HMGT 6330 MIDTERM AND FINAL
respondeat superior
"Let the master answer" an employer is vicariously liable for the behavior of an employee working within his or her scope of employment
a physician is
"a doctor of medicine or osteopathy, a doctor of dental surgery or dental medicine, a doctor of podiatric medicine, a doctor of optometry, or a chiropractor."
SHAGRIN VS. WILMINGTON MEDICAL CENTER
"borrowed" employee rule- Doctor "borrows" nurse to assist in surgeryNurse is now an employee of 2 employers-- the hospital and the doctorgenerally accepted principle of law is that the employer of an independent contractor is not liable for the torts of such contractor or his servants, even though the employer be a hospital and the independent contractor be a physician
Res Ipsa Loquitur
"the thing speaks for itself"; the doctrine that suggests negligence can be presumed if an event happens that would not ordinarily happen unless someone was negligent
How Insurance Makes Profit
$$ going in must = $$ going out + admin costs
false claims act penalty
$12,537-$25,076 per claim plus 3x cost
restricting privileges
- closed staff issues - academic medical centers - hiring/staffing moratoriums - board usually wants to ensure that objective criteria are used
RES JUDICATA
-"a thing or issue settled by judgment;" refers to that which has previously been acted on or decided by a court - a final decision on the facts of a particular case won't be re-visited.
Childs v. Weis
-(1966 Greenville, Tx) •No doctor patient relationship
Williams v Hosp. Auth. Hall County
-(Ga. 1969) •Gov't hospital must provide ER care
NPDB REPORTING REQUIREMENTS
-Adverse action involving physician privileges that impacts physician for over 30 days -Reports relating to professional competence or conduct
essential health benefits
-Ambulatory patient care -Hospitalization -Mental/behavioral health -Prescription drugs -Laboratory services -Preventative and wellness services -Pediatric services, including oral and vision care -Emergency services -Maternity and newborn care -Substance use disorder services -Rehabilitative services and devices -Chronic disease management
STATUTORY CONSENT
-An emergency in most states eliminates the need for consent. -When a patient is clinically unable to give consent to a lifesaving emergency treatment, the law implies consent.
EMTALA 1985 IN COBRA
-Applies to all Medicare-participating hospitals -Patient with emergent condition or in active labor -Duty to assess (appropriate screening) and treat/stabilize (if possible) -May transfer if benefits > risks -Indigence is not required (could be other reasons for refusing to treat)
•Employee Retirement Insurance Security Act (ERISA)
-Applies to both retirement and health/welfare benefits -Governs disclosures, appeals and fiduciary responsibilities of Plan sponsors and Plan benefits -Does not require specific benefits -ERISA Pre-emption - state law doesn't apply
•Health Maintenance Organizations
-Basic concept: Assigned physician/group is responsible for maintaining the health of patient, not just curing illness/disease -Mandatory physician networks, with selected primary care provider (PCP) who acts as "gatekeeper'' for other services - must use "par" (participating) providers unless otherwise approved to have benefits -May pay physicians on capitation (per member per month) basis; if patient needs care outside network, gatekeeper/group responsible for some of the costs
•Preferred Provider Organizations
-Benefits may be provided through regular health insurers or in some states separately licensed as a PPO -No gatekeepers, benefits vary by use of in-network or out-of network providers -Usually pay physicians based on discounted fee for service (physician agrees to lower fees in order to be in network and get more patients) -Cost incentives to patients to pick in-network providers
friedman v sebelius
-CEO, EVP and GC pled guilty personally to misdemeanor charge of drug misbranding -Settlement stipulated they had no knowledge of activity -Months later, CMS excluded them from Medicare for 20 years -Appealed to Administrative Review Board, reduced to 12 years; no right to appeal OIG exclusion -Sued to throw out misdemeanor convictions •Trial court affirmed conviction and exclusion •District court affirmed conviction, remanded to trial court for reconsideration
•Why should Charity be subsidized?
-Charity as a virtue: benevolent giving and caring -Saving government burden -Separation of church and state -Tax law as "social justice" tool
HEALTH REFORM - WELLNESS
-Employers can increase financial incentives to their employees who participate in workplace wellness or prevention programs - up to 30% of the cost of the health coverage can be used as incentives to participate; more if it involves tobacco cessation
TAX-EXEMPT
-Federal tax law issue -Determines whether the entity must pay taxes on its profits -Must have charitable purpose, no private benefit or inurement, meet other requirements
SENSITIVE PERSONAL INFORMATION
-First name/initial and Last name, plus -Identifying number (SSN, credit card, bank account) -PHI is sensitive personal information -If encrypted, not SPI (unless key lost too)
•Point of Service Plans
-Generally used by HMOs to give options to use nonparticipating providers with more limited benefits - members choose provider at the "point of service" - state laws may require additional filings of policy forms
Hawkins vs. McGee
-HAIRY HAND CASE -Plaintiff underwent surgery to repair scarred tissue on his hand -Doctor promised "100 hundred percent" good hand -Court uses expectation damages measure and the basis was the difference between a good hand and the hand received
•Vertically Integrated Delivery System
-Hospital and physician services provided under one entity; quality and risk sharing, outcomes measures; can be ACOs
OPERATIONAL
-How does the entity store/transmit/deal with data? What protections are required?
Coons vs Geithner
-IPAB ("death panels") and other aspects violate separation of powers because no possible court review of administration decisions -Case dismissed -IPAB repealed in 2018
FUTILE CARE - TX
-If Ethics Committee agrees with physician, patient's family/surrogate decision maker has 10 days to transfer patient to another facility willing to continue treatment
IMPLIED
-In emergencies (immediate treatment required to save life or limb) treat the emergency first; worry about consent later -Extended surgeries, likely complications
WELLNESS PROGRAMS
-Limited some areas that are regulated under ACA regarding penalties for failing to meet certain health parameters (30% of premium costs)
Exclusive Provider Organization (EPO)
-More limited providers (ex: use of one hospital system and its medical staff) -Depending on state regulation, may be able to pay providers using capitation -Typically provided through a regular health insurer as an alternative to a PPO -"Narrow" networks
BORROWED EMPLOYEE
-Nurse is employed and paid by hospital -Doctor "borrows" nurse to assist in surgery -Nurse is employee of 2 employers •Hospital - actual employer •Doctor - implied employer
Moore v. Carson-Tahoe HospitaL
-Obstetrician failing to follow sterile practices -Procedures canceled -Hearing on failure to follow procedures -Terminated for "unprofessional conduct" -Termination followed Medical Staff Bylaws, including a fair hearing
Texas Occupations Code
-Only a "licensed person" may practice medicine •"Practice of Medicine": Providing care, holding oneself out as a physician, or collecting payments for physician services -Only human beings (individuals) can be licensed -Licensed individuals can practice through approved corporate forms (PA, PLLC, LP, LLP)
Aetna Health, Inc. v. Davila
-Patient received a substitute medication that was less expensive. Had complications because of medication -Supreme court ruled that ERISA preempts lawsuits for damages against an ERISA-covered plan for negligent healthcare coverage decisons
FUTILE CARE
-Physician may refuse to honor patient's advance directive or decision to continue life-sustaining treatment if the physician believes continued treatment would be hopeless or futile -If hospitalized, physician's decision is reviewed by hospital ethics committee
•Failure to Respond to Emergency Call
-Physicians on call in ER expected to respond to requests for emergency assistance when such is considered necessary - response time specified in MS Bylaws or Rules & Regs -Failure to respond is grounds for negligence if patient suffers injury as a result of a physician's failure to respond
•Genetic Information Non-discrimination Act: (GINA)
-Prohibits employer use of genetic information in employment decisions -Prohibits collection of genetic information as enrollment requirement for employee benefits -Makes genetic information protected health information under HIPAA -Health Risk Assessments - family medical history may have GINA implications
•Civil Rights Act of 1964
-Prohibits private employers & state & local governments from discrimination in employment in any business on basis of race, color, religion , sex, or national origin -Bostock v Clayton County included gender orientation and sexual identity in the word "sex" -Sexual harassment covered
•State tax exemption
-Sales and income tax -Ad valorem property tax - sometimes state law specifically exempts property owned by charities
•American Campaign Academy v. Comm. (1989)
-School for political campaign operatives -All graduates worked for Republican campaigns
organized health care arrangement (OHCA)
-Separate entities under different control operating in cooperation with each other
•Ravenswood Hospital (1998):
-Shooting victim within block of hospital -Hospital personnel prohibited from leaving campus to treat in nearby areas •Safety of staff? •Liability reduction by hospital? -regs now cite hospital's "campus" - main buildings + 250 yds
HYBRID ENTITIES
-Single entity with one part that is a HIPAA-covered entity and other part(s) that are not
Non-Profit
-State law issue -No part of the net profits can be distributed to shareholders or members -May or may not have charitable requirement
•Wrongful birth
-Suit by parents for failed sterilization or failure to diagnose/warn of handicap
CAPTAIN OF THE SHIP
-Surgeon runs the show in the OR -Directs hospital's employees (nurses) -Surgeon liable for hospital employees' acts
•NLRA later modified by
-Taft-Hartley amendments - 1947 •Imposes more controls on organizing activities •Exempted non-profit health care institutions
Sissel v HHS
-Tax bills must originate in House, and ACA started with Senate bill -Clarify status of Commerce Clause argument
child abuse
-Texas - anyone suspecting child abuse is required to report, either to law enforcement or to Family & Protective Services -Abuse reporting for adults with disabilities and for elderly - over 65
1895 Pollack v Farmers Loan & Trust
-Unconstitutional for feds to tax muni bond interest payments •1988 overturned in South Carolina v. Baker, but non-taxation of muni bonds now part of Tax Code
SYSTEMIC
-What computer or information systems hold or transfer PHI? What databases are used? How? Who has access/control?
GEOGRAPHIC
-Where is data stored or transmitted? When? How? What issues are raised by location issues (e.g., different state law breach requirements)?
PERSONNEL
-Who accesses data? Why? Any special issues?
•Nurse generally has no duty to
-advise a patient as to a surgical procedure to be used •however, may confirm with patient that the physician has explained the procedure -advise patient as to the risks, benefits & alternatives to a recommended procedure •this is the physician's ultimate responsibility -obtain a patient's informed consent •P & P may provide that the nurse may witness that the risks, benefits & alternatives have been explained
Determining incapacity
-attending physician must find that patient lacks capacity, 2nd physician also makes determination; noted in medical record
GENERAL CONSENT
-can relate to assault and battery - routine care, vital signs, etc. •civil and criminal violation (potentially) •simple to prove •insurance might not cover
•Active Euthanasia
-intentional commission of an act, such as giving patient lethal drug
Scalia-like dicta
-law is "silly," impractical, and possibly asinine, but not necessarily invalid.
•Governing body (Board of Directors or Trustees) has ultimate responsibility for approving:
-medical staff bylaws / rules and regulations -application requirements for privileges -process for granting emergency staff privileges -requirements for medical staff consultations -peer-review process - Federal and State laws -process for auditing medical records, addressing disruptive physicians, process for disciplinary action
Agent's rights
-must use best judgment; know about patient's wishes re: hydration and nutrition but for other areas can interpret patient's wishes
•Passive Euthanasia
-occurs when life-saving treatment (such as a respirator) is withdrawn or withheld
VOLUNTARY EUTHANASIA
-occurs when suffering, incurable patient makes decision to die
US DEPT OF LABOR DOL
-promote welfare of wage earners -improve working conditions -advance opportunities for profitable employment -Employee Benefits Security Administration (EBSA) - ERISA, ACA, various labor laws - good website information for employers (www.dol.gov/ebsa/) -Forms and posters
•Liability often depends on the answers to:
-was a tort committed; was the person an agent or employee of the defendant; was the tort committed w/in the scope of the duties of the agent or employee?
Claims: Proving Lack of Consent
1. Reasonably prudent person in the patient's position would not have undergone the treatment if fully informed (objective test) 2. Lack of informed consent is the proximate cause of the injury for which recovery is sought
required elements of a contract
1. competent parties 2. a meeting of the minds (offer and acceptance) 3. a legal purpose 4. adequate consideration
hierachy of statutory law
1. us constitution (highest) 2. federal laws 3. state constitution 4. state laws 5. states can differ from other states in results of cases - highest state court makes final state law decisions
How many courts of appeals are there?
13
Hotel Dieu of Paris
13th century, often 2 in one bed, draperies not washed spreading infection
East India Company of London
1602
dutch east india company
1602
hudson's bay company
1670
Dent v. West Virginia
1889; licensing of physicians by states upheld by SCOTUS
FLEXNER REPORT
1910; Standards for medical schools
HIPAA STATUTE PASSES
1996
HITECH ACT PASSES - INITIAL REGULATIONS
2009
children must be includable on parent's insurance up to what age?
26
what's the max inccentive (as a % of the patient's premium costs) an employer can give for participating in an employee wellness program?
30%
PHYSICAL
4 MAJOR ITEMS
TECHNICAL
5 MAJOR ITEMS
How many Supreme Court Justices are there?
9
ADMINISTRATIVE
9 MAJOR ITEMS
How many US district courts?
94
DR. WILBERTO CORTES ( DR. HOURGLASS )
A Texas-based plastic surgeon is giving the world an up-close look at his cosmetic procedures. He's Periscoping, Snapchatting and going live on Facebook during operations with permission from patients.
express contract
A contract in which the terms of the agreement are fully and explicitly stated in words, oral or written.
Voidable Contract
A contract that may be legally avoided at the option of one or both of the parties.
Anti-Kickback Statute
A criminal law that prohibits the exchange of anything of value to reward the referral of a patient sponsored by a government insurance plan. criminal statute
medicaid
A federal and state assistance program that pays for health care services for people who cannot afford them.
medicare
A federal program of health insurance for persons 65 years of age and older
Sarbanes-Oxley Act
A law passed by Congress that requires the CEO and CFO to certify that their firm's financial statements are accurate.
Business Judgement Rule
A presumption that, in making a business decision, the directors of a corporation acted on an informed basis, in good faith and in the honest belief that the action taken was in the best interests of the company.
ADDRESSABLE VS REQUIRED
ADDRESSABLE ITEMS CANNOT BE IGNORED
NATIONAL LABOR RELATIONS ACT NLRA
AKA WAGNER ACT 1935, GOVERNS LABOR-MANAGEMENT RELATIONS OF BUSINESS FIRMS ENGAGED IN INTERSTATE COMMERCE
name the 4 primary federal healthcare fraud and referral laws?
AKS, stark, false claims act, civil monetary penalties law
WARREN AND MORTON (MA); LONG (GA)
ANESTHESIA USING ETHER
APPROVED NONPROFIT HEALTH CORP
ANHC
60/40 OWNERSHIP AND REFERRAL SOURCE
ANTI-KICKBACK
DIRECTLY OR INDIRECTLY, OVERTLY OR COVERTLY, IN CASH OR IN KIND
ANTI-KICKBACK
OIG/DOJ
ANTI-KICKBACK
PERSONAL SERVICES AND MANAGEMENT CONTRACTS
ANTI-KICKBACK
TX ANTI-REFERRAL STATUTE
ANTI-KICKBACK
GOVT PAYMENT PROGRAMS INCLUDING MEDICARE/MEDICAID
ANTIKICKBACK
NON PROFIT HOSPITALS
ARE ALSO BUSINESS OPERATIONS
AG
ATTORNEY GENERAL
what is an ACO
Accountable Care Organization
ultra vires acts
Acting beyond its scope of authority either express or implied
SECURITY SAFEGUARDS
Administrative Physical Technical
ACA
Affordable Care Act (Obamacare)
US v. Greber
After a trial by jury, the physician was convicted on 20 of 23 counts in an indictment charging mail fraud, Medicare fraud, and false statement. On appeal the physician contended that the evidence was sufficient to support the guilty verdict. The court of appeals held that the extent that payments made to a physician were made to induce referrals by the physician of Medicare patients to user payer laboratory services, Medicare fraud was established - Any kickback to induce referrals is fraud
ADEA
Age Discrimination in Employment Act
ACLU
American Civil Liberties Union
AHA
American Hospital Association
ADA
Americans with Disabilities Act
G. A. Stowers Furniture Co. v. American Indemnity
An insured filed an action against defendant insurer alleging that the insurer did not act in good faith in refusing to settle a lawsuit against the insured brought by a motorist injured when her vehicle struck the insured's vehicle. The insurance policy required the insurer to indemnify the insured. When the insurer refused to accept a settlement and judgment was entered against the insured in an amount exceeding the policy limits, the insured sought to obtain reimbursement from the insurer. The insured argued that in refusing to agree to the settlement, the insurer did not act in good faith, and it did not act like a prudent person would have acted under like circumstances. The trial court issued judgment in favor of the insurer. On appeal, the judgment was affirmed. The insured sought review.
EMPLOYEES / EMPLOYMENT
BOTH AKS AND STARK
EQUIPMENT RENTAL
BOTH AKS AND STARK
BA
BUSINESS ASSOCIATE
Vanaman v. Milford Memorial Hospital
Barbara L. Vanaman, plaintiff, (and her parents) seek damages for injuries which she allegedly sustained as a result of the negligence of Milford Memorial Hospital, Inc., (Hospital) and Dr. C. Edward Graybeal, defendants, Miss Vanaman at age 16 fell and twisted her ankle. When her family physician could not be reached, she was taken to the Hospital about two hours after the fall. Dr. Graybeal, a staff member then on duty, ordered X-rays; a fracture was identified and the doctor put a cast on her left leg. The complaint alleges that the cast was too tight, that it resulted in injuries to plaintiff, and that there was a failure to diagnose and treat the resulting physical condition. As a consequence thereof, it is alleged, Miss Vanaman suffered injuries to the vascular, lymph, cellular and/or nervous system, tissues and cells of her leg. Plaintiff contends that the Hospital is responsible for Dr. Graybeal's alleged negligence. The Hospital argues that Dr. Graybeal was not its servant, agent or employee
Short robed surgeons
Barber; -Surgeons could only leech and shave, bloodletting as a common remedy
BAA
Business Associate Agreement
COMMUNITY HEALTH NEEDS ASSESSMENT
CHNA
WHO MAY CONSENT?
COMPETENT ADULT OR SPOUSE
POTENTIAL SUBCONTRACTOR BA'S
COMPUTER SUPPORT VENDORS, EXPERT WITNESSES, AND VALUATION EXPERTS, ACCOUNTANTS, INVESTIGATORS
4 ELEMENTS OF A NEGLIGENCE CLAIM
DUTY, BREACH OF DUTY, DAMAGES, AND CAUSATION
DSHS
Department of State Health Services
right to notice of privacy practices
Describes individual's rights to access, inspection, accounting Duties of covered entity Complaints and contacts How covered entity will use and disclose their health information
COMPONENTS OF INFORMED CONSENT
Disclosure of info, decision-making capacity, documentation of consent, competency
TYPES OF CONSENT
EXPRESS OR IMPLIED
EMTALA
Emergency Medical Treatment and Active Labor Act
ERISA
Employee Retirement Income Security Act
Executive Branch
Enforces laws
EEOC
Equal Employment Opportunity Commission
FMLA
FAMILY MEDICAL LEAVE ACT
FAIR LABOR STANDARDS ACT
FLSA
what are the 3 major antitrust laws?
FTC act, Sherman act and clayton act
GENERAL OBLIGATION BONDS
FULL FAITH AND CREDIT OF ISSUER
FERPA
Family Educational Rights and Privacy Act
Quality Improvement Committee
Functions as a patient care assessment & improvement committee
•Genetic Information Non-discrimination Act:
GINA
crocker v. winthrop
Glenn E. Crocker became addicted to a new drug produced by Winthrop Laboratories and known as "talwin" which had been previously thought to be non-addictive. When he was in a weakened condition and his tolerance to drugs very low because of a period of detoxification, Crocker obtained an injection of a narcotic and died soon thereafter. His widow and representative, Clarissa Crocker, brought this action for damages due to his suffering while alive as well as for his wrongful death
HCQIA
Health Care Quality Improvement Act
HCQIA
Health Care Quality Improvement Act of 1986
HITECH
Health Information Technology for Economic and Clinical Health Act
HIPAA
Health Insurance Portability and Accountability Act
HHS
Health and Human Services
HIPDB
Healthcare Integrity and Protection Data Bank
CORPORATE LIABILITY
Hospital now owes legal duty to patient
But does it mean being responsible for physician's malpractice? Depends. . . .
Hospitals are no longer just bricks and mortar; they are expected to be quality control institutions!
STRATEGIES FOR LIABILITIES
INSURANCE, COMPLIANCE ACTIVITIES, SELF-INSURANCE TORT CLAIMS ACT
Omnibus Rule changed that
If there is a "low probability" that the PHI has been compromised, no reporting required
NFIB v. Sebelius
In 2012, the Supreme Court ruled that the federal government had the authority to require that individuals purchase health insurance because Congress had the authority to levy taxes. PENALTY WAS REPEALED
Matthies v. Mastromonaco
In an informed consent analysis, the issue is whether the doctor provided the patient with material to make an informed decision, i.e., medically reasonable treatments and their risks and probable outcomes; risks are those that a reasonable patient would want to know
King v. Burwell
Individuals using both the state-run and federally-run health insurance exchanges may receive health insurance subsidies from the federal government.
IRB
Institutional Review Board
judicial branch
Interprets the laws
Scienter
Knowledge by the misrepresenting party that material facts have been falsely represented or omitted with an intent to deceive.
MANAGED CARE ORGANIZATION
MCO
medical executive committee
MEC
Texas Medical Records Privacy Act
MRPA
legislative branch
Makes laws
MLR
Medical Loss Ratio
MOST
Medical Orders for Scope of Treatment
PERSONAL IDENTIFYING INFORMATION
NAME, SSN
medicare cram down
NFIB v sebelius
personal mandate
NFIB v sebelius
NATIONAL LABOR RELATIONS ACT
NLRA
NPDB
National Practitioner Data Bank
What state has a unicameral legislature?
Nebraska
what is the main distinction b/w section 1 and section 1 of the sherman act?
ONE PERSON CAN VIOLATE SECTION 2, SECTION 1 IS WHEN 2 PEOPLE ACT TOGETHER TO TAKEOVER A MARKET
EXPRESS
ORAL OR WRITTEN, COULD BE ROUTINE FOR VACCINATIONS, PHYSICAL EXAM BUT WRITTEN CONSENT IS USUALLY OBTAINED ANYWAY TO BE SAFE
OSHA
Occupational Safety and Health Administration
OCR
Office of Civil Rights
OFCCP
Office of Federal Contract Compliance Programs
OPM
Other people's money.
BUSINESS ASSOCIATES ARE ENTITIES THAT
PROVIDE SERVICE TO ONE OR MORE COVERED ENTITIES, CREATE RECEIVE MAINTAIN OR TRANSMIT PHI IN CONNECTION WITH THE SERVICE, NO OTHER EXCEPTION (WORKFORCE MEMBER, PROVIDING SERVICES TO PATIENT/BENEFICIARY RATHER THAN TO OTHER PARTY, ETC.)
PATIENT SELF DETERMINATION ACT
PSDA
louis pasteur
Pasteurization
FTC v. ACTAVIS
Pay-for-delay case brand name manufacturer paid generic maker not to start making the generic version so it could continue selling the branded version W/O competition
PII
Personal Identifiable Information
POLST
Physician order for life sustaining treatment
PHI
Protected Health Information
Provena Covenant Medical Center v. Illinois Department of Revenue
Provena Hospitals owns and operates the Provena Covenant Medical Center (Plaintiff) which the Illinois Department of Revenue (Defendant) determined was not entitled to a property tax exemption for charitable organizations because charitable acts were lacking.
whose death impacted the vote on ACA and why?
RBG -- trump appointed a republican
what's the name of the process through which the ACA was finally passed by the senate to avoid a second cloture vote?
RECONCILIATION OF CLOTURE
INFORMED CONSENT
RELATES TO NEGLIGENCE •civil wrong only •standard malpractice-like case •where uninformed consent is not sufficient
NPDB
REQUIRED QUERIES OF DATA BANK INFO
REVENUE BONDS
REVENUE FROM FUNDED PROJECT
OMNIBUS RULE
REVISED HIPAA TO SPECIFICALLY REQUIRE BA'S TO ENTER INTO BAA'S WITH SUBCONTRACTORS
PRIVACY STANDARDS: INDIVIDUAL RIGHTS
RIGHT TO ACCESS OWN INFO, RIGHT TO REQUEST AMENDMENT, RIGHT TO REQUEST RESTRICTIONS, RIGHT TO REQUEST COMMUNICATIONS IN ALT FASHION, RIGHT TO RECEIVE AN ACCOUNTING OF DISCLOSURES
RFRA
Religious Freedom Restoration Act
Baptist Mem. Hosp. Sys. v. Sampson
Rhea Sampson was bitten on the arm by an unidentified creature that was later identified as a brown recluse spider. By that evening, her arm was swollen and painful, and a friend took her to the Southeast Baptist Hospital emergency room. Dr. Susan Howle, an emergency room physician, examined Sampson, diagnosed an allergic reaction, administered Benadryl and a shot of painkiller, prescribed medication for pain and swelling, and sent her home. Her condition grew worse, and she returned to the Hospital's emergency room by ambulance a little over a day later. This time Dr. Mark Zakula, another emergency room physician, treated her. He administered additional pain medication and released her with instructions to continue the treatment Dr. Howle prescribed. About fourteen hours later, with her condition rapidly deteriorating, Sampson went to another hospital and was admitted to the intensive care ward in septic shock. There, her bite was diagnosed as that of a brown recluse spider, and the proper treatment was administered to save her life. Sampson allegedly continues to have recurrent pain and sensitivity where she was bitten, respiratory difficulties, and extensive scarring. Sampson sued Drs. Howle and Zakula for medical malpractice. She also sued Baptist Memorial Hospital System ("BMHS"), of which Southeast Baptist Hospital is a member, for negligence in failing to properly diagnose and treat her, failing to properly instruct medical personnel in the diagnosis and treatment of brown recluse spider bites, failing to maintain policies regarding review of diagnoses, and in credentialing Dr. Zakula.
FLORENCE NIGHTINGALE
SANITARY HOSPITALS, ADVANCEMENTS IN NURSING
SENSITIVE PERSONAL INFORMATION
SPI
DHS
STARK
FAIR MARKET VALUE COMPENSATION
STARK
GROUP PRACTICE DEFINITION
STARK
IN-OFFICE ANCILLARY SERVICES
STARK
NON-MONETARY COMPENSATION UP TO $300
STARK
OWNERSHIP OR COMPENSATION RELATIONSHIP
STARK
CMS
STARK LAW
WRONGFUL LIFE
SUIT BY DISABLED CHILD FOR BEING BORN
affiliated covered entities
Separate entities under common control operating as a single covered entity
what does SHOP stand for
Small Business Health Options Program
SS ACT
Social Security Act
1913 Income Tax Code:
State/local government debt payments not subject to income tax
Darling v. Charleston Community Memorial Hospital
Subject: Corporate Negligence Info: 18yo football player injured, fractured tibia, leg casted by practitioner in ER, patient complains of pain, no specialist called, two weeks later--patient transferred, leg amputated, documentary evidence included medical records, hospital bylaws, JCAHO Lesson: Hospital, as a corporate entity, liable for both the negligent act of nurses & physicians -Governing board ultimately responsible for quality of care
Sprager v. Worley
Sylvia Caldwell sued Worley Hospital, Inc. and Dr. C. F. Sparger to recover for injuries she suffered when a surgical sponge was left within her abdominal cavity during surgery.' The jury, in answer to four special issues, determined that one of the surgical nurses was negligent with respect to the sponge left within the surgical wound, that this negligence was the proximate cause of Mrs. Caldwell's injuries, that Dr. Sparger was not personally negligent, and that the nurses were not the borrowed servants of the doctor.' Basing its decision on these answers, the trial court rendered a judgment in favor of Dr. Sparger and against Worley Hospital.3 On appeal the court of civil appeals reversed the judgment in regard to Dr. Sparger's liability and held that the surgeon was liable as a matter of law under the captain of the ship doctrine
TX NON-COMPETE PROVISIONS
TX BUSINESS AND COMMERCE CODE
-In Beal v. Doe, 1977
The Court ruled that it is not inconsistent with the Medicaid portion of the Social Security Act to refuse to fund unnecessary (although perhaps desirable) medical services
-Little Rock Family Planning Services v. Jegley, 1999
The U.S. Court of Appeals for the Eight Circuit agreed with a lower court that had found Arkansas's Partial-Birth Abortion Ban Act of 1997 to be unconstitutionally overbroad and had permanently enjoined enforcement of the Act. The Act had made it a crime to perform "an abortion in which the person performing the abortion partially vaginally delivers a living fetus before taking the life of the fetus and completing the delivery." Physicians who perform abortions had challenged the constitutionality of the Act. Although the state had intended to ban only the dilation and extraction (D & X) procedure, the Act implicitly banned common procedures such as suction-curettage and dilation and evacuation (D & E). Because the law banned commonly accepted abortion procedures, the Court of Appeals concluded that Arkansas's Partial-Birth Abortion Ban Act created an undue burden on the rights of women who seek a second-trimester abortion for a nonviable fetus.
BREACH
The acquisition, access, use or disclosure of unsecured PHI in a manner not permitted under the HIPAA Privacy Rule that compromises the security or privacy of the PHI
Women's Medical Professional Corp. v. Voinovich, 1998
The plaintiff-appellant, an abortion clinic, sued the Governor of Ohio, the Attorney General of Ohio, and the prosecuting attorney for Montgomery County, challenging the facial constitutionality of an Ohio law regulating abortions.
federal privacy act of 1974
This act safeguards privacy through the establishment of procedural and substantive rights in personal data
DOL
U.S. Department of Labor
what case included cars, what year model Buick was involved, and what was the make of the other type of car?
US. VS. bay state ambulance, 1983, Mazda
Uniformed Services Employment and Reemployment Rights Act of 1994
USERRA
jeremy bentham and john stuart mill
Utilitarianism
Anesthesia
Warren and Morton
Quis custodiet iposos custodes
Who will guard the guards themselves?
Huping Zhou
a former research assistant at the University of California at Los Angeles Health System (UHS), accessed patient records without authorization after his employment was terminated.
safe harbor
a legal provision to sidestep or eliminate legal or regulatory liability in certain situations, provided that certain conditions are met.
describe an instance where lack of proof of harm will not bar a defamation claim?
accusing someone of a crime or accusing someone of having a loathsome disease
APN
advanced practice nurse
Hart-Scott-Rodino Act
all persons considering a merger or acquisition above a certain size must notify both the DOJ Antitrust Division & FTC
david hume
analytic
all federally - funded (incl. exchange plans)
anti-kickback
anyone
anti-kickback
criminal
anti-kickback
intent based
anti-kickback
kickbacks
anti-kickback
safe harbors
anti-kickback
proof of intent
antikickback statute
Ignaz Semmelweis
antiseptic handwashing
joseph lister
antiseptic surgery, clean instruments and gloves
implied contract
authority to do something (ex: corporate officer's authority, doctor/patient relationship - appointments)
PURPOSE OF HIPAA
balancing obligation of covered entity to provide privacy and rights of patients to control their PHI
1929 - Baylor Plan
becomes blue cross
ultra vires
beyond the powers of
hippocratic/greek medical theories
blood (liver) - yellow bile (gall bladder) - black bile (spleen) - phlegm (brain)
space rental
both stark and AKS
abbot labs v portland retail druggists
case allows certain price discrimination to benefit non-profit orgs
writ of certiorari
certified writing
yellow bile (gall bladder)
choleric, bad tempered
William Harvey
circulatory system understood (wrote the de motu cordis which established the circulation of blood throughout the body)
clayton act
civil law ; prohibits acts that lessen competition or tend toward monopolies
tort
civil wrong, not a breach of contract, committed against a person or property for which a court provides a remedy in form of an action for damages.
answer
comes 2nd in legal proceedings
discovery
comes 3rd in legal proceedings
trial
comes 4th in legal proceedings
complaint
comes first in legal proceeding
appeal
comes last in legal proceedings
two elements of religious restoration act
compelling interest, least restrictive
what are the 2 elements of the religious freedom restoration act
compelling interest, least restrictive
US v. Bay State Ambulance
conspiring to commit Medicare fraud (Count 1). 42 U.S.C. § 1395nn.*fn1 The defendants were also charged with illegally paying Felci in the form of a Buick (Count 2), a Mazda (Count 4) and seven checks (Counts 3 and 5-10) in violation of the same statute.*fn2 The jury found the defendants guilty of Counts 1 (the conspiracy), 2 (the Buick) and 4 (the Mazda).
the most legitimate complaint against administrative law is that it lacks
constitutional legitimacy
common contracts in healthcare setting
contracts b/w healthcare providers
business associates are
contractually obligated to provide the same level of protection to PHI as the covered entity provides
ben nelson
cornhusker kickback
CE
covered entities
Federal Trade Commission (FTC)
created by the FTC act to police violations of the act
sherman act
criminal law - prohibits monopolization/attempts to monopolize, even when only 1 perpetrator involved; felony
assault
deliberate threat coupled with apparent ability to do physical harm to another. actual contact not necessary.
what are the elements of assault?
deliberate threat with ability to cause harm
components of stark violation
denial of payment, refund of payment, imposition of a $15,000 per service civil monetary penalty and imposition of a $100,000 civil monetary penalty for each arrangement considered to be a circumvention scheme.
Specialty HMOs
dental vision behavioral health
medical examiner
determines cause of death, provides info for criminal investigation
W.T.G Morton
develops sulfuric ether
What is D&O insurance?
directors and officers insurance
Louis Pasteur
discovers germs and vaccines, discovered TB, pasteur vaccinated against anthrax
DNR
do not resuscitate
what are the 3 common law duties of a member of a board of directors of a corporation?
duty of loyalty, due care, obedience
4 elements of negligence
duty to use due care, breach of duty of care, injury/actual damages, proximate cause/causation
which came first? the east india company of london, the dutch east india company, or the hudson's bay company?
east india company of london
WHAT IS NOT PHI
education records, employment records, records relating to someone who has been dead for at least 50 yrs, records entirely unrelated to a covered entity, de-identified PHI
scott brown
elected to ted kennedy's seat
circumvention arrangements
element of stark
blue shield (washington/oregon)
employer provided care to keep employees productive
NOT A COVERED ENTITY
employers generally, life insurance plans, health insurance component of auto insurance, workers comp
what event generated the sarbanes oxley act?
enron
ACS (american college of surgeons) joins with AMA and AHA - 1952
established the Joint Commission on Accreditation of Hospitals
what is the individual mandate
everyone needs to have insurance
whistleblower
ex rel
monetary damages
expectation damages
Patient Self-Determination Act of 1991
facilities that accept medicare and medicaid reimbursement are required to present this. It addresses the patients right to refuse or accept medical treatment and information regarding advance directives
hippocrates
father of medicine, performed surgical operations, hippocratic oath
sanitary hospital conditions
florence nightingale
how many federal court districts are there in tx and what are their names
four, the United States District Courts for the Northern District of Texas, the Eastern District of Texas, the Southern District of Texas, and the Western District of Texas
ex rel
from the narration of
stare decisis
future decisions abide by prior precedent
What separates ordinary negligence from gross negligence?
gross negligence is the reckless disregard to another person
guardian ad litem
guardian for this particular litigation
what was the punishment inscribed in the code of hammurabi for a surgeon who injured a patient?
his hands to be cut off
blue cross (dallas)
hospital pay-in-advance insurance
what is the cadillac tax
if you have too goof of an insurance plan you will be taxed
Florence Nightingale
improves care, considered first hospital admin, 1860 - founded nightingale school of nursing
battery
intentional touching of (or causing something to touch) another's person in socially impermissible manner without person's consent
what are the elements of battery?
intentional touching or causing something to touch, another person without consent
einthoven
invented the electrocardiograph
Terry Schiavo case
involved the spouse who was the legal guardian and his fight with her parents and family who disagreed with his decision to have her feeding tube removed
dental services
is not an essential health benefit
what is judgment NOV?
judgment notwithstanding the verdict. a judgment by the trial judge after a jury has issued a verdict
exchange established by a state
king v burwell
premium subsidy
king v burwell
corpus
latin for body
hospitalis
latin word - relating to guests and their treatment
Civil Monetary Penalties Law (CMPL)
law passed by the fed gov to prosecute cases that violate the false claims act, AKS, stark statute
john austin
legal positivism
oliver wendell holmes and roscoe pound
legal realism
group practice without walls
less organized, may share space and some costs but not revenue - usually will not qualify as a "group practice" for Stark law exception purposes
strict liability
liability without proof of fault. ALWAYS involves a product, NOT a service
john nozick or ron paul
libertarianism
LLC
limited liability for members, can be treated as a partnership or a corporation for tax purposes
why were LLCs invented
limited liability for their members, can be taxed as a partnership or corporation
antiseptic surgical processes
lister
Mary Landrieu
louisiana purchase
kaiser permanente (cali)
maintenance of health rather than payment for care provided
federal trade commission act
makes illegal unfair competition
federal false claims act
makes it an offense to submit a false claim to the government for payment of health care services
st. thomas more
man for all seasons
what does the term donut hole refer to
medicare part D
black bile (spleen
melancholic, irritable, depression
Anton van Leeuwenhoek
microscopy perfected, circulatory system investigated (bacteria and blood cells discovered)
johnson v. women's hospital
mother shown deceased premature infant - outrageous conduct by employees of hospital
can you have a 1 person partnership?
no
can you have a non-profit partnership
no
can the concept of strict liability apply to a physician practicing as a surgeon?
no because strict liability only applies to a product not a service
boilerplate
not required for a binding contract
duress
not required for a binding contract
eternal duration
not required for a binding contract
written agreement
not required for a binding contract
partnerships
not taxed as a separate entity (flow thru to the partners), all partners liable for all partnership debts
involuntary euthanasia
occurs when a person other than an incurable patient makes decision to terminate life of an incurable person
how many supreme courts are there
one
greber
one purpose
third-party administrators
pay claims, provide networks, administer benefit programs for self-insured employers (ERISA plans); usually licensed by state Insurance Departments
Rhazes
persian physician, sheep intestines for sutures, cleaned wounds with alcohol, first written descriptions of smallpox and measles
phlegm (brain)
phlegmatic, calm, rational
provider-patient contract
physicians not obligated to provide care, hospitals usually not obligated, BUT if the relationship begins, it must be properly terminated
jacob decker & sons v. capps
plaintiff tried to recover damages alleged to have been sustained by them as a result of eating poisonous and contaminated food alleged to have been manufactured and sold by appellant. The thre'e suits were consolidated and tried together.
comparative negligence
plaintiff's negligence accounted for x% of the cause, so plaintiff only recovers 100-x% of the damages
contributory negligence
plaintiff's negligence contributed so cannot recover from defendant
Durable Power of Attorney
power of attorney is written, gives an attorney-in-fact power to handle affairs on behalf of someone else as long as the person (principal) is competent.
burden of proof
preponderance of the evidence, clear and convincing evidence, proof beyond a reasonable doubt
medical staff
primarily just recommends actions to governing body
public health service act
primary "tool" for health reform, benefits, insurance reforms
U.S. department of justice
primary responsibility for enforcing federal anti-trust laws
stark statute
prohibits referrals by physicians with a financial relationship, $15k penalty, exclusion from fed programs - civil statute
proof of defamation
proof of harm not required to recover damages when - accusing person of crime - accusing person of having a loathsome disesase - using words harmful to a person's profession or business - calling a woman unchaste
Patient Self-Determination Act of 1990
protects patient rights including the right to agree to or refuse medical treatment
what is the business judgment rule
provides a director of a corporation immunity from liability when a plaintiff sues on grounds that the director violated the duty of care to the corporation so long as the director's actions fall within the parameters of the rule.
Dr. John Jones
published a book in 1775 describing frightful conditions in hospitals -called attention to Hotel-Dieu of Paris -Placing 3 to 5 patients in one bed -Including the convalescent with the dying -Fracture cases placed with infection cases -Infection rate of 100%, -mortality rate of 20%, and mortality rate of 60% after amputations
July, 1974 amendments
put non-profit health care facilities back under NLRA
gross negligence
reckless disregard for safety of another OR willful indifference to injury that could follow an act
acceptance
required for a binding contract
competent parties
required for a binding contract
consideration
required for a binding contract
legal purpose
required for a binding contract
meeting of the minds
required for a binding contract
offer
required for a binding contract
howard solomon
responsible corporate officer
horizontal consolidations
risky under antitrust laws (ex: mergers of otherwise-competing medical specialty practices to exclude competition)
Tarasoff vs Regents of U. Calif.
rosenjit Poddar killed Tatiana Tarasoff. Tatiana's parents, plaintiffs Vitaly Tatiana and spouse, alleged that two months earlier, Poddar confided his intention to kill Tatiana to defendant Dr. Lawrence Moore, a psychologist employed by the Cowell Memorial Hospital at the University of California at Berkeley, which was operated by defendant Regents of the University of California ("Regents"). They alleged that on Moore's request, defendant campus police officers briefly detained Poddar, but released him when he appeared rational. They further claimed that defendant Dr. Harvey Powelson, Moore's superior, then directed that no further action be taken to detain Poddar. No one warned Tatiana of her peril.
blood (liver)
sanguine, hopeful, amorous
Pasteurization and antiseptic processes
semmelweis, pasteur
HIPAA RISK AREAS
shared passwords inappropriate access internet security physical security lax info habits breach of confidentiality
what is the main distinction between the sherman act and the clayton act?
sherman is criminal law and clayton is civil law
gutted and stuffed
sissel v HHS
origination clause
sissel v HHS
thomas hobbes
social contract
stare decisis
stand by a decision
flexner report
standards for medical schools - 1910
physician or family member
stark
brightline
stark law
civil
stark law
doctors and family and DHS entities
stark law
exceptions
stark law
improper physician referrals
stark law
medicare and medicaid
stark law
are corporations usually formed under state or federal law
state
joseph lister
sterilizes surgical instruments and develops antiseptics (listerine named for him by a scientist inspired by him)
SOAP FORMAT
subjective, objective, assessment, plan of treatment
two primary dirvers for choosing a particular org such as a corp over a partnership
tax purposes and liability purposes
corporation
taxed as a separate entity, no liability of shareholders for debts of the corporation
•Oregon's Death with Dignity Act of 1994
terminally ill patients allowed physician assisted suicide
Who killed timothy treadwell
the bear
res adjudicata
the facts of this case have already been determined by a court and wont be reconsidered
mens rea
the intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused.
what was the original name of the Joint commission? why is it joint?
the joining of the AHA and AMA and ACS
braidwood v becerra
the plaintiffs claim that the preventive services requirements for private health insurance are unconstitutional and the requirement to cover PrEP-specific coverage requirement violates the Religious Freedom Restoration Act
a referral is
the request by a physician for, or ordering of, . . . any designated health service, . . . including a request for a consultation with another physician and any test or procedure ordered by . . . the other physician"
res adjudicata
the thing has been decided
res ispsa loquitur
the thing speaks for itself
under the ACA as originally passed, what would happen if an individual does not purchase insurance?
there would be a penalty on the individual
what was the principal goal of the sarbanes oxley act?
to keep CEO'S AND CFO'S truthful about the financial status of the company
is med mal primarily a contractual issue or primarily a tort issue
tort issue
hill-burton
uncompensated care obligation
long robed surgeons
university trained, did all types of surgeries, Royal college of Surgeons
anti-kickback statute penalty
up to 10 years jail/$100k fine
Crawford Long
used ether as anesthetic to remove small tumor 4 years earlier in GA
greer v. medders
verbally abusive physician - on appeal, court found abusive language to patient willfully caused emotional upset; sent case back to trial
respondeat superior
vicarious liability
Ignaz Semmelweis
vienna general hospital, father of infection control, ordered students to wash hands with chlorinated lime solution until cadaver smell gone
REFERRAL TO MEDICAL EXAMINER
violent deaths, criminal activity
qui tam
who as well, private whistleblowers
quis custodiet ipsos custodies
who will guard the guards themselves
if child is 24 but married, marginally employed (as an uber driver or bartender) and living elsewhere, must the parent's insurer make coverage available?
yes
contraceptive mandate
zubik v burwell
little sisters of the poor
zubik v burwell
Roberts v Galen of Virginia (1999):
•"Bad motive not required" -Kentucky resident treated at Kentucky hospital for 6 weeks, then transferred -Indiana hospital wanted to charge patient for care, and patient could not get Indiana Medicaid, so she sued the Kentucky hospital for improper transfer -No bad motive on Kentucky hospital, but no bad motive needed for an EMTALA violation -Query: not stable after 6 weeks?
Summers v Baptist Medical Center Arkadelphia (1996):
•"appropriate screening" -1st hospital mis-diagnosed - physician did not detect emergency condition -2nd hospital found life threatening condition -Did 1st hospital violate EMTALA? •duty to stabilize arises when emergency condition diagnosed •1st hospital didn't diagnose it, so EMTALA not implicated •negligent screening is not an EMTALA violation, but could be malpractice
US House v. Burwell
•(became US House v. Price) -Challenged risk corridor payments to insurers •Congress did not appropriate those funds -Settled after Trump agreed not to make risk corridor payments -Insurers sued government for payments, so far have won
group practice
•2 or more physicians sharing costs and revenue in a single legal entity
CRITERIA FOR ENFORCEABILITY OF COVENANTS NOT TO COMPETE.
•A covenant not to compete is enforceable against a person licensed as a physician by the Texas Medical Board if such covenant complies with the following requirements: (continued) -(2) the covenant must provide for a buy out of the covenant by the physician at a reasonable price or, at the option of either party, as determined by a mutually agreed upon arbitrator or, in the case of an inability to agree, an arbitrator of the court whose decision shall be binding on the parties; and -(3) the covenant must provide that the physician will not be prohibited from providing continuing care and treatment to a specific patient or patients during the course of an acute illness even after the contract or employment has been terminated. -(c) Subsection (b) does not apply to a physician's business ownership interest in a licensed hospital or licensed ambulatory surgical center.
Health Reform: Stark/AKS/FCA(Whistleblowers)
•ACA made changes in amendments to the False Claims Act public disclosure bar and original source exception
City of Akron v. Akron Center - 1983
•Abortion counseling -States cannot mandate what information physicians provide abortion patients -Free speech issue; see Becerra below •Hospital deliveries -States cannot mandate that abortions for women over 3 months pregnant be performed in hospital •Notable that "science" in Roe has been surpassed by medical technology
Hanlester Network v. Shalala
•Actually 3 separate labs: Omni, Placer, PPCL •SKBL provided full lab services; collected 80% of revenues, leaving labs 20% free cash •Doctors referred to labs, labs distribute profits to Hanlester Network, Hanlester distributes profits to doctors. •Doctors' profits dependent on ownership in Hanlester, not on volume/value of referrals -If doctor owned 5%, he got 5% of profits, even if he accounted to 25% of the referrals
-Cenzon-DeCarlo v. Mt. Sinai
•Anti-abortion nurse forced to participate in abortion procedure -Cenzon-DeCarlo lost suit, but HHS investigated and hospital agreed to revise policy to allow employees to opt out of performing abortions
-Lemly v. St. Tammany Parish, Noesen v. Wisconsin, Stormans v. Wiesman
•Anti-abortion pharmacists refusal to prescribe "morning after" pill
Patrick v. Burget
•Astoria Clinic biggest medical group in town •Patrick left Astoria Clinic, went out on his own •Clinic froze him out: would not refer to him, would not provide him backup coverage, then complained to Medical Staff that he didn't have backup coverage •Hospital kicked him out
What Happens When the Breach Happens?
•BIRT and others (attorneys, PR, etc.) •Insurance? •Investigate, stop the breach, mitigate, restore •Notice to affected individuals (usually required) and to OCR, state AGs, other public officials (if required)
-Utah County v. lntermountain Healthcare (1985)
•Being nonprofit not enough, need to show that your are a charitable operation
Lobbying and Politics
•Cannot support specific political candidate •Lobbying (attempting to influence legislation) allowed if it's not a "substantial part" (<5%) of the entity's activities
IRC § 501(c)(3) Purposes
•Charitable •Religious •Educational •Scientific •Literary •Testing for public safety •Fostering amateur sports competition •Preventing cruelty to children or animals
SPECIAL FORMS OF CONSENT
•Consent for Specific Procedures (see Texas Medical Disclosure Panel) -surgery -diagnostic tests •Temporary Consent -summer camp •Implied Consent -car accident, patient unconscious
Planned Parenthood v Danforth - 1976
•Definition of viability allowed •Unconstitutional to require spousal consent ("delegate to a spouse a veto power") •May not impose blanket parental consent for under age 18 patient
ELEMENTS OF INFORMED CONSENT
•Diagnosis and prognosis •Nature/purpose of proposed Treatment (in lay terms) •Risks, consequences, side effects •Probability of success •Reasonable alternatives •Prognosis without treatment ("informed refusal") •Type of recuperation likely
Kadlec Medical Center v. Lakeview Anesthesia Associates
•Dr. Berry was drug addict doctor •Fired for cause by Lakeview Anesthesia, not permitted to return to Lakeview Hospital •Fact not reported to NPDB or Louisiana state officials •Dr. Berry applied for privileges at Kadlec •Kadlec checked with the Hospital and LAA -Hospital said only that he was here -Clinic said he was a good guy •Dr. Berry caused a patient death, Kadlec had to pay
US ex rel Drakeford v. Tuomey Healthcare System
•Employed physicians "part-time" after they threatened to start performing in-office surgical procedures •Productivity bonuses (80% of net collections) determined in part on revenues generated by physician's referrals •Relator (Dr. Drakeford) said compensation was over fair market value (filed after failed contract negotiation with the hospital)
MRPA EXCEPTIONS
•Employers and certain entities defined in the Insurance Code are only subject to Subchapter D (prohibiting the re-identification, marketing, selling and/or disclosure of PHI) •Certain financial institution (banks) activities, such as payment processing, are exempted •Workers' compensation activities are exempted
FAIR LABOR STANDARDS ACT FLSA
•Establishes -Minimum wages (cities, states may set higher) -Maximum hours of employment -Overtime pay provisions -Determination of exempt employees provisions -Work week options -Child labor laws - <16 years prohibited employment
Texas Medical Records Privacy Act ("MRPA")
•Even if a business is not a CE under HIPAA, it still may be considered a CE under the MRPA •The MRPA is broader than HIPAA -A CE generally includes persons who assemble, collect, analyze, use, evaluate, store, transmit, obtain or come into possession of PHI -This includes business associates, health care payers, governmental units, schools, health researchers, health care facilities, etc. •BUT, MRPA doesn't cover as much as HIPAA •Later modified by "House Bill 300"
Rust v. Sullivan - 1991
•Federal regulations that prohibit funding to be used in Title X clinics and programs that include abortion counseling held Constitutional
Flynn Brothers, Inc. v First Medical Associates, 715 S.W.2d 782 (1986)
•Flynn Brothers formed partnership w/ Dr. Adcock to acquire ER coverage contract •Won contract, but realized partnership could not practice medicine (Flynns were not doctors) •Adcock formed FMA as wholly-owned PA to hold contract, Flynns formed FBI to "manage" FMA in exchange for 66.7% of FMA's profits •FBI also had ability to select medical staff to provide the ER coverage
independent practice associations
•Groups of physicians who contract together - some states regulate
Universal Health Services v. US ex rel Escobar (FCA)
•Hospital did not provide the level of care required by its license; an unlicensed doctor was providing care and a patient died •Patient's mother brought case alleging False Claims -Hospital billed Medicaid for services -Services were substandard, operations illegal -Billing itself was "implied certification" that all regulatory/licensure requirements were met
US ex rel Baklid-Kunz v. Halifax Hospital Medical Center
•Hospital employed 6 medical oncologists •Physicians entitled to participate in bonus pool of 15% of operating margin of the entire medical oncology department. •Physician's portion of bonus pool was that physician's overall physician services billings (numerator) divided by all oncologists' overall physician services billings (denominator) •No direct relation to referrals
the hide rule
•If the patient -Pays in full, out of pocket, for the service, and -Requests that the provider NOT disclose the information to the patient's insurer, •The provider must comply, and not disclose the information, if the disclosure is (i) to the payor and (ii) for payment or healthcare operations (you can disclose for treatment purposes)
New Enforcement Concerns under HITECH
•Increased penalties •State Attorneys General can prosecute HIPAA violations •Injured individuals may get some of the fine money
STOWERS DOCTRINE
•Insurer duty to defend and duty to indemnify •G. A. Stowers Furniture Co. v. American Indemnity •Policyholder has claim against insurer for negligently refusing to settle within policy limits •Plaintiff will often demand policy limits •Insured must demand the carrier settle •If the carrier fails to settle (negligently), the carrier is liable even for amounts over the policy limits
Dartmouth College case
•John Marshall, English common law - private eleemosynary corporation
Physician Hospital Organizations
•Joint venture type arrangement to facilitate provision of services and contracting with payers (some now evolving into ACOs)
Doe v. Bolton - 1973 (companion case to Roe)
•Liberal legislation (Georgia) •Requirement retained: -Physician's best clinical judgment •Requirements struck down -residency -performance of abortion in Joint Commission approved hospital -approval of abortion by a medical staff committee -consultations by 2 other physicians
June Medical Services v. Russo (Summer 2020)
•Louisiana law required abortion physician to have medical privileges at a hospital within 30 miles of the abortion site
Dobbs v. Jackson Women's Health
•Mississippi "heartbeat" statute •Prohibits abortion after 15th week of pregnancy -Based on finding of fetal heartbeat -Prior to generally-accepted point of viability
Webster v. Reproductive Health Services- 1989
•Missouri statute upheld providing that no public facilities or employees should be used to perform abortions.
Preventative services
•Non-grandfathered Plans must provide coverage for certain preventive care without any cost-sharing requirements •Includes recommended immunizations and screenings, as determined by the PSTF (PREVENTATIVE SERVICES TASK FORCE) •HHS recommendations and guidelines determine which preventive services are required with no cost-sharing •Includes well-woman checkups, HPV testing, screenings for HIV, contraceptives (exceptions for certain religious based Plans)
CONDITIONS OF THE INSURANCE POLICY
•Notice of occurrence •Notice of claim •Required assistance of the insured - cooperation •Other insurance - notification & sharing of costs •Often insurer may settle without consent of insured
US v. McClatchey
•Nursing home doctors offered to refer patients if hospital bought their company •Hospital agreed to pay $75,000/year to doctors provide various services •Payment amount set before services determined •Hospital officers and attorneys charged.
"Contractual" Joint Venture
•Physician entity retains all control •Joins with another entity for certain other services •Usually services were those not provided by physician entity prior to joint venture •Joint venturer can be other provider, payor, or vendor/service provider •OIG Fraud Alert: these arrangements can raise special compliance risks
ACA: Dependent Coverage Provision
•Plans providing dependent coverage of children must continue coverage available for an adult child until age 26 •Not required if child has access to own employer-provided coverage
Planned Parenthood v. Casey - 1992
•Plurality opinion (Kennedy, Souter, and O'Connor), no majority -"essential holding" of Roe upheld -state's power to restrict abortions after fetal viability (viability replaces trimesters) -Shift from "privacy" to "due process" -Said states can impose restrictions that do not constitute an "undue burden" on a woman's constitutionally protected right to have an abortion •"Undue burden" becomes the primary determinant
Poliner v Texas Health System
•Presbyterian Dallas: promoting quality of care, hospital temporarily suspended Poliner's privileges while investigated (focused professional practice evaluation) •Ultimately reinstated privileges with conditions •Poliner later sued other cardiologists & hospital •Federal & state claims
-Thompson v. Sun City (Az 1984)
•Private hospital w/ ED must provide care regardless of ability to pay
Guerrero v. Copper Queen Hospital (Az 1975)
•Private hospital w/ ED must provide care regardless of ability to pay
goals of MCOs
•Reduce incentives for unnecessary care -OPM -Providers over-providing their services •Redistribute risk for high cost care •Efficient delivery of care •Care coordination •"Well" care, not "sick" care
DNR ORDERS
•Reflect the wishes of a competent patient •DNR orders are written by a physician, indicate that in event of cardiac or respiratory arrest, no resuscitative measures should be used to revive patient
NPDB
•Reporting requirements - focuses primarily on physicians •Requires queries of data bank information •Who should report? (Hospitals and facilities) •Data bank queries and fees •Penalties for failing to report •Confidentiality of data bank information •Under ACA, NPDB merged with HIPDB in 2013 to eliminate duplicate functions, data collection
Tax Code section 4980H(a):
•Requires employers to offer Minimum Essential Coverage (MEC) benefits to FT employees to avoid a potential tax penalty
Tax Code section 4980H(b):
•Requires employers who offer MEC benefits to offer a benefit plan that provides "minimum value (60% of your bills)" and is "affordable (can't be more than 9.5% of income - next slide)" to avoid potential penalty
POTENTIAL HOSPITAL LIABILITES
•Respondeat Superior •Negligent Credentialing •Failure to abide by HCQIA •Fiduciary Duty?
Buck v. Bell (1927):
•S. Ct. case upheld validity of eugenic sterilization laws with certain protections (notice, hearing, appeal - due process) -"Three generations of imbeciles are enough" -- Oliver Wendell Holmes, citing Jacobson v. Mass. -Never overruled or overturned
Texas Non-Compete Provisions(applicable to all)
•Sec. 15.50. CRITERIA FOR ENFORCEABILITY OF COVENANTS NOT TO COMPETE. (a) Notwithstanding Section 15.05 of this code, and subject to any applicable provision of Subsection (b), a covenant not to compete is enforceable if it is ancillary to or part of an otherwise enforceable agreement at the time the agreement is made to the extent that it contains limitations as to time, geographical area, and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee.
Texas Non-Compete Provisions(applicable to physicians)
•Sec. 15.50. CRITERIA FOR ENFORCEABILITY OF COVENANTS NOT TO COMPETE. (b) A covenant not to compete is enforceable against a person licensed as a physician by the Texas Medical Board if such covenant complies with the following requirements: -(1) the covenant must: •(A) not deny the physician access to a list of his patients whom he had seen or treated within one year of termination of the contract or employment; •(B) provide access to medical records of the physician's patients upon authorization of the patient and any copies of medical records for a reasonable fee as established by the Texas Medical Board under Section 159.008, Occupations Code; and •(C) provide that any access to a list of patients or to patients' medical records after termination of the contract or employment shall not require such list or records to be provided in a format different than that by which such records are maintained except by mutual consent of the parties to the contract;
Planned Parenthood v. Ashcroft-1983
•Second physician required to attend to potentially viable fetus •No emergency exception, so unconstitutional
Being responsible for quality means ...
•Selecting a qualified medical staff •Monitoring the standard of care provided •Adopting and enforcing rules •Taking disciplinary action when necessary
Griswold v Connecticut- 1965
•State law prohibited use of contraceptives •"zone of privacy" discovered in Constitution
Immature Minors H.L. Matheson - Utah 1981
•Statute requiring physician to notify parents of minor, when possible, upheld •Parental notice does not violate constitutional rights of unemancipated minor •State may not legislate a blanket unreviewable power of parents to veto their daughter's abortion
Roe v. Wade - 1973
•Strict legislation (Texas) •"Right to Privacy" rather than "Due Process" -"liberty" argument in dissents •State interests -Protecting health of the woman -Protecting life of the fetus •Actual human life •"Potential of human life" •Potential individual interests -Acknowledgement of rights of fetus to life IF fetus is a "person."
Colautti v. Franklin - 1979
•Supreme Court - 6 to 3 that states may seek to protect a fetus that a physician has determined could survive outside the womb •Determination of whether a particular fetus is viable must be a matter for judgment of the physician
-Harris v McRae, 1981
•Supreme Court voted 6 to 3 that states may refuse to spend public funds to provide non-therapeutic abortions for women. •Different states not compelled to fund Medicaid recipients' medically necessary abortions for which federal reimbursement is unavailable, but may choose to do so.
Tissue Committee
•Surgical case reviews including justification & indications for surgical procedures
Whole Woman's Health v. Hellerstedt
•Texas case based on "undue burden" concept from 1992 Casey decision •Texas law - 2013 - opponents argue that could force 2/3 of abortion clinics to shut down (many already have) •Laws in 12 other states impacted by decision
MRPA ENFORCEMENT
•The Attorney General may institute an action for civil penalties of $5,000 - $250,000 for each violation •The court has discretion to consider mitigating factors in determining the penalty amount •A covered entity may be excluded from state-funded health care programs
Eugenics
•The study or practice of attempting to improve the human gene pool by encouraging the reproduction of people considered to have desirable traits and discouraging or preventing the reproduction of people considered to have undesirable traits.
MRPA COMPONENTS
•Training required •Re-identification of de-identified PHI prohibited •Use of PHI for marketing restricted •Sale of PHI prohibited •Authorization (notice) required for electronic disclosure
financial relationship is
•a direct or indirect ownership or investment interest in any entity that furnishes DHS; or •a direct or indirect compensation arrangement with an entity that furnishes DHS.
Texas is a CPoM state
•business entities (including hospitals) cannot employ physicians to provide medical care
case/care management firms
•contract to assist in coordinating complex medical cases
BEHAVORIAL CONTROL
•covers facts that show if the business has a right to direct and control what work is accomplished and how the work is done, through instructions, training, or other means.
FINANCIAL CONTROL
•covers facts that show if the business has a right to direct or control the financial and business aspects of the worker's job. This includes: -The extent to which the worker has unreimbursed business expenses -The extent of the worker's investment in the facilities or tools used in performing services -The extent to which the worker makes his or her services available to the relevant market -How the business pays the worker, and -The extent to which the worker can realize a profit or incur a loss
RELATIONSHIP OF THE PARTIES
•covers facts that show the type of relationship the parties had. This includes: -Written contracts describing the relationship the parties intended to create -Whether the business provides the worker with employee-type benefits, such as insurance, a pension plan, vacation pay, or sick pay -The permanency of the relationship, and -The extent to which services performed by the worker are a key aspect of the regular business of the company
Skinner v. Oklahoma (1942):`
•distinguishing between embezzlement and theft by habitual (3 strikes) criminals for sterilization violates equal protection -Theft vs. embezzlement: both "moral turpitude"
Arrington v. Wong (2001):
•diverting ambulance - "coming to the hospital" not defined in the statute -Heart attack patient in ambulance, on way to nearest hospital -Patient's doctor is at "nearby" hospital, so diverted for patient care reasons -If not on diversionary status, once ambulance is coming, EMTALA attaches
RISK ANALYSIS
•first step in the process to determine what risks exist and how they can be mitigated ;then, safeguards must be put in place based on the analysis.
Infection Control Committee
•generally responsible for the development of policies & procedures for investigating, controlling & preventing infections
cadillac tax
•if plan costs more than $10,200 for individuals or $27,450 for families - employer pays an excise tax of 40% of the cost above the limits (if your insurance is too good then you are subject to a tax)
Health Care Proxy/Surrogate
•legal document that allows person to appoint health care agent to make treatment decisions in the case of incapacity (not effective prior to incapacity
Guardianship
•legal mechanism by which a court declares a person incompetent to make his own decisions and appoints a guardian - Texas has two types, guardian of the person and guardian of the estate.
MCOs
•may have liability for non-participating physicians - ostensible or apparent agent
in vitro fertilization
•procedures take place outside the body, implant the fertilized egg
state laws
•vary considerably, may have additional regulation of quality and provider issues for HMOs by state health department
