Health Law
Authors:
Furrow, Barry R. / Greaney, Thomas L. / Johnson, Sandra H. / Jost, Timothy Stoltzfus / Schwartz, Robert L.
Edition:
3rd
Copyright Date:
2015
37 chapters
have results for Health Law
Preface 7 results (showing 5 best matches)
- The third part of the book (Chapters 10 through 13) describes the role of the law in organizing the health care enterprise. This section of the Hornbook includes a thorough analysis of the different ways in which the business of health care delivery can be organized, the potential legal relationships among different players in the health care enterprise, tax and corporate law and its consequences for the health care industry, health care fraud and the government regulation of financial relationships among providers, and the application of antitrust law to health care.
- While the perspective that we must bring to the legal analysis of health care is far broader now than it was when our first hornbook was published, the fundamental concerns on which that analysis is brought to bear are surprisingly unchanged. As was the case in 1987, we want to know what role the law might play in promoting the quality of health care, in organizing the delivery of health care, in assuring adequate control of the cost of health care, in promoting access to necessary health care, and in protecting the human rights of those who are provided care within the health care system.
- This third edition of this Hornbook marks more than a quarter of a century that the authors have worked together on academic health law materials. When these materials were first published, they helped define the scope of the newly emerging discipline of Health Law. Over the intervening years, no part of the American landscape has changed more than the American health care system. The system has been stressed by demographic changes, buffeted by the winds of political change, and utterly transformed by scientific, social and economic developments. The formal structure of the business of health care was a small part of the subject of health law when we published our first edition; it is now the subject of entire graduate programs. The for-profit commercial sector of the health care economy sounded like a lamb twenty years ago; now it roars like a lion. Until a few years ago virtually no one attained elective office because of her position on issues related to health care; now health...
- Every section of this Hornbook has been reviewed and rewritten so that the organization of the text reflects new developments in American health care. This Hornbook is divided into four major sections. While some subjects are addressed in more than one section of the Hornbook, the first four chapters generally address ways in which the law contributes to the promotion of the quality of health care. This part of the Hornbook includes thorough treatment of governmental efforts to assure the quality of health care services, including licensing and accreditation programs, as well as extensive analysis of medical malpractice law.
- The last major section of the hornbook (Chapters 14 through 17) provides background on the role law plays in protecting the human rights of those who interact with the health care system as patients or as participants in medical research. This section of the book addresses the current status of laws regulating abortion, assisted conception, and human reproduction. We also address controversies over the definition of death, the propriety of organ transplantation, the law of health care decisionmaking, and medically assisted dying. The Hornbook concludes with a review of legal regulation of research involving human subjects.
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Chapter 4. Liability and Quality Improvement of Health Care Institutions Part 2 69 results (showing 5 best matches)
- Third, state public health laws are given special treatment. The Privacy Rule permits a covered entity to disclose protected health information to a public health authority who is authorized by law to collect such information for the purposes of preventing or controlling disease, injury, or disability, including, but not limited to, the reporting of disease, injury, vital events such as birth or death, and the conduct of public health surveillance, public health investigations, and public health interventions.
- Fourth, state laws providing health plan reporting for the purpose of management or financial audits, program monitoring and evaluation, or the licensure or certification of facilities or individuals, are unlikely to conflict with the Privacy Rule, which permits a covered entity to disclose protected health information to a health oversight agency for oversight activities authorized by law, such as audits and licensure activities. State law will prevail in the event of a conflict.
- Second, the Privacy Rule defers to state law rules if they are more demanding. It permits a covered entity to use or disclose protected health information if a state law requires the use or disclosure.
- The Federal Privacy Rule attempts to mitigate possible conflicts between the federal standards and state law requirements for medical privacy and access to medical records. First, it sets a floor of federal privacy protections as to individually identifiable health information held by covered entities and their business associates. Covered entities may provide greater privacy rights to individuals and greater protections on such information. These covered entities may comply with state laws that provide greater protections for individually identifiable health information and greater privacy rights for individuals.
- The Federal Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) established strict guidelines for the use and disclosure of protected health information (“PHI”) by covered entities. These protections, however, must be read in conjunction with the privacy protections for an individual’s health information set out in each jurisdiction. Each state may impose its own restrictions on disclosure of PHI to persons other than the patient, as well as the testimonial privileges that attach to communications between a patient and the provider only to the extent that such laws address the protection of patient information.
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Title Page 6 results (showing 5 best matches)
- Professor Emerita of Law and Health Care Ethics Center for Health Law Studies Saint Louis University School of Law
- Professor of Law and Director, Health Law Program Drexel University Thomas R. Kline School of Law
- Chester A. Myers Professor of Law and Co-Director, Center for Health Law Studies Saint Louis University School of Law
- HEALTH LAW
- University of California Hastings College of the LawWeihofen Professor of Law Emeritus University of New Mexico School of Law
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Chapter 6. Regulation of Private Health Care Financing 211 results (showing 5 best matches)
- Although ERISA has played an important role in the regulation of retirement benefits in the United States, its role on health benefits has been largely deregulatory. Prior to 1974, as noted above, the states had nearly exclusive jurisdiction over regulating health insurance in the United States, while insurance plan enrollees could sue under state contract and tort law when they were injured by their enrollees. ERISA, however, preempted state law claims, including common law claims, against group health plans. Indeed, ERISA denied state courts jurisdiction to hear claims against group health plans, Although ERISA preserves state regulation of insurers, it preempts state regulation of group health plans. Indeed, it preempts all state laws that “relate to” employee benefit plans. Although ERISA imposes some obligations on employee benefit plans, it has, by preempting state law, largely left a regulatory vacuum that has only recently been filled (and not completely) by the adoption of...
- This chapter does not pretend to present an exhaustive treatment of the law of health insurance. Several treatises that do this are available. Rather, we touch on the major insurance issues encountered by health care providers and insured individuals, focusing on issues of regulation and only minimally discussing issues of contract interpretation.
- Federal law makes Medicare and Medicaid secondary payers to private insurance to conserve the resources of the federal government. State legislation often attempts to make no-fault policies secondary to group health insurance to reduce the cost of no-fault insurance. Liability under worker’s compensation statutes tends to be primary to health insurance obligations.
- As has already been noted, federal regulation of health insurance has also become pervasive. Since 1974, the Employee Retirement Income Security Act (ERISA) has preempted state laws that relate to employee benefit plans. Although it preserves state regulation of insurance, it preempts state regulation of self-insured employer plans and of state claims and remedies against insurers. Various other federal laws adopted in the 1970s through early 2000s, most notably the Health Insurance Portability and Accountability Act, imposed a further layer of federal health insurance regulation. Finally, the ACA imposes extensive federal requirements on health insurance plans, particularly those in the small group and individual markets. ...will continue to regulate health insurers and in most instances looks to the states to enforce the new federal requirements. The federal government has fallback authority to enforce the ACA in states that refuse or fail to do so, but as of this writing in late...
- Even prior to the adoption of the ACA, federal law offered some protection to insured individuals. The most important of these were the rights to insurance portability and to freedom from discrimination on the basis of health status provided by the Health Insurance Portability and Accountability Act of 1996 (HIPAA); the continuation of coverage benefits available under the Consolidated Omnibus Budget Reconciliation Act of 1985, commonly called “COBRA coverage;” and the right to freedom from discrimination on the basis of disability found in the Americans with Disabilities Act (ADA). Although the health information privacy provisions of HIPAA remain very important (see Chapter 4), HIPAA’s insurance regulation provisions have been largely superseded by the ACA, much of which is an amendment to HIPAA. Some provisions of HIPAA continue to apply to grandfathered plans, such as the prohibition against discrimination on the basis of health status in eligibility for coverage or premiums in...
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Chapter 7. Health Insurance Regulation Under the Affordable Care Act 160 results (showing 5 best matches)
- State Laws and Actions Challenging Certain Health Reforms, Nat’l Conference of State Legislatures, http://www.ncsl.org/issues-research/health/state-laws-and-actions-challenging-ppaca.aspx (last updated Jan. 1, 2014) (last visited Jan. 8, 2014).
- Even before the health reform legislation was adopted into law, legislatures in many States were considering legislation in opposition to the federal reforms. Early versions of this legislation seems to have been aimed at provisions that would have limited access to private health insurance or to certain providers, but later iterations were more narrowly aimed at the minimum coverage requirement.
- A fundamental characteristic of modern health care is that a very high percent of health care costs are incurred in any given year by a very small proportion of the population, while the vast majority of the population accounts for a very small proportion of health care costs. The most rational strategy for an insurer, therefore, is to match premiums as closely as possible to the predicted costs of any particular enrollee (or group of enrollees) based on health status, to refuse to cover pre-existing conditions, and to reject applicants who can be predicted to present essentially uninsurable risks because of their health status. This strategy, however, means that those most in need of health care will not be well served by a normally functioning private health insurance market. This is one of the reasons why most developed countries have instituted social insurance systems or public health care delivery systems to assure universal access to health care.
- The ACA does not entirely repeal or replace pre-existing state and federal law. State laws that regulate insurance and managed care remain fully in effect except insofar as they “prevent the application” of the ACA. The states will still be primarily responsible for ensuring the solvency of insurers and for regulating managed care issues not addressed by the ACA. Aggrieved enrollees in health insurance plans that are not governed by ERISA can still sue their insurers in contract and tort. Much of pre-existing federal law remains unchanged as well. The ACA neither expands nor contracts the scope of ERISA preemption of state law, as discussed in Chapter 6. The ADA and other antidiscrimination laws will continue to apply to health insurance to the extent they do now, although their role will be largely replaced by more specific provisions of the ACA.
- The ACA requires group health plans and insurers to offer plan members both internal and external review procedures for coverage and claims determinations. Plans and insurers must provide notices to enrollees, in a culturally and linguistically appropriate manner, of available internal and external appeal procedures and of the availability of a state office of health insurance consumer assistance or ombudsman for assistance with appeals. Group health plan internal appeals processes must comply with the ERISA regulations discussed in Chapter 6 and individual insurance internal review procedures must comply with state law and with standards promulgated by HHS.
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Chapter 4. Liability and Quality Improvement of Health Care Institutions 164 results (showing 5 best matches)
- 45 C.F.R. § 164.512. National priority items include: oversight of the health care system; public health functions; research; judicial and administrative proceedings; law enforcement; emergency circumstances; information to next-of-kin; identification of a deceased person; government health data systems; facility patient directories; banks to process health care payments and premiums; management of active duty military and other special classes; other laws that mandate disclosure.
- , West’s Ann. Cal. Health & Safety Code § 1457; McKinney’s–N.Y. Pub. Health Law § 4165.
- , Tom Christoffel, Health and the Law: A Handbook for Health Professionals 331 (1985). Specific rules on ownership are also articulated in state statues, e.g., Tenn. Code Ann. § 68–11–304.
- Kristin Madison, Donabedian’s Legacy: The Future of Health Care Quality Law and Policy, 10 Ind. Health L. Rev. 325, 326 (2013).
- http://www.hhs.gov/ocr/privacy/hipaa/understanding/summary/privacysummary.pdf. Ariele Yaffee, Financing the Pulp to Digital Phenomenon, 7 J. Health & Biomed L. 325, 340–41 (2011). “Health plan” is defined in § 1171 as “an individual plan or group health plan that provides, or pays the cost of, medical care.” This includes group health plans, health insurance issuers, health maintenance organizations, Part A or B of the Medicare program, Medicaid, Medicare supplemental policies, long-term care policies, employer welfare benefit plans, health care programs for active military personnel, veterans health care programs, CHAMPUS, the Indian Health Service program, Federal Employees Health Insurance Benefits Program, state child health plans, Medicare Plus Choice organization, and any other individual plan or group health plan that provides or pays for the cost of health care.
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Chapter 4. Liability and Quality Improvement of Health Care Institutions Part 3 121 results (showing 5 best matches)
- Federal laws and regulations govern the protection of electronic health records (EHRs). HIPAA was enacted, effective in 2003, and amended in 2009 by the American Recovery and Reinvestment Act of 2009, and again in 2013. The Medical Privacy rules, a central feature of HIPAA, have three major purposes: (1) To protect and enhance the rights of consumers by providing them access to their health information and controlling the inappropriate use of that information; (2) to improve the quality of health care in the U.S. by restoring trust in the health care system among consumers, health care professionals, and the multitude of organizations and individuals committed to the delivery of care; and (3) to improve the efficiency and effectiveness of health care delivery by creating a national framework for health privacy protection that builds on efforts by states, health systems, individual organizations, and individuals. ...recent passage of the Health Information Technology for Economic and...
- Protected health information encompasses individual identifiable health information maintained or transmitted by covered entities and their business associates that is in or has been in electronic form. The rule applies to the information, not particular records. Protected information is defined to mean individually identifiable health information The goal of protection is “to define and limit the circumstances in which an individual’s protected health information may be used or disclosed by others … to make the use and exchange of protected health information relatively easy for health care purposes, and more difficult for purposes other than health care.” are defined as “the transmission of information between two parties to carry out financial or administrative activities related to health care,” and include health care claims or equivalent encounter information, health care payment and remittance advice, coordination of benefits, health care claim status, enrollment and...
- One of the major goals of a statewide HIE must be to assure providers that their mere participation will not subject them to legal risk for violation of their duties under these laws. State variations could be narrowed or eliminated if Congress would preempt state law entirely or would pay states to voluntarily submit to federal standards for privacy of personal health information.
- Covered entities and their business associates are required to comply with the Security and the Privacy Rules, which between them bar entities and associates from using or disclosing health information except under specified exceptions. Rule provides the standards for use and disclosure of protected health information. Such information could be used without authorization for treatment, payment, and health care operations. Information could also be used without authorization for public and public policy-related purposes, such as public health, research, health oversight, law enforcement, and use of coroners. Sale of protected health information is prohibited except for specific instances.
- Health care quality was originally protected at the turn of the century by two blunt regulatory tools: professional licensure and medical malpractice law, both state driven systems. By the 1980s, the focus moved from regulation of minimal physician skills and hospital competence to systemic dimensions of quality. The tools of medical audits and systematic quality assessment began to develop. Donabedian’s work on evaluation of quality by assessing health care institutional structures, processes, and outcomes provided the analytic framework for more sophisticated measuring tools. The growth of evidence-based medicine, grounded in clinical research, was the next step in patient safety. Guidelines began to be developed to guide clinical practice and promote better assessment of health care quality.
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Chapter 10. Professional Relationships in the Health Care Enterprise 116 results (showing 5 best matches)
- The application of the NLRA to health care professionals raises particular issues, and there have been substantial changes over time in the interpretation of certain NLRA provisions in their application to the health care setting. The following sections address several of the key issues for federal labor law in the health care workplace.
- , N.Y. Pub. Health Law § 2801–b, requiring written statement of reasons and providing for review by the state’s Public Health Council; Ga. Code Ann. § 31–7–7, setting time limits for action by public hospitals on applications.
- N.Y. Pub. Health Law § 2801–b. Tabrizi v. Faxton-St. Luke’s Health Care, 66 A.D.3d 1421, 886 N.Y.S.2d 312 (App. Div. 2009). Compare to the HCQIA standards for immunity.
- Robert Wolff & Alex Frondorf, Religious Accommodation Issues for the Health Care Employer: Termination of Pregnancy and Related Issues, 21 Health Law Rptr. 586 (2012).
- The following sections discuss the few circumstances that present special challenges for the application of antidiscrimination employment law in the health care workplace. First, work relationships in health care settings often do not conform to traditional formal employment relationships, especially in regard to physicians and other health care professionals with staff privileges or working formally as independent contractors. Second, concerns for the quality of patient care and patient safety are played out in the proof of whether illegal discrimination has occurred, especially in the context of disability discrimination claims. Third, conflicts over religious principles in health care can produce conflicts between employer and employee. Finally, two of the federal antidiscrimination statutes apply only where the employer receives public funding.
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Chapter 3. The Liability of Health Care Professionals 137 results (showing 5 best matches)
- Mark Barnes et al., The HIV-Infected Health Care Professional: Employment Policies and Public Health, 18 Law, Med. & Health Care 311, 324 (1990).
- D.C. Code § 2–1345. For a discussion and critique of this act, see generally Bridget A. Burke, Using Good Samaritan Acts to Provide Access to Health Care for the Poor: A Modest Proposal, 1 Annals of Health Law 139 (1992).
- the work of John Wennberg for elaboration of practice variation. He first discussed the concept of variation in health care delivery between regions in John Wennberg and A. Gittlesohn, Small Area Variations in Health Care Delivery 182 Science 1102 (1973). “The Paradox of Appropriate Care,” 258 JAMA 2568 (1987). For a review of the literature, including Wennberg’s work, up to 1987, see Pamela Paul-Shaheen, Jane Deane Clark, and Daniel Williams, “Small Area Analysis: A Review and Analysis of the North American Literature,” 12 J. Health Politics, Policy and Law 741 (1987) (very extensive bibliography).
- areas of the law, courts have been sympathetic to an expansion of the role of the hospital, and its corresponding obligations to supervise staff, to establish proper procedures, and to hire properly. Third, the deference to physicians that has been part of the case law of hospital-physician relationships is diminishing as courts recognize that the delivery of health care is a team operation in which support is vital to the proper care of patients in the hospital. Fourth, the impetus to complete written records in health care institutions for reimbursement and monitoring purposes has increased the responsibility of the institution to guarantee completeness of records.
- Andrew L. Hyams, David W. Shapiro, and Troyen A. Brennan, Medical Practice Guidelines in Malpractice Litigation: An Early Retrospective, 21 J. Health Pol., Pol’cy & Law 289 (1996).
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Chapter 13. Antitrust Law Part 2 65 results (showing 5 best matches)
- Applying antitrust law to health care markets entails some special problems. Although the Supreme Court has left no doubt that antitrust is fully applicable to the health industry and has left very little room for consideration of factors other than competitive effect, the peculiarities and distortions of health care markets often necessitate more sophisticated analyses in order to reach economically sound results in antitrust cases. Moreover, widespread regulatory interventions by state and federal governments frequently call for difficult judgments about when conduct is truly private and hence within antitrust’s purview. Finally, antitrust law has sometimes been used by private plaintiffs for strategic purposes to accomplish selfish economic objectives that actually thwart the competitive process. This section sets out the statutory and doctrinal framework that guides antitrust analysis and discusses the unique issues posed by the economics of health care insurance and delivery....
- Several common law and statutory defenses limit the applicability of the antitrust laws. Those of particular importance to the health care sector are discussed below.
- Antitrust law has an important role to play if health reform is to succeed. That is so because the Affordable Care Act seeks to address the twin problems that bedevil the American health care system—fragmented delivery of services and payment incentives that fail to encourage provision of cost-effective care. The law’s goal—evidenced by provisions directly sponsoring development of new organizational arrangements such as accountable care organizations and patient centered medical homes and relaxation of laws and regulations that might inhibit integration—is to foster integration. Critical to achieving this goal are the law’s provisions designed to spur the formation of entities capable of receiving global payments or shared savings, delivering seamless and cost-effective services, and doing so in a competitive market. However, the problems addressed by antitrust enforcement—market concentration and restraints of trade—pose a potential obstacle to achieving those ends.
- A number of state statutes specifically exempt certain activities involving health care from their antitrust laws or restrict the application of those statutes. Hospital A number of states have broadened the role of their health care planning boards by empowering them to issue “certificates of public advantage.” Some have attempted to design these regulations to meet the requirements of the state action doctrine and thus exempt certain conduct from federal antitrust law. These regulatory schemes entail approval and supervision of hospital mergers, joint ventures and other collaborative activities. Whether this enhanced involvement by state regulators will be sufficient to invoke the protection of the state action doctrine to shield competitor collaboration from challenge under the federal antitrust laws remains to be seen. After the Supreme Court’s decision in
- Important sources of information on antitrust law enforcement policies are the public statements and advisory opinions of the Federal and State enforcement agencies. The FTC’s “advisory opinion” procedure provide prospective statements of each agency’s enforcement intentions regarding proposed conduct. Neither immunizes conduct: both agencies reserve the right to commence law enforcement proceedings at any time. The agencies have indicated that they will expedite certain requests for advisory opinions on certain health care issues and, in most cases, will respond within ninety days after all necessary information is submitted. and most significantly in health care. Finally, law enforcement officials have given advice in over 100 speeches, testimony and other public statements since 1981.
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Chapter 1. Licensure and Discipline of Health Care Professionals 130 results (showing 5 best matches)
- The states, rather than the federal government, hold the authority to license and discipline the health professions. The federal government does have a significant impact on the work of the health professions, however, even though federal authority to regulate the work of the health care professions is more restricted and must refer to specific powers delineated in the Constitution. For the regulation of the health care professions, Medicaid payment for health care services, for example, conditions payments to the states on certain requirements. Medicare provides incentives to the states to adjust state law, although these programs often defer to state law on questions of licensure. Some federal regulation of health care providers depends on the Commerce Clause, including, for example, the work of the Drug Enforcement Administration and the Food and Drug Administration.
- Licensing requirements for the health care professions are governed by state law. State licensing statutes govern entry into the licensed professions; regulate the health care services that licensed professionals may provide; and prohibit the delivery of regulated health care services by unlicensed persons. The system also monitors the quality of care provided by licensees and penalizes or removes incompetent and unethical practitioners from practice. Licensure and discipline are implemented by state agencies, commonly called “boards.”
- The statutory prohibition against the unauthorized practice of medicine falls upon two distinct groups: individuals unlicensed for any of the health professions and licensed health care professionals. Licensed non-physician health care professionals have a defense to prosecution for the unauthorized practice of medicine if their activities fall within the scope of practice authorized by law. The most substantial controversies over the prosecution of unauthorized practice have arisen in the contexts of battles over the scope of practice of licensed non-physician health care professionals;
- The source of the state’s power to regulate health care professionals (and health care institutions) is the police power, which is retained by the states in our federal system. Under the police power, the state’s regulation of health care providers must further the health, safety, and general welfare of the citizenry although proof of injury to any particular individual is not required. Judicial review of a legislature’s exercise of the police power is highly deferential to the choices made regarding what is likely to further health, safety, and general welfare.
- are not required to prove that limitations on scope of practice are grounded in empirical research assessing the risk presented by the provision of services by one particular practitioner as compared to another. At the same time, the conflict between the stated licensure goal of protection of the public health and the externality of anticompetitive market control is close to the surface in the turf battles among licensed health professionals. In fact, the Federal Trade Commission has pursued an active policy opposing restrictions on the scope of practice of non-physician health providers. The FTC has filed suit against state health profession boards for engaging in unfair competition, in violation of federal antitrust laws, in establishing or prosecuting restrictive scope-of-practice standards.
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Chapter 12. Medicare and Medicaid Fraud and Abuse Part 2 83 results (showing 5 best matches)
- James G. Sheehan, Fraud Investigations and Prosecutions: A Perspective, in 1992 Health Law Handbook (Alice G. Gosfield, ed. 1992); Eugene Tillman and Carol Colborn, Fraud and Abuse Audits and Investigations: Practical Guidelines, in 1991 Health Law Handbook (Alice G. Gosfield, ed. 1991); Robert A. Griffith, Techniques for Defending Health Care Fraud and Abuse Cases, 4 Medical Staff Counsellor, Spring 1990 at 61.
- Thomas E. Bartrum & L. Edward Bryant, Jr., The Brave New World of Health Care Compliance Programs, 6 Annals of Health Law 51, 57–61 (1997); Adam G. Snyder, The False Claims Act Applied to Health Care Institutions: Gearing Up for Corporate Compliance, 1 DePaul J. Health L. 1 (1998) (explaining the effect of a compliance program under the guidelines).
- Gabriel L. Imperato, 1992–1993 Developments in Health Care Fraud and Abuse, in 1993 Health Law Handbook, 147, 168–79 (Alice G. Gosfield, ed. 1993) (discussing this safe harbor).
- Vane v. Vista Hosp. Sys., Inc., No. 233623 (Cal. Super. Ct. Oct. 25, 1993), noted at 2 BNA Health Law Rep. 1475 (1993). Michael v. Peregrine et al. Hospital/Physician Contracting and the Illegality Defense, 27 J. Health & Hosp. L. 129 (1994).
- Brennan and Paddock, Limitations of the Use of the False Claims Act to Enforce Quality of Care Standards, 2 J. Health & Life Sci. Law, 37 (2008).
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Chapter 16. Making Decisions about Death and Dying 140 results (showing 5 best matches)
- Health care providers remain inconsistent in their recognition and implementation of advance directives, even when there is no doubt about the authenticity or legality of the advance directive under local law. By custom, health care institutions and health care workers caring for patients rely on orders given by the health care professional responsible for the patient’s treatment, not on documents signed outside of the health care system. Recognizing the strength of this custom, some patient advocates argue that the best way to protect a patient’s interests at the end of life is to incorporate the patient’s health care decisions into a physician’s order. One particularly effective way of doing this is to incorporate those decisions into a Physician Order for Life Sustaining Treatment (POLST). A POLST (which goes by POST, MOST, MOLST, in the Veterans Administration—SAPO, and a variety of other names with other acronyms in other states) may include information about a patient’s...
- The Uniform Health-Care Decisions Act (American Law Institute’s uniform law version of advance directive legislation) takes a comprehensive approach to the issue by combining the living will (which is retitled the “individual instruction” in the uniform act), the durable power of attorney (now called the “power of attorney for health care”), a family consent law, and some provisions concerning organ donation
- Third, the law is only beginning to resolve the question of whether there is an obligation on health care professionals, or on the health care system as a whole, to help competent patients who have chosen to forgo life-sustaining medical treatment, and thus to die. Must competent patients who have decided to forgo life-sustaining treatment be offered appropriate palliative care, even if the health care providers believe that the patient’s decision is inconsistent with sound medicine or sound ethics?
- Similar positions have been adopted by the American Medical Association, the American Hospital Association, and by virtually every other professional organization whose members may participate in decisions to terminate life-sustaining treatment. While outside professional recognition is hardly necessary for the courts to assert that this is the common law position, it lends support to the argument that the right to make health care decisions—even those that will result in death—is deeply rooted in the fundamental principles that govern health care in America.
- In law, children have traditionally been treated as legally incompetent to make most significant decisions, including decisions regarding their own health care. On the other hand, children are not in the same position as comatose (or many otherwise incompetent) adults. In some ways they are likely to be far better at making health care decisions—for example, they can sense and evaluate information provided to them—and in some ways they may be less well equipped to make those decisions—for example, they have not had the maturity of a lifetime to develop the values that a substituted judgment is expected to carry to fruition. As a consequence, courts have treated children as a class of patients different from both competent adults and incompetent adults for the purpose of making decisions concerning life-sustaining treatment. Further, while such decisions for newborns are governed by federal regulations, decisions for other children are most generally guided by principles of common
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Chapter 11. Health Care Organizations: Business Structures and Tax Exemption 126 results (showing 5 best matches)
- This chapter deals with the variety of organizational forms that health care enterprises may adopt. Each kind of business association carries with it a distinct body of law that affects such important aspects of the enterprise as liability, dissolution, governance, and authority to bind the organization. In addition, the business form adopted may materially assist the enterprise in complying with other bodies of law affecting health care providers, such as fraud and abuse, tax exemption, certificate of need, antitrust, and professional licensing laws. Health care providers and payers engage in a wide variety of joint ventures—cooperative arrangements typically designed to promote integration of services and payment—that are typically contractual in nature. Finally the chapter discusses the tax treatment of exempt organizations, which comprise a large proportion of the hospital sector and are also frequently found in other provider and payor organizations.
- Although Section § 501(c)(3) includes exemptions for religious or educational purposes, almost all health care organizations seek exemption under the “charitable purposes” provision of the law. The standards for the satisfaction of this requirement have evolved over time. Standing alone, the promotion of health does not satisfy the requirements of charitable purpose for federal tax exemption. Unfortunately, the federal tax authorities have not been clear or consistent in explaining when provisions of health care services are charitable. As a practical matter, few hospitals have failed to satisfy the flexible—some say overly flexible—standard that has significantly evolved over time. However, both the Internal Revenue Service and courts, especially in recent years, have been far less lenient with other kinds of health care entities.
- Health Midwest v. Kline
- The corporation has emerged, principally during the last century, as the dominant form of business organization in the United States. The reasons for the enormous popularity of the corporate form are found in four fundamental characteristics the law imbues upon these artificial entities: limited liability, continuity of existence, transferability of ownership, centralized management, and separate legal existence. For the most part, for profit health care corporations are subject to the same legal standards under corporate, securities, antitrust law as other commercial enterprises. However in a few instances, discussed below, the interpretation of those standards recognizes some of the special features of health care payment and delivery.
- The corporate practice of medicine doctrine prohibits corporations and other business entities from engaging in the practice of medicine. It has been applied to prohibit corporations from hiring physicians to provide medical treatment for their employees; insurers from directly offering health care services; hospitals and clinics from hiring doctors; and partnerships with lay partners from engaging in medical practice. Although modern case law is scarce and some states have specifically rejected the doctrine, it is still often observed by health care entities establishing new enterprises. Even in jurisdictions in which the law appears to be moribund, many lawyers advise clients to avoid risks by structuring arrangements so that direct corporate control of physician activities is not present.
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Chapter 17. Regulation of Research Upon Human Subjects 37 results (showing 5 best matches)
- One of the most controversial contemporary issues involving consent is the development and use of aggregated health data and stored biological specimens in research. Under current regulations, medical information and biological specimens are considered human subjects unless they are deidentified. A critical issue under the regulations is whether the regulatory requirement of consent of the subject applies to use of information or tissue that was collected for clinical or public health purposes or for research other than the proposed protocol. The use of health data and stored tissue may be restricted under state law, including state law concerning informed consent, In addition, issues relating to consent may influence the resolution under state law of property and contract claims to the products developed from the research.
- , Cal. Health & Safety Code § 24170 et seq.; Md. Code Health-General § 13–2001.
- Robin Fretwell Wilson, Estate of Gelsinger v. Trustees of University of Pennsylvania: Money, Prestige, and Conflicts of Interest in Human Subject Research in Health Law & Bioethics: Cases in Context (Sandra H. Johnson et al., eds., 2009), for an in-depth description of the case.
- This concern remains significant; however, efforts at protecting some populations from research have produced serious negative health outcomes for these populations. For example, as women (because of the very broad assumptions made regarding the possibility of pregnancy), were excluded from research protocols, they suffered risks to their health from the complete lack of data concerning the safety and effectiveness of treatments in these populations. After several years of statements encouraging researchers to include women as research subjects, Congress enacted the National Institutes of Health Revitalization Act of 1993 with specific provisions to ensure the inclusion of women and minorities as research subjects in NIH research.
- The most infamous twentieth century violation of the autonomy and dignity of individuals subject to experimentation in the United States came to light in 1972. In the Tuskegee Syphilis Study, begun in 1932 and carried on for nearly 40 years, the United States Public Health Service (USPHS) studied the natural course of untreated syphilis in 399 poor African-American men. Congressional hearings revealed that even when the first truly effective treatment for syphilis became available, the USPHS physicians refused or failed to offer that treatment to the men in the study. The USPHS justification for the four decades during which the men and their spouses and partners were subject to the ravages of untreated syphilis rested on racist stereotypes of sexuality and intellectual capacity. While participants in the study successfully sued the Public Health Service for compensation, no criminal actions arose out of the case.
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Chapter 12. Medicare and Medicaid Fraud and Abuse 99 results (showing 5 best matches)
- This body of law has had a profound impact on the health care industry and on relationships among providers. Aggressive enforcement of the false claims prohibitions is considered to have played a role in reducing Medicare cost increases, which had been driven in part in the past by “creative” billing practices. The bribe and kickback prohibition, and accompanying legislation limiting self-referrals, discourages doctors from acquiring interests in other health care providers while encouraging them to form group practices, to become employees of health care entities, or to become part of risk-sharing organizations or arrangements. This legal regime may have the ultimate effect of creating a better organized, more competitive health care industry. But, if left unchecked, it might lead to excessive concentration in provider markets. ...laws are also intended to discourage provider-induced demand, though they might in many instances simply make it more profitable for a physician to...
- A large and continually growing body of federal law forbids—under the threat of criminal or civil penalties or exclusion from federal health care programs—participants in the health care industry from engaging in a wide variety of activities. These laws are often accompanied by parallel state laws. This body of law is generically referred to as Medicare and Medicaid fraud and abuse law, though much of it has little to do with common law fraud and only constitutes abuse as that term is broadly defined. ...and stealing: e.g. filing false claims for payment or misrepresenting one’s qualifications for participating in a federal health care program. Others police Medicare cost-control initiatives—punishing overservice or improper coding by providers paid on a fee-for-service or cost basis or underservice by providers paid through risk-sharing contracts. A few cases have been brought against providers who have violated their obligations to Medicare or Medicaid by providing poor quality...
- Over the years the OIG has aggressively enforced the fraud and abuse laws with strong bi-partisan congressional support. The Department of Justice (DOJ) has authority to enforce the criminal fraud and abuse laws and the civil False Claims Act, violations of which are investigated by the Federal Bureau of Investigation (FBI). Funding for the fraud and abuse enforcement efforts of the OIG, DOJ, FBI, and Health Care Financing Administration (HCFA) was dramatically increased by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), which established a generously funded Health Care Fraud and Abuse Control Account, all 50 states and the District of Columbia have established Medicaid fraud control units (all but seven within the Attorney General’s office) and passed laws prohibiting Medicaid fraud. ...spurred the creation of collaborative efforts by the DOJ and HHS now known as regional Medicare Fraud Strike Forces and the Health Care Fraud Prevention and Enforcement...
- Though, as noted above, most conduct violating the bribe and kickback law also violates the self-referral law, the coverage of the laws is not identical. The self-referral law only covers items and services financed by Medicare and (at least in theory) Medicaid, while the bribe and kickback laws cover items covered by other federally financed state health care programs. Some conduct within the reach of the bribe and kickback prohibition, such as waiver of deductibles and coinsurance, would not be covered by the self-referral laws as it does not involve a physician referral. Each law has both broader and narrower exceptions than are found under the other law. The employment exception of the bribe and kickback law, for example, is more absolute than that found in the self-referral law, while the group practice exception to the self-referral law is broader than any of the statutory or regulatory exceptions to the bribe and kickback law. The sanctions attached to the laws also differ:...
- The reach of the Stark legislation would have been severely limited by the budget bill that passed Congress in 1995, but this bill was vetoed by President Clinton. The Stark law remains a great source of dissatisfaction among health care providers and has been strongly criticized by health law practitioners and academics.
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Chapter 2. Quality-Control Regulation of Health Care Facilities 82 results (showing 5 best matches)
- John V. Jacobi, Competition Law’s Role in Health Care Quality, 11 Ann. Health L. 45 (2002).
- , Louise G. Trubek, New Governance and Soft Law in Health Care Reform, 3 Ind. Health L. Rev. 139 (2006).
- The source of the state’s power to regulate health care institutions is the police power, which is retained by the states in our federal system. Under the police power, the state’s regulation of health care institutions must further health, safety, and the general welfare. In reviewing legislation challenged as lying beyond the scope of the state’s police power, courts will uphold the legislation if its contribution to health, safety, and general welfare is at least fairly debatable. Challenges to health care facility
- , N.Y. Pub. Health Law § 2801–d; Mo. Rev. Stat. § 198.093; Fla. Stat. Ann. § 400.023.
- Sandra H. Johnson, The Fear of Liability and the Use of Restraints in Nursing Homes, 18 Law, Medicine & Health Care 263 (Fall, 1991).
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Chapter 11. Health Care Organizations: Business Structures and Tax Exemption Part 2 183 results (showing 5 best matches)
- Although disclosure and approval of conflicts of interest directors may lessen risks of liability under the duty of loyalty, oversight by state attorneys general may still cause nonprofit directors to alter their practices. For example, after extensive evaluation of a contract between not-for-profit Fairview Health System and a for-profit debt collection agency, Accretive Health Inc. the Attorney General of Minnesota issued a six-volume report highly critical of the transaction. Although the report indicated that Fairview’s executives had disclosed their familial ties to the for-profit management company, the board’s role in approving the transaction was sharply criticized for placing the interests of the for-profit company ahead of the charitable purposes of the health system. The contract was ultimately terminated and one executive left the health system. Michael W. Peregrine & James R. Schwartz, Key Nonprofit Corporate Law Developments in 2012, 22 BNA Health Law Reporter (...
- University Affiliated Health Care, Inc. IRS Exemption Ruling, 1995 WL 79630 (I.R.S.); see Thomas K. Hyatt and Bruce R. Hopkins, The Law of Tax Exempt Health-Care Organizations § 23.2(b) (2001).
- Craig A. Conway, Accountable Care Organizations Versus Texas’ Corporate Practice of Medicine Doctrine, Health Law Perspectives (Oct. 2010) available at https://www.law.uh.edu/healthlaw/perspectives/2010/(CC)%20ACO.pdf.
- Gerald M. Griffth et. al., IRS Mandates Heightened Transparency in Redesigned Form 990, 11 Health Law. News 8 (Aug. 2007); James R. King et. al., Form 990 Disclosure Requirements Challenge Hospitals, Provide Opportunities 21 No. 3 Health Law. 1 (Feb. 2009).
- Jeffrey F. Chase-Lubitz, The Corporate Practice of Medicine Doctrine: An Anachronism in the Modern Health Care Industry, 40 Vand. L. Rev. 445, 473 (1987); Andrew Fichter, Owning A Piece of the Doc: State Law Restraints on Lay Ownership of Healthcare Enterprises, 39 J. Health L. 1 (2006).
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Chapter 14. Reproduction and Birth 91 results (showing 5 best matches)
- A few judges and commentators continue to take the position that the interests of the pregnant woman must be balanced against the fetus’s interest in being born (or being born healthy), and the state’s derivative interest in protecting the lives and health of children (and, directly or indirectly, fetuses). Those who take this position argue that the fetus—at least from the point of viability—is a person for other medical and common law purposes and, thus, is entitled to be treated like any other person for purposes of medical decisionmaking. In all jurisdictions, the tort law recognizes actions brought on behalf of children born alive for injuries they received in utero. Health care providers now recognize that when they treat pregnant women they have two patients—the pregnant woman and the fetus. The fact that health care providers must treat them both as patients is recognized in the codes of professional organizations. Tort law, too, recognizes that health care providers may be...
- Although it did not change the substantive law of abortion in any formal way, is noteworthy for several reasons. First, it demonstrates a substantial shift in the default position of the Supreme Court, which appears to allow far more deference to articulated legislative purposes—even when those articulated purposes are inconsistent with medical and scientific knowledge—than earlier cases had. This was also the first case (and it remains the only case) in which the Supreme Court has upheld a law that does not provide on its face an exception when the health of the mother is at risk. Here, the Court said that it was unclear whether such a health exception was ever necessary, and it depended on Congressional findings that the banned procedure was never necessary to preserve the health of the pregnant woman.
- problems to the mother or the neonatal siblings, sometimes the life or health of the mother (or some of the developing fetuses) can be preserved only if the number of fetuses that the mother is carrying is reduced. That raises the question of when it is appropriate to selectively reduce the number of fetuses being carried. Some have argued that such selective reduction should be governed by the more general law applying to abortion. If laws restricting abortion apply to such selective reductions, some state laws may limit the ability of the mother (or the family, or the doctor, or the court) to choose to selectively reduce the number of fetuses the mother is carrying for any reason, including to save the life or health of that fetus’s mother or the wellbeing of the fetus’s potential siblings.
- Indeed, there is not even a consensus over the area of law into which questions of assisted reproduction fall. places a great deal of authority in the judge, appears to be based in this adoption approach to assisted reproduction. Health lawyers are more likely to see the process as the provision of a form of health care, and they ask how regulation designed to assure the quality of our health care system can best be applied to help “patients” in this area achieve their goal—usually, parentage of a child. Informed consent requirements—everything from providing infertility center success rates to the potential physical consequences of being a surrogate—seem to come out of health care-based approach. Criminal lawyers are more likely to ask whether there is any aspect of assisted reproductive techniques that should be prohibited. Attempts to make the whole process illegal come out of this criminal law approach to the issue.
- Similarly, because the failure to obtain adequate medical care itself constitutes neglect, a pregnant woman who fails to consent to a caesarean section or a blood transfusion when necessary to preserve the life or health of the fetus may be liable in the criminal law. Of course, such an interpretation of the criminal law could turn any pregnant woman who did not follow all of her doctor’s advice, and thus neglected some element of her fetus’s health, into a criminal. Indeed, if the fetus were to die, the pregnant woman could be liable for some form of homicide.
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Chapter 16. Making Decisions about Death and Dying Part 2 117 results (showing 5 best matches)
- A health-care provider or institution may decline to comply with [a health care decision] that requires medically ineffective health care of health care contrary to generally accepted health care standards applicable to the health care [provider].
- See, for example, applying the old New York law, In re Westchester County Medical Center on Behalf of O’Connor, 534 N.Y.S.2d 886, 531 N.E.2d 607 (N.Y.1988), holding, “We do not mean to suggest that to be effective, a patient’s expressed desire to decline treatment must specify a precise condition and a particular treatment,” Sol Wachtler, A Judge’s Perspective: the New York Rulings, 18 Law, Medicine, & Health Care 60 (1990). (suggesting that the O’Connor opinion was largely based on the individual facts that the patient was conscious, was not terminally ill, was able to feel pain, and had a disputed prognosis; Wachtler distinguishes O’Connor from Cruzan in that O’Connor did not involve a patient in a persistent vegetative state); Stewart Pollock, Identifying Appropriate Decision-Makers and Standards for Decision, 18 Law, Medicine, & Health Care 63 (1990). The O’Connor rule was changed and substantially liberalized by the New York Legislature in 2009 in the promulgation of the...
- President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, 1 Making Health Care Decisions 58 (1982). This is reflected in the definition of “capacity” that appears in the Uniform Health-Care Decisions Act: “capacity” means an individual’s ability to understand the significant benefits, risks, and alternatives to proposed health care, and to make and communicate a health-care decision. Uniform Health-Care Decisions Act, § 1(3).
- which was designed primarily to require that health care institutions inform patients of their rights to execute advance directives and to otherwise control their own healthcare under state law—whatever that law might be—without actually requiring states to adopt any particular substantive law. Although the bill had much support in Congress, it was opposed by the American Hospital Association, the American Bar Association, the Health Care Financing Administration and the American Medical Association (even though individual doctors were exempted from its requirements). After hearings on the bill in 1990, it was presumed dead. In what was a surprise to virtually everyone following the bill, it was resurrected as a part of the Omnibus Budget Reconciliation Act of 1990 and it passed in that form virtually without debate.
- Barry Furrow et al., Bioethics: Health Care Law & Ethics (7th ed. 2013).
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Chapter 13. Antitrust Law 187 results (showing 5 best matches)
- Originally, the question was one of implied repeal, as it was argued that federal health planning scheme impliedly repealed antitrust laws applicable to hospital mergers. The Supreme Court held that these laws did not work any blanket repeal as to the health care industry, but it left open the possibility that in some specific circumstances implied repeal might be necessary for the Planning Act to work. National Gerimedical Hosp. & Gerontology Ctr. v. Blue Cross of Kansas City, 452 U.S. 378, 101 S.Ct. 2415, 69 L.Ed.2d 89 (1981). North Carolina ex rel. Edmisten v. P.I.A. Asheville, Inc. 740 F.2d 274, 279–85 (4th Cir.1984) (no repeal of federal antitrust merger law in North Carolina’s certificate of need scheme.) Thus, while it is conceivable that implied repeal of federal merger law might have been found in an appropriate regulatory context, the issue became moot with the repeal of health planning laws.
- For compilation and analysis of the numerous cases involving staff privileges cases brought under the antitrust laws, see 2 John J. Miles, Health Care & Antitrust Law § 10:1 (1992).
- James F. Blumstein & Frank A. Sloan, Antitrust and Hospital Peer Review, 51 Law & Contemp. Probs. 7, 39–53 (1988); Mark A. Hall & Ira Mark Ellman, Health Care Law and Ethics 1991 (1990).
- Mark V. Pauly, Competition in Health Insurance Markets, 51 Law & Contemp. Probs. 237, 267–68 (1988); Frances H. Miller, Vertical Restraints and Powerful Health Insurers: Exclusionary Conduct Masquerading as Managed Care?, 51 Law & Contemp. Probs. 195, 227 (1988). Clark C. Havighurst, Health Care Law and Policy: Readings, Notes, and Questions, 1185 (1988) (difficult to sell an efficient, competitive insurance product without extensive integration of financing and delivery). In any event, plaintiff’s underlying claim in Ball Memorial was highly questionable. Plaintiff hospitals were resisting the Blues’ attempt to impose cost controls through a PPO that engaged in competitive contracting. Following Kartell, it is unlikely such hard bargaining would constitute a violation of Section 2 of the Sherman Act.
- Employee Status: Regional Director Finds HMO Physicians in New Jersey are Independent Contractors, Health Law Rep. (BNA) No. 8 at 864 (May 27, 1999). The regional director of the NLRB found that while AmeriHealth had control over which health services the physicians could supply, “factors of the common law agency test weigh heavily in favor of independent contractor status for the petitioned-for physicians.” Her findings emphasize that physicians exert substantial control over how they perform those services, retain their own economic separateness from AmeriHealth, practice and advertise in their own names, perform their work at their own facilities without supervision from Ameri-Health, and have wide entrepreneurial discretion that affects the profitability of their practices. AmeriHealth Inc./AmeriHealth HMO and United Food & Commercial Workers Union, Case–4–RC–19260 (NLRB 4th Region, May 24, 1999).
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Chapter 8. Medicare 73 results (showing 5 best matches)
- Home health services are covered under both Part A and Part B. Historically, most home health services were covered by Part A. The 1997 Balanced Budget Act, however, limited Part A home health care to the first 100 home health visits initiated within fourteen days of a three-day hospital stay or a SNF stay, thus shifting much of the costs of the home health program to Part B. Home health services include part-time or intermittent nursing or home health aide care; physical, occupational, and speech therapy; medical social services; and medical supplies and durable medical equipment. The part-time or intermittent requirement is imposed to ensure that home health care is not provided to patients who in fact need full-time skilled nursing care. The Medicare statute defines this requirement to mean fewer than 8 hours per day and 28 hours per week, or in particular cases fewer than 8 hours per day and 35 hours per week.
- The law also makes provision for appealing adverse Medicare Advantage benefit determinations. Medicare Advantage plans must make organizational determinations in writing and must make initial determinations within 30 days for payment decisions, 14 days for health care services requests, and 72 hours for requests for services where lack of the service could seriously jeopardize life or health.
- Despite the absence of any comprehensive national health insurance program, government sponsorship of health care has a long history in the United States. The first federal medical program was established in 1798 to provide care for sick seamen in the coastal trade. State hospitals for the mentally ill and local public hospitals were well established by the mid-nineteenth century. Today, government at all levels finances a plethora of health care institutions and programs. In 2012, the government accounted for 44 percent of personal health care expenditures. Federal expenditures accounted for 26 percent of total expenditures while state and local governments accounted for 18 percent. The largest single federal government health care program is the Medicare program, which accounts for 20 percent of the nation’s health care spending.
- Part B (Supplemental Medical Insurance) benefits help to pay for physician’s services; outpatient hospital services; renal dialysis; speech and physical therapy; ambulatory surgery; home health services; durable medical equipment and other medical equipment and supplies not covered by part A; partial hospitalization services; services provided by community mental health centers, rural health clinic services, federally qualified health center services; Indian Health Service services; comprehensive outpatient rehabilitation facility services; and some diagnostic tests and preventive services.
- 6) rural health clinic services, federally qualified health clinic services and telehealth services;
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Chapter 9. Medicaid 103 results (showing 5 best matches)
- The CHIP program was reauthorized and its funding extended by the Children’s Health Insurance Program Reauthorization Act of 2009 or CHIPRA. CHIPRA increased CHIP funding and modified funding formulas to reward states that used their allocations; reduced shortfalls; and adopted outreach, enrollment, and retention best practices. CHIPRA made it easier for the states to cover pregnant women and legal immigrants but limited the use of CHIP funds to cover adults. The legislation extended CHIP dental benefits and applied the mental health parity law to CHIP.
- The final base benchmark plan for Medicaid EHBs arrived at through these steps provides the floor for Medicaid ABP coverage. States will also select a BP from the menu of plans available under the prior law, including state and federal employee plans, the largest commercial HMO in the states, or state-specific HHS Secretary-approved coverage. If the BP plan it selects from these options and the plan the state selects as the base benchmark for EHBs are the same, the state meets all requirements of the law. The final ABP will be the final base benchmark, as supplemented and permissibly substituted as set out above, and further supplemented to the extent necessary to ensure other Medicaid requirements, including coverage of EPSDT services, family planning services, and federally qualified health center and rural health center services.
- , Kansas Health Care Ass’n v. Kansas Dept. of Social & Rehabilitation Servs., 822 F.Supp. 687 (D.Kan.1993) (where court ordered state to revise its nursing home rates using a designated nursing home inflation index pending revision of the rate to comply with federal law).
- The Medicaid statute lists several categories of mandatory services that States were required to provide the traditional categorically needy: inpatient hospital services; outpatient hospital services and rural health clinic services; other laboratory and X-ray services; nursing facility services; rural health clinic (RHC) and federally-qualified health center (FQHC) services; early and periodic screening, diagnostic and treatment (EPSDT) services for children; family planning services and supplies; physicians’ services; and nurse-midwife and other certified nurse practitioner services. The Medicaid statute also identifies about three dozen categories of optional services that states may cover for traditional Medicaid recipients, but also permits coverage under a final category coverage of “any other medical care, and any other type of remedial care recognized under State law, specified by the Secretary.”
- This chapter first considers eligibility for Medicaid, then Medicaid benefits, next Medicaid payment, then administration, and finally appeals and judicial review. It concludes with a description of the State Children’s Health Insurance Program (SCHIP), created in 1997 as a supplement to Medicaid. As Medicaid varies significantly from state to state, coverage in this chapter will be limited by and large to the federal law governing the program supplemented with occasional mention of representative state law. The chapter will further focus on the federal law affecting the fifty states, largely omitting provisions uniquely affecting the territories.
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Chapter 15. Determination of Death and Procurement and Distribution of Organs for Transplantation 35 results (showing 5 best matches)
- Health Law and Bioethics Cases in Context (Sandra H. Johnson et al., eds. 2009).
- , Noel Barshes et al., Justice, Administrative Law, and the Transplant Clinician: The Ethical and Legislative Basis of a National Policy on Donor Liver Allocation, 23 J. Contemp. Health L. & Pol’y 200 (2007).
- State law governs standards for the determination of death, In addition, state common law comes into play in several areas, including consent for donation from living donors, and so on. As with most areas in health law, however, there is a significant federal overlay applicable to the procurement and distribution of human organs for transplantation.
- The risks to living organ donors are significant, however, and these underlie concerns over coercion and consent in the donation process when the donor is legally competent. The National Institutes of Health is sponsoring a study of long-term outcomes for living organ donors, including processes for informed consent. Study results are beginning to be published.
- N.Y. State Dept. of Health, Guidelines for Determining Brain Death (2011).
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Chapter 5. Provider Obligations to Provide Treatment 58 results (showing 5 best matches)
- For comparison to a common law corporate negligence claim against a hospital relating to adequacy of examination for emergency care, see Studt v. Sherman Health Systems, 951 N.E.2d 1131 (Ill. 2011).
- , Pa. Stat. tit. 35, § 449.8(a); N.Y. Pub. Health Law § 2805–b(2)(a), governing cities with over 1 million population.
- N.Y. Pub. Health Law § 2805–b(1); 10 N.Y.C.R.R. § 405.9(f)(7); In re New York Methodist Hosp., 25 Misc.3d 648, 885 N.Y.S.2d 392 (N.Y.Sup. 2009).
- , N.Y. Pub. Health Law § 2805–b(2), providing that discriminatory treatment by a hospital is a misdemeanor.
- , Bryant v. Adventist Health System/West, 289 F.3d 1162 (9th Cir. 2002); Christus Health Southeast Texas v. Keegan, 2011 WL 3206851 (Tex. App.). Money v. Banner Health, 2012 WL 1190858 (D. Nev.).
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Table of Contents 77 results (showing 5 best matches)
- e. State Antitrust Laws and State Exemptions for Health Care Providers
- CHAPTER 1. LICENSURE AND DISCIPLINE OF HEALTH CARE PROFESSIONALS
- CHAPTER 2. QUALITY-CONTROL REGULATION OF HEALTH CARE FACILITIES
- § 2–2. Differences Among Health Care Institutions
- CHAPTER 3. THE LIABILITY OF HEALTH CARE PROFESSIONALS
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Half Title 1 result
Table of Statutes Part 2 91 results (showing 5 best matches)
Chapter 3. The Liability of Health Care Professionals Part 2 74 results (showing 5 best matches)
- The Patient Self-Determination Act became law as part of the Omnibus Budget Reconciliation Act of 1990, and applies to hospitals, skilled nursing facilities, home health agencies, hospice programs, and HMOs with Medicare or Medicaid funding. It requires each facility covered by the act to provide each patient with written information pertaining to:
- Telehealth is the use of digital technologies to deliver medical care, health education, and public health services by connecting multiple users in separate locations. Telehealth includes technology-enabled health care services. This includes telemedicine—the diagnosis and treatment of illness or injury, and telehealth services—diagnosis, treatment, assessment, monitoring, communications, and education. It includes a broad range of telecommunications, health information, videoconferencing, and digital image technologies.
- The reorganization of the health care industry has pushed physicians into group practices and employment in health care institutions or managed care organizations or alliances with hospitals in integrated delivery systems. The large health care corporation, long resisted by the medical profession, has come into its own. Health care is more constrained by explicit financial limits. Institutions that provide health care—such as hospitals or nursing homes—and entities that pay for health care—including insurers and self-insured employers—now oversee the work of the medical professionals who practice within them or whose care they purchase. The emergence of managed care organizations that both pay for and provide care gives lay managers even greater control over medical practice, in the name of both cost containment and quality of care.
- Some physicians—such as obstetricians and emergency physicians—have curtailed their services in response to liability insurance concerns. Indigent patients create a special problem, since these patients create a liability risk, yet physicians cannot recover their liability insurance costs because there is no compensation for their services. They cannot also ask the patients to waive their common law rights to sue for negligence, following cases like State legislatures, often as part of malpractice reform packages, have responded to this dilemma by providing immunity from tort liability for certain categories of physician services. In particular, physicians or other health professionals who provide free health care services have been granted tort immunity if they provided uncompensated care, unless the care was grossly negligent.
- Second, best practices will be researched and disseminated. Section 10303 inserts a new Subpart II—Health Care Quality Improvement Programs. It mandates the Director to “identify, develop, evaluate, disseminate, and provide training in innovative methodologies and strategies for quality improvement practices in the delivery of health care services that represent best practices in health care quality, safety, and value” in collaboration with other Federal agencies.
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Chapter 8. Medicare Part 2 37 results (showing 5 best matches)
- Anne B. Martin, et al., National Health Spending in 2012: Rate of Health Spending Growth Remained Low for the Fourth Consecutive Year, 33 Health Aff. 67 (2014).
- Many sources have addressed the ACO concept and regulations with widely varying predictions about its impact on the American health care system. , Ezekiel J. Emanuel & Jeffrey B. Liebman, The End of Health Insurance Companies, N.Y. TIMES OPINION PAGES (Jan. 30, 2012, 9:00 PM), http://opinionator.blogs.nytimes.com/2012/01/30/the-end-of-health-insurance-companies/ (predicting that “by 2020, the American health insurance will be extinct” because ACOs will replace private health insurance companies); Stephen M. Shortell et al., The Center For Medicare And Medicaid Innovation Should Test Accountable Care Organizations, 29 Health Aff. 1293, 1294 (2010); Jeff Goldsmith, Accountable Care Organizations: The Case for Flexible Partnerships between Health Plans and Providers, 30 Health Aff. 32 (2011)(predicting MSSP program will be unsuccessful because of hospital dominance, weak incentives for providers to change behavior, lack of patient involvement, and other factors); Trent T. Haywood et...
- Lawrence P. Casalino and Arthur Elster, Will Pay-for-Performance And Quality Reporting Affect Health Care Disparities? Health Aff. Web Excl., April 10, 2007.
- MedPAC, Improving Incentives in the Medicare Program 40–58 (June 2009); Elliott S. Fisher et al., Fostering Accountable Health Care: Moving Forward in Medicare, 28 Health Aff. w.219 (2009).
- Robert A. Berenson & Melissa A. Goldstein, Will Medicare Wither on the Vine? How Congress Has Advantaged Medicare Advantage—And What’s a Level Playing Field Anyway?, 1 St. Louis U. J. Health L. & Pol’y 5 (2007); Robert Berenson, Medicare Disadvantaged and the Search for the Elusive “Level Playing Field” Health Aff. (Dec. 15, 2004).
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Chapter 13. Antitrust Law Part 3 80 results (showing 5 best matches)
- In the past, state and federal regulation encouraged hospitals to undertake cooperative “planning” activities and even agreements allocating markets. However, laws establishing such regulations have not immunized cooperative actions from application of the federal antitrust laws. and some states have adopted health care reforms that explicitly encourage hospital cooperation to avoid duplication of services.
- Ocean State Physicians Health Plan, Inc. v. Blue Cross & Blue Shield of Rhode Island,
- Close antitrust scrutiny of mergers of health care institutions, particularly acute care hospitals, began in the mid-1980’s. The Federal Trade Commission took the lead, successfully challenging two horizontal mergers involving acute care hospitals. Perhaps more than any other area of antitrust law, merger enforcement plays an important role on the structure—and costs—of the nation’s health care delivery system. In the view of some, a period of laxity in antitrust merger enforcement in the hospital sector enabled excessive consolidation in the 1990s and early 2000s, giving rise to formation of highly concentrated markets, which in turn has proved to be a major driver of health care cost escalation.
- Another claim leveled against dominant health insurers is that they may use their market power to disadvantage rivals by offering a combined or “bundled” price for separate services that is lower than the price for the services purchased separately. In the leading health care case,
- Antitrust analysis has focused considerable attention on a variety of contractual arrangements among physicians and between physicians and hospitals that may enhance their market power vis-á-vis third party payers. The catch-all term “joint venture” is commonly used to describe the broad range of collaborative agreements among otherwise independent entities. For the most part these arrangements are designed to increase efficiencies, improve care and reduce wasteful fragmentation that pervades American health care. Strong financial incentives under the Affordable Care Act to integrate the delivery of health care services and the Medicare payment reforms in the law has led to a surge in the development of a wide variety of joint ventures. Thus since 2010 vertical and horizontal combinations among providers have become commonplace with the formation of accountable care organizations, patient-centered medical homes, physician hospital organizations and other forms of contractual...
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Chapter 14. Reproduction and Birth Part 2 36 results (showing 5 best matches)
- Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989); Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990); Hodgson v. Minnesota, 497 U.S. 417, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990).
- Judith Daar, Litowitz v. Litowitz: Feuding over Frozen Embryos and Forecasting the Future of Reproductive Medicine in Sandra Johnson, et al. (eds), Health Law and Bioethics Cases in Context (2009), describing the backstory of an embryo disposition case that involved a battle over which of several agreements signed by the parties should prevail and providing a catalog of frozen embryo cases.
- Akron v. Akron Center for Reproductive Health, Inc. 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983); Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). In some states, parental notification laws that meet federal Constitutional requirements have found to violate stricter state constitutional standards. See American Academy of Pediatrics v. Lungren, 912 P.2d 1148, 1172 (Cal. 1996) and Planned Parenthood v. Farmer, 609762 A.2d 620 (N.J. 2000).
- Roe v. Wade, 410 U.S. at 143–47, 93 S.Ct. at 722–23 (outlining the changing position of the AMA and other health organizations).
- City of Akron v. Akron Center for Reproductive Health, Inc. 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983).
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Index 114 results (showing 5 best matches)
- HEALTH INFORMATION TECHNOLOGY FOR ECONOMIC AND CLINICAL HEALTH ACT (HITECH)
- See also Access to Health Care; Accountable Care Organizations; Affordable Care Act; Americans with Disabilities Act (ADA); Antitrust; Employee Retirement Income Security Act (ERISA); Health Reform; Health Insurance Portability and Accountability Act (HIPAA); Managed Care; McCarran-Ferguson Act; Medical Malpractice; Medical Necessity
- See also Affordable Care Act; Health Maintenance Organizations (HMOs); Health Reform; Preferred Provider Organizations (PPOs); Utilization Review
- ACCESS TO HEALTH CARE
- Qualified health plans, 7–8
- Open Chapter
Table of Cases 136 results (showing 5 best matches)
- Cascade Health Solutions v. Peace Health …………………………………………… 773
- Community Mental Health Services v. Mental Health and Recovery Board …… 58
- Good Shepherd Health Facilities v. Department of Health ………………………. 62
- HTI Health Services v. Quorum Health Group ………………………..782, 790, 794, 798
- Abraham v. Intermountain Health Care Inc………………………………………………… 774
- Open Chapter
Table of Cases Part 2 107 results (showing 5 best matches)
Summary of Contents 17 results (showing 5 best matches)
- CHAPTER 1. LICENSURE AND DISCIPLINE OF HEALTH CARE PROFESSIONALS
- CHAPTER 2. QUALITY-CONTROL REGULATION OF HEALTH CARE FACILITIES
- CHAPTER 3. THE LIABILITY OF HEALTH CARE PROFESSIONALS
- CHAPTER 4. LIABILITY AND QUALITY IMPROVEMENT OF HEALTH CARE INSTITUTIONS
- CHAPTER 6. REGULATION OF PRIVATE HEALTH CARE FINANCING
- Open Chapter
Advisory Board 9 results (showing 5 best matches)
- Professor of Law, Michael E. Moritz College of Law,
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, Hastings College of the Law
- Professor of Law, Yale Law School
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
- Open Chapter
- Publication Date: November 14th, 2014
- ISBN: 9780314289070
- Subject: Health Law
- Series: Hornbooks
- Type: Hornbook Treatises
- Description: Expert authors present an up-to-date overview of health law as it affects the professionals, institutions, and entities that deliver and finance health care in the United States. Considers the law's response to quality and error through institutional and professional regulation, and malpractice litigation against professionals, hospitals, and managed care organizations. Surveys tax, corporate, and organizational issues. Explores the government's efforts to control costs and expand access through Medicare and Medicaid. Examines government attempts to police anticompetitive activities, fraud, and abuse. And considers the legal and ethical issues involving death, human reproduction, medical treatment decision making, and medical research. The Affordable Care Act, HIPAA, HITECH, and other new statutory and regulatory changes of the past few years are thoroughly incorporated in all aspects of the legal discussion.
