Section Publications

Advanced Practice Practitioners in Michigan: Physician's Assistants, Advanced Practice Nurses, and Certified Registered Nurse Anesthetists
By:  Kathleen A. Reed, Dykema

On March 22, 2017, the practice of physician’s assistants (PAs) changed in Michigan as a result of PA 379 of 2016, which permits a PA to practice without delegation and supervision from a physician or podiatrist, provided there is a signed, compliant practice agreement between the PA and a participating physician or podiatrist.  A few weeks later, on April 9, 2017, Public Act 499 of 2016 designated a new category of specialty-certified registered nurses called the advanced practice registered nurse (“APRN”), comprised of certified nurse midwives (“CNMs”), nurse practitioners (“NPs”), and  clinical nurse specialists (“CNSs”).  Public Act 499 further granted APRNs the authority to undertake specified medical tasks independent of physician delegation and supervision, including, most importantly, the authority to prescribe non-controlled substances. In 2018, the State Bar of Michigan – Health Care Law Section published a paper titled “New Roles for the Physician’s Assistant and Advanced Practice Registered Nurse in Michigan,” explaining those changes and their implications for health care providers and facilities in Michigan.  The first edition of this paper also includes additional historical background on the scope of practice of and educational requirements for these providers. 

Since 2018, the Michigan Department Health and Human Affair’s Licensing and Regulatory Affairs agency (“LARA”) has updated Board of Medicine and Board of Nursing rules to implement these changes to the Michigan Public Health Code (the “Code”).  Also, in 2021, the Legislature enacted Public Act 53, which updated the scope of practice of  certified registered nurse anesthetists (“CRNAs”) in Michigan, and gave CRNAs with certain credentials authority to practice without physician supervision in specified situations.   The purpose of this paper is to provide updated information and analysis on the legal scope of practice of PAs, APRNs, and CRNAs in Michigan. Read more  July 2022 PDF

Michigan and Federal Surprise Billing Legislation: Protection for Consumers, Increased Burdens for Providers, and Boon for Payors

By:  Melissa R. Grim, Esq., Jessica L. Gustafson, Esq., Kenneth R. Marcus, Esq. and Joseph L. Rivet, Esq

“Surprise billing” (also referred to as “balance billing”) is the term aptly used when an out-of-network provider (either a professional or a facility) bills a patient for emergency or non-emergency services who is unaware that the provider is out-of-network. During 2020, Michigan and federal legislation was enacted limiting the patient’s liability for payment to an out-of-network provider. This white paper discusses the surprise billing problem, summarizes Michigan and federal legislation, and offers the authors’ commentary. Read more  March 2022 PDF

Informed Consent and the COVID-19 Pandemic

By:  Julie Janeway, MSA, JD

Obtaining informed consent has become more complicated than usual during the coronavirus pandemic. This publication seeks to provide insight, suggestions, and resources, including analysis specific to Michigan law, as healthcare practitioners and organizations move through the ever-changing landscape of treating patients, operating businesses, and protecting healthcare workers while knowledge about COVID-19 evolves and public health directives change. Read more  Aug 2020 PDF

Care in the Time of COVID: How the Pandemic Has Moved Telemedicine Forward

By:  Kate Flewelling, Assistant General Counsel, Munson Medical Center & Emily Klatt, Associate General Counsel, University of Michigan

Telemedicine, in a matter of weeks, became likely the predominant means of delivering outpatient care for the foreseeable future. With a vaccine for COVID-19 likely months or even years away, telemedicine is a modality of service delivery for which we will have a continuing need. Even when the dangers of this pandemic have faded, there is a myriad of reasons why telemedicine will persist. Virtual care can eliminate the fear of disease transmission, it can save patients time and money, for providers it can even allow them to decrease overhead costs by reducing their space needs. While clearly all care cannot be done via telemedicine, there is a segment of patients and a distinct set of health problems for which telemedicine will offer the most efficient and satisfactory means of delivering care. It will not go away because patients will continue to demand that it be an option. 

Telemedicine's explosive growth in response to the COVID-19 pandemic, however, was permitted by a series of temporary emergency restrictions at the federal and state levels-restrictions we must assume will sunset or be removed as the immediate threat of COVID-19 wanes. What, then, are the structural changes to our legal framework that needs to happen to allow telemedicine to take the position in our healthcare delivery system that it can and should occupy in the future? Read more  July 2020 PDF

Health Providers May Accept Provider Relief Fund Payments Without Knowing What They Signed Up For

By: Andrew Wachler, Stephen Shaver, & Emma Trivax from Wachler & Associates, P.C. 

 The outbreak of COVID-19 has taken a heavy toll on healthcare providers. Government mandates and stay-at-home orders halted many non-essential but revenue-generating procedures. At the same time, healthcare providers have seen an increase in expenses due to the virus, more COVID-19 patients, and more expensive medical supplies and equipment. Caught between these two forces, revenue for many providers has dried up and some have been forced to close their doors. 

In an attempt to alleviate these revenue woes, on March 27, 2020, Congress passed the Coronavirus Aid, Relief and Economic Security (CARES) Act. Among many other initiatives, the CARES Act created the Provider Relief Fund (PRF) and funded it with $100 billion. This initial appropriation was meant to provide relief funds to "hospitals and other healthcare providers on the front lines of the coronavirus response". In addition to this initial appropriation, on April 24, 2020, Congress passed the Paycheck Protection Program and Health Care Enhancements Act (CARES Act 2.0) and added another $75 billion to the PRF, bringing the fund's total size to $175 billion. The United States Department of Health and Human
Services (HHS) administers the distribution of the PRF and created two categories of payments: general allocations and targeted allocations. HHS rolled out these payments, especially the general allocations, with a swiftness fitting the dire need. However, this haste has left many of the finer details of the program unclear, including the compliance requirements of providers who received the payments. Read more  Second Edition June 2020 PDF

Michigan Controlled Substances Regulation in Response to the Opioid Epidemic

By: Emily Klatt, JD, Associate General Counsel, Office of the Vice President & General Counsel, University of Michigan & Paul Hilliard, MS, MD, Associate Professor, Anesthesiology, Medical Director, Institutional Opioid & Pain Management Strategy, University of Michigan  Contributor: Maydha Vinson, University of Michigan Law School

This paper reviews the statutes, administrative rules, and guidance for providers prescribing opioids and other controlled substances in Michigan. The updated second edition addresses electronic prescribing and workarounds for the "Start Talking" education and form that may be necessary during the COVID-19 pandemic. Read more  Second Edition June 2020 PDF

Voluntary Closure of Nursing Homes in Michigan 
By: Jennifer Van Regenmorter, Julie Hamlet, and Caroline Renner, Foster, Swift, Collins and Smith P.C.
There are a number of reasons that may lead a nursing home to voluntarily close, such as low numbers of residents or other economic factors. A voluntary closure also occurs when a facility that performs other licensed health-care services (such as hospice services) decides to delicense all of its nursing home beds. In order to ensure a smooth transfer of resident care, a nursing home must take many steps before closing its doors. The closing facility must contact various state and federal agencies at the outset, and coordinate with all entities involved throughout the closing process. Read more June 2020 PDF

Michigan Executive Order 2020-21 Exceptions 
By: Matthew J. Turchyn, Esq., Partner, Hertz Schram

To combat the spread of COVID-19, Governor Gretchen Whitmer signed Executive Order 2020-21, the "Stay Home, Stay Safe" executive order (the "Order"), on March 23, 2020. The stated purposes of the Order are "[t]o suppress the spread of COVID-19, to prevent the state's health care system from being overwhelmed, to allow time for the production of critical test kits, ventilators, and personal protective equipment, and to avoid needless deaths."   The Order went into effect at 12:01 a.m. on March 24, 2020, and requires that Michiganders generally stay at home through April 14, 2020, at 11:59 p.m. Read more March 2020 PDF

Management of Mass Fatalities in Pandemic and Mass Casualty Situations

By: Jesse DePauw, Esq., Senior Associate, Kitch, Amanda Hart law student, University of Michigan Law School, Sangeeta Ghosh, Esq., Assistant Corporate Counsel, Kent County, Melissa Markey, Esq., EMT-P, CISSP, Shareholder, Hall Render, Killian, Heath & Lyman, Laura Napiewocki, Esq., MHSA, Associate General Counsel, University of Michigan

In light of recent events, the HCLS decided to release a draft version of this publication to assist our members in responding to issues that their clients and organizations may face in the coming weeks and months.  In the near future, the HCLS will publish a final version of this paper and will notify all section members of the update.

In the ordinary course of business, there is a well-understood process for the disposition of bodies in the State of Michigan. There are clear criteria for determining when the decedent needs to be transferred to the Medical Examiner for evaluation of the cause of death, and when the body may simply be released to the funeral director. However, there are times that ordinary practices cannot be followed—when there is a pandemic or a major disaster that results in an overwhelming number of fatalities. Understanding the standard, ordinary course of business processes, and considering modifications to those processes based on the recommendations of expert public health associations will help Michigan's healthcare providers and their counsel prepare for, and respond to, such crises in a manner that promotes public health and meets legal requirements. This publication also helps legal counsel provide structure and guidance to facility staff regarding the disposition of bodies during high-fatality events. Read more  March 2020 PDF

Licensing Health Care Providers in Michigan: Requirements and Ramifications

By: Debra A. Geroux, JD, CHC, CHPC, Butzel Long, Robert S. Iwrey, Esq., The Health Law Partners, P.C. and Arturo Trafny, Esq., The Health Law Partners, P.C.

The first chapter of this white paper summarizes the various requirements for licensure, certification, and registration for healthcare professionals in Michigan, The second chapter provides an overview of the typical process followed by Michigan's Bureau of Health Professions in its investigation and prosecution of health care providers for alleged violations of Michigan's Public Health Code and the collateral legal effect that imposed sanctions can have upon the health care provider. This is an updated edition of a prior Health Care Law Section publication and now includes changes to the statutes and regulations implemented through September 1, 2019. Read more  November 2019 PDF

Responding to Government Investigations

By: Ronald W. Chapman II, J.D., L.L.M., Managing Shareholder, Chapman Law Group & M.K. Wickens, J.D., CFE, CHC, M.K. Wickens, PLLC

This paper provides an overview of the types of health care regulatory government investigations. It sets out basic strategies for effectively representing healthcare clients in those investigations, such as identifying the type of investigation, communications with the government and strategies for conducting internal investigations. Understanding how to respond to an investigation quickly and effectively is important because the stakes are high.  Recoupments, civil fines, and penalties can reach into the millions and those found to commit fraud may face potential criminal convictions.  Read more  August 2018 PDF

Pursuing Provider Payments in No-Fault Cases Post-Covenant

By: Joseph Gavin, Member, Miller Johnson, Richard Hillary, Member, Miller Johnson, Andrew Oostema, Member, Miller Johnson

In the wake of Covenant, what are a provider's options when a no-fault insurer unlawfully fails to pay the provider for treating a patient who is covered under the no-fault system? This paper will attempt to answer this question and provide providers with the guidance for recovering unlawfully unpaid no-fault charges in a post-Covenant world. Read more July 2018 PDF

The HIPAA Privacy Rule Preemption Analysis Matrix for Michigan Law

This Matrix is a guide to assist attorneys, paralegals, and others when confronted with whether Michigan law preempts the Health Insurance Portability and Accountability Act of 1996 (HIPAA) Standards for Privacy of Individually Identifiable Health Information. To that end, it summarizes and cites the myriad of Michigan statutes and court decisions that may affect the preemption of the HIPAA Privacy Rule. The Second Edition is the first update to the Matrix since 2002 and also incorporates the 2013 Michigan Medical Records Access Act addendum to the 2002 Matrix. The Michigan law cited in the Matrix is current as of March 1, 2018. This Matrix is an excellent resource for anyone confronted with the disclosure of individually identifiable health information in Michigan. Read more March 2018 PDF

Representing Physicians in Fair Hearing Proceedings
By: Theresamarie Mantese and Fatima M. Bolyea, Mantese Honigman, P.C. Editor: Mercedes Varasteh Dordeski, Foley & Mansfield, PLLP

This paper begins with a brief overview of the federal and Michigan peer review statutes. It then discusses when a physician's right to a fair hearing proceeding is triggered. Once such a right has been triggered, attorneys should know the next steps to take in order to represent a client at a peer review proceeding. Read more August 2017 PDF

Commercial Audits and Appeals
By: Michael D. Bossenbroek, Jesse A. Markos, Jessica C. Forster, and Kevin R. Miserez from Wachler & Associates

Michigan healthcare providers and their legal counsel must be prepared to address audits and appeals initiated by commercial payors. Although healthcare compliance often focuses on state and federal regulatory authorities and audits, commercial payor audits may seriously affect a provider's ability to continue providing services to patients and have a detrimental impact on the provider's practice. Therefore, understanding potential commercial payor audits, steps to respond to audits, and challenge improper denials and appeals strategies are all critical skills that healthcare providers and their legal counsel should develop.

This whitepaper outlines the key types of commercial audits and the corresponding appeals processes that Michigan healthcare providers often encounter. In addition, the following addresses key strategies for preparing for an audit, responding to an audit and strategic tactics to employ in the event of unfavorable claim denials. While every audit and subsequent appeal will have a unique set of circumstances understanding the basic strategies is important for both healthcare providers and their legal counsel. Read more July 2017 PDF

Corporate Integrity Agreements: Understanding Compliance Risk and Obligations to the Government
By: Kimberly J. Commins-Tzoumakas and GinaMarie F. Geheb, Hall, Render, Killian, Heath and Lyman, PLLC Editor: Patricia A. Stamler, Hertz Schram PC

The Department of Health and Human Services' Office of the Inspector General (OIG) and the Department of Justice investigate and enforce fraud and abuse violations committed against federal health care programs under a robust rubric of federal laws aimed at eliminating fraud, abuse, and waste in the health care system. After an investigation and/or enforcement action has occurred, a CIA is one tool in the OIG's arsenal used to validate claims submitted by a health care entity to federal health care programs. This white paper provides an overview of (1) the purpose and scope of CIAs, (2) negotiating and understanding the terms of a CIA, (3) operating under a CIA, and (4) considerations of contracting with an entity under a CIA. Read more July 2017 PDF

Michigan Bar Journal, February 2017

Pandemic Legal Preparedness: A Brief Overview PDF
By: Devin Schindler, Gregory Ripple, Melissa Markey, Jesse DePauw, Laura Miron Napiewocki and Sangeeta Ghosh

The Promise of Telemedicine: Current Landscape and Future Directions PDF
By: Dr. Kimberly Lovett Rockwell

Advice for the Non-Healthcare Lawyer: Representing Clients in Arrangements with Hospitals and Other Healthcare Providers PDF
By: Ann T. Hollenbeck

Transgender Care and Language Accessibility: The New Affordable Care Act Requirements for Healthcare Programs & Activities PDF
By: Andrea Lee

Criminal Conviction Self-Reporting for Michigan Licensed Health Care Professionals
By: Aaron J. Kemp, Chapman Law Group Editor: Mercedes Varasteh Dordeski, Foley & Mansfield PLLP

As a health care attorney, I encounter licensed health care, professional clients, on a weekly basis who are facing an administrative complaint from the Michigan Department of Licensing & Regulatory Affairs (LARA) for failing to self-report a criminal conviction. Inevitably, they claim some variation of "I had no idea I was required to self-report my conviction" or "my attorney did not tell me I was required to self-report." The resulting economic and professional consequences from a failure to self-report such a criminal conviction can be devastating. Read more July 2016 PDF

The Unexpected Cost of Compliance for Institutions Under the NPRM Revisions to the Common Rule
By: Andrea Anantharam and Liza Brooks Editor: Christopher R. Trudeau

While the research environment has been rapidly changing over the past twenty hears, the laws and regulations governing research have failed to keep pace with these developments. The accelerated growth in technology, as well as the number and diversity of the clinical trials performed in a variety of settings, has resulted in an ever-increasing amount of data generated and processed with relative ease. This amount and diversity of data were likely unimaginable decades ago when the National Research Act was signed into law on July 12, 1974. As such, many within the research community have advocated for changes to these laws and regulations in order to facilitate valuable research with less burden, delay, and ambiguity, while also ensuring that the rights of human subjects are protected. Read more June 2016 PDF

Protecting the Public: A Guide for Physicians, Healthcare Providers, and Attorneys on Quarantining and Isolating Patients With Communicable Diseases
By: Devin Schindler, Professor, Western Michigan University-Cooley Law School Edited By: Patricia A. Stamler, Esq. Hertz Schram PC

The authority to isolate, treat, and quarantine individuals with communicable diseases stands at a crowded intersection of federal law, state law, and constitutional law. A healthcare provider's duty when contending with patients who suffer from highly communicable, potentially deadly diseases is a difficult subject. Read more May 2016 PDF

Data Breach Risks and Best Practices for Small and Mid-Size Health Care Providers
By: Michael J. Waters, Ethan E. Rii and Joshua J. Orewiler; Edited by Louis C. Szura

In recent years, the likelihood of suffering a data breach has risen significantly for American companies across numerous industries. Health care providers, in particular, have been targeted due to the value of the sensitive information they hold regarding their patients and employees, including birth dates and Social Security numbers. Health care providers that suffer data breaches risk incurring significant fines, settlement amounts, legal fees, negative publicity and increased scrutiny from regulatory authorities. Read more April 2016 PDF

Protecting the Public: A Guide for Physicians, Healthcare Providers, and Attorneys on Quarantining and Isolating Patients with Communicable Diseases
By: Devin Schindler, Professor, Western Michigan University-Cooley Law School

The authority to isolate, treat, and quarantine individuals with communicable diseases stands at a crowded intersection of federal law, state law, and constitutional law. A healthcare provider's duty when contending with patients who suffer from highly communicable, potentially deadly diseases is likewise not subject to any easy answer. Read More March 2016 PDF

Troubleshooting the Affordable Care Act
By: Steven B. Bender, Michael P. James, Julie Janeway, and Stephen H. Sinas

A white paper compilation of views and lessons after five years. It combines a little bit of law, a little bit of anecdote, and a little bit of "what worked and what did not" in some of the most important areas of the law. View the White Paper August 2015 PDF

Closing a Medical Practice in Michigan
By: James F. Anderton V, Loomis, Ewert, Parsley, Davis & Gotting, PC

This white paper discusses the typical process for Michigan medical practitioners to close their medical practices. It is intended as a general guide for legal counselors, as well as financial planning and tax advisors. View the White Paper June 2015 PDF

Basics of Starting a Medical Practice in Michigan
By: Zachary J. Meyer and Louis C. Szura

This article is intended to identify a number of the more significant challenges of starting a medical practice and the issues inherent in them. Because starting a medical practice is in many respects a lot like starting any other business, some of the challenges and issues are shared in common with starting a new business. However, what may otherwise appear to be generic business decisions, are more nuanced in the context of a medical practice because of the unique nature of the services rendered in a medical practice, the professional licensing imposed on medical practitioners, the stringent government regulation applicable to a medical practice and the reimbursement models common in the practice of medicine. While the issues identified in this article are generally addressed from a legal perspective, the mixed nature of the challenges necessarily requires some pragmatic business advice as well. View the White PaperJanuary 2015 PDF

Health Care Trifecta: Non-Compete, Non-Solicitation, and Confidentiality Agreements in Michigan
By: Michelle D. Bayer, Vezina Law, PLC, Michael H. Rhodes, Loomis, Ewert, Parsley, Davis & Gotting, PC, and Warren H. Krueger, Loomis, Ewert, Parsley, Davis & Gotting, PC Edited by Sheerin Siddique, Employee Health Insurance Management Inc.

Restrictive covenants and their enforcement have a long history in Michigan jurisprudence. Under common law, restrictive covenant agreements were enforced if they qualified as reasonable. In 1905, Michigan's legislature enacted the state's first anti-trust statute...which generally prohibited restrictive covenants, subject to limited exceptions. These restrictions remained in place from 1905 until 1985 when the legislature enacted the Michigan Antitrust Reform Act. As recognized by the Court of Appeals, restrictive covenants have long been used in a variety of settings in Michigan outside of the employer-employee relationship. View the White Paper November 2014 PDF


Corporate Practice of Medicine in Michigan
By: Nancy J. Yucha

Due to a rapidly changing health care environment, hospital-physician consolidation and joint ventures are quickly becoming commonplace. However, physicians and hospitals must ensure that their new organizational structures comply with Michigan's corporate law and do not constitute the corporate practice of medicine. The corporate practice of medicine (CPOM) prohibits a for-profit entity, either a corporation or a limited liability company, from practicing medicine or employing a physician to provide professional medical services. Read more PDF

CON Basics in Michigan
By: Melissa D. Cupp and Brian Kaser

Certificate of Need laws was a significant milestone in Congress's decades-long campaign to federalize health care and reduce public expenditures on it. Michigan's Certificate of Need program imposes state control over the creation and acquisition of many health care services and facilities. Its current authorization is found in Part 222 of the Public Health Code. MCL seq. This article summarizes the history, structure, and operation of the Certificate of Need system in Michigan. Read more PDF

The Ins and Outs of Responding to Subpoenas & Warrants for Protected Health Information in Michigan
By: Jennifer L. Colagiovanni, Amy K. Fehn, Julie M. Markgraf, and Rebecca Robichaud

This paper addresses the Michigan Court Rules and Michigan law as they relate to the discovery of protected health information or "PHI," as well as the requirements and limitations on disclosure imposed by the HIPAA Privacy Rule. The paper will further discuss the interplay between HIPAA and Michigan law by discussing the general concept of HIPAA Preemption, Michigan's physician-patient privilege, and recent court cases. Read more PDF

Medical Records Retention Manual

Health Care Records Retention Manual June 2013 PDF

Status of Health Insurance Exchanges in Michigan
By: Theresamarie Mantese and Gregory Nowakowski

Part 2 from January 2013: The 2010 Patient Protection and Affordable Care Act sustained a hard-fought court challenge. With that challenge over, the long road to the execution of this statute is underway. Now, the task for each State is how to implement its various provisions. One of the goals of the Affordable Care Act is to extend health coverage to more than 30 million uninsured Americans beginning in January 2014. A critical provision in accomplishing this goal is the establishment of health insurance exchanges. Read More PDF

Part 1 from April 2012: On March 23, 2010, the United States Congress passed substantial health care reform (Health Care Reform). There has been much debate in this country over whether Health Care Reform will improve the delivery of health care in the United States. One significant improvement that Health Care Reform was intended to accomplish was to increase access to health care through an expansion of insurance coverage. Read more PDF

Timeline for Key Provisions of the Patient Protection and Affordable Care Act for 2013-2014

Mercedes Varasteh Dordeski, Foley & Mansfield, PLLP
Tariq Hafeez, Fausone Bohn LLP

View the Timeline PDF

Affordable Care Organizations in Michigan
By: Arthur deVaux, Michael James, Suzanne Nolan, and Christina Torossian

A cornerstone of health care reform is the development of a new patient care model, known as an accountable care organization (ACO), that is designed to reduce fragmented or unnecessary care and excessive costs for Medicare fee-for-service beneficiaries. The Patient Protection and Affordable Care Act of 2010 (ACA) authorized the creation of the Medicare Shared Savings Program, which allows providers to share in the cost reductions associated with more effective health care. Read more PDF

Michigan Bar Journal, June 2011

Fraud & Abuse Statutes & Regulations

Health Care Law Section member Tom McGraw published the Michigan Summary of Fraud and Abuse Statutes & Regulations PDF for the American Health Lawyers Association. It is an excellent summary of the law in Michigan.

Health Care Fraud & Abuse Manual PDF


Michigan Bar Journal, November 2002
Your Privacy Protected: HIPAA and its Impact on Michigan's Health Professionals Elizabeth Callahan Morris and Patrick J. Haddad and Daniel J. Schulte PDF

Other Articles

Michigan Bar Journal, November 2002
A Patient's Right to Independent Review: Has Michigan's Act Changed After Rush Prudential HMO, Inc. v. Moran? Eric J. Wexler PDF

Prompt Pay: Getting Paid Gets Easier for Michigan's Health Care Providers William S. Hammond PDF

State Response to Medicaid Fraud and Abuse: An Overview of State Criminal, Civil, and Administrative Remedies Michael Fraleigh PDF

"These publications are intended to serve as preliminary research tools for attorneys. They are not intended to be used as the sole basis for making critical business or legal decisions. These publications do not constitute, and should not be relied upon, as legal advice."