for applying for this federal grant opportunity is June 4. For more information, including how to apply, see:

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Register Today for 2018 Wisconsin Rural Health Conference, June 27-29

Benjamin AndersonPlan now to attend the 2018 Wisconsin Rural Health Conference, June 27-29 at The Osthoff Resort in Elkhart Lake. This annual event is the statewide forum for examining the issues that impact small and rural hospitals most, networking and collaborating with colleagues, and bonding with your team of senior staff and members of your hospital board of trustees.


Each year, WHA’s Council on Rural Health acts as the planning committee for this conference, and once again in 2018, they have crafted an interesting and diverse education agenda. This year’s opening keynote speaker is Benjamin Anderson, CEO of Kearny County Hospital in southwest Kansas. Since arriving at Kearny County Hospital in 2013, Anderson has received national acclaim for his work in physician recruitment, health promotion, women’s health initiatives and rural health care delivery innovations.

A variety of breakout sessions will give attendees the opportunity to examine and discuss models changing the delivery of and access to rural health care, public policy issues affecting rural health care and ways in which data and technology are improving health care for rural populations. The conference will once again include the popular education track focused on governance issues, including new ways for boards to approach strategic planning, essential components for a successful and sustainable hospital foundation and understanding some of the future reimbursement models that will impact hospitals.

Make attendance at this year’s conference a priority by registering today. A full brochure is included in this week’s packet, and online registration is available at

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WHA Workforce Council Considers Apprenticeships, Grants and Data

Resources and support essential for health care workforce development

The April 16, 2018 WHA Council on Workforce Development meeting covered a broad array of topics, including new WHA-spearheaded training grants, legislative accomplishments and priorities related to workforce, Wisconsin’s Youth Apprenticeships in health care, and data for workforce planning.

Council members appreciated gaining knowledge about available resources to recruit and retain health care professionals. John Keckhaver from Wisconsin’s Department of Workforce Development noted, “Wisconsin is one of only a few states that has kept their Youth Apprenticeship program, and our state program is growing in number of youth and employers participating.” Keckhaver provided resources hospitals and health systems can use to start youth apprenticeships, and members were pleased to hear that regional coordinators are ready, willing and able to provide support to local employers.

Some members of the Council were among the more than 20 organizations that submitted letters of intent to apply for Wisconsin Department of Health Services administered training grants for advanced practice clinicians. Ann Zenk, WHA vice president, workforce and clinical practice, noted “Success builds on success, and the fact that WHA was able to accomplish both increased funding for the grow our own GME program, and create a new grant program to increase clinical training opportunities for advanced practice clinicians and in-demand allied health professionals, is a credit to the successful public-private partnerships created by such programs.” Council members shared plans to apply for allied health professional training grants to expand, enhance or create new training options for health care team roles with high vacancy rates, such as nursing assistants and surgical technicians.

In their discussion of data needed and utilized for workforce planning, Council members recognized WHA’s annual workforce report as “a resource to reference over and over in workforce planning,” and stressed the importance of “keeping an eye on workforce data and proactive planning to prevent critical workforce shortages.” A Council member noted, and the Council agreed, “We are good at finding and having the data, but need help on the projections and analytics.” The Council recognized the work done by WHA and the WHA Information Center, and the potential to build on the available data and analytics for workforce planning. Zenk notes “High-quality high-value health care relies on a high-quality, adequately supplied workforce, and WHA continues our commitment to provide workforce information relevant to WHA, members and policymakers for proactive workforce decision-making.”

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