Health Law
Authors:
Furrow, Barry R. / Greaney, Thomas L. / Johnson, Sandra H. / Jost, Timothy Stoltzfus / Schwartz, Robert L.
Edition:
3rd
Copyright Date:
2015
27 chapters
have results for Health Law
Preface 7 results (showing 5 best matches)
- ) 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.
- ) broadly addresses the issues of access to health care and control of health care costs. These chapters address both private and public financing mechanisms in the many varieties that have been formed and reformed over the past few years, including Medicare and Medicaid and private health insurance. These chapters have been completely rewritten in this edition in response to the Affordable Care Act. In these chapters we also examine the continued evolution of managed care as well as the emergence of the consumer-driven health care movement. Finally, this material also addresses legal obligations to provide medical services under the Emergency Treatment and Labor Act and the common law.
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Chapter 4: LIABILITY AND QUALITY IMPROVEMENT OF HEALTH CARE INSTITUTIONS 353 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.
- 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...
- West’s Ann. Cal. Health & Safety Code § 1457
- . 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.
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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 ), 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 group health
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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.
- 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.
- An at-will employee may have a claim for wrongful discharge if his or her situation falls within one of the common law exceptions to at-will employment in the jurisdiction. Health care professionals do not have the benefit of special exceptions from the common law at-will doctrine.
- N.Y. Pub. Health Law § 2801
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Chapter 13: ANTITRUST LAW 332 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.
- 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).
- 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.
- 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. (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.
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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 3: THE LIABILITY OF HEALTH CARE PROFESSIONALS 211 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).
- 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).
- 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:
- 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 12: MEDICARE AND MEDICAID FRAUD AND ABUSE 182 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.
- 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...
- 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).
- 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)
- 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...
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Chapter 16: MAKING DECISIONS ABOUT DEATH AND DYING 257 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...
- 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].
- If the current common law right to discontinue treatment is so well established and respected in the medical community, why are courts still asked to confirm this right, albeit with decreasing frequency? Many of the early judicial actions that raised these common law questions were instigated because physicians or other health care professionals were concerned about the risk of malpractice liability or criminal prosecution if they accede to patients’ requests that their treatment be discontinued. the health provider refuses to grant their wishes, the underlying purpose of the litigation is often to reassure potential malpractice (and, frequently, informed consent) defendants that the common law will not hold them liable for carrying out the patient’s wishes. As the common law right to discontinue life-sustaining treatment is recognized in the courts and in medical communities across the country, the potential for liability of a medical staff which grants a patient’s request to...
- 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
- See, for example, applying the old New York law, 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 Family Health Care Decisions Act,
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Chapter 11: HEALTH CARE ORGANIZATIONS: BUSINESS STRUCTURES AND TAX EXEMPTION 309 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 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.
- Health Midwest v. Kline
- University Affiliated Health Care, Inc. IRS Exemption Ruling, ; see Thomas K. Hyatt and Bruce R. Hopkins, The Law of Tax Exempt Health-Care Organizations § 23.2(b) (2001).
- 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.
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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
- 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 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).
- 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
- Louise G. Trubek, New Governance and Soft Law in Health Care Reform, 3 Ind. Health L. Rev. 139 (2006)
- N.Y. Pub. Health Law § 2810(2)
- N.Y. Pub. Health Law § 2810(2)(b)
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Chapter 7: HEALTH INSURANCE REGULATION UNDER THE AFFORDABLE CARE ACT 160 results (showing 5 best matches)
- 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 . 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.
- State Laws and Actions Challenging Certain Health Reforms, Nat’l Conference of State Legislatures,
- 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 and individual insurance internal review procedures must comply with state law and with standards promulgated by HHS.
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Chapter 14: REPRODUCTION AND BIRTH 127 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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Title Page 14 results (showing 5 best matches)
Chapter 8: MEDICARE 110 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.
- 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).
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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.
- 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.
- The ACA amended the BP provisions of the Medicaid statute to require that BPs ensure coverage of the ten essential health benefits (EHBs) that must be covered also by individual and small-group plans. These include primarily services already covered by most health plans, such as hospital or ambulatory services or prescription drugs, but also some less commonly covered, such as habilitation services. ABPs must cover family planning services and supplies and comply with mental health parity requirements. EHB designs cannot discriminate based on an individual’s age, expected length of life, present or predicted disability, degree of medical dependency, quality of life, or other health conditions.
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HEALTH LAW 1 result
Table of Statutes 91 results (showing 5 best matches)
- N.Y. Pub. Health Law § 230(11)(a) ........................................... 8
- N.Y. Pub. Health Law § 2782(4)(a) ........................................... 210
- N.Y. Pub. Health Law § 2782(4)(b) ........................................... 210
- N.Y. Pub. Health Law § 2101 ........................................... 206
- N.Y. Pub. Health Law § 2801–b ........................................... 508, 516
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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).
- 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.
- 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)
- 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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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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Chapter 5: PROVIDER OBLIGATIONS TO PROVIDE TREATMENT 58 results (showing 5 best matches)
- N.Y. Pub. Health Law § 2805
- N.Y. Pub. Health Law § 2805–b(2)
- Communicable disease is not the only context in which health care providers may argue that the patient presents a direct threat to health and safety. The assessment of direct threat is also common in institutional settings where a patient’s behavior may present a risk of injury. In these cases, as in cases involving communicable diseases, health care providers are required to perform an individualized assessment of the risk presented by the patient anchored in evidence and expertise.
- For comparison to a common law corporate negligence claim against a hospital relating to adequacy of examination for emergency care, see
- The Justices disagreed, however, on what sort of evidence should be given deference by the Court. The majority accepted that expert opinion from “public health authorities,” such as the Centers for Disease Control and Prevention or the National Institutes of Health, should be given “special weight” even though they may not be conclusive and could be refuted with other credible evidence. In dissenting opinions, Justices Rehnquist, Scalia, Thomas, and O’Connor indicated that they did not agree that the views of public health authorities should be given special deference. These Justices believed that “official” and “private” medical judgment should be given the same level of respect.
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Table of Cases 243 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
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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
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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
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WEST ACADEMIC PUBLISHING’s LAW SCHOOL ADVISORY BOARD 12 results (showing 5 best matches)
- Publication Date: November 14th, 2014
- ISBN: 9780314289070
- Subject: Health Law
- Series: Hornbooks
- Type: Hornbook Treatises
- Description: Expert authors present an 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.
