Intro to Healthcare Law

Penalties: felony, 25k max fine, 5 years prison, (or both)

AKS: PENALTIES

Practitioner Recruitment - Remuneration does not include amounts paid to induce a practitioner, who has been practicing in his specialty for less than one year to locate OR any other physician to relocate his primary place of practice into a HPSA for his specialty - Doesnt apply if you satisfy the following 9 things: 1. Set out in writing, signed, and specifies the benefits provided, the terms, and obligations of all parties 2. For Drs. leaving established practices, at least 75% of revenues at new location come from new patients 3. Benefits provided only up to three years, and are not renegotiated during that time (if area stops being a HPSA, you can still abide by agreement) 4. You cannot require referrals (can require staff membership) 5. no restriction on staff privileges elsewhere 6. benefits cannot vary based on referrals 7. recruit agrees to treat based on nondiscriminatory manner 8. at least 75% of revenues must come from patients in a HPSA, MUA, or MUP 9. Payment or exchange of anything of value must not benefit anyone in a position to make or influence referrals

AKS: Recruitment Safe Harbor

Same as Stark

AKS: Space Rental Safe Harbor

2. Anti-Kickback Law (six part test) Class - Whenever an individual or entity Intent - knowingly or willfully Action - solicits, receives, offers, or pays (solicits means even the proposal is actionable) Object - any remuneration (anything of value: money, referrals, rewards, a sack of potatoes) Purpose - to induce or reward referrals of items or services (The remuneration is exchanged for referrals) Victim - payable by a federal healthcare program

ANTI-KICKBACK STATUTE: THE RULE

MCA SS 41-7-191 is the bible of CON laws in MS. It requires CON approval for any of the following ten types of activity: 1. Any expenditure that exceeds the capital expenditure threshold as defined by MDOH 1.5 mil for major equipment 2 mil for clinical health services (SUPER SUPER BROAD) 5 mil for other things like construction, repairs, renovations 2. Construction, dev, establish, of a NEW healthcare facility, which includes hospitals, rehab, ASCs, and home health agencies, but NOT DOCTORS OFFICES, DENTISTS, or DIAGNOSTIC TESTING FACILITIES 3. Relocation of a healthcare facility or portion, (unless within a mile and costs less than the capital expenditure threshold) 4. Change in bed complement (number of beds) 5. Relocation of a healthcare service (same exception as 3) 6. Acquisition of control of major medical equipment 7. Change of ownership of a healthcare facility 8. Change in ownership of skilled nursing facility, intermediate care facility or intermediate care facility for mentally retarded. 9. Any activity described in 1-9 above, if that same activity would require CON approval if undertaken by a health care facility. (and youre not a HF)

CON LAWS: CON laws in MS

DO YOU NEED A CON? A TEST 1. are you a health care facility? - capital expenditures require a CON - covered equipment, services require CONS - relocation may require CON 2. if not... - covered equipment or service require CONs - relocation of covered equipment requires CON 3. determination of reviewability (that 200 dollar thingy) (always get a determination)

CON LAWS: DO YOU NEED A CON? A TEST

Examples of Specific Standards and Criteria - Open Heart Surgery: min pop of 100k, 150 surgeries per year by end of year 3, other providers doing 150 per year for 2 years, staffing levels, data maintenance - MRI Services/equipment: 2700 per year by year 2, existing units must be performing at least 1700 per year, full range of diagnostic imaging modalities available, staffing levels, data maintenance - unsupported speculation or guessing or predictions about how many heart cases youre gonna do is not good evidence - ASC: 1000 surgeries per rooom per year, pop base of 60k within 30 mins, existing 800 surgeries per room per year, viable for 2 years, physician support within 25 miles, other services available - Acute Care Beds (ACB): bed need formula - counties with no hospital - state average occ. beds per 1000 - counties with hospital: ADC + K(ADC), occupancy >70% for last 2 years, NEW: rapidly growing population counties

CON LAWS: Examples of Specific Standards and Criteria

TO OBTAIN A CON youll need to - satisfy the four general goals of the state health plan 1. prevent unnecessary duplication 2. provide some cost containment 3. improve health of MS residents 4. increase the acceptability, accessibility, continuity, and quality of health services - satisfy applicable specific standards and criteria - substantially comply with general review criteria (ie generally show need * economic viability after the third year (coming out 1 cent ahead counts) * need for project (new patients, not existing ones at different places) * No significant adverse impact to existing service providers * quality of care (existing providers)

CON LAWS: OBTAINING A CON

Procedure for Obtaining a CON: Step 1: file notice of intent 30 days before application 2: file application (its huge) (Dec 1, Mar 1, June 1, Sept 1) (beginning of review cycles), filing fee of .5% of proposed capital expenditure, not less than 1k, not more than 3. application deemed complete by department division of health planning and resources, 30 days from filing, opportunity to submit additional info 4. Comment Period - 30 days - letters accepted from affected parties 5. Department issues "STAFF ANALYSIS" - first indication about what kind of response youll get from the department. 15 days after comment period. if it says what it should, you will get a positive analysis. 6. Affected parties may request a hearing for 20 days after the staff analysis, called a HEARING DURINT THE COURSE OF REVIEW, the applicant may request it if its disapprovingly analyzed. you cant request one as the applicant if it was approvingly analyzed 7. hearing within 90 days of staff analysis - presided over by HEARING OFFICER, transcript 30 days after last hearing date, parties submit proposed findings within thirty days of transcript 8. hearing officers findings conclusions 9. State Health Officer announces departments decision at the next monthly CON announcement meeting 10. Appeal to chancery court within 20 days 11. Second appeal to Ms. Sup. Court within 30 days of decision, oral argument granted if requested - Standard of Review is same for SC and CC. it is very very difficult to get the dept. decision overturned. there is a strong presumption for its accuracy

CON LAWS: Procedure for Obtaining a CON:

The following all require CON unless already provided in the last 12 months: - open heart surgery - cardiac catherization - skilled nursing beds (currenly a moretorium on these in MS) - home health services - radiation therapy - Comp. Inpt. Rehab services - MRI/PET - ASC (multi specialty) (Single specialty ASCs do not require CON) - LTAC services - INVASIVE DIAgnostics - Swing beds - Licenses psych chem dependency services 5. Relocation of one or more health care SERVICES 6. Acquisition or control of major medical equipment (anybody, not just health care) 7. Change in ownership of a healthcare facility 8. Change in ownership of a facility for the retarded 9. ????? 10. Any capital expenditure that exceeds the threshold in number 1. on behalf of a health care facility not covered in 1-10. - office building on land adjacent - Land leased from health care facility for construction of MOB - health care facility has option to purchase mob or other structure - health care facility maintains authority to approve tenands of mob or other structure (Replacement does not require a CON)

CON LAWS: what requires a CON?

Each hospital has to maintain an oncall list of physicians on its medical staff. the on call coverage must cover all your specialties, and the hospital is responsible for keeping its on call coverage for all specialties. physician group names are not sufficient, you have to have individual names. depending on the city, for example if youre in a big city, where a doctor might be on call at more than one hospital, then the hospital will need to back up its on call list, because ultimately its on the hospital.

EMTALA: on call lists

a doctor who repeatedly does not comply with being on call, or directs patients to where he is instead of going to the hospital, may be in violation of EMTALA. When you are on call at more than one hospital, so you are not coming because you are legit needed at another, then the hospital has to go to its backup. if hes in the middle of elective surgery, he doesnt have to stop, but if he hasnt started, then he has to leave and go. if the doc is responding to emergency surgery, though, he doesnt have to leave that to come to the call. (back up). A physician may be liable and the hospital may be responsible for permitting, the doctor to selectively respond to call based on things like likelihood to pay. Response time of on call physicians is stated in minutes in the hospital policies. the hospital protects itself by WRITING DOWN when it pages oncall physicians. if a doc says someone else should see the patient, thats no excuse because the decision of what type of doc the patient needs goes to the ER doctor. When a transfer occurs, the transferring physician is obligated to identify the nonresponding on-call physician who violated EMTALA. The Receiving hospital has to notify CMS of the hospital and the oncall guy, OR IT HAS VIOLATED EMTALA TOO. SO, if you violate emtala, turn yourself in.

EMTALA: on call physicians

Sanctions: 50k, not covered by malpractice, exclusion from MEDICARE, and potential civil liability. EMTALA is the anti patient dumping statute - it ends where admittance begins. CMS will consider "all relevant factors" in determing whether to penalize a EMTALA violation.

EMTALA: sanctions

MEDICARE AND EMTALA GO TOGETHER. If you violate it, you can lose medicare.

EMTALA: what goes hand in hand with EMTALA

The transfer must be appropriate. "appropriate" means the transferring hospital provides treatment within its capacity to minimize risks to the individuals health and, for women in labor, the health of the unborn. The receiving hospital must have available space and qualified personnel for treatment, and must agree to accept the transfer (cant deny if it has space and qualified personnel)(both doctors on call and hospitals can get in trouble if a doctor does not show up). You can transfer a patient who has not been stabalized IF he requests it in writing, or a physician has signed a cert that the benefits from transferring outweigh the risks of waiting. (you can take away form this a lesson weve already learned: WRITE EVERYTHING DOWN). A hospital with special capabilities cant refuse transfers from patients who need the special capabilities if it has those capabilities and the capacity to fit them. (we dont know what special capabilities are. we assume it means things like burn units, shock trauma, neonatal, and so on. but maybe an open heart program counts when the other hospitals in town dont have those.)

EMTALA: what is an "appropriate" transfer?

Emergency Medical Treatment and Labor Act. Its called the "Anti patient dumping Law" because people would send ambulances out and drop people back off because the patient couldn't pay. the gov decided to step. there is a lot of valid criticism but the teacher said something had to be done. The general Requirements: The law says everybody who comes to the hospital must be screened and stabilized before transfer. There are requirements for transfers both out and in. Sending the ambulance out on the street and dropping off a patient at a hydrant is not a valid transfer. The screening requirement says that if the hospital has an emergency department (a dedicated emergency department is any department of the hospital that is licenses as an emergency center, held out to the public as one, or provides emergency treatment to 1 3rd of visits to that department) (EMTALA applies only to hospitals that have dedicated emergency departments and takes medicare), the hospital has to perform a screening (An appropriate Medical Screening exam (MSE) is conducted by a qualified medical person, to determine whether an emergency medical condition exists, must be provided regardless of diagnosis, financial status, etc) to anyone who comes to the emergency department (meaning the patient is at the emergency department "DED" and requesting treatment, OR: on ANYWHERE on hospital property other than DED with what MAY BE an emergency medical condition, OR: in a hospital owned ambulance ANYWHERE, OR in a non-hospital owned ambulance once that ambulance gets to the hospital) to determine whether the patient has an emergency medical condition (acute symptoms of sufficient severity such that the absence of immediate medical attention could reasonable be expected to result in 1. placing the health of the individual or baby in serious jeopardy, 2. serious impairment to bodily function, 3. or serious dysfunction of any bodily organ or part)

EMTALA: what is it?

After the screening, the hospital must stabalize. Either A. with the staff and facilities available at the hospital, or B. by arranging an appropriate transfer of the individual to another medical facility. "Stabalized" means that no material deterioration of the condition is likely, within reasonable medical probability, to result from or occur during the transfer, or, with respect to a woman in labor, the child and placenta have been delivered. One case said 50% is not high enough of a medical probability.

EMTALA: what must a hospital do after "screening"

Emtala applies to hospitals and doctors.

EMTALA: who does EMTALA apply to?

When you violate the STARK or AKS, and then ask the government for money for a tainted referral, you have made a false claim. This lumps on top of that 5.5-11k per claim. 31 USC 3729 - You are liable if you knowingly (actual or reckless disregard or deliberate ignorance, does not require specific intent to defraud. deliberate ignorance means ignorance of the law youre expected to know) make a claim for money that never happened or violates STARK or AKS, claims for work done by someone else, by unlicensed professionals, or even unreasonable costs, or "upcoding" (as in the case we read.)

FALSE CLAIMS ACT: what is a false claim?

Statute of Limitations - 6 years or 3 years from when the gov should have known or knew and it can never be more than 10 years. first come first paid. filed in federal court under seal with the attoryney general and us attorney for the district where brought. employeed whistleblowers are protected from retaliation by the employer.

FCA: STATUTE OF LIMITATIONS

Qui Tam Actions - Whistleblowers. 80% of false claim acts are brought by whistleblowers "relators" who may come as single or multiple relators (who must come at the same time). the government may intervene and join the action, decline to intervene, or settle the case before intervening. whistleblowers get money for days. (up to 15-30% of the recovery)

FCA: WHAT IS A QUI TAM ACTION

A reverse false claim is when you know you got paid when you shouldnt have and you dont give it back. ie when your client gets overpaid by medicare and doesnt pay it back within the timeframe the law gives.

FCA: WHAT IS A REVERSE FALSE CLAIM

1. Prevention Your clients need to know the laws and the potential those laws have to destroy them. (STARK, anti-kickback, false claims act). And they need to know how to avoid those laws. This is called prevention. Severall important ways to prevent. A. a fraud and abuse compliance plan. This is a document that says "heres how we are going to be sure to comply with all the federal laws." if there is a state anti-kickback law, it will say how they will comply with those as well. - They are based on guidance provided by CMS on how to avoid breaking law - And will have the following things * designate a compliance officer (the guy who understands what the plan requires and prohibits, and its his job to enforce it) * provides training to all employees (ideally annually, within a designated period of time after a new hire, at times during the course of the year when needed, ie a breach, or a change of law) * provides that you perform internal audits (periodic check of whether you are obeying the compliance plan) (the plan will say how often and who will do it) * will require reporting of errors or inappropriate behavior (and protects people who come forward and report) (eliminates whistleblowers) * provides a procedure for when problems are discovered during audits or reporting > such as paying back overpayments (within 60 days, otherwise it becomes a flase claim under the false claims act) > determine how to handle discovered stark violations (the government has a provided way to report, but they dont have to go easy on you, but THEY CAN. tough spot) > details how to deal with people who are involved in the violations - what will you do with them? counseling? training? firing?

Government Investigations: Prevention

B. Procedure for Investigation when is it called for? - you suspect a problem - someone reports a problem - you discover a problem Who conducts it? - either the compliance officer or - outside legal counsel (esp. if the officer was involved) or - independent auditors (be careful because doing this could invite a whistleblower) Factors in considering whether to conduct an investigation: (dont not conduct one because this has never happened before, they cant afford it, they dont want to pay back money) - 35k now is better than 4 million later - 1 violation is enough to sink the ship - theyll pay back more money if they get caught Avoid disclosure by having attorney-client privilege. If you need to hire an expert, you be the one to hire the expert so that he cant go to the feds.

Government Investigations: Procedure

2. Response. Three ways the fed will start an investigation - Covert investigation through a whistleblower - Grand jury subpoena - Search warrants - what to do? a. confirm the ID of the government agents b. CALL YOU. then ask the gov to wait for you to get there. c. ask for a copy of the warrant (1 it might be improperly addressed, 2 determine the scope of the warrant and make them follow it, "it doesnt say you can go through my computer!" 3 do not agree to the government expanding the warrant) d. follow the agents around and take note of everything they do, look at, search, tough, and so on. follow every agent e. make a list of all documents reviewed or copied, and every person the gov talks to, and ask for a list of everything the government takes when it leaves f. they will want to take computers, ask to back up the computers for legitimate business purposes (you may never get it back) g. instruct all employees that they are free to talk to the gov, but not required, and that you will provide them with legal counsel if they want it h. send all nonessential personnel home on paid leave, and warn them about (g). Dont give them a room. they can issue subpoenas later. dont let them use your space. i. Dont destroy any documents or otherwise impede the investigation j. if employees get interviewed, YOU should debrief them immediately

Government Investigations: response

AUTHORIZATIONS: just because a use or disclosure is permitted, doesnt mean its mandated. if info isnt required for turnover, feel free to get an authorization requirements: 1. plain language 2. description of info to be used or disclosed 3. described in specific terms 4. which contains a name or other ID of the people authorized to make the requested use or disclosure 5. and the name or id of to whom the use or disclosure may be made 6. with an expiration date or event 7. and a statement regarding the patients right to revoke 8. which must be in writing 9. for which there are exceptions as to when you can revoke (IE when the authoree is reasonably relying on the authorization) 10. and a statement that the PHI used or disclsoed according to the authorization may be subject to redisclosure and no longer be protected 11. must be signed and dated 12. if by a rep, must include a description of the reps authority to act for the individual

HIPAA: AUTHORIZATIONS

- What duties does HIPAA impose? Security Rule 45 CFR p160 subpart (a) and (c) of p164: Administrative Safeguard - created to establish a national security standard to protect individuals created received used or maintainted by a CE PHI. three sets of safeguards: 1. administrative - security management process, assigned security responsibility, workforce security, information access management, security awareness and training, security incident procedures, and contingency plan 2. physical - how to people log in to your computer, what are the passwords, who has access, is there a fingerprint biometric scanner? etc work station security, device and media controls (role based access becoming more popular) 3. techinical safeguard - audit controls, authentification, standards promulgated, transmission standards

HIPAA: DUTIES PROPOSED

Enforcement - HIPPA enforced by DoH and HHS and Office for Civil Rights (OCR) - complaint driven process - CEs must have a process to receive and investigate complaints Enforced by the government no cause of action for violation of HIPAA (regular breach of privacy tort) (the remedy according to HIPAA is to turn over the info to an investigation) Just because theres no private cause of action, doesnt mean you wont see people try to sue over a breach. Enforcement was originally very sparse. HIPAA violations went unpunished.

HIPAA: ENFORCEMENT

Permitted disclosures: only the (minimum necessary standard) to accomplish the purpose of use or disclosure (this rule applies to most uses and disclosures except Treatment, Law Enforcement Needs, and Authorization within the scope of use) IE: treatment, payment, healthcare operations (these three make up "TPO") - no authorization necessary for these, when required by law, to the patient or legal rep, and with valid authorization. Also limited in access to the minimum necessary to employees (through computer passwords etc)

HIPAA: Minimum Necessary Standard

Overall Goals: (mainly privacy and security but others:) - Continuity and portability of health insurance benefits to people between jobs - reduce administrative expenses in health care sys - uniform standards for electronic information transactions - provides measures to combat fraud and abuse in health insurance and health care delivery

HIPAA: OVERALL GOALS

- What rights does HIPAA grant? Patient's rights: - notice of privacy practices - right to inspect and copy PHI - Request amendment to PHI - Request Contact in Particular Manner - Request restriction to uses or disclosures - Receive accounting of all disclosures of PHI

HIPAA: RIGHTS GRANTED

OMNIBUS ACT: Four Big Rules 1. modifies Hipaas privacy and security and enforcement rules. it came out january. effective in march. enforcement rule modifications deal with the civil monetary penalities and the amounts, factors in determining amounts, calculations, etc. HOWEVER, people have 180 days, (SEPT 23rd), by which they have to have their policies and procedures updated. if you were compliant as of january, though, then you have a year past september This rule makes BAs directly liable for compliance with certain HIPAA privacy and security rules more limits on use and disclosure of phi for marketing and fundraising, prohibited the sale of phi without individual authorization expands rights to receive eloctronic copies of PHI and restrict disclosure to a health plan concerning treatment for which the patient paid out of pocket enabled access to decedent information by family 2. Adopts changes to the HIPAA enforcement rule 3. Replaces the standard for breach notification for unsecured (not encrypted) PHI (including breach of the minimum necessary standard) (secured PHI - PHI secured by the method of technology which makes the PHI unusuable or unreadable or undeicpherable to unauthorized individuals) - heightens the standard by which a breach is presumed to have occurred - so you assume a breach has occurred when an impermissible use or disclosure has occurred unless the breacher can demonstrate that there is a low probability that the PHI has been compromised - the RISK ASSESSMENT rule (the previous standard was that a breach was not found if you could show no significant risk of harm to the individual) - four factors to be considered in risk assessment 1. the nature and extent of the PHI involved, including the types of identifiers, and the likelihood of reidentification, 2. the unauthorized person who used the PHI or to whom the disclosure was made, 3. whether teh PHI was actually acquired or viewed, and 4 the extent to which the risk to the PHI has been mitigated ( a fact specific totality of the circumstances type analysis) - A breach is treated as discovered on the first day that the breach is known to the CE or by exercising reasonable diligence would have been known to the CE (reasonable diligence means the reasonable business care and prudence expected from a person seeking to satisfy a legal requirement under similar circumstances) (are you trying to meet your responsibility or hide it?) (OCR recommends you look to how other CEs or BAs would act under the same circumstances) (OCR will look at 1. whether you took reasonable steps to learn of the breach, and 2. whether there were indications of breaches that a person seeking to satisfy the rule would have investigated under similar circumstances) 4. Modified privacy rule as required by GINA

HIPAA: THE OMNIBUS ACT'S FOUR BIG CHANGES

TOP violations of HIPAA - improper use/disclosure - security measures - access issues (i want my records!) - minimum necessary rule

HIPAA: TOP VIOLATIONS

The HIPPA 18 if you wanna use or disclose PHI, this is how. deidentify the protected info, either by 1. expert method, or the statistical method, which says if you hire someone to eliminate some of the identifiers such that the risk that someone could probably not identify you, then youve done your duty. the other method 2. is called the safe harbor method - if you eliminate all 18 of these identifiers, youre good: names account numbers cert/license numbers geographic subdivisions dates and so on The basic rule for CE's: you cannot do anything with someone's PHI unless HIPAA says you can or you have an authorization from the patient Theres a four question test 1. are you dealing with a CE or a BA? if yes, 2. is the info PHI? if yes, 3. Does HIPAA permit or require the desired/requested disclosure/use or do you need an authorization? if HIPAA permits, 4. what amount of information may be used or disclosed?

HIPAA: USING OR DISCLOSING PROTECTED HEALTH INFORMATION

- Who is Covered Covered entities and business associates. the test for a covered entity is 1. is the person business or agency furnish bill or receive payment for healthcare in the normal course of business? 2. does the person business or agency transmit ie send any covered transactions? (typicall a trans involving the exhcnage of electronic info about a patient for the purpose of healthcare - claims, benefits, claim status, enrollment and eligibility, payments, electronic fund transfers, and remittance), 3 and are any of these covered transactions transmitted in electronic form? (hard drives, removable or transportable digital memory medium) (transmission media include the internet, dial up lines, private lines, the actual physical movement of data in the medium) (important distinctions: transmissions like scanned paper does not count because it didnt originally exist as electronic data) IF ALL THREE prongs are a yes, then its a covered healthcare provider. Providers are covered regardless of their size if they fulfill the test. Examples: hospitals, clinics, imaging centers, nursing homes, home health agencies, ambulatory services, physicians, counselors, social services, labs, employee welfare and benefit plans (health plans, with some exceptions, provide or pay for healthcare and fit wiithin the definition of a covered entity) Business associates: someone who works on behalf of a CE, or provides a service to the CE, which involves the disclosure of PROTECTED HEALTHCARE INFORMATION. You have to sign a BA agreement: the things you have to do The Omnibus rule expanded the BA definition to include: - Health information organization, something that provides data trans with respect to PHI - some oether ting disclosure of PHI by a CE to the provider concerning the treatment does not count (ie your doctor referring you to a surgeon) - What is protected and when? Protected Health Information - all individually identifiable health info, a subset of info from an individual created or received by a CE, relates to past and future health, or condition, and identifies that individual or creates a basis to believe it could be used to identify the individual. transmitted or maintaned by a CE examples: medical records, billing info, perscriptions,

HIPAA: WHO IS COVERED

Timeline - came out in 1996 - if congress doesnt act in three years, its HSS's responsibility to make something 1999, final rule published in 2000 - the HITECH act passed in 2009 - PPACA passed 2010 - the omnibus rule passed in 2013 (combines four different proposed rules and changed how we think about HIPPA and HITECH - HIPAA is designed to protect privacy and security of your health information

HIPAA: timeline

Major Regulatory Schemes: - C O N laws - EMTALA - emergency medical treatment and labor act - HIPAA - ERISA - Uniform healthcare decisions act (UHCDA) (informed consent) - STARK laws (referrals, anti kickback, whistleblower laws)

Into: What are the major healthcare regulatory schemes?

- includes doctors (either employees and independent contractors) - credentialing process - comprised of doctors of all different specialties which make up the medical staff: cardiologists, anesthesiologists, radiologists, etc - the process by which the staff is vetted before being a-okayed to be on the staff, at which point the "privileges" are decided, where the hospital says what all the doctor can do (most commonly how many patients he can admit. different levels of privileges exist. larger privileges also come with increased responsibility - ie, being on call) - both employed and IC doctors have to undergo the credentialing process - employed doctors have contracts, independent doctors who mutually benefit because the doctor cant do the surgery without the venue, and the hospital cant perform the surgeon itself

Intro: Define Hospital Medical Staff

1. Person Gets injured/sick 2. Primary care Physician (your family doctor, general practitioner, etc) 3. Referral to Specialty Physician 4. Hospital or Special Testing facility (drugs, tests, surgery) 5. Pharmacy (outpatient drugs) 6. Person gets well or dies.

Intro: How does the system work for the average person in the system?

Any time somebody sends a patient to another person or place/facility or entity to get treatment, evaluation, treatment, drugs, any goods or services related to healthcare.

Intro: What is a "referral"?

1. Consumers - chronic disease, trauma, defects, illness Concerns: quality, cost, convenience, access, availability, waiting periods (aca doing away with this), insurability 2. Payors - Insurance companies - Insurers actually negotiate with healthcare providers what they will pay for a given procedure. - There is some pressure on the insurer to reach a deal with the provider because patients tend to have a preference on where they get their treatment, but at the end of the day the pressure is on the providers - Concerned about: cost, quality, all the things patients are concerned about 3. Providers - hospitals (sometimes Critical Access Hospitals which are deregulated for rural areas), - Nursing homes (Skilled Nursing Facilities - SNF), - ESRD facilities (dialysis), - Diagnostic Imaging Providers (Radiologists, MRIs), - (ambulatory surgery center - walk in and out surgery. it used to be that surgery could only happen at a hospital. ASCs have special rules about how far under they can put you under. ASCs are also owned by doctors more frequently.) ASCs, - public health clinics, - mental health centers, - physicians, - NPPs (non-physician practitioners: physician assistants, nurses, nurse-practitioners) 4. Regulators and Enforcers - The various forms of the government - what do they care about? - getting care to the people who need it without discrimination, preventing fraud and abuse

Intro: Who are the players?

Doctors, nurse practitioners, physician assistants, RNs,. Some doctors are always referral sources. Ie general practitioners. Some are never referral sources, ie pathologists, who only provide a service. Others, ie, anesthesiologists or radiologists, who dont often, but sometimes do, provide referrals. You can know whether a doctor is a source of referrals by two facts, his practice area, and the context.

Intro: Who can refer?

- The government doesnt want to pay for unnecessary shit doctors send you to get done - Referrals between people who get money for making the referral (ie the ASCs where the doctor gets paid for referring you to his own facility)

Intro: Why do we care about referrals?

- Diligence (more than paying attention, persevere) - Doing Right (moral judgment) - Ingenuity (learning from failure, finding ways to get things done)

Intro: three requirements of a good healthcare professional

Eligibility: Two Tests (MS) 1. Income and Assets Test 2. Categorical Test - be the right kind of person, ie child, parent of dependant, born to a mom on medicaid, pregnant, disabled (sometimes dual enrollment in medicaid and medicare is possible), aged, 18 or under + limitied income in family OR child is sick enough to need nursing home care but could stay home with care there It is very rare that a single, adult, non-disabled man could qualify for medicaid. You have to meet both tests: the income and the categorical. You must apply. coverage starts retroactive to three months preceding application. Coverage ends at the end of month in which a person's circumstances change.

Medicare and Medicaid: Medicaid Eligibility Test

Remember your Medicare Covered ABCD's (Medicare is for old people) The way medicare works is that old people are paid for by young working people. Right now there are 4 working people to 1 old person, but its projected to be 2 to 1. Medicare covers people 65 years and over, and under 65 and disabled, ESRD, and Lou Gherig's disease. - A - Hospital Insurance Covers 90 days each benefit period of Hospitalization (per year), + 60 days total lifetime reserve days. So 90 per year + 60 in reserve. Post hospital extended care up to 100 days. The first 20 days you pay nothing, the rest you pay a co-pay 148 dollars per day. After that you pay the full amount. Also pays for blood clotting factors and Hospice (if your life expectancy is 6 months or less if the disease runs its course. you can get recertified if you survive.) Eligibility starts the day before you turn 65, and you have to enroll within 6 months, and it continues until you die. You or your spouse has to pay into the system for at least ten years in order to not have to pay a premium (40 quarters). Changes from PPACA: increased tax rate on wages, and imposes tax on unearned income from higher taxpayers (money you dont work to get: selling a house, stocks, etc) You can buy a medicare supplement package for those long term nursing home stays. (90% of beneficiaries have this. you have to be enrolled in A and B to get a medicap policy.) - B - Supplemental Medical Insurance Basically doctors visits and anything related. Home health, out patient, physician services. After the deductible, the insurance company pays 80%. covers some ambulance, vaccines, prosthetics, braces, cancer screenings, preventative testing, and so on. Eligibility: if youre entitled to part A, or over 65, then you can enroll in part B (must be a citizen or resident alien). you have to pay the premium. Enrollment starts three months before you turn 65 and ends three months after (penalty after). The premium goes up if you make a lotta money. - C - Medicare Advantage Plans This is something else you can get to supplement A and B. You have to be enrolled in A and B to sign up (just like a medicap policy). Most people dont use Part C (they go with a medigap policy). - D - Perscription Drug Coverage Available to anyone enrolled in Medicare. There is no one single plan. Walmart, CVS, independent companies - all have part D plans that must meet certain requirements: ie, covering 75% of the cost of drugs, the deductible cant be too high, and so on.

Medicare and Medicaid: Medicare ABCD's

Medicaid is a STATE ADMINISTERED PROGRAM. States have to have a state medicaid plan to get federal assistance. States have to provide medicaid coverage for the following: - limited income families who meed the requirements of AFDC - Supplemental security income recipients - Infants born to medicaid eligible women - children under six and preganant women whose income is <133% of the federal poverty level

Medicare and Medicaid: who must states cover to get federal funding for Medicaid?

Applicable Large Employers - Counting 1. Count Full-Time. 2. Calculate any additional FTEs 1. Total number of service hrs. per week for all part-time, including seasonal and ÷ 120 3. Add Full-Time and FTEs for each of the 12 months in prior year. 4. Total 12 months and ÷ by 12. 5. IF result is 50 or more, determine if Seasonal exemption applies • Not an ALE if: - Employer had 50+ full time employees for 120 days or less; but - Employees in excess of 50 were seasonal workers employed 120 days or less. • 120 days (or 4 months) need not be consecutive

PPACA - how to count Full Time Employees to determine whether an ALE

- Aggregated groups: - - parent-subsidiary - if the parent owns at least 80% of the sub, then aggregated. if under 80%, - - Brother-sister - if one owns the other at 80% or if you have 5 or fewer entities that own 80% of each organization and have effective control of the organization, aggregate - - affiliated service group - These will all be aggregated and treated as a single employer. ALE and Aggregation: Parent-Sub • Exists when one organization (parent) owns at least 80% of another (subsidiary) - Ex. The ABC partnership (40 full-time employees) owns 80 percent of S corporation (30 full-time employees). • Standing alone, neither organization would be an ALE. • However, because they are in a parent-sub relationship, their employees are counted together for purposes of determining ALE status. - The organizations collectively employ 70 full-time employees. - Therefore, these organizations are an ALE. • It does NOT matter if the organizations serve two entirely different industries.

PPACA Aggregated groups:

- Aggregation Penalties: - - if you have an aggregated ALE, and part A does not offer any coverage, but part B does, the reduction of the 30 employees is done on a pro rata basis: if A has 40 and B has 20, A has 2/3rds of the exemption, so 20 instead of 30, so its minus 20. (B does not have to pay a penalty) (but if B hadnt either, it would only get a 10 employee exemption - 1/3rd)

PPACA Aggregation Penalties:

- Essential Health Benefits - all plans and Medicaid, starting in January, must include: ambulatory patient services, hospitalization, emergency care, maternity and newborn care, mental health services, prescription drugs, rehab, lab, pediatrics (including dental and vision), and preventative care (with no cost sharing) (grandfathered plans are not required to include preventive care)

PPACA Essential Health Benefits

- Form w-2 reporting - starting in 2013, every employer has to include the amount it paid on behalf of the employee for healthcare coverage. The pentalty will be 200 bucks per employee without the w-2 info

PPACA Form w-2 reporting

• Health Insurance Exchange - What is it? You get on, shop and compare, and put in the things that health insurance companies are allowed to consider: name, area, smoking, number of people, age, and then you can buy insurance. Who can buy? Individuals and until 2016 small employers. Individuals exchange on the individual exchange; small employers on the shop exchange. Large employers (over 100), can get on the shop exchange starting in 2016. - There are three options for how one works: state run exchange (where the state makes all the decisions), a federally facilitated model, where the fed makes all the decisions, - Benefit tiers: bronze (60%0 of costs, silver (70), gold (80), platinum(90) - Mississippi is planning its own individual exchange, and is planning a federal shop exchange

PPACA Health Insurance Exchange

- Minimum Loss Ratios - under this rule a health insurance company has to spend a certain percentage of its money (80% atm) on paying claims or improving healthcare quality

PPACA Minimum Loss Ratios

- Nondiscrimination rules - you must pass a two part test in order to be deemed nondiscriminatory: you have to offer it to almost everybody, and it has to be nearly the same for everybody. If you are discriminatory you will pay big fines.

PPACA Nondiscrimination rules

• Premium Assistance on Exchanges - Who is eligible? 140%-200 something% of the poverty level - The gov will pay directly to the policy the amount it is going to assist you - Supposed t start exchanges on January 1st. it is uncertain if that will be running by then - No one can be required to pay more than 9.5 percent of their adjusted gross income for health insurance. Theres a sliding scale for where you are on the federal poverty level. Suppose you have a family of four at 48k per year - that puts you at 200% of the fed poverty level - and the fed says at that level you cant be required to pay more than 6% of your income on health insurance, which is 3k. so if the second lowest silver plan is 14k (the standard for whatever reason), the fed will cough up 11k.

PPACA Premium Assistance on Exchanges

- Rules of Attribution: - - attribution is when you treat a person as owning an interest in a business that is not actually owned by that person, like when daddy tries to parcel out his ownership of something to his kids, but we really know he owns the whole thing Attribution • Attribution is the concept of treating a person as owning an interest in a business that is not actually owned by that person. • Ex. The ownership interests of a minor child (under age 21) are attributed to his/her parent. - Frank owns 40% of DEF Partnership. His son, Mike, 20 years of age, owns 30% of DEF. - Frank owns 40% directly and is deemed to own Mike's 30%. Therefore, Frank is treated as owning 70% of DEF.

PPACA Rules of Attribution:

The Employer Mandate - provisions choices - choices for large employers: provide no coverage, provide "affordable coverage", or provide coverage that does not count as "affordable". ("affordable" means the employees required contribution does not exceed 9.5% of "household" income for taxable year) (safe harbor: as long as it doesnt exceed 9.5 of his w.2 form ) - - no coverage: if at least 1 fte goes to the exchange and qualifies for a subsidy and gets a subsidy (not only a fte, but also someone within the federal poverty slinding scale from last week), the penalty is 2k per employee, minus 30 FTEs. - (interestingly, we calculate the fte and teh part time in order to determine whether you have to provide for your ftes) so, 55 employees, no coverage, one gets a subsidy, 55-30 = 25 x 2k = 50k - - Provide coverage: if 50 or more and do not offer "affordable coverage" to all emploees and dependants AND at least one FTE goes to exchange and gets a subsidy, then your penalty is 3k per employee that gets insurance on the exchange with a subsidy. that penalty iscapped at the top end of what you would have had to pay if you provided no coverage at all - so, 55 employees, unaffordable, 3 employees go to exchange = 9k penalty. 30 employees go to exchange, 30 x 3k = 90, but capped at 50k. - (if you make affordable coverage to 95% or all but 5 of your employees, then you are deemed as having supplied affordable care to all your employees.) - - Calculating FTEs total number of service hours per week for all art time including seasonal and divided by 120. add full time and FTES for each of the 12 months. 12 months divided bt twelve. if the result = fifty or more, you are an ALE.

PPACA The Employer Mandate - provisions choices

The Employer Mandate - who must provide - Employers have to provide "minimum value" (paying at least 60% of the healthcare costs of covered treatment) and "minimum essential coverage" (coverage that covers all things a plan bought on the exchange would cover, ie, the essential minimum requirements), minimum value if the employer has 50 or more employees, "Applicable Large Employer" (ALE) - - if ten or less + average of 25k or less as salary, you get a tax credit but must pay for at least 50% of the employees premium - - 25 or fewer - theres a tax credit available, so there is an incentive to provide coverage. 50k average - - the tax credit ends after two years, which starts in 2014. to take advantage of this, the employer must buy on the exchange - - Then, 50-200 (FTE - full time equivilent, counted by all kinds of employees and hours and calculate the total of the part time hours and full time people, and if thats fifty or more, you are an ALE, unless the number over 49 are seasonal workers, which dont count as FTEs, people who work 120 days per year or fewer, ie christmas/summer)(in some instances, several distinct legal entities are grouped together as an ALE, called rules of aggregation) - - Then over 200 - you must provide insurance, no exceptions. You have to. - Small employers can stay small and do whatever you want. If you get above fifty, for even one month, you must provide for that month.

PPACA The Employer Mandate - who must provide

- The Individual Mandate - you have to be covered (minimum essential coverage) by January 1 or pay a penalty. This should eliminate as many as 57 million uninsured Who is exempted? People who live in states who would have been covered under the Medicaid expansion but which did not participate. Illegal aliens, religious objectors, those who have incomes beneath the tax income code, people outside the US, exempting 24 million If you don't get insurance: first year 95 dollars per person or 1% the first year, 325 per person (up to three people per household) or 2%, 695 or 2.5% the third year

PPACA The Individual Mandate

• NFIB v. SEBELLIUS - Who initiated the challenge? Florida, then 25 other states joined. - They claimed the federal mandate was unconstitutional, and therefore, the whole bill, being unseverable, was unconstitutional - The Supreme Court ruled on 2012 - The Commerce Power - the commerce power was ruled too broad to uphold the act - The majority solved the anti injunction question by saying that the penalty was a penalty - The majority solved the commerce power problem by saying the penalty is a tax. - You cannot use the Medicaid as a ransom to compel states to increase Medicaid - The individual mandate is now called a "shared payment"? - The Medicaid expansion is now called "optional?" - Severability? In question because the bill has yet to be severed

PPACA • NFIB v. SEBELLIUS

- Dependents - you can stay on your parent's plan until 26. The employers don't like this because they foot the bill

PPACA: Dependents

no more limits, no more lifetime maximums on coverage - Annual Limits - phased out by 1/1/14 - right now companies can impose annual limits of 2 million

PPACA: Lifetime Limits

- Rescission of Coverage - insurance companies can no longer void your coverage except when there is fraud, intentional misrepresentation of material facts

PPACA: Rescission of coverage

• If Employer employs at least 50; AND • Provides no health ins. coverage; AND • At least one full-time employee goes to Exchange and receives a subsidy; THEN - Penalty of $2000 per employee per year • Calculated on monthly basis • First 30 employees exempt from calculation. • Penalty indexed annually for inflation • IF 50 or more FTEs; AND • Do not offer "affordable coverage"; • To all employees and dependents; AND • At least one full time employee goes to Exchange and receives a subsidy; THEN - $3000 per employee who enrolls through the Exchange - Capped at amount of penalty that would have applied for no coverage. ALE

PPACA: calculation for the penalty an ALE faces if it provides no coverage; "unaffordable coverage"

- Grandfathered plans are allowed to continue exactly as they were. Some of the requirements wont apply to the grandfathered plans. In order to keep your plan grandfathered, You cant raise the deductible, the copay, the co-insurance, cant change employer's contribution to the employee's premium, cant eliminate coverage for a condition or disease - if you violate those rules then you lose grandfathered status - Some rules of the ACA apply to ALL plans regardless of grandfather status - Pre-existing conditions - individual plans that are grandfathered can still discriminate based on pre-existing conditions, but new non-grandfathered and group grandfathered plans cannot discriminate

PPACA: how will grandfathered plans work?

- ALEs who have to provide coverage - who do they have to provide coverage to? - all your Full time employees, based on three periods of time: (supposing a 1 year plan) - - (3-12 months) a look back/measurement period - the period of time you look at to determine who is full time - - administrative period - (no more than 90 days) the period of time you spend deciding what to get and buy and who to cover, which comes between the look back period and - - stability period - the period of time during which you provide coverage to the people you determined on the look back period - so in real life, if your stability period is gonna start on january 1 2014, and your ninety day administrative period is going to be endingdecember 1, starting 90 days earlier, the look back period will be the twelve months previous to the start of the administrative period. - This means that, at least for part time people, you have an initial measurement period during which you dont have to cover employees. during the stability period, you only have to cover people who were qualified as full time during the measurement period, but you have to cover them regardless of their hours during the stability period.

PPACA: the employer mandate: who must be covered by applicable large employers?

Bona Fide Employment: - You can refer to your employer IF: you refer for identifiable services, renumeration is FMV and not determined based on volume or value of referrals, the referral is commercially reasonable, and YOU CAN have productivity bonuses based on personally performed services. (No contract or writing or specified time required) - An employed doctor gets a paycheck, staff doctors do not have a financial relationship with the hospital. So a staff doctor does not present a stark issue.

STARK: BONA FIDE EMPLOYMENT EXCEPTION

Definitions: - Physician - doctors only, lots of people can refer, but only a doctor's referral can violate Stark. Does include immedaite family memebers when it comes to the second mention (so, if the physician or a family member has a financial relationship with the entity) - Referral - a request by a physician for an item or service for which payment may be made under medicare Part B. NOT personally performed services (performed by the referrer). - Patients - non-federally funded patient referrals are not actionable - Designated Health Services: * clinic lab * physical/occupational therapy * drugs * diagnostic radiology and radiology treatment * hospice * home health * durable medical equipment (scooters, crutches) * in and outpatient hospital services * DME and supplies * diagnostic imaging - Financial Relationship * Compensation relationship: salary, you leasing them space or equipment, etc * Ownership/Investment relationship: you own part of them - Entity * Clinic * Hospital * Nursing Home * lab pharmacy * durable medical supplier * anyboder providing services payable to a federal health plan

STARK: DEFINITIONS

- Hospital assisting Group Practice: additional reqs. Agreement is signed by party to whom payments are directly made. Hospital may pay actual cost incurred by group in recruiting, money paid directly to recruited physician, costs allocated to group cannot exceed actualadditional incremental costs attributable to recruited physician. You have to keep records for 5 years. Remuneration from hospital is not tied to referrals. Group Practice cannot restrict physician from practicing in hospital's geographic area (a hospital CAN make the physician sign a noncompete).

STARK: Group Practice Exception

Medical Staff Incidental Benefits: okay if - Items or services used on hospital's campus. - at times when docs are making rounds or otherwise benefitting hospital - Provided to ALL members of med staff in same specialty - without regard to volume or value of referrals - low value per occurence (less than $31) - no violation of AKS

STARK: Medical Staff Incidental Benefits Exception

Non Monetary Compensation: (ie free lunch at boure) - Is okay if it does not pass 380, cannot be solicited by the doctor, not tied to referrals, cannot violate AKS (OR DOUBLE JEAPORDY!). Inadvertent overpayments are OK IF: overpayment doesnt exceed 50% of allowed (190 this year), is repaid in earlier of within 180 days, or in same calendar year, and can only be used once every three years as to the same doctor. You can have one medical staff appreciation event every year that does not count towards this limit.

STARK: Non Monetary Compensation Exception

Ownership: - Rental of Office SPace or Equipment. If the rental is in writing, signed, has specified premises, is for at least a year, the space rented is only whats needed, charges are set in advance (cant get around this by bailing on the lease then making a new one within the year) (Holdovers are good for 6 months, but operate on the same terms. after that its a stark violation), is not based on volume or value of referrals, Fair Market Value, and is commercially reasonable.

STARK: OWNERSHIP EXCEPTION

Penalties: (strict liability) - 15k per occurance plus x2 the reimbursement claimed - 100k for knowing violation - Exclusion from medicare - rewards to whistleblowers (qui tam?) - False Claims Act - provides additional penalties - if you are violating stark and file a claim for services you are not entitled to be paid for, you have violated the False Claims Act

STARK: PENALTIES

Personal Services Arrangements: You can refer to one of these IF - its With Dr., Family Member, Group Practice. In writing, signed, specific about services. Covers ALL services provided to entity. Services provided are the least necessary. The contract must be for at least a year. Compensation is set in advance (FMV, not tied to referrals). - This would only apply to "directors" for our purposes

STARK: PERSONAL SERVICES ARRANGEMENTS EXCEPTION

Recruitment: - Hospital to Doctor - Must be intended to induce doctor to relocate (the dr moves his practice from outside the service area to inside and at least 25 miles, OR outside to inside and at least 75% of his revenues are gonna come from new patients) medical practice into the geographic service area (the lowest number of contiguous counties where 75% of the hospital's patients come from), in order to become member of the hospital's medical staff (which includes employees. [but not all on staff physicians are employees]). Must be in writing and signed. Not conditioned on referrals by dr. to hospital. Remuneration not tied to referrals. No restriction on staff privileges elsewhere. -Relocation does not apply if the recruit has practiced for one year or less or is a resident, or has been employed for 2 years immediately prior, with dod, va, prison, or indian health service.

STARK: RECRUITMENT EXCEPTION

1. Stark ("Anti Self Referral Law") - Makes it unlawful for a PHYSICIAN (doctor) - to REFER (see early class) - Federally funded PATIENTS (medicare/medicade) - for DESIGNATED HEALTH SERVICES (only certain ones) - if the physician has a FINANCIAL RELATIONSHIP with the ENTITY where he is sending the patient. If the answer to all of the above is yes, you have a problem under STARK. - Makes it unlawful for a PHYSICIAN (doctor) Only applies to DOCTORS. NOT NURSES. NOT PHARMACISTS. ONLY DOCTORS. - to REFER (see early class) See the earlier class to remember what a referral is and is not.

STARK: the rule

A "Health Care Decision" is the selection of healthcare providers and institutions, approval of tests, procedures, programs, orders not to resuscitate, directions to provide, withhold nutrition, and all other forms of healthcare. (doesnt include Anatomical Gift Law, does not include to things like consent to arbitration).

UHCDA: (UNIFORM HEALTHCARE DECISIONS ACT): what is a healthcare decision

What is informed consent? it means that the doctor has warned the patient of known risks of the treatment or surgery, so that the patient is able to make an intelligent decision about whether to go forward. treatment without informed consent is battery.

UHCDA: What is informed consent

Unemancipated Minors (under 18) dont have the ability to consent in MS. someone else has to consent. (they are emancipated if they get married or if they have been adjudicated by a court to be generally emancipated or specifically emancipated for medical purposes). Guardians or custodians can consent for the minor, if no guardian or custodian, then the parent, if no parent, then adult brother or sister, if none, then a grandparent. "reasonable availability". if none are reasonably available, any adult that has shown special care or concern for the minor may give consent. there are exceptions to when consent is needed for an unemancipated minor is needed: alcohol and drug treatment (15 - can give own consent to a doctor or psychiatrist) (No obligation to tell parents, but no obligation not to 41-41-14) (parents have no obligation to pay the doctor), veneral disease (can give own consent), and giving blood (own consent at 17). also any female can give her own consent in connection to pregnancy and child birth. Abortion under 18 for an unemancipated minor requires written consent of both parents or legal guardian. Theres a ton of exceptions. Adults or emancipated minors with capacity can consent, refuse, or execute documents. "Capacity" means someone determined to be capable of making health care decisions. "Capacity" - abiulity to understand the risks, benefits and alternatives to a proposed treatment, and to make and communicate a healthcare decision. The primary physician makes the determination of whether the patient has capacity. Thats either the doctor you chose or the one thats been taking care of you. When they wake up, you have to let them know you determiend they wre incapacitated.

UHCDA: When can the patient consent?

there are exceptions: EMERGENCIES. An emergency is a situation where the proposed treatment is immediately necessary, and the delay due to getting consent would jeapordize the life, limb, or health of the patient, permanent disfigurement, or impairment of faculty. Another exception is infectious disease - if the doctor determines that testing for infectious disease is necessary for the safety of the patient, the doctor, staff, or other patients.

UHCDA: informed consent exceptions

When someone is determined not to have capacity, the following people can make informed consent: 1. designated agent (power of attorney that the patient has made), if none then 2. Court appointed guardian (coming after whoever the patient has said), 3. Surrogate Decision-maker, and finally 4. The Court. An individual instruction is anything an indidvidual directs the health care provider as to what treatment to have or who can consent. if dan says "ask lilian when im under", the doctor can act on that. oral, written, a-okay. (instruction is only valid when the doctor has determined you have capacity). (person must be reasonably available) An Advanced Directive is a statute perscribed form that has legal validity where you can do all sorts of instructions: consent or refusal to treatment, designated healthcare providers, approval or disapproval of tests or life sustantining mechanisms, or artificual nutritation. it must be signed, dated, and witnessed. If there is no advanced directive, we look for power of attorney: must be signed, written, dated, and either witnessed by two people, or notorized. power of attorney only applies while the principal does not have capacity. the document does not implicitly allow the person to put you in a mental institution. a power of attorney doc cant be witnessed by a health care provider, an employee thereof, the designated agent. one of the witnesshas to not be family/someone who is a beneficiary. You can only revoke while you have capacity. Guardians - has final say if hes the default, but hes expected to do what the ward would want. Surrogates - if none of the above, you go to surrogates in this order: spouse, adult child, a parent, an adult sibling. if there is more than one of the category you go with, you go with the majority opinion. if there is a draw (among siblings for example), you go to court. (you cant be a surrogate and a healthcare employee unless related by blood or marriage) To get a court order, you need written request and proper documents. the expense is to go to the patients estate or his caretaker.

UHCDA: what happens when someone lacks "capacity"?