Health Law
Authors:
Furrow, Barry R. / Greaney, Thomas L. / Johnson, Sandra H. / Jost, Timothy Stoltzfus / Schwartz, Robert L.
Edition:
3rd
Copyright Date:
2015
26 chapters
have results for health
Chapter 16: MAKING DECISIONS ABOUT DEATH AND DYING 135 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].
- 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...
- 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).
- the patient’s general attitude about health care and the health care system, and the patient’s reactions to previous encounters with the health care system,
- Some state statutes now allow an agent authorized by a durable power of attorney to make health care decisions for a principal even if the principal has decisionmaking capacity—as long as that is the explicit desire of the principal. Such a provision gives health care providers a surrogate decision maker to turn to in the case of a patient with capacity that is highly variable. Some argue that, in such cases, health care providers ought to be able to depend upon the consent of a patient-designated surrogate without doing a full competency analysis each time a health care decision is to be made. Of course, the decision of the surrogate can always be overruled by the patient herself if she has capacity.
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Chapter 4: LIABILITY AND QUALITY IMPROVEMENT OF HEALTH CARE INSTITUTIONS 293 results (showing 5 best matches)
- 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...
- . 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.
- 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...
- 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.
- Communications about participating providers in a provider or health plan network, replacement of or enhancements to a health plan, and health-related products or services available only to a health plan’s enrollees that add value to, but are not part of, the benefits plan;
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Chapter 7: HEALTH INSURANCE REGULATION UNDER THE AFFORDABLE CARE ACT 148 results (showing 5 best matches)
- 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 Excise tax on high-cost plans has received enthusiastic support from many health economists, who argue that excessively generous employment-based health plans, heavily subsidized by tax exclusions and deductions, are one of the primary explanations for high health care costs in the United States. They contend that lower cost, higher cost-sharing plans, will lead to a reduction in the unnecessary use of health care services and thus to lower health care costs. They also believe that reductions in health benefit costs would lead to higher wages.
- Third, the ACA requires group health plans or health insurers that require enrollees to designate a primary care provider to permit enrollees to designate any available participating primary care provider. Group health plans or health insurers that cover emergency department services must cover emergency medical conditions without prior authorization regardless of whether an emergency care provider is in-network. Group health plans and health insurers that require designation of a primary care provider must permit designation of a pediatric specialist for children. Group health plans and health insurers must also provide women with direct access, without authorization or referral, to gynecologists or obstetricians.
- The ACA instructs HHS to develop reporting requirements for use by group health plans and health insurers to report information related to improving health outcomes, preventing hospital readmissions, improving patient safety, and promoting wellness. But HHS has not yet done so as of this writing. Group health plans and health insurance issuers must report annually information regarding their conformity with these requirements to HHS, their enrollees, and the public.
- Between 2000 and 2012, the number of Americans not covered by health insurance grew from 38.7 million to 48 million. An estimated 15.7 percent of the population lacked health insurance in 2012, up from 14.0 percent in 2000. Much larger numbers of Americans lacked health insurance at some point in time if one looks at periods spanning several years.
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Chapter 6: REGULATION OF PRIVATE HEALTH CARE FINANCING 146 results (showing 5 best matches)
- In 2012, 198.1 million Americans were covered by some form of private health insurance. 170.1 million Americans were covered under employment-related health insurance, and 30.6 million by other forms of private health insurance. In that same year private health insurance paid out $917 billion for health care, accounting for about 33 percent of national health expenditures. Fifty-five percent of Americans had health insurance coverage through their employers in 2012, but many employers, particularly small employers, do not offer health insurance as a benefit, and many employees who are offered employment-related coverage decline coverage because of the cost or because they are covered by a spouse’s policy.
- Another important development has been the rise of “consumer-driven” health care—the coupling of high-deductible health plans with health savings accounts and health reimbursement arrangements to help employees and individuals cover cost-sharing obligations. The 2003 Medicare Modernization Act extended favorable tax treatment to deposits made into health savings accounts or HSAs (trust accounts administered by banks or insurance companies for covering qualified medical expenses) that are accompanied by insurance policies (“high-deductible health plans” or HDHPs). Health reimbursement arrangements, or HRAs, were created not by a statute but rather by the Internal Revenue Service, which in, 2002 determined that existing legislation authorized the offer of tax subsidies for employer contributions to health savings vehicles funded by employers alone. ...and HRAs has grown significantly over the past decade, with about 20 percent of employees with health coverage enrolled in an HSA or HRA...
- High deductible health plans and health savings options are supposed to discourage moral hazard and encourage consumers to shop more carefully for health care services. These claims are supported by some evidence, although there is also evidence that high deductible health plan enrollees skimp on medically necessary services, such as prescription drugs necessary for the management of chronic conditions or preventive care.
- Offers of health insurance coverage as an employment benefit expanded rapidly after World War II as unions fought for employee benefits, which had become recognized as a subject of collective bargaining. During the 1950s employment-related health insurance continued to expand rapidly, driven by employee benefit tax exclusions and deductions in the 1954 Internal Revenue Code. By 1965, private health insurance covered 156 million Americans, 80 percent of the population. Health insurance coverage
- Peter Hussey et al., Episode-Based Performance Measurement and Payment: Making it a Reality, 28 Health Aff. 1406 (2009); Harold Miller, From Volume to Value: Better Ways to Pay for Health Care, 28 Health Aff. 1418 (2009).
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Chapter 2: QUALITY-CONTROL REGULATION OF HEALTH CARE FACILITIES 80 results (showing 5 best matches)
- 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
- A major challenge for quality-control regulatory policy is the vast and changing structure of health care facilities. As health care entrepreneurs develop new vehicles for delivering health care services, for example through free-standing surgical, diagnostic, or specialty centers, existing licensure requirements applicable to other organizational forms, such as hospitals, may not apply. Licensure will govern only those organizations that fall within the statutory definition of facilities requiring a license. Health care entities that do not fall within the statutory definition will not be subject to state control through licensure.
- Even though only licensed health care professionals may treat patients within a health care facility, a quality-control regulatory system that stopped with the individual professional would be incomplete. The quality of the institution itself has a very significant impact on the quality of care received by patients. The scope of institutional factors that can pose a danger to patients is extensive, ranging from the adequacy of buildings, equipment, maintenance, and sanitation through health information technology; from fiscal and managerial effectiveness through the selection, training, and monitoring of individuals directly providing care; from staffing levels through food service. The patient safety movement, in fact, focuses on the quality of systems within health care organizations rather than on the behaviors of individual caregivers standing alone.
- This chapter will review only the two major sources of public quality-control regulation in health care services organizations—licensure by the states and federal regulation through the Medicare and Medicaid programs. While nearly all institutional health care providers in the United States are regulated on some level by these state and federal agencies, the character and scope of that regulation vary across different types of facilities. Historical accident and sheer political power certainly explain some differences in the regulatory environment among health care institutions. Many regulatory differences, however, relate to the type of health care services provided, the strength of private quality-control mechanisms, and the character of the population served by the facility. There is no one-size-fits-all answer to the question of the appropriate mix of public and private quality-control mechanisms.
- Any description of health care facilities tends to be incomplete and quickly outdated as the health care industry rapidly responds to changes in health care markets, payment methods, and government quality-control regulation by redesigning and repackaging health care delivery. This holds true for nursing home care, in particular, as payment incentives shift sicker patients to nursing homes and as nursing homes have developed services that respond to opportunities for post-acute, shorter-stay care. Hospitals and nursing homes are still quite distinctive organizations, however, even though they both provide medical and nursing care for patients/residents. They differ in their patient population; their scope of services; the composition of their staffing; and other internal organizational characteristics.
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Chapter 1: LICENSURE AND DISCIPLINE OF HEALTH CARE PROFESSIONALS 110 results (showing 5 best matches)
- 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.
- Restrictive licensing furthers the public interest. It rests on concerns that lay individuals lack the capacity to evaluate adequately the quality of medical services because of their lack of expertise and their vulnerability in sickness but also because reliable and probative information on quality is generally unavailable. In addition, incompetent, negligent, or unethical medical or other health care interventions present a high risk of danger to the health and safety of the consumer and significant negative externalities to third parties. In economic terms, the market for health care services is characterized by market failure, and it is this market failure that provides the rationale for restrictive licensure for the health care professions. Despite its laudable goals, however, restrictive licensing also produces some negative outcomes. Health care professionals and their patients are constrained in their choices concerning treatment, for example, and licensure raises the costs of
- 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. 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.
- The Affordable Care Act provided significant support for health care workforce development directed toward advanced practice nursing and other non-physician health professionals. For example, several of the health care delivery models supported by the ACA—including the Medical Home, the Nurse-Managed Health Clinic, —mandate a team approach to care with very significant practice and leadership roles for ANPs and PAs. In addition, the ACA improved access to direct payment and payment levels for particular non-physician health care professionals.
- 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.”
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Preface 7 results (showing 5 best matches)
- 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.
- ) 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.
- 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 8: MEDICARE 95 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.
- 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).
- 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. T
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Chapter 10: PROFESSIONAL RELATIONSHIPS IN THE HEALTH CARE ENTERPRISE 86 results (showing 5 best matches)
- This chapter presents current legal issues in both the traditional and more contemporary forms of professional relationships in health care delivery, including staff privileges, hospital-based practice contracts, and employment. Cost containment, the legitimization and encouragement of competition in health care delivery, the focus on continuity of care and clinically integrated health organizations, and the increased power of health care administration each have worked to diminish the professional hegemony previously enjoyed as a given by physicians in the hospital setting. Any generalization today about the relative power of physicians and the health care organizations within which they practice, however, is risky as individual circumstances can vary considerably.
- Unions of professional health care workers came late to the union landscape. Although the National Labor Relations Act originally covered non-profit hospitals, the Taft-Hartley amendments of 1947 excluded non-profit hospitals from the statute’s definition of employer. The National Labor Relations Board refused to exercise jurisdiction over for-profit hospitals as well until 1967. In 1974, the Health Care Amendments to the Act repealed the statutory exclusion of non-profit hospitals, and the NLRB extended its jurisdiction to all hospitals thereafter. Although organizing of some health care professionals began shortly after the extension of the NLRA, there was substantial resistance among professionals who considered the concept of unionization, especially as to the potential for strikes and other work actions, as unprofessional and possibly unethical. As the health care industry has changed, health care professionals increasingly have looked to unions as a way to regain influence in...
- 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.
- 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.
- There is a continuing substantial focus on religious conflicts in health care, including in the health care workplace. State and federal “conscience” provisions specific to health care workers address these conflicts in the context of particular treatments and interventions. Under Title VII, a health care employer must take reasonable steps to accommodate an employee who objects on religious grounds to participating in specific treatment and may do so by arranging for other employees to cover the service or by reassignment. The
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Chapter 12: MEDICARE AND MEDICAID FRAUD AND ABUSE 138 results (showing 5 best matches)
- First, it is a felony, punishable by up to five years imprisonment and a fine of up to $25,000, to knowingly and willfully make or cause to be made a false statement or representation of a material fact in a claim for a benefit or payment under a plan or program funded by the United States or a state health care program. The broad definition of the statute makes it a federal crime to knowingly and willfully execute, or attempt to execute, a scheme or artifice to defraud any health care benefit program; steal or embezzle money from a health care program; make a materially false statement to or conceal material information from a health benefit program; obstruct the criminal investigation of health care offenses; or launder money in connection with federal health care offenses. This statute federalizes fraud committed against private health plans, but the federal government is still leaving private health care fraud enforcement largely to the states.
- Exclusion from program participation for at least five years is mandatory under four circumstances. The first, discussed above, is conviction of a criminal offense related to the delivery of an item or service reimbursed under Medicare or a state health care program. The second is conviction of a crime relating to neglect or abuse of patients in connection with the delivery of health care. The third is conviction of a felony in connection with the delivery of a health care item or service or of a felony relating to financial misconduct in a health care program financed by federal, state, or local government. Mandatory exclusions can be for a period in excess of five years where there are aggravating circumstances. A person convicted of three or more criminal offenses involving Medicare or a state health care program must be permanently excluded.
- Open letter from Daniel Levinson, IG, HHS to all health care providers (Apr. 26, 2006), Open letter from Daniel Levinson, IG, HHS to all health care providers (Apr. 15, 2008); Open letter from Daniel Levinson, IG, HHS to all health care providers (Mar. 24, 2009).
- 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. ...comes in conflict with the interests of their patients. Fraud and abuse law has, in any event, proved a gold-mine for health lawyers, who must...
- 1) conviction of misdemeanors relating to fraud, theft, embezzlement, breach of fiduciary duty or other financial misconduct in the delivery of health care in general or in a government health care program or of financial misconduct in other government programs;
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Chapter 13: ANTITRUST LAW 241 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....
- Clark C. Havighurst, The Questionable Cost-Containment Record of Commercial Health Insurers, Health Care in America: The Political Economy of Hospitals & Health Insurance, 221, 252 (H. E. Frech, ed., 1988).
- A central feature of health care organization and delivery is the dominant role played by health care professionals. The impact of professional influence on the American health care system has been vigorously debated by a wide spectrum of As public policy and legal doctrine have shifted toward favoring markets and decentralized decisionmaking in health care, certain aspects of “professionalism” have come into conflict with market-oriented public policies. In particular, the medical profession’s insistence on professional discretion, freedom from lay interference and self-regulation has engendered practices that run afoul of antitrust principles.
- 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,
- a health care entity and the governing body or any committee of a health care entity which conducts professional review activity, and includes any committee of the medical staff of such an entity when assisting the governing body in a professional review activity.
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Chapter 3: THE LIABILITY OF HEALTH CARE PROFESSIONALS 157 results (showing 5 best matches)
- 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.
- Medical culture and reimbursement systems are more responsible for the rising costs of health care. Without access to lawsuits, individuals who are seriously harmed by poor quality care will be left without compensation and health care providers will have few reasons to pay serious attention to the quality of care they offer. Newer reform proposals may better promote compensation, using a mix of alternative compensation reforms and redefinition of adverse events and what is compensable. They may better encourage innovation in health care risk reduction, foreshadowing a liability system that better promotes safe health care.
- Mark Barnes et al., The HIV-Infected Health Care Professional: Employment Policies and Public Health, 18 Law, Med. & Health Care 311, 324 (1990).
- David Arterburn, et al., Introducing Decision Aids at Group Health was Linked to Sharply Lower Hip and Knee Surgery Rates and Cost, 31 Health Affairs 2094 (2012) (The authors concluded that “. . . our findings provide further evidence to support the view that the implementation of patient decision aids for some preference sensitive health conditions may both reduce the rates of elective surgery and lower costs in a setting that integrates health care and coverage.”).
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Chapter 14: REPRODUCTION AND BIRTH 64 results (showing 5 best matches)
- Those who opposed the ACA because it did not go far enough to limit abortion argued that the statute would provide billions of dollars of appropriations to community health centers, which were not forbidden by language in the statute from spending that money on abortions. While school-based health clinics, which were also expanded by the ACA, were explicitly forbidden from using any funding for non-Hyde-permitted abortions, the ban on community health center use of these resources depended on the Hyde Amendment language that was already present in all relevant federal appropriations. In fact, at the time of the ACA debate, all community health center appropriations were covered by the Hyde Amendment (and they remain covered in 2014), and none offered abortions, except in cases of rape or incest or where there was a risk to the life of the mother. Still, in order to head off any worry that federal funds intended for community health centers would ever be used for abortions, the...health
- Under the Affordable Care Act, most group health plans and health insurance issuers must provide preventive services to their enrollees and insured without requiring any copay, deductible, or other form of cost-sharing. In July of 2010 the Departments of Health and Human Services, Labor and Treasury (each of which had jurisdiction over some aspects of this requirement) issued an interim final rule that adopted the Health Resources and Services Administration guidelines, based on recommendations made by the independent Institute of Medicine, that such preventive services include all forms of contraception that are approved by the Food and Drug Administration (FDA). Thus, most health plans and health insurance policies would cover hormonal methods of contraception (i.e., birth control pills and post-intercourse emergency contraception like Plan B and ella), IUDs, sterilization, and patient education and counseling. Notably, neither condoms nor vasectomies must be covered because those...
- (b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
- 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). 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 liable to a child for injuries sustained when the health care provider was treating the pregnant woman. providers from doing what is necessary to preserve the life and health of the fetus if another one of the provider’s patients—the pregnant woman—objects.
- The other side of this balancing fulcrum bears the weight of the value of life and health to the fetus, modified by the chance that the proposed intervention actually will yield the life or health of the fetus after birth. While some courts view this interest as one that belongs to the fetus, others view the preservation of the life and health of the
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Chapter 11: HEALTH CARE ORGANIZATIONS: BUSINESS STRUCTURES AND TAX EXEMPTION 192 results (showing 5 best matches)
- A few cases have concerned attempts to disregard the corporate entity in the health care industry. Neither the fact that health care services are being provided nor that providers render care through complex corporate structures will by itself support piercing the corporate veil. However, where recognition of the corporate entity interferes with clearly articulated public policy, courts are more willing to find liability on the part of shareholders.
- by a health maintenance organization. In
- Thomas L. Greaney & Kathleen Boozang, Mission, Margin and Trust in the Nonprofit Health Care Enterprise, 5 Yale J. Health Pol. L & Ethics 1 (2005) (suggesting a mission primacy theory for not-for-profit health care organizations); Linda Sugin, Resisting the Corporatization of Nonprofit Governance: Transforming Obedience Into Governance, 76 Fordham L Rev. (2007).
- “A Profile of Foundations Created from Health Care Conversions”, GrantMakers in Health, (June 2009) (survey of assets resulting from conversions).
- Bradford H. Gray, Conversion of HMOs and Hospitals: What’s at Stake?, 16 Health Affairs 29 (Mar.-Apr.,1997); Mark Schlesinger, et al., Charity and Community: The Role of Nonprofit Ownership in a Managed Health Care System, 21 Health Pol. Pol’y & L. 712 (1996). , M. Gregg Bloche, Should the Government Intervene to Protect Non Profits?, 17 Health Affs. 7 (Sept.-Oct., 1998).
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Chapter 17: REGULATION OF RESEARCH UPON HUMAN SUBJECTS 21 results (showing 5 best matches)
- Cal. Health & Safety Code § 24170
- 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,
- 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.
- George Annas, Mengele’s Birthmark: The Nuremberg Code in the United States Courts, 7 J. Contemp. Health L. and Pol’y 17 (1991).
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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 74 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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Chapter 9: MEDICAID 71 results (showing 5 best matches)
- 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.
- Though one of the primary functions of Medicaid in recent years has been to provide health insurance for children, many children have remained uninsured. Even after Medicaid eligibility expansions in the late 1980s and early 1990s, over 10 million children, many of them in low-income families, were still without health insurance. In response to this continuing problem, Congress created, as part of the 1997 Balanced Budget Act, the Children’s Health Insurance Program (CHIP), title XXI of the Social Security Act.
- 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 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.
- See, on the future of Medicaid, Sara Rosenbaum, Medicaid’s Next Fifty Years: Aligning an Old Program with the New Normal, 6 St. Louis U. L.J. Health L. & Pol’y 329 (2013); Sydney Watson, Embracing Justice Roberts’ “New Medicaid,” 6 St. Louis U.J. Health L. & Pol’cy 247 (2013).
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Chapter 5: PROVIDER OBLIGATIONS TO PROVIDE TREATMENT 45 results (showing 5 best matches)
- 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.
- 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.
- Bryant v. Adventist Health System/West, 289 F.3d 1162 (9th Cir. 2002)
- The second principle, the prohibition against abandonment, emerges from the first. While there is no legal obligation to treat any individual patient, once treatment is undertaken, the professional or organization may not terminate the relationship while that patient is in need of care. This norm is enforced primarily through liability claims by injured patients against individual professionals or health care facilities. In addition, a number of states include abandonment as a specific ground for licensure sanctions against individual licensed health care professionals.
- In addition, the ADA also may increase access to health care through its prohibition against discrimination in employment, including in employer-provided health insurance. The Affordable Care Act brought entities that receive federal subsidies within the definition of federal funding for § 504, and this provision may allow claims against private insurers that receive payment in the form of federal insurance subsidies under the ACA.
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Title Page 5 results
Cover Page 1 result
HEALTH LAW 1 result
Table of Statutes 42 results (showing 5 best matches)
- Cal. Health & Safety Code § 1254.4(a) ........................................... 872, 873
- Cal. Health & Safety Code § 199.21 ........................................... 210
- Cal. Health & Safety Code § 199.21(d) ........................................... 200
- Cal. Health & Safety Code § 199.21(j) ........................................... 210
- Cal. Health & Safety Code § 199.25(c) ........................................... 210
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Summary of Contents 13 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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Chapter 15: DETERMINATION OF DEATH AND PROCUREMENT AND DISTRIBUTION OF ORGANS FOR TRANSPLANTATION 17 results (showing 5 best matches)
- 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).
- Cal. Health & Safety Code § 1254.4(a)
- Sandra Johnson et al., Legal and Institutional Policy Responses to Medical Futility, 30 J. Health & Hosp. L. 1 (1997)
- Health Law and Bioethics Cases in Context (Sandra H. Johnson et al., eds. 2009).
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Table of Contents 41 results (showing 5 best matches)
- 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
- § 3–19. Medical Progress and Other Changes in the Health Care Environment
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- 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.
