Preface 7 results (showing 5 best matches)
- The third part of the book (Chapters 10 through 13) describes the role of the law in organizing the health care enterprise. This section of the Hornbook includes a thorough analysis of the different ways in which the business of health care delivery can be organized, the potential legal relationships among different players in the health care enterprise, tax and corporate law and its consequences for the health care industry, health care fraud and the government regulation of financial relationships among providers, and the application of antitrust law to health care.
- While the perspective that we must bring to the legal analysis of health care is far broader now than it was when our first hornbook was published, the fundamental concerns on which that analysis is brought to bear are surprisingly unchanged. As was the case in 1987, we want to know what role the law might play in promoting the quality of health care, in organizing the delivery of health care, in assuring adequate control of the cost of health care, in promoting access to necessary health care, and in protecting the human rights of those who are provided care within the health care system.
- This third edition of this Hornbook marks more than a quarter of a century that the authors have worked together on academic health law materials. When these materials were first published, they helped define the scope of the newly emerging discipline of Health Law. Over the intervening years, no part of the American landscape has changed more than the American health care system. The system has been stressed by demographic changes, buffeted by the winds of political change, and utterly transformed by scientific, social and economic developments. The formal structure of the business of health care was a small part of the subject of health law when we published our first edition; it is now the subject of entire graduate programs. The for-profit commercial sector of the health care economy sounded like a lamb twenty years ago; now it roars like a lion. Until a few years ago virtually no one attained elective office because of her position on issues related to health care; now health care
- Every section of this Hornbook has been reviewed and rewritten so that the organization of the text reflects new developments in American health care. This Hornbook is divided into four major sections. While some subjects are addressed in more than one section of the Hornbook, the first four chapters generally address ways in which the law contributes to the promotion of the quality of health care. This part of the Hornbook includes thorough treatment of governmental efforts to assure the quality of health care services, including licensing and accreditation programs, as well as extensive analysis of medical malpractice law.
- The second part of the text (Chapters 5 through 9) 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 16. Making Decisions about Death and Dying Part 2 132 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].
- 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).
- 2. If a patient is diagnosed with a terminal illness or condition, the patient’s attending health care practitioner shall offer to provide the patient with information and counseling regarding palliative care and end-of-life options appropriate to the patient, including but not limited to: the range of options appropriate to the patient; the prognosis, risks and benefits of the various options; and the patient’s legal rights to comprehensive pain and symptom management at the end of life. The information and counseling may be provided orally or in writing. Where the patient lacks capacity to reasonably understand and make informed choices relating to palliative care, the attending health care practitioner shall provide information and counseling under this section to a person with authority to make health care decisions for the patient. The attending health care practitioner may arrange for information and counseling under this section to be provided by another professionally...
- See, for example, applying the old New York law, In re Westchester County Medical Center on Behalf of O’Connor, 534 N.Y.S.2d 886, 531 N.E.2d 607 (N.Y.1988), holding, “We do not mean to suggest that to be effective, a patient’s expressed desire to decline treatment must specify a precise condition and a particular treatment,” Sol Wachtler, A Judge’s Perspective: the New York Rulings, 18 Law, Medicine, & Health Care 60 (1990). (suggesting that the O’Connor opinion was largely based on the individual facts that the patient was conscious, was not terminally ill, was able to feel pain, and had a disputed prognosis; Wachtler distinguishes O’Connor from Cruzan in that O’Connor did not involve a patient in a persistent vegetative state); Stewart Pollock, Identifying Appropriate Decision-Makers and Standards for Decision, 18 Law, Medicine, & Health Care 63 (1990). The O’Connor rule was changed and substantially liberalized by the New York Legislature in 2009 in the promulgation of the...
- (c) “Palliative care” means health care treatment, including interdisciplinary end-of-life care, and consultation with patients and family members, to prevent or relieve pain and suffering and to enhance the patient’s quality of life, including hospice care under article forty of this chapter.
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Chapter 16. Making Decisions about Death and Dying 161 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...
- Third, the law is only beginning to resolve the question of whether there is an obligation on health care professionals, or on the health care system as a whole, to help competent patients who have chosen to forgo life-sustaining medical treatment, and thus to die. Must competent patients who have decided to forgo life-sustaining treatment be offered appropriate palliative care, even if the health care providers believe that the patient’s decision is inconsistent with sound medicine or sound ethics? At least in California and New York, the Right to Know End of Life Options Act and the Palliative Care Information Act would seem to indicate that the legally correct answer is “yes.”
- • 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.
- The “individual instruction” can apply to virtually any health care decision, not just the end of life decisions to which living wills are typically applicable. Further, “health care decision” is defined very broadly.
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Chapter 10. Professional Relationships in the Health Care Enterprise 131 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.
- 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.
- 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...
- N.Y. Pub. Health Law § 2801–b. Tabrizi v. Faxton-St. Luke’s Health Care, 66 A.D.3d 1421, 886 N.Y.S.2d 312 (App. Div. 2009). Compare to the HCQIA standards for immunity.
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Chapter 4. Liability and Quality Improvement of Health Care Institutions Part 3 169 results (showing 5 best matches)
- Federal laws and regulations govern the protection of electronic health records (EHRs). HIPAA was enacted, effective in 2003, and amended in 2009 by the American Recovery and Reinvestment Act of 2009, and again in 2013. The Medical Privacy rules, a central feature of HIPAA, have three major purposes: (1) To protect and enhance the rights of consumers by providing them access to their health information and controlling the inappropriate use of that information; (2) to improve the quality of health care in the U.S. by restoring trust in the health care system among consumers, health care professionals, and the multitude of organizations and individuals committed to the delivery of care; and (3) to improve the efficiency and effectiveness of health care delivery by creating a national framework for health privacy protection that builds on efforts by states, health systems, individual organizations, and individuals. ...recent passage of the Health Information Technology for Economic and...
- Protected health information encompasses individual identifiable health information maintained or transmitted by covered entities and their business associates that is in or has been in electronic form. The rule applies to the information, not particular records. Protected information is defined to mean individually identifiable health information The goal of protection is “to define and limit the circumstances in which an individual’s protected health information may be used or disclosed by others … to make the use and exchange of protected health information relatively easy for health care purposes, and more difficult for purposes other than health care.” are defined as “the transmission of information between two parties to carry out financial or administrative activities related to health care,” and include health care claims or equivalent encounter information, health care payment and remittance advice, coordination of benefits, health care claim status, enrollment and...
- Health care quality was originally protected at the turn of the century by two blunt regulatory tools: professional licensure and medical malpractice law, both state driven systems. By the 1980s, the focus moved from regulation of minimal physician skills and hospital competence to systemic dimensions of quality. The tools of medical audits and systematic quality assessment began to develop. Donabedian’s work on evaluation of quality by assessing health care institutional structures, processes, and outcomes provided the analytic framework for more sophisticated measuring tools. The growth of evidence-based medicine, grounded in clinical research, was the next step in patient safety. Guidelines began to be developed to guide clinical practice and promote better assessment of health care quality.
- They work with clinicians and health care organizations to identify, analyze, and reduce the risks and hazards associated with patient care. Entities that are eligible to become PSOs may be public or private organizations, for-profit or not-for-profit organizations, or even health care providers, such as hospital chains. PSOs will be responsible for compiling and analyzing error information provided by health care providers. With this information, PSOs will, in turn, be able to make recommendations to providers on how to avoid errors in health care practice. These networks, also created by the Patient Safety Act, will work to analyze error trends on both a national and regional level, recommending strategies for the U.S. health care system as a whole. This is not a regulatory strategy aimed at providers directly, but rather more of a public health data accumulation to be used later by policymakers.
- “Managed care” describes organizational groupings that attempt to control the utilization of health care services through a variety of techniques—limiting enrollees to contracted provider networks, reviewing the utilization of various services, or using incentives such as per capita payments to encourage providers to limit the provision of services. The groups cover a wide variety of plans—from plans that require little more than preauthorization of patient hospitalization, to staff model HMOs—that focus on utilization and price of services. The goal is reduction of health care costs and maximization of value to both patient and payer. A Managed Care Organization (MCO) is a reimbursement framework combined with a health care delivery system, an approach to the delivery of health care services that contrasts with “fee-for-service” medicine. Managed care is usually distinguished from traditional indemnity plans by the existence of a single entity responsible for integrating and...
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Chapter 3. The Liability of Health Care Professionals 172 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).
- 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.
- D.C. Code § 2–1345. For a discussion and critique of this act, see generally Bridget A. Burke, Using Good Samaritan Acts to Provide Access to Health Care for the Poor: A Modest Proposal, 1 Annals of Health Law 139 (1992).
- the work of John Wennberg for elaboration of practice variation. He first discussed the concept of variation in health care delivery between regions in John Wennberg and A. Gittlesohn, Small Area Variations in Health Care Delivery 182 Science 1102 (1973). “The Paradox of Appropriate Care,” 258 JAMA 2568 (1987). For a review of the literature, including Wennberg’s work, up to 1987, see Pamela Paul-Shaheen, Jane Deane Clark, and Daniel Williams, “Small Area Analysis: A Review and Analysis of the North American Literature,” 12 J. Health Politics, Policy and Law 741 (1987) (very extensive bibliography).
- Most health care providers buy insurance to protect themselves from medical malpractice claims. Medical malpractice insurance is sold by several types of insurers—commercial insurance companies, health care provider owned companies, and joint underwriting associations. Many large hospitals self-insure for medical malpractice losses rather than purchasing insurance, and a few physicians practice without insurance.
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Chapter 3. The Liability of Health Care Professionals Part 2 128 results (showing 5 best matches)
- 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.
- Second, best practices will be researched and disseminated. Section 10303 inserts a new Subpart II—Health Care Quality Improvement Programs. It mandates the Director to “identify, develop, evaluate, disseminate, and provide training in innovative methodologies and strategies for quality improvement practices in the delivery of health care services that represent best practices in health care quality, safety, and value” in collaboration with other Federal agencies.
- Some physicians—such as obstetricians and emergency physicians—have curtailed their services in response to liability insurance concerns. Indigent patients create a special problem, since these patients create a liability risk, yet physicians cannot recover their liability insurance costs because there is no compensation for their services. They cannot also ask the patients to waive their common law rights to sue for negligence, following cases like State legislatures, often as part of malpractice reform packages, have responded to this dilemma by providing immunity from tort liability for certain categories of physician services. In particular, physicians or other health professionals who provide free health care services have been granted tort immunity if they provided uncompensated care, unless the care was grossly negligent.
- 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.
- Such an internet comparison site assumes that consumers will access the site and use it to make choices among providers. Section 10331 goes one step further by providing financial incentives to patients to choose high quality providers. Subsection (h) provides that the Secretary may establish a demonstration program, not later than January 1, 2019, to provide financial incentives to Medicare beneficiaries who are furnished services by high quality physicians, as determined by the Secretary based on factors in subparagraphs (A) through (G) of subsection (a)(2). These provisions of the ACA reinforce a consumerist movement in health, giving patients information about health care risks and costs to maximize their choice. Kristen Madison defines consumerism as “individual choice within a health care marketplace characterized by the exchange of money for health care good or services.” ...patients have the ability to be active consumers. Critics note that most patients engage the health...care
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Chapter 1. Licensure and Discipline of Health Care Professionals 147 results (showing 5 best matches)
- 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 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.
- 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.
- 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.
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Chapter 11. Health Care Organizations: Business Structures and Tax Exemption Part 2 203 results (showing 5 best matches)
- University Affiliated Health Care, Inc. IRS Exemption Ruling, 1995 WL 79630 (I.R.S.); see Thomas K. Hyatt and Bruce R. Hopkins, The Law of Tax Exempt Health-Care Organizations § 23.2(b) (2001).
- Nonprofit Conversions: Charity Care Declined at Calif. Hospitals Following Conversion to For-profit Status 7 Health Care Policy Rept. (May 1999) (hospital charity care declined at California nonprofit hospitals that converted to for-profit corporations). , John Copeland, Nonprofit Versus For-Profit Hospitals, 18 Exempt Org. Tax Rev. 35 (1997) (comparing for profit and nonprofit hospitals based on net effect on taxes forgiven or paid; hospital costs; and community benefits); Gary J. Young et al., Does the Sale of Nonprofit Hospitals Threaten Health Care for the Poor, Health Aff., Jan–Feb 1997, at 137 (examining effects of acquisitions on the provision of uncompensated care).
- Craig A. Conway, Accountable Care Organizations Versus Texas’ Corporate Practice of Medicine Doctrine, Health Law Perspectives (Oct. 2010) available at https://www.law.uh.edu/healthlaw/perspectives/2010/(CC)%20ACO.pdf.
- , Evelyn Brody, Of Sovereignty and Subsidy: Conceptualizing the Charity Tax Exemption, 23 J. Corp. L. 585 (1998); Gloria J. Bazzoli et al., Community Benefit Activities of Private, Nonprofit Hospitals 35 J. Health Pol. Pol’y and L. 999 (2010); Jill R. Horwitz, Why We Need the Independent Sector The Behavior, Law, and Ethics of Not-for-Profit Hospitals, 50 UCLA L. Rev. 1345 (2003); For a comparison on pricing behavior between for-profit and nonprofit hospitals see Dep’t of Justice & the Fed. Trade Comm’n, Improving Health Care: A Dose of Competition 31 (2004); Thomas L. Greaney, The Role of Tax Exemption in a Competitive Health Care Market, 31 J. Health Pol. Pol’y & L. 623 (2006).
- 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).
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Chapter 4. Liability and Quality Improvement of Health Care Institutions 200 results (showing 5 best matches)
- http://www.hhs.gov/ocr/privacy/hipaa/understanding/summary/privacysummary.pdf. Ariele Yaffee, Financing the Pulp to Digital Phenomenon, 7 J. Health & Biomed L. 325, 340–41 (2011). “Health plan” is defined in § 1171 as “an individual plan or group health plan that provides, or pays the cost of, medical care.” This includes group health plans, health insurance issuers, health maintenance organizations, Part A or B of the Medicare program, Medicaid, Medicare supplemental policies, long-term care policies, employer welfare benefit plans, health care programs for active military personnel, veterans health care programs, CHAMPUS, the Indian Health Service program, Federal Employees Health Insurance Benefits Program, state child health plans, Medicare Plus Choice organization, and any other individual plan or group health plan that provides or pays for the cost of health care.
- 45 C.F.R. § 164.512. National priority items include: oversight of the health care system; public health functions; research; judicial and administrative proceedings; law enforcement; emergency circumstances; information to next-of-kin; identification of a deceased person; government health data systems; facility patient directories; banks to process health care payments and premiums; management of active duty military and other special classes; other laws that mandate disclosure.
- Individually identifiable health information is defined by 45 C.F.R. § 160.103 as “information that is a subset of health information, including demographic information collected from an individual, and (1) is created or received by a health care provider, health plan, employer, or health care clearinghouse; and (2) relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual; and (i) That identifies the individual; or (ii) With respect to which there is a reasonable basis to believe the information can be used to identify the individual.”
- Troyen A. Brennan and Donald M. Berwick, New Rules: Regulation, Markets and the Quality of American Health Care (1996); Donald M. Berwick, et al., Curing Health Care: New Strategies for Quality Improvement (1990); Gerald Hickson, et al., Development of an Early Identification and Response Model of Malpractice Prevention, 1997 L. & Contemp. Probs. 7; Timothy Stoltzfus Jost, Oversight of the Quality of Medical Care: Regulation, Management, or the Market? 37 Ariz.L.Rev. 825 (1995); Donald M. Berwick, Continuous Improvement as an Ideal in Health Care, 320 New Eng. J. Med. 53 (1989); Donna D. Fraiche, Implementing Total Quality Management: The Role of the Medical Staff, Med. Staff. Couns. Summer 1993 at 51; Kristin Madison, The Law and Policy of Health Care Quality Reporting, 31 Campbell L. Rev. 215 (2009).
- Kristin Madison, Donabedian’s Legacy: The Future of Health Care Quality Law and Policy, 10 Ind. Health L. Rev. 325, 326 (2013).
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Chapter 7. Health Insurance Regulation Under the Affordable Care Act 181 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.
- 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. The HHS regulation implementing this section interprets it to mean that plans must pay out-of-network emergency care providers the greater of the amount they pay in-network providers, out-of-network emergency care providers without regard to out-of-network cost sharing, or the Medicare rate. 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...
- By any measure, Americans—through government, employers, and out of our pocket expenditures—also spend a great deal on health care. In 2012, the most recent year for which data were available as of this writing, Americans spent $2.8 trillion on health care. That is 17.2 percent of the gross national product and $8 915 for every man, woman, and child. Americans spend more on health care than on anything else. In 2012, Americans spent $1.848 trillion on personal medical care compared to $1.720 trillion on housing, $863 billion on groceries, and $402 billion on motor vehicles. They also spend more on health care than anyone else. In 2011, the United States spent (according to OECD data) 17.7 percent of its GDP on health care, $8,508 per capita. The United Kingdom spent 9.4 percent of its GDP, $3,405 per capita, while Canada spent 11.2 percent of its GDP, $4,522 per capita, on health care. Health care cost growth has slowed dramatically in very recent years, with growth below 4 percent...
- 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.
- Section 2705, however, contains a general exception, allowing plans to permit premium discounts or rebates, or reduced cost sharing, for participation in “Programs of Health Promotion or Disease Prevention,” also called “wellness programs.” Wellness programs are touted as improving the health of individuals who participate in them while saving employers money. They are very popular with those who believe that ill health (and accompanying health care costs) is largely the fault of individuals with poor health habits and that individuals who do not take care of themselves should bear their own health care costs rather than be allowed to impose them on society.
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Title Page 6 results (showing 5 best matches)
- Professor Emerita of Law and Health Care Ethics Center for Health Law Studies Saint Louis University School of Law
- Professor of Law and Director, Health Law Program Drexel University Thomas R. Kline School of Law
- Chester A. Myers Professor of Law and Co-Director, Center for Health Law Studies Saint Louis University School of Law
- HEALTH LAW
- University of California Hastings College of the LawWeihofen Professor of Law Emeritus University of New Mexico School of Law
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Chapter 11. Health Care Organizations: Business Structures and Tax Exemption 148 results (showing 5 best matches)
- This chapter deals with the variety of organizational forms that health care enterprises may adopt. Each kind of business association carries with it a distinct body of law that affects such important aspects of the enterprise as liability, dissolution, governance, and authority to bind the organization. In addition, the business form adopted may materially assist the enterprise in complying with other bodies of law affecting health care providers, such as fraud and abuse, tax exemption, certificate of need, antitrust, and professional licensing laws. Health care providers and payers engage in a wide variety of joint ventures—cooperative arrangements typically designed to promote integration of services and payment—that are typically contractual in nature. Finally the chapter discusses the tax treatment of exempt organizations, which comprise a large proportion of the hospital sector and are also frequently found in other provider and payor organizations.
- Although Section § 501(c)(3) includes exemptions for religious or educational purposes, almost all health care organizations seek exemption under the “charitable purposes” provision of the law. The standards for the satisfaction of this requirement have evolved over time. Standing alone, the promotion of health does not satisfy the requirements of charitable purpose for federal tax exemption. Unfortunately, the federal tax authorities have not been clear or consistent in explaining when provisions of health care services are charitable. As a practical matter, few hospitals have failed to satisfy the flexible—some say overly flexible—standard that has significantly evolved over time. However, both the Internal Revenue Service and courts, especially in recent years, have been far less lenient with other kinds of health care entities.
- 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.
- Tax exemption, whether viewed as a “public subsidy” to the exempt organization or “tax expenditure” by the government, represents significant foregone revenue to government entities. Consequently, the role of exempt organizations in health care has been the subject of extensive debate for many years. In 2006, the Joint Committee on Taxation examined hospitals’ tax-exempt status in terms of federal, state, and local tax revenues foregone and estimated the value of the various tax exemptions to be $12.6 billion. The view of tax exemption as subsidy or expenditure raises two questions: Does the benefit to the public of tax exemption offset the loss of revenue? Is the exemption fair to the exempt organization’s competitors? Whether the amount of charity care provided by tax-exempt hospitals justifies the benefit of the tax exemption has long been hotly disputed. Studies comparing the value of tax exemptions for hospitals to the amount of charity care (measured in terms of costs, not...care
- The corporation has emerged, principally during the last century, as the dominant form of business organization in the United States. The reasons for the enormous popularity of the corporate form are found in four fundamental characteristics the law imbues upon these artificial entities: limited liability, continuity of existence, transferability of ownership, centralized management, and separate legal existence. For the most part, for profit health care corporations are subject to the same legal standards under corporate, securities, antitrust law as other commercial enterprises. However in a few instances, discussed below, the interpretation of those standards recognizes some of the special features of health care payment and delivery.
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Chapter 13. Antitrust Law Part 2 78 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....
- 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.
- Another difference between health care markets and neoclassical assumptions is the fact that services are highly heterogeneous. Quality may vary considerably, depending upon the providers’ talents, training, personal attributes (e.g. “caring,” and interpersonal skills) and other factors. Other variables such as geographic location and variations between outcomes among providers underscore the heterogeneity of health care services markets. As is increasingly recognized, the existence of product differentiation may significantly affect evaluations of market power and potential anticompetitive conduct. Next, in contrast to the neoclassical assumption that barriers to entry do not exist, potential sellers of health services are subject to impediments to entry and mobility especially in the form of governmental and private licensure and practice requirements. Finally, an emerging literature applying behavioral economics to antitrust law may have particular relevance in health care markets.
- 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.
- 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.
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Chapter 12. Medicare and Medicaid Fraud and Abuse 114 results (showing 5 best matches)
- This body of law has had a profound impact on the health care industry and on relationships among providers. Aggressive enforcement of the false claims prohibitions is considered to have played a role in reducing Medicare cost increases, which had been driven in part in the past by “creative” billing practices. The bribe and kickback prohibition, and accompanying legislation limiting self-referrals, discourages doctors from acquiring interests in other health care providers while encouraging them to form group practices, to become employees of health care entities, or to become part of risk-sharing organizations or arrangements. This legal regime may have the ultimate effect of creating a better organized, more competitive health care industry. But, if left unchecked, it might lead to excessive concentration in provider markets. ...laws are also intended to discourage provider-induced demand, though they might in many instances simply make it more profitable for a physician to...
- 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.
- 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.
- 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. Some of these prohibitions address conduct easily recognizable as lying 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...
- Over the years the OIG has aggressively enforced the fraud and abuse laws with strong bi-partisan congressional support. The Department of Justice (DOJ) has authority to enforce the criminal fraud and abuse laws and the civil False Claims Act, violations of which are investigated by the Federal Bureau of Investigation (FBI). Funding for the fraud and abuse enforcement efforts of the OIG, DOJ, FBI, and Health Care Financing Administration (HCFA) was dramatically increased by the Health Insurance Portability and Accountability Act of 1996 (HIPAA), which established a generously funded Health Care Fraud and Abuse Control Account, all 50 states and the District of Columbia have established Medicaid fraud control units (all but seven within the Attorney General’s office) and passed laws prohibiting Medicaid fraud.Care Act which boosted funding and spurred the creation of collaborative efforts by the DOJ and HHS now known as regional Medicare Fraud Strike Forces and the Health Care Fraud...
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Chapter 6. Regulation of Private Health Care Financing 244 results (showing 5 best matches)
- The final issue addressed by state managed care statutes is the quality of care provided by MCOs. One of the aspirations of managed care has always been to manage care to improve quality. The term “health maintenance organization” evidences a commitment to maintaining health, not simply to providing medical services, and MCO marketing materials often talk about coordination or integration of care.
- National Conference of State Legislatures (NCSL), Managed Care State Laws and Regulations (May 2010), http://www.ncsl.org/issues-research/health/managed-care-state-laws.aspx.
- 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.
- , on the resolution of grievances, appeals, and other disputes in managed care, Marc Rodwin, New Standards for Medical Review Organizations: Holding Them and Health Plans Accountable For Their Decisions, 30 Health Aff. 519 (2011); Nan D. Hunter, Managed Process, Due Care: Structures of Accountability in Health Care, 6 Yale J. Health Pol’y, L. & Ethics 93 (2006); Carole Roan Gresenz & David M. Studdert, External Review of Coverage Denials by Managed Care Organizations in California, 2(3) J. Empirical Legal Stud. 449 (2005); Eleanor D. Kinney, Protecting American Health Care Consumers (2002); Gerard F. Anderson & Mark A. Hall, The Management of Conflict Over Health Insurance Coverage, The Privatization of Health Care Reform (M. Gregg Bloche, ed., 2003).
- At the same time, health insurance has become managed care. Until the 1980s, commercial health insurance largely provided indemnity coverage. Persons who received health care services paid for the service and then collected a fixed amount from the insurer for the service. In the 1980s and early 1990s, health insurance became managed care. The defining characteristics of managed care are that the insurer attempts to manage the cost, and sometimes the quality, of health care services provided to enrollees. The three primary strategies insurers use to this end are: 1) forming networks of providers that accept discounted payments and agree to comply with requirements imposed by the insurer; 2) reviewing services provided members prospectively or concurrently through utilization review and care management programs to limit payment for unnecessary or inappropriate care; and 3) using payment methods other than fee-for-service to incentivize providers to deliver care more cost-consciously.
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Chapter 12. Medicare and Medicaid Fraud and Abuse Part 2 85 results (showing 5 best matches)
- Thomas E. Bartrum & L. Edward Bryant, Jr., The Brave New World of Health Care Compliance Programs, 6 Annals of Health Law 51, 57–61 (1997); Adam G. Snyder, The False Claims Act Applied to Health Care Institutions: Gearing Up for Corporate Compliance, 1 DePaul J. Health L. 1 (1998) (explaining the effect of a compliance program under the guidelines).
- 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).
- Gabriel L. Imperato, 1992–1993 Developments in Health Care Fraud and Abuse, in 1993 Health Law Handbook, 147, 168–79 (Alice G. Gosfield, ed. 1993) (discussing this safe harbor).
- Fraud and Abuse: Health Care Enforcement Efforts Moving in New Direction, Sheehan Says, BNA Health Care Daily, July 1, 1998; Sharon L. Davies and Timothy Stoltzfus Jost, Managed Care: Placebo or Wonder Drug for Health Care Fraud and Abuse, 31 Ga. L. Rev. 373 (1997).
- 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.
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Chapter 14. Reproduction and Birth 96 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...
- 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.
- Given the role of abortion in political issues ranging from the selection of the judiciary to foreign aid to the funding of local libraries and school curriculum, it is not surprising that abortion was a high profile issue in the debate over the restructuring of health care in the United States. While some opposed the Affordable Care Act (ACA) (conservatives are more likely to oppose both abortion and an increased role for government in the health care system), abortion opponents are reluctant to claim this victory on abortion amidst their defeat with regard to restructuring American health care. In addition, opponents of abortion organizations failed in their effort to kill the exceptions in the Hyde Amendment that have long allowed abortions to be performed where the life of the mother is at risk or where the pregnancy is the result of rape or incest.
- The Affordable Care Act authorized the federal government to make exceptions for “religious employers” who objected to providing contraception. Those employers included churches, associations of churches and auxiliaries. In addition, the Department of Health and Human Services has exempted other nonprofit religious organizations (church related groups like religious schools and hospitals) who object to providing contraception from the contraceptive mandate, but only when such organizations formally certify to the Department of Health and Human Services that that meets all of the exemption requirements. The group health provider for such a nonprofit religious organization—not the employer organization itself—is then required to separately offer the contraceptive coverage that is otherwise required by the Affordable Care Act without sharing the cost or the administrative burden with the employer. ...Health and Human Services argues that this protects religious organizations, which no...
- This executive order did not satisfy those who opposed health care reform in any case, who argued that it could be withdrawn by the President later, overturned by Congress or found to be beyond the authority of the President acting through the mechanism of an executive order. It was all the supporters could offer, though, and those who supported health care reform but opposed abortion were sufficiently satisfied by the executive order. Armed with the President’s promise to remain true to this executive order, they supported the ACA, which consequently passed. The promulgation of the ACA has given rise to some state legislation forbidding policies that cover abortion services from being offered through the state’s exchanges (indeed, some state legislatures began considering such proposals even before ACA was signed), and there remains a national legislative efforts to get a general, permanent Hyde Amendment to cover all federal funding. In fact, though, that is mostly a matter of...
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Chapter 2. Quality-Control Regulation of Health Care Facilities 108 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
- 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.
- John V. Jacobi, Competition Law’s Role in Health Care Quality, 11 Ann. Health L. 45 (2002).
- , Louise G. Trubek, New Governance and Soft Law in Health Care Reform, 3 Ind. Health L. Rev. 139 (2006).
- , Sandra H. Johnson, State Regulation of Long-Term Care: A Decade of Experience with Intermediate Sanctions, 12 Law, Medicine & Health Care 175–177 (1985).
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Chapter 8. Medicare 115 results (showing 5 best matches)
- 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.
- 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.
- Unlike virtually every other industrialized nation, the United States has not developed a program for making health care available to all of its citizens. Rather, it has depended largely on employment-related group health insurance for financing health care, supplemented by individual insurance policies for those who can afford them and a variety of federal, state and local programs aimed at specific populations. The 2010 Affordable Care Act expanded coverage through advance premium tax credits that will help lower- and middle-income Americans purchase health insurance. and, as of this writing, many states are declining the opportunity to expand Medicaid. Even after the Affordable Care Act is fully implemented, millions of Americans will remain uninsured.
- With a few exceptions Medicare’s fee-for-service payment system reimburses providers one at a time for individual items or services provided to patients even when those services are provided for a single acute episode. With many Medicare beneficiaries having complex health conditions and multiple comorbidities, most observers agree this system has significant cost and quality implications: it provides no incentives for coordination of care and it tolerates duplicative and costly provision of services. Following the recommendation of MedPAC and others, the ACA requires the Secretary of HHS to establish, test, and evaluate a five-year pilot program “for integrated care during an episode of care … around a hospitalization in order to improve the coordination, quality, and efficiency of health care services.” three-year program that allows such payments to be made to physicians, hospitals and post-acute care providers. Under bundled payment, a single payment is made for an “episode of
- 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.
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Chapter 13. Antitrust Law 203 results (showing 5 best matches)
- Thomas L. Greaney, Quality of Care and Market Failure Defenses in Antitrust Health Care Litigation, 21 Conn. L. Rev. 605, 616–618 (1989); Thomas E. Kauper, The Role of Quality of Health Care Considerations in Antitrust Analysis, 51 Law & Contemp. Probs. 273, 281–92 (1988).
- , Kenneth J. Arrow, Uncertainty and the Welfare Economics of Medical Care, 53 Am. Econ. Rev. 941 (1963); Paul Starr, The Social Transformation of American Medicine (1982); Eliot Freidson, The Centrality of Professionalism to Health Care, 30 Jurimetrics 431 (1990); Clark C. Havighurst, The Changing Locus of Decision Making in the Health Care Sector, 11 J. Health Pol., Pol’y & Law 697 (1986).
- 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.
- Mark J. Horoschak, Antitrust Perspectives on Joint Ventures Among Health Care providers, 6 Antitrust Health Care Chronicle 2 (1992).
- 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).
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Chapter 13. Antitrust Law Part 3 113 results (showing 5 best matches)
- Close antitrust scrutiny of mergers of health care institutions, particularly acute care hospitals, began in the mid-1980’s. The Federal Trade Commission took the lead, successfully challenging two horizontal mergers involving acute care hospitals. and managed care companies. Perhaps more than any other area of antitrust law, merger enforcement plays an important role on the structure—and costs—of the nation’s health care delivery system. In the view of some, a period of laxity in antitrust merger enforcement in the hospital sector enabled excessive consolidation in the 1990s and early 2000s, giving rise to formation of highly concentrated markets, which in turn has proved to be a major driver of health care cost escalation.
- Another claim leveled against dominant health insurers is that they may use their market power to disadvantage rivals by offering a combined or “bundled” price for separate services that is lower than the price for the services purchased separately. In the leading health care case,
- Antitrust analysis has focused considerable attention on a variety of contractual arrangements among physicians and between physicians and hospitals that may enhance their market power vis-á-vis third party payers. The catch-all term “joint venture” is commonly used to describe the broad range of collaborative agreements among otherwise independent entities. For the most part these arrangements are designed to increase efficiencies, improve care and reduce wasteful fragmentation that pervades American health care. Strong financial incentives under the Affordable Care Act to integrate the delivery of health care services and the Medicare payment reforms in the law has led to a surge in the development of a wide variety of joint ventures. Thus since 2010 vertical and horizontal combinations among providers have become commonplace with the formation of accountable care organizations, patient-centered medical homes, physician hospital organizations and other forms of contractual...
- The Health Care Quality Improvement Act of 1986 (HCQIA) is a Congressional response to several problems associated with peer review. It seeks to address the malpractice problem by encouraging professional reviews of the quality of care in hospitals and other settings; it attempts to reverse the medical community’s growing reluctance to participate in professional peer review by granting immunity from private antitrust actions and other federal and state laws; and it seeks to improve the flow of information about quality of care by requiring reporting of disciplinary actions to state medical boards and by establishing a National Practitioner Data Bank.
- In the past, state and federal regulation encouraged hospitals to undertake cooperative “planning” activities and even agreements allocating markets. However, laws establishing such regulations have not immunized cooperative actions from application of the federal antitrust laws. and some states have adopted health care reforms that explicitly encourage hospital cooperation to avoid duplication of services.
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Index 194 results (showing 5 best matches)
- 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 Abandonment; Access to Health Care; Affordable Care Act; Americans with Disabilities Act (ADA); Emergency Medical Treatment and Labor Act (EMTALA); Managed Care; Medicaid; Medicare; Nonprofit Form; Professional Licensure and Discipline; Rehabilitation Act; Title VI
- See also Affordable Care Act; Health Maintenance Organizations (HMOs); Health Reform; Preferred Provider Organizations (PPOs); Utilization Review
- See also End of Life Health Care Decision Making Affordable Care Act
- ACCESS TO HEALTH CARE
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Chapter 4. Liability and Quality Improvement of Health Care Institutions Part 2 102 results (showing 5 best matches)
- The Affordable Care Act has created pressure on hospitals to coordinate care and move patients safely from acute care situations to other institutions—assisted living, long term care, or home. Hospitals have also been acquiring physician practices in response to the incentives of the Affordable Care Act and the pressures for a better coordinated health care system.
- Health care delivery also includes institutional forms such as managed care organizations that finance health care and contract with physicians and hospitals to provide care, as well as ambulatory care facilities such as surgicenters and physician offices. As more and more medicine is moved out of the hospital into less expensive settings, the liability of these institutional arrangements emerges as a new concern. Most caselaw has originated with hospitals as the predominant form of delivery of high technology, high-risk care—where the most severe patient harms can occur—and lawyers and courts are now adapting to changes in the delivery system.
- This notion of “inherent function” overlaps substantially with the “nondelegable duty” rule in agency law, as expressed in corporate negligence cases. Where a function is considered to be an inherent part of the functioning of the health care institution, the courts have held that the institution cannot escape liability because of the status of the physician. The courts applying the inherent function test have considered the expectations created by health care institutions in the public at large, through marketing and other forms of advertising to create good will; the hospital’s necessary reliance on specialty physicians to be successful and provide quality care; the control exercised by the hospitals over these so-called independent contractors; and the lack of choice by patients as to radiologists, emergency room physicians, and other physicians encountered in the health care setting.
- The doctrine of strict liability has rarely been applied to health care services. The courts have viewed health care, whether provided by a physician or a hospital, as essentially the sale of a service in which the products are merely ancillary, and therefore inappropriate for the application of strict liability. Courts have also been troubled by expanding the liability of health care providers, considering (1) the experimental nature of much medical treatment; (2) factors beyond the control of the physician; and (3) lack
- The hospital is the classic health care “institution.” The U.S. has over 5,700 hospitals—almost 3,000 are nonprofit, 1,000 for-profit, and 1,200 are local, state and federal government owned. The remainder are psychiatric and long term care hospitals. Hospitals are major providers of emergency care and highly complicated surgical and other procedures. They are therefore the largest sources of patient harms in the U.S. system. Hospitals provide acute care in severe health crises and, given the possibility of errors and serious adverse events, we also think of institutional liability for those injuries.
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Chapter 9. Medicaid 140 results (showing 5 best matches)
- 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. State must also provide transportation to and from medically necessary care. 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.”
- , Kansas Health Care Ass’n v. Kansas Dept. of Social & Rehabilitation Servs., 822 F.Supp. 687 (D.Kan.1993) (where court ordered state to revise its nursing home rates using a designated nursing home inflation index pending revision of the rate to comply with federal law).
- , Freeman v. State Dep’t Soc & Health Serv’s, 295 P.3d 294 (Wash. App. 2013) (general supervisory personal care services not covered) Conley v. Department Health, 287 P.3d 452 (Ut.App.2013) (speech augmentation communication device covered).
- ACA § 2101(b). See, examining the role of CHIP at the boundary of social class, Janet L. Dolgin, Class Competition and American Health Care: Debating the State Children’s Health Insurance Program, 70 La. L. Rev. 683 (2010).
- Medicaid is a cooperative federal and state program (or rather fifty-six separate federal and state or territorial programs) that finances health care for the poor. The program is established by title XIX of the Social Security Act. The Medicaid program has come to serve at least four different functions. First, Medicaid began as, and still remains to some extent, a program to finance health care for the “worthy poor” who receive cash assistance through the federal Supplemental Security Income Program or who would have been eligible to receive the federally assisted Aid to Families with Dependent Children program before it was abolished in 1996. ..., who have minimal income and assets, are aged, blind, or disabled; or dependent children and their parents fall into this category. The link between Medicaid and cash assistance has grown steadily more tenuous in recent years, as Medicaid has moved on to other purposes, and with the Affordable Care Act (ACA) been almost entirely severed...
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Chapter 5. Provider Obligations to Provide Treatment 77 results (showing 5 best matches)
- For comparison to a common law corporate negligence claim against a hospital relating to adequacy of examination for emergency care, see Studt v. Sherman Health Systems, 951 N.E.2d 1131 (Ill. 2011).
- 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 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.
- , Colwell v. Department of Health and Human Services, 558 F.3d 1112 (9th Cir. 2009), detailing history of federal initiatives concerning translation services in health care.
- 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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Table of Contents 113 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 8. Medicare Part 2 47 results (showing 5 best matches)
- Many sources have addressed the ACO concept and regulations with widely varying predictions about its impact on the American health care system. , Ezekiel J. Emanuel & Jeffrey B. Liebman, The End of Health Insurance Companies, N.Y. TIMES OPINION PAGES (Jan. 30, 2012, 9:00 PM), http://opinionator.blogs.nytimes.com/2012/01/30/the-end-of-health-insurance-companies/ (predicting that “by 2020, the American health insurance will be extinct” because ACOs will replace private health insurance companies); Stephen M. Shortell et al., The Center For Medicare And Medicaid Innovation Should Test Accountable Care Organizations, 29 Health Aff. 1293, 1294 (2010); Jeff Goldsmith, Accountable Care Organizations: The Case for Flexible Partnerships between Health Plans and Providers, 30 Health Aff. 32 (2011)(predicting MSSP program will be unsuccessful because of hospital dominance, weak incentives for providers to change behavior, lack of patient involvement, and other factors); Trent T. Haywood et...
- Lawrence P. Casalino and Arthur Elster, Will Pay-for-Performance And Quality Reporting Affect Health Care Disparities? Health Aff. Web Excl., April 10, 2007.
- MedPAC, Improving Incentives in the Medicare Program 40–58 (June 2009); Elliott S. Fisher et al., Fostering Accountable Health Care: Moving Forward in Medicare, 28 Health Aff. w.219 (2009).
- The Patient Protection and Affordable Care Act (ACA), Pub. L. No. 111–148, 124 Stat. 119 (2010); The Health Care and Education Reconciliation Act (HCERA), Pub. L. No. 111–152, 124 Stat. 1029 (2010).
- CMS, Press Release: Affordable Care Act Gives Providers New Options to Better Coordinate Health Care (May 17, 2011).
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Table of Cases Part 2 118 results (showing 5 best matches)
- Madsen v. Audrain Health Care ….. 507, 520
- Marmet Health Care Center, Inc. v. Brown …………………………………………….. 47
- Mississippi Care Center v. U.S. Dep’t of Health & Human Services ………………… 60
- NLRB v. Health Care & Retirement Corp. of America ……………………………………… 526
- Ollman v. Wisconsin Health Care Liability Ins………………………………………………….. 94
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Chapter 17. Regulation of Research Upon Human Subjects 38 results (showing 5 best matches)
- , Ruth Faden et al., An Ethics Framework for a Learning Health Care System: A Departure from Traditional Research Ethics and Clinical Ethics, 43 Hastings Ctr. Rept. S16 (2013).
- 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.
- International research in developing countries presents several distinctive ethical challenges. For example, the lack of even the most basic medical care in some countries contributes to the prevalence of treatable but untreated diseases allowing testing on large numbers of “naïve” subjects (i.e., persons who are not taking any medications that might confound test results) and on more advanced stages of a disease than occur in the presence of basic health care. Furthermore, without particular third-party effort, the
- , Cal. Health & Safety Code § 24170 et seq.; Md. Code Health-General § 13–2001.
- Robin Fretwell Wilson, Estate of Gelsinger v. Trustees of University of Pennsylvania: Money, Prestige, and Conflicts of Interest in Human Subject Research in Health Law & Bioethics: Cases in Context (Sandra H. Johnson et al., eds., 2009), for an in-depth description of the case.
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Summary of Contents 22 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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Table of Cases 145 results (showing 5 best matches)
- Abraham v. Intermountain Health Care Inc………………………………………………… 774
- Adams House Health Care v. Bowen ….. 452
- Advanced Health-Care Servs., Inc. v. Radford Community Hosp……….. 725, 781
- Affiliated Prof’l Home Health Care Agency v. Shalala ………………………………………. 454
- Alves v. Harvard Pilgrim Health Care, Inc………………………………………………… 347
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Chapter 15. Determination of Death and Procurement and Distribution of Organs for Transplantation 39 results (showing 5 best matches)
- Health Law and Bioethics Cases in Context (Sandra H. Johnson et al., eds. 2009).
- , Noel Barshes et al., Justice, Administrative Law, and the Transplant Clinician: The Ethical and Legislative Basis of a National Policy on Donor Liver Allocation, 23 J. Contemp. Health L. & Pol’y 200 (2007).
- References are frequently made about individuals being “kept alive” with cardiopulmonary and other support even though there is no brain function. In addition, a persistent discomfort with ambiguities in the determination of death, especially in the context of organ transplantation, is being articulated among some health care professionals.
- Individual doctors and hospitals decide who gets on the national transplant registry and when. There is significant concern that the use of psychosocial and behavioral factors used by health care professionals in deciding whether a specific patient is placed on the wait list are subject to deep inconsistencies and biases. In particular, stereotypes around psychosocial and behavioral factors that are generally considered relevant to potential success or failure of transplantation, such as compliance with medical recommendations, may seriously disadvantage minority and female patients in listing decisions.
- 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.
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Table of Statutes Part 2 91 results (showing 5 best matches)
Chapter 14. Reproduction and Birth Part 2 40 results (showing 5 best matches)
- Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989); Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 110 S.Ct. 2972, 111 L.Ed.2d 405 (1990); Hodgson v. Minnesota, 497 U.S. 417, 110 S.Ct. 2926, 111 L.Ed.2d 344 (1990).
- Judith Daar, Litowitz v. Litowitz: Feuding over Frozen Embryos and Forecasting the Future of Reproductive Medicine in Sandra Johnson, et al. (eds), Health Law and Bioethics Cases in Context (2009), describing the backstory of an embryo disposition case that involved a battle over which of several agreements signed by the parties should prevail and providing a catalog of frozen embryo cases.
- Akron v. Akron Center for Reproductive Health, Inc. 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983); Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976). In some states, parental notification laws that meet federal Constitutional requirements have found to violate stricter state constitutional standards. See American Academy of Pediatrics v. Lungren, 912 P.2d 1148, 1172 (Cal. 1996) and Planned Parenthood v. Farmer, 609762 A.2d 620 (N.J. 2000).
- Roe v. Wade, 410 U.S. at 143–47, 93 S.Ct. at 722–23 (outlining the changing position of the AMA and other health organizations).
- City of Akron v. Akron Center for Reproductive Health, Inc. 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983).
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Advisory Board 9 results (showing 5 best matches)
- Professor of Law, Michael E. Moritz College of Law,
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, Hastings College of the Law
- Professor of Law, Yale Law School
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
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- Publication Date: November 14th, 2014
- ISBN: 9780314289070
- Subject: Health Law
- Series: Hornbooks
- Type: Hornbook Treatises
- Description: Expert authors present an up-to-date overview of health law as it affects the professionals, institutions, and entities that deliver and finance health care in the United States. Considers the law's response to quality and error through institutional and professional regulation, and malpractice litigation against professionals, hospitals, and managed care organizations. Surveys tax, corporate, and organizational issues. Explores the government's efforts to control costs and expand access through Medicare and Medicaid. Examines government attempts to police anticompetitive activities, fraud, and abuse. And considers the legal and ethical issues involving death, human reproduction, medical treatment decision making, and medical research. The Affordable Care Act, HIPAA, HITECH, and other new statutory and regulatory changes of the past few years are thoroughly incorporated in all aspects of the legal discussion.