Chapter 7-8

Comply with Accreditation Standards

Accredited hospitals are responsible for compliance with their accrediting body's standards (e.g., the Joint Commission). The Centers for Medicare and Medicaid Services (CMS) approves and recognizes national accrediting organizations such as The Joint Commission's accreditation standards as meeting or exceeding Medicare's requirements, or Conditions of Participation (COPs) required to be reviewed during the accreditation process, with which qualifying healthcare entities must be in compliance in order to be accredited for federal funding. The accrediting body is then granted what is termed "deemed status" which recognizes the accrediting body as having the authority to conduct hospital accreditation surveys for standards compliance, which is necessary before receiving federal funding. Recognized accreditation agencies include: ... the Joint Commission on Accreditation of Healthcare Organizations (JCAHO), the National Committee for Quality Assurance (NCQA), the American Medical Accreditation Program (AMAP), the American Accreditation HealthCare Commission/Utilization Review Accreditation Commission (AAHC/URAC), and the Accreditation Association for Ambulatory HealthCare (AAAHC). In addition, the Foundation for Accountability (FACCT) and the Agency for Healthcare Research and Quality (AHRQ) play important roles in ensuring the quality of healthcare. Each of the accrediting bodies is unique in terms of their mission, activities, compositions of their boards, and organizational histories, and each develops their own accreditation process and programs and sets their own accreditation standards. For this reason, certain accrediting organizations are better suited than others to perform accreditation for a specific area in the healthcare delivery system. The trend toward outcomes research is noted as a clear shift from the structural and process measures historically used by accrediting agencies. Accreditation has been generally viewed as a desirable process to establish standards and work toward achieving higher quality care, but it is not without limitations. Whether accrediting organizations are truly ensuring high quality healthcare across the United States is a question that remains to be answered.[41] Failure to follow safe practices identified in accreditation standards can result in patient injuries, such as those noted in the following news clipping, where patient equipment was disconnected because alarms were annoying to staff who became desensitized to the alarms—often as a result of frequent false alarms. -Noncompliance with accreditation standards can lead to an organization's loss of accreditation, which in turn would provide grounds for third-party reimbursement agencies (e.g., Medicare) to deny payment for treatment. The following case describes how a patient alarm was disabled, resulting in the death of a patient. -The accreditation process of a healthcare organization is a major event in its day-to-day operations. Organizations are expected to maintain a culture that supports patient safety and an environment that fosters respect, honesty, and compassionate care. The accreditation process is one of many tools that help ensure that high-quality care is being provided.

Protect Patients and Staff from Sexual Harassment Assault

-Hospitals are expected to protect patients and staff from sexual assault. A claim that a hospital was negligent in preventing such an assault will succeed only if such an assault is foreseeable. Such was not the case in following example.

Screen Job Applicants

All job applicants must be closely screened prior to employment, regardless of the responsibilities for which they are seeking employment. The screening process is generally the responsibility of the human resources department and hospital managers. As noted in the news clippings that follow, failure to adequately screen applicants can lead to damaging consequences for both patients and the hospital.

A Life Needlessly

An action filed against a health insurance company alleged that the way the insurer handled the insured's chemotherapy needlessly shortened her life, causing her last days to be more painful than they should have been. The jury awarded the plaintiff $49 million. The punitive damages award was considered excessive under Ohio law, and the trial court's failure to find as such was so unreasonable as to constitute abuse of discretion. A $30 million award was appropriate given the profits of the corporations involved and appropriate in the scheme of past punitive damages awards in Ohio.[60]

EMTALA was clearly violated in the Burditt case reviewed next:

EMTALA Violated: In Burditt v. U.S. Department of Health and Human Services,[25] EMTALA was violated by a physician when he ordered a woman with dangerously high blood pressure (210/130) and in active labor with ruptured membranes transferred from the emergency department of one hospital to another hospital 170 miles away. The physician was assessed a penalty of $20,000. Dr. Louis Sullivan, secretary of DHHS at that time, issued a statement: "This decision sends a message to physicians everywhere that they need to provide quality care to everyone in need of emergency treatment who comes to a hospital. This is a significant opinion and we are pleased with the result." Those ED physicians who do not wish to treat all patients of their choosing should vote with their feet and work in those settings where they can choose who they treat.

Express Corporate Authority

Express corporate authority is authority specifically delegated by statute. Healthcare corporations derive authority to act from the laws of the state in which they are incorporated. The articles of incorporation set forth the purposes of each corporation's existence and the powers that the corporation is authorized to exercise to carry out its purposes.

False Advertising

False or misleading advertising by healthcare entities continues to confuse and mislead the public in the search for high-quality care. Hospitals, for example, at a time when the Joint Commission provided hospitals with numerical scores advertised their perfect or nearly perfect accreditation scores. Scores as high as 100 were often posted on billboards and/or in local newspapers. The intent of such advertisements was to associate high scores with a higher quality of care compared to care in hospitals receiving lower scores. Following numerous complaints by healthcare organizations and surveyors, numerical scoring was discontinued, arguably due in part to the misuse of scores for advertising purposes. Some hospitals seemed to be more concerned with scores than complying with the standards required for accreditation purposes. From both an ethical and a legal point of view, healthcare organizations should not advertise misleading information to encourage public confidence in the quality of care provided by one organization over that of another.

HIPPA

Federal law passed by Congress in 1996 • Regulations promulgated by the Dept of Health and Human Services • Guidelines implemented in April 2003

Concealing Mistakes

Mistakes in medicine are common occurrences that often result in extended hospital stays, higher costs, injury, disability, or death. The Joint Commission in its accreditation process requires that patients be informed when a mistake has been made.[5]

Agency for Healthcare Research and Quality (AHRQ)

The Agency for Healthcare Research and Quality (AHRQ), established in 1989, is charged with researching ways to improve the quality of health care, reduce its costs, and broaden access to essential services. The AHRQ was created as a result of the mistakes that have occurred and continue to occur in the delivery of care. The pain, misery, and financial drain on the injured, their families, and society have taken their toll. The numerous ethical and legal issues that have evolved spawned the need for the AHRQ.

Maintain Moral Integrity

The CEO must reflect moral integrity in fulfilling the duties and responsibilities of his or her position. Leonard J. Weber wrote in Business Ethics in Healthcare: Beyond Compliance that: Healthcare ethics is not just about decisions made at the bedside. It is also about decisions made in executive offices and in boardrooms. Business Ethics in Healthcare offers perspectives that can assist healthcare managers achieve the highest ethical standards as they face their roles as healthcare providers, employers, and community service organizations.[23] Weber suggests guidelines and criteria based on the understanding that the healthcare organization is committed to patients' rights, to careful stewardship of resources, to just working conditions for employees, and to service to the community.[24] Paul B. Hoffman writes that if a person "succumbs to organizational pressures and ultimately suppresses long-held beliefs, values and principles, he or she turns into what Webster and Baylis have described as a 'moral chameleon,' thereby becoming 'sensitized to wrongdoing, willing to tolerate morally questionable or morally impermissible actions.'"[25] He further states that: Because blatantly unethical conduct should never be condoned or promoted, it is the more frequent subtle compromises with dubious dimensions that permit otherwise ethical practitioners to rationalize their acquiescence. In the shadow of these compromises, we find a personal need for job security, popularity and loyalty trumping ethical behavior.[26] There will often be decisions that may be costly to one's career path, as noted in the following Reality Checks. The governing body, as best it can, must appoint a CEO who has demonstrated integrity during his or her career path. Such was not the case in the Reality Check above. Pointed questions should be made during interviews with prospective CEOs that involve management style, ability to adapt to new employment environments, ability to relate to an organization's mission and values, willingness to be forthcoming with the board; acceptance of the responsibility for decisions made (both the good and questionable); willingness to practice open communications that include both listening and a capacity to accept suggestions for resolving organizational challenges; openness to ideas that drive innovation; ability to recognize the best in others and give credit to where credit is due; and ability to demonstrate that he or she has a plan for his or her career, including describing what steps he/she has taken to achieve his or her personal goals and how he or she can be fulfilled in the leadership in the organization for which he or she is being interviewed. The governing body of an organization should also on an annual basis evaluate its own effectiveness, as far up the ladder to board members and, yes, as high up the ladder as the board's chair. No individual in any organization is exempt from the need to be upright and loyal to the mission, vision, and values of the organization based on well-accepted values reviewed in this book.

Financial Incentive Schemes

The managed care industry has historically failed to acknowledge the practice of denying medical claims at the expense of the patient's health, while at the same time benefiting managed care organizations. Dr. Linda Peeno, a Medical Reviewer for Humana, exposed this practice during her testimony before Congress, which stated in part:[61] For me, "ethics" must be done close range. Distance blurs the complexities of human experiences. Those who argue that "the further removed, the clearer the thinking" are those who too often use "ethics" as legalism, public relations, or high-sounding rationalization. I would argue that, at least in medicine, one's ethical "authority" diminishes the further one is from the frontlines of patient experiences.[62] Dr. Peeno came forward with her story and dedicated her career to helping others in a compassionate manner working in the field of healthcare ethics. As part of this effort, I chair a hospital ethics committee (University of Louisville Hospital), for which I do consultation, education and policy development. I am the executive director of an international academic society (International Society for the Systems Sciences), and as chair of its Medicine and Healthcare group, I work on ethical issues in international health care systems. I serve on the national board of Citizen Action, a nonpartisan consumer organization, through which I work toward equitable health reform. I am the founder of the CARE Foundation, a nonprofit group organized to promote consumer education, public accountability, and ethical responsibility in managed care. I am here to represent the largest interest group in our health care system: those affected by its design and operations, those who validate its consequences within their lives.[63] Greg Ganske addressed the House of Representative on March 28, 2000: Let me give my colleagues one example out of many of a health plan's definition of medically necessary services. "Medical necessity means the shortest, least expensive or least intense level of treatment, care or service rendered or supply provided as determined by us." Well, Mr. Speaker, contracts like this demonstrate that some health plans are manipulating the definition of medical necessity to deny appropriate patient care by arbitrarily linking it to saving money, not the patient's medical needs.[64] Dr. Wendell Potter in testimony before the Domestic Policy Subcommittee Oversight and Government Reform Committee on September 16, 2009, stated: So, I would like to take this opportunity to apologize to you and my fellow panelists for the role I played over a decade ago in, essentially, cheating you out of a reformed health care system. Had it not been for greedy insurance companies and other special interests, and their army of lobbyists and spin-doctors like I used to be, we wouldn't be here today. I'm ashamed that I let myself get caught up in deceitful and dishonest PR campaigns that worked so well, hundreds of thousands of our citizens have died, and millions of others have lost their homes and been forced into bankruptcy, so that a very few corporate executives and their Wall Street masters could become obscenely rich. But it was only during the last few years of my career that I came to realize the full scope of the harm my colleagues and I had caused, and the lengths that insurance companies will go to increase their profits at the expense of working families. • • • I know from personal experience that members of Congress and the public have good reason to question the honesty and trustworthiness of the insurance industry. Insurers make promises they have no intention of keeping, they flout regulations designed to protect consumers, and they make it nearly impossible to understand — or even to obtain — information consumers need. There is simply no solid basis for trusting that the insurance companies will make good on the promises they are making right now in order to avoid crucial reforms that would literally save countless American lives.[65] Recently, the medical community has turned its attention to the authority of state medical boards to police improper physician expert testimony in medical malpractice actions. The discussion has been broadened to consider whether the presentation of testimony constitutes the carrying out of the practice of medicine. Depending on the state, some cases have held that the "carrying out" requirement means that the medical judgment must affect or have the possibility of affecting the patient. For example, in Murphy v. Board of Medical Examiners,[66] an Arizona court held that a physician performing prospective utilization review was practicing medicine because his decisions "could affect" a patient's health. Dr. Peeno was engaging in prospective utilization review; however, several federal courts have held that neither prospective nor retrospective review constituted the practice of medicine.[67] The public does, however, have the right to expect expert physicians to be accurate and truthful when giving testimony. If the profession cannot police itself, then the states will be forced to intervene in order to protect the public. The patient in Shea v. Esensten [67] died after suffering a heart attack. Although the patient had recently visited his primary care physician and presented with symptoms of cardiac problems, and the patient also had a family history of cardiac trouble, the physician did not refer the patient to a cardiologist. The patient's widow sued the health management organization for failing to disclose the financial incentive system it provided to its physicians to minimize referrals to specialists. The United States Court of Appeals for the Eighth Circuit agreed that knowledge of financial incentives that affect a physician's decisions to refer patients to specialists is material information requiring disclosure. The appeals court reversed a lower court's dismissal of the claim.

Provide Quality Patient Care

The provision of quality patient care begins from the time of admission and continues to the time of discharge. It involves adopting and following best practices in the treatment of patients in line with both legal and ethical duties and responsibilities. Such was not the case as noted in the Bravo case described here, where both organizational and professional ethics fail the patient. A complaint for damages and a demand for jury trial was filed by the plaintiff, Jesse Bravo v. White Memorial Hospital, et al, with the Superior Court of California, County of Los Angeles on February 3, 2012 (Case No.: BC478343).[39] Damages were sought for elder abuse and neglect, breach of fiduciary duty, intention of infliction of emotional distress, false imprisonment, negligence per se, professional negligence, and hospital negligence. The defendants were claimed to have discharged the plaintiff in an unstable, paranoid schizophrenic and heavily sedated state without his consent and then physically restrained him and transported him to the unfamiliar location against his will, abandoning him and dumping him on a sidewalk without the ability to return home. Other than administering multiple prescriptions of psychotropic medications, defendants provided little care and treatment for him and failed to stabilize his acute psychiatric condition that had led to his admission to the hospital emergency department. The defendants ignored the fact that Mr. Bravo was a married man who resided with his family and instead treated him as if he were a homeless person by unilaterally deciding to discharge him from the medical center to a shelter that cares for homeless people. The patient per hospital policy should have been observed for 24 hours before any transfer. Less than 12 hours after being admitted to the emergency department, the patient was transferred to the shelter. Among other statutes, the hospital violated federal statutes and Centers for Medicare and Medicaid Services regulations by not engaging the patient assessment or treatment planning within the meaning of 42 CFR section 482.61. The hospital was obligated to develop, implement, and follow policies that address the post-discharge needs of patients to help prevent adverse health consequences following the discharge. The California Health and Safety Code section 1262.5 provides, in part: (a) each hospital shall have a written discharge planning policy and process. The patient should have been stabilized in the hospital emergency department prior to discharge. This in fact did not occur. Patient records do not show that any consideration was given to where the patient could be safely placed nor were there arrangements made with the shelter to receive the patient. (b) The policy required by subdivision (a) shall require that appropriate arrangements for post hospital care, including, but not limited to, care at home, skilled nursing or intermediate care facility, or from a hospice, are made prior to discharge for those patients who are likely to suffer adverse health consequences upon discharge if there is no adequate discharge planning. If the hospital determines that the patient and family members or interested persons need to be counseled to prepare them for post hospital care, the hospital shall provide for that counseling. The complaint states that the actions of the defendants constituted reprehensible and despicable conduct and subjected Mr. Bravo to cruel and unjust hardship and conscious regard for his rights. The plaintiff claimed that the conduct by the defendants was outrageous, intentional, and malicious and was done with reckless disregard of the probability of causing the plaintiff to suffer humiliation, mental anguish, and emotional distress. 42 CFR Section 482.61(c)(1) mandates that physicians develop or lead the development of the patient's treatment plan. Dr. Hernandez signed one of Mr. Bravo's treatment plans on March 4, 2011, well after Mr. Bravo's discharge on February 11, and never signed the other. If Dr. Hernandez contributed to Mr. Bravo's treatment plans, he would have signed them at the time. Accordingly, his failure to sign indicates a failure to participate. Ultimately, the defendants negligently managed, cared for, treated, discharged, abandoned, and "dumped" Mr. Bravo during the relevant period, causing him to suffer injuries. The hospital ultimately had a common law duty to use reasonable diligence in safeguarding a patient committed to its charge—if that duty is measured by the patient's capacity to care for himself, there was no reasonable effort to assess the plaintiff's just capacity for self-care. Ethics and the law are in accord here, the "Defendants' actions violate every standard of professional conduct. By failing to care for and then releasing a mentally ill, unstable, paranoid and schizophrenic man and abandoning him on the street in an unfamiliar and dangerous area."

Trust and Integrity

Trust and integrity cannot always be presumed. Organizations must encourage patients to ask questions and seek second opinions both for peace of mind and to aid in determining the best course of treatment. As noted in the next news clipping, some healthcare providers consider their financial interests more important than the welfare of their patients.

CEO Licensure

There are no formal licensing requirements for hospital administrators, although there are common educational career paths to follow when seeking executive positions in hospitals. A master's degree in health services administration or a related field is often required. "Hospital administrators may also earn voluntary professional certification."[13] The American College of Healthcare Executives (ACHE) is the premiere professional organization offering a certification process. The American College of Healthcare Executives is an international professional society of 40,000 healthcare executives who lead hospitals, healthcare systems and other healthcare organizations. ACHE's mission is to advance its members and healthcare management excellence. ACHE offers its prestigious FACHE® credential, signifying board certification in healthcare management.[14] To comply with federal requirements, the various states have incorporated licensing requirements in their regulations. Administrators are licensed under the laws of their individual states. Statutes generally provide that the administrator of a nursing facility be licensed in accordance with state law. Alaska statutes, for example, require licensing of nursing home administrators. Sec. 08.70.080. License required. Only a licensed nursing home administrator may manage, supervise, or be generally in charge of a nursing home. The care provided by a nursing home or a licensed hospital providing nursing home care through the use of skilled nursing beds or intermediate care beds shall be supervised by a licensed nursing home administrator or by a person exempted from licensure requirements under this section.[15] Licensure requirements include higher education, such as in New York State, which require that applicants: must document that [they] hold a Bachelor's (or higher level) Degree from an accredited educational institution. [The] degree must have included (or be supplemented by) successful completion of 15 credit hours of course work at an accredited educational institution in the following five areas: Nursing Home Administration Health Care Financial Management Legal Issues in Health Care Gerontology Personnel Management An accredited educational institution is one that is listed in the U.S. Department of Education's Database of Accredited Postsecondary Institutions and Programs as having its degree program accredited by a regional or nationally recognized accrediting agency.[16] In Massachusetts, 245 CMR 2.00 governs the licensure and practice of nursing home administrators and establishes the standards of conduct for the practice of nursing home administrators, which include a written examination.[17] The National Association of Long Term Care Administrator Boards (NAB) offers the nursing home administrator examination.[18] The NAB as of July 2017 "has transitioned its examinations to a new structure: examinees will need to pass a 100-item Core of Knowledge exam and a 50-item line of service exam."[19] States that require administrators to be licensed provide penalties ranging from fines to imprisonment for those administrators functioning without a license. The Alaska statues cited earlier provide that "A person convicted of violating a provision of this chapter is guilty of a class B misdemeanor."[20] A $5,000 fine was imposed on a nursing facility for operating without a licensed administrator for 54 days in Magnolias Nursing and Convalescent Center v. Department of Health and Rehabilitation Services.[21] The statute prohibiting operation of a nursing home without a licensed administrator was not considered vague, ambiguous, or unconstitutional.

Decisions that Collide with Professional Ethics

This was the latest incident of the practice known as patient dumping in which homeless patients, some of whom also have signs of mental illness, are discharged from the hospital to the streets, often with no place to go. "Patient dumping typically refers to the transfer of a patient from a private hospital to a public one for economic reasons."[57] This has been a nationwide problem since the 1870s, when the New York Times "began to report that private hospitals were using ambulances to shift poor, moribund patients to Bellevue, the city's preeminent public facility. Many trips had serious medical consequences. Private hospitals also instructed ambulances to take critically ill patients directly to Bellevue regardless of the distance."[58] Although neither the state or federal governments track the incidents, in 1986 the Emergency Medical Treatment and Labor Act (EMTALA) was passed, which mandates that hospital emergency departments provide hospital services whether or not the patient has the ability to pay for its services. Millions of dollars in fines have been levied against hospitals found to be engaging in the practice, especially in California which has 22% of the total homeless population. A 2013 HUD report revealed that 91,000 homeless people are living in unsheltered locations in California. Four hundred and fifty thousand dollars was paid by Good Samaritan Hospital to settle a 2014 homeless patient dumping case. One million dollars was also paid by Hollywood Presbyterian Hospital in 2007 when a paraplegic man was discovered being dumped in skid row by the hospital without a wheelchair, and the list of noncompliance with the law goes on. The Los Angeles city attorney has filed multiple lawsuits against hospitals for patient dumping. Proper discharge policies and procedures in addition to effective training need to be implemented in conjunction with the necessary funding and monitoring of homeless patients. Healthcare facilities can and must find ways to maintain a high quality of care and ethical standards in a cost-effective manner. Management's financial decisions can at times be on a collision course with practice and professional codes of ethics. The principles of autonomy, beneficence, and justice and the ability to practice what is right according to such principles often collide when organizations have to, for example, ration scarce resources. Such rationing may require managers to cut costs at the expense of quality. As noted in the news clipping shown here, there was a breakdown in the hospital's own culture of compassion and sympathy that the hospital chief said would be investigated: "The University of Maryland Medical Center's top executive, Dr. Mohan Suntha, apologized for what happened to the patient Thursday. He called it an isolated incident."[59] The all-too-frequent reported occurrences of patient dumping makes it necessary to ask, "What was the moral climate of the hospital that in this case made it so easy for the security guards to place the patient out in the freezing cold in a hospital gown and slippers?"

Unprofessional Conduct

Unprofessional conduct continues to plague the healthcare system. Complex healthcare fraud schemes, for example, resulting in losses of billions of dollars annually impede advances in medicine and deny high-quality health care to the people. Enforcing and bringing to justice the number of individuals and organizations that defraud the government simply add to the losses. This section introduces the reader to a variety of ethical and legal risks associated with such conduct. Unprincipled behavior and conduct include lack of trust and integrity, false advertising, failure to disclose financial incentives, and concealing mistakes.

Accreditation and Conflict of Interest

The mission of accrediting bodies is to improve the quality of care rendered in the nation's hospitals through the survey process. Accrediting bodies depend upon the hospitals they survey to reimburse them for the costs of those surveys. This obligates the accrediting body to maintain satisfied clients, and in so doing, a conflict of interest arises. How credible can a survey be when the accrediting body is dependent upon satisfied customers for financial survival? Further, hospitals evaluate the performance of the surveyors. Surveyors are expected to score an organization's performance knowing that organizations often challenge a surveyor's findings, which can lead to character assassination in the worst-case scenario and/or a poor performance review of the surveyor by the organization. Conflicting interests here encourage surveyors/inspectors to be cautious about what they score because of fear of retaliation by both the organizations surveyed and the accrediting body that may side with the organization. Because of the financial implications for both the accrediting body and the surveyed organization, surveys are far from effective in protecting the consumer from human errors that result in more than 100,000 deaths and injuries annually in the nation's hospitals. -The food inspection process is remarkably similar to the hospital accreditation surveys: Food makers often know when inspectors will audit their facilities, and they vigorously prepare for those inspections. This was also true with hospitals until The Joint Commission, for example, decided to conduct unannounced surveys. This change occurred mostly because of criticism from surveyors, the Centers for Medicare and Medicaid Services, the public, and some of the surveyed organizations. But the wheels of change move slowly; more than a decade passed before The Joint Commission submitted to the long overdue change. Most food makers score high in their inspections and still have recalls and outbreaks. As with hospitals, the food companies typically pay food industry inspectors, creating a conflict of interest for inspectors who might fear they will lose business if they do not hand out high ratings. Clearly, the banking industry, food industry, and healthcare industry all share one major disturbing characteristic: there is a conflict of interest between the inspecting agencies and the entities they are inspecting. The question often arises, "Which master does the accrediting agency serve more easily?" The people who use an organization's services or the organization? The answer is both. But, however, it is not easy to serve two masters well. As noted in the following Reality Check, someone needs to regulate the regulators. Hospital scores were eventually discontinued in the accreditation process because of criticism on numerous occasions from both its own surveyors and accredited hospitals. Because of the competition among hospitals, the surveyors were pressured to provide high scores by the organizations surveyed. -Even so, the accreditation process for hospitals is working well in many ways, as noted by Pamela R. Knecht, CEO of Accord Limited. In her article "Zero Harm: An Achievable Goal" she describes how some organizations have been successful in improving the quality of patient care:

Avoid Conflicts of Interest

A conflict of interest involves situations where a person has the opportunity to promote self-interests that could have a detrimental effect on an organization with which he or she has a special relationship (e.g., employee, board member). The potential for conflict of interest exists for individuals at all levels within an organization. Disclosure of potential conflicts of interest should be made so that appropriate action may be taken to ensure that such conflict does not inappropriately influence important organization and healthcare decisions. Board members, physicians, and employees are required by most organizations to submit a form disclosing potential conflicts of interest that might negatively affect the organization's reputation or financial resources.

Fourteenth Amendment to the Constitution

According to the Fourteenth Amendment to the Constitution, a state cannot act to deny any person equal protection of the laws. If a state or a political subdivision of a state, whether through its executive, judicial, or legislative branch, acts in such a way as to deny unfairly to any person the rights accorded to another, the amendment has been violated.

Ethics in Public Service

Although not all cities may need to hire an ethicist in order to set priorities, it may be helpful in certain types of decisions. An independent, unbiased, professionally trained decision maker from an "outsider" may be more acceptable to councils, mayors, citizens, employees, or the press than one derived from inside the political process. The city of Alexandria, Virginia, in 2008, "hired an ethics consultant for $9000/year. Cities must make decisions to set priorities when allocating scarce resources. City council members, mayors and city managers have available the advice of the city attorney and/or their professional organizations when faced with ethical dilemmas."[37] It is particularly helpful in the decision-making process when decisions involve a reduction or elimination of services to older adults, people with disabilities, or those with fewer resources.

Policies and Procedures

Develop and implement policies and procedures that describe the expectations of staff members when carrying out their assigned duties and responsibilities. It is important to collaboratively develop policies and procedures for those functions or processes that involve and often affect more than one department. Collaboration between departments helps minimize conflicting practices and improve the quality of patient care. Collaboration on policies and procedures creates opportunities to determine best practices. It is similarly important for the hospital's administration and medical staff to approve all such policies and procedures, as appropriate to the nature of the policy or procedure, to ensure consistency and high-quality patient care throughout the hospital. Ensure consistency throughout the hospital. The medical staff and administration approve all collaboratively developed department policies and procedures.

Assure Continuity of Care

Continuity of care involves the seamless provision of care for each patient that is provided in a variety of healthcare settings, such as preventative care programs, physicians' offices (e.g., primary care physicians and the full spectrum of medical and surgical specialties), ambulatory care sites (e.g., primary care, pediatric care, surgery), hospital care, nursing home/facility care, rehabilitation centers, home care, and hospice care. Linking and sharing of patient care information in these setting require improved communications that can now be provided through ever-improving information technology software and hardware integration. The Joint Commission, in its 2018 standards, defines continuing care as "[c]are provided over time in various settings, programs, or services and spanning the illness-to-wellness continuum."[69] CEOs have often been reluctant to delve into the concept of wellness centers. That has been changing as G, a Joint Commission surveyor made a point to address the topic during a hospital triannual survey in northern New Jersey. Three years following that survey, M, also a Joint Commission surveyor, approached G in the lobby at a Joint Commission triannual survey of a different hospital. The hospital had opened to the staff at a northern New Jersey hospital about wellness centers. He had applauded it at one of his briefings with hospital leadership during the survey. The nurse surveyor met him on another survey and greeted him in the lobby of a hospital that they were about to inspect. She gave him a big hug and he asked with smile, "What was that for?" She replied, "I surveyed K hospital in New Jersey. You surveyed them three years ago. They ask me to give you a hug when I see you again. Apparently, after you left, the CEO discussed your vision of a wellness center at the hospital. They said you were enthralled with the enthusiasm and openness of the staff, the hospital's location and possibilities, at the time, for building a wellness center. So, they asked me to thank you with a big hug if I ever saw you on another survey."

Effective Communication Builds Trust

Effective communication spawns trust and is commonly acknowledged as a deciding factor in building a harmonious organization. All the players must work together and understand the role each plays. As in an orchestra (FIGURE 8-1), the instruments must work together to produce harmony. The better the musicians play, the more satisfied the audience. Even if you were able to play all the instruments in the orchestra, you can play only one at a time. During an interview with PBS, Dr. William Edwards Deming, an American author, professor, and consultant, stated that in a "140-piece orchestra, everybody supports the other 139. He's not there to play a solo. He's not to play as loud as he can play to attract attention. He's there to support the other 139. The job of the conductor is to optimize their talents, their abilities."[68] And so it is with healthcare workers; they are there to support one another and each caregiver trusts the other to play his or her part well. The better the teamwork in the healthcare setting the better the care, which in turn breeds satisfied patients, families, and staff.

Why HIPAA??

Genetic advancements - as more is known about our genetic predisposition to diseases, HIPAA will ensure that, for example, an individual is not denied insurance because the company knows that she may eventually develop MS. Marketing - as information is more easily captured concerning, for example, the prescriptions we purchase, HIPAA is designed to prevent marketing of unsolicited products or services based on harvested marketing data. Technology - as information is quickly and sometimes loosely moved around networks, HIPAA standards will hold violators accountable for accidental or intentional 'interception' of protected health information (PHI) -An Atlanta truck driver lost his job in early 1998 after his employer learned from his insurance company that he had sought treatment for a drinking problem. The late tennis star Arthur Ashe's positive HIV status was disclosed by a healthcare worker and published by a newspaper without his permission. Tammy Wynette's medical records were sold to National Enquirer by a hospital employee for $2,610.

Implied

Implied corporate authority is the authority to perform any and all acts necessary to exercise a corporation's expressly conferred authority and to accomplish the purposes for which it was created. Generally, implied corporate authority arises where there is a need for corporate powers not specifically granted in the articles of incorporation. A governing body, at its own discretion, may enact new bylaws, rules, and regulations; purchase or mortgage property; borrow money; purchase equipment; select personnel; adopt corporate resolutions that delineate decision-making responsibilities; and so forth. These powers can be enumerated in the articles of incorporation and, in such cases, would be categorized as express rather than implied corporate authority.

INDEPENDENT CONTRACTOR

Independent contractors are responsible for their own negligent acts. The independent contractor relationship is established when the principal has no right of control over the manner in which the agent's work is to be performed. However, some cases indicate that an organization can be held liable for an independent contractor's negligence. For example, in Mehlman v. Powell,[12] the court held that a hospital could be found vicariously liable for the negligence of an emergency department physician who was not a hospital employee but who worked in the emergency department in the capacity of an independent contractor. The court reasoned that the hospital maintained control over billing procedures, maintained an emergency department, and represented to the patient that the members of the emergency department staff were its employees, which might have caused the patient to rely on the skill and competence of the staff.

Reduce Variation

Reduce variations in patient outcomes that encompass the various age groups. Improving the quality of patient care.

Provide a Safe Environment

Organizations are responsible for providing a safe working environment for staff and living environment for patients. Responsibility for the safe functioning of the physical plant is assigned to the organization's plant services/engineering department. Among other duties, the department is responsible for the provision of heat, water, electricity, and refrigeration and for maintenance of the organization's equipment and physical plant. The duties of the department may vary depending on the complexity of the organization's plant. Healthcare facilities must keep abreast of new laws, rules, and regulations that affect their operations. As of this writing, Florida governor Rick Scott signed into law two bills that ratified the rules adopted by the Agency for Health Care Administration (AHCA) that require assisted living facilities (Rule 58A-5.036) and nursing homes (Rule 59A-4.1265) to acquire an alternative power source and fuel to ensure that ambient air temperatures will be maintained at or below 81 degrees Fahrenheit for a minimum of 96 hours in the event of the loss of primary electrical power. The Emergency Environmental Control for Assisted Living Facilities 58A-5.036 provides in part: DETAILED EMERGENCY ENVIRONMENTAL CONTROL PLAN. Each assisted living facility shall prepare a detailed plan ("plan") to serve as a supplement to its Comprehensive Emergency Management Plan, to address emergency environmental control in the event of the loss of primary electrical power in that assisted living facility. Procedures must address the care of residents occupying the facility during a declared state of emergency, specifically, a description of the methods to be used to mitigate the potential for heat related injury.[47] The Emergency Environmental Control for Nursing Homes (59A-4.1265) provides in part: PURPOSE AND EFFECT: The Agency for Health Care Administration in consultation with the Department of Health and the Department of Elderly Affairs announces the commencement of rulemaking proceedings to address nursing home regulation. The purpose of the rulemaking is to address the safety and quality of services and care provided to residents of nursing homes that may experience loss of power. Ensuring nursing homes have alternative power sources to provide sufficient cooling during emergency situations is critical to ensuring the health, safety and welfare of residents of nursing homes that experience loss of power.[48] Facilities were required to have implemented their plans on or before June 1, 2018, although a facility could seek an extension until January 1, 2019, provided the request satisfied the rules required for an extension. Healthcare organizations can be held liable for patient and employee injuries if such injuries are due to a known or should be known unsafe environment. For example, the importance of this is well illustrated when Florida authorities declared the deaths of patients at the Rehabilitation Center at Hollywood as homicides after Hurricane Irma hit the area. Eight residents died that day, and six others died in the following weeks. A spokeswoman for the Hollywood Police Department told the Sun Sentinel that someone could be charged in their deaths.[49] According to CNN, "By September 13, when officials first learned that the patients were suffering in hazardous conditions, eight residents were confirmed dead, ages 71 to 99."[50] The Center should have been aware of the hazard posed by the hurricane and prepared to safely evacuate, as well as provide emergency generators in the event of a power outage as occurred here. The license of a nursing facility operator was revoked in Erie Care Center, Inc. v. Ackerman [51] for violations due to inadequate nurse staffing and findings of uncleanliness, disrepair, and inadequate record keeping. The court held that although the violation of a single public health regulation may have been insufficient in and of itself to justify revocation of the nursing home's operating license, multiple violations, taken together, established the facility's practice and justified revocation. Management in the following Reality Check failed in its responsibility to provide a safe working environment for its employees. The case in point here is that environmental issues need to be addressed in a timely manner. -As a follow-up to this Reality Check and the medical center's reaction to the surveyor's findings, an observer and former hospital CEO writes: Obviously, the report to the manager by the chief pharmacist was ignored and not acted upon. That manager should have had the skills and background to conduct an inspection of the reported issue just like the ... surveyor and have the authority to take action since carbon monoxide poisoning is a serious health threat. Why, when we look at a case like this, don't [we] recognize that this is an organizational weakness that no amount of accreditation activities is going to bring about real quality improvement? Yes, taking immediate action during the survey was wise, but the underlying management issues seem(s) to have been overlooked. -- Hospital administrator and industry critic Hospitals are required to provide a safe environment for patients, visitors, and staff. Safety concerns in hospitals flow from general mechanical safety to direct patient care in the operating room. -Employers are required by law and accreditation standards to provide a safe environment for patients, visitors, and employees. Although one cannot guard against the unforeseeable, a healthcare organization is liable, as noted in the next case, for injuries resulting from dangers that it knowingly failed to guard against or those that it should have known about and failed to guard against. An organization has a duty to safeguard the welfare of its patients, even from harm by third persons, and that duty is measured by the ability of the patient to provide for his or her own safety.

House of Representatives Committee on Ethics

The Committee on Ethics is designated the "supervising ethics office" for the House of Representatives. The jurisdiction of the Committee on Ethics is derived from authority granted under House Rules and federal statutes. The Committee on Ethics is unique in the House of Representatives. Consistent with the duty to carry out its advisory and enforcement responsibilities in an impartial manner, the Committee is the only standing committee of the House of Representatives with its membership divided evenly by party. These rules are intended to provide a fair procedural framework for the conduct of the Committee's activities and to help ensure that the Committee serves the people of the United States, the House of Representatives, and the Members, officers, and employees of the House of Representatives.[4]

Sarbanes-Oxley Act

The Sarbanes-Oxley Act was signed by President George W. Bush on July 30, 2002, in response to the Enron debacle and high-profile cases of corporate financial mismanagement. The act requires top executives of public corporations to vouch for the financial reports of their companies. The act encourages self-regulation and the need to promote due diligence, select a leader with morals and core values, examine incentives, constantly monitor the organization's culture, build a strong, knowledgeable governing body, be on the alert for conflicts of interest, focus attention on the right things, and have the courage to speak out.

Prevention of Falls

The patient in Thomas v. Sisters of Charity of the Incarnate Word [54] fell three stories to his death after he became locked out on the hospital roof and sat on a ledge in an apparent attempt to attract someone to get assistance. The trial court found that the fire exit configuration that allowed the patient access to the roof created an unreasonable risk of harm that was in fact the cause of his death. There was testimony that the lack of signage violated both the Life Safety and 1988 Standard Building Codes. Standard building code required that signs direct an individual to the exit discharge or ultimate exit to the outside of the building. A lack of signage also violated hospital policy requiring that the roof should have been marked as a restricted area. The exit configuration was unsafe for either ordinary or emergency use because of the confusion encountered by an individual locked out of the building without any direction or instruction on where to go. Given the hospital's duty regarding this exit, its breach of that duty was clear. The door to the roof contained no warning that it would lock the patient out of the building if he exited. Whether the patient exited the building voluntarily or out of momentary confusion, the hospital breached its duty to warn him that he would be locked out and to direct him across the catwalk to the fire exit stairwell.

Ultra Viruses Acts

Ultra vires is a Latin term meaning "beyond the powers." Ultra vires acts are those acts conducted by a corporation that lies beyond its scope of authority to perform. A governing body can be held liable for acting beyond its scope of authority, which is either expressed (e.g., in its articles of incorporation) or implied in law. The governing body acts on behalf of the corporation. If any action is in violation of a statute or regulation, it is illegal. An example of an illegal act would be the "known" employment of an unlicensed person in a position that by law requires a license. The state, through its attorney general, has the power to prevent the performance of an ultra vires act by means of an injunction.

Senate Selects Committee on Ethics

(a) The ideal concept of public office, expressed by the words, "a public office is a public trust," signifies that the officer has been entrusted with public power by the people; that the officer holds this power in trust to be used only for their benefit and never for the benefit of himself or of a few; and that the officer must never conduct his own affairs so as to infringe on the public interest. All official conduct of Members of the Senate should be guided by this paramount concept of public office. -The U.S. Senate Select Committee on Ethics consists of six members of the Senate, of whom three are selected from members of the majority party and three from members of the minority party.[8] The committee is responsible for investigating complaints involving a violation of the Franking statute, financial disclosure statements, and for outside employment with respect to members, officers, and employees of the Senate, foreign gifts and decorations, gifts to an official superior or receiving gifts from employees with a lower salary level, prohibitions against members, officers, and employees of the Senate soliciting or receiving gifts. -The Senate Select Committee on Ethics is authorized to receive and investigate allegations of improper conduct which may reflect upon the Senate, violations of law, violations of the Senate Code of Official Conduct, and violations of rules and regulations of the Senate; recommend disciplinary action; recommend additional Senate rules or regulations to insure proper standards of conduct; and report violations of law to the proper federal and state authorities.

The scope of the committee's jurisdiction under the various authorizing rules and statutes involves duties and responsibilities related to:

-Jurisdiction over all bills, resolutions, and other matters relating to the Code of Official Conduct. - Recommendations of administrative actions to establish or enforce standards of official conduct. -Investigation of alleged violations of the Code of Official Conduct or of any applicable rules, laws, or regulations governing the performance of official duties or the discharge of official responsibilities. -Reports to appropriate federal or state authorities substantial evidence of a violation of any law applicable to the performance of official duties that may have been disclosed in a committee investigation. -Consideration of requests for written waivers of the gift rule. -Oversight over foreign gifts and gifts to superiors and other federal employees. -Prohibition of members, officers, and employees of the House of Representatives from soliciting or receiving gifts. -The official Code of Conduct for the House of Representatives can be found on the committee on Ethics Website

CORPORATE DUTIES AND RESPONSIBILITIES

Along with the corporate authority that is granted to the governing body, duties are attached to its individual members. These responsibilities are considered duties because they are imposed by law and can be enforced in legal proceedings. Governing body members are considered by law to have the highest measure of accountability. They have a fiduciary duty that requires acting primarily for the benefit of the corporation. The general duties of a governing body are both implied and express. Failure of a governing body to perform its duties may constitute mismanagement to such a degree that the appointment of a receiver to manage the affairs of the corporation could be warranted. The duty to supervise and manage is applicable to the trustees as it is to the managers of any other business corporation. In both instances, there is a duty to act as a reasonably prudent person would act under similar circumstances. The governing body must act prudently in administering the affairs of the organization and exercise its powers in good faith. Various duties and responsibilities of hospital organizations are reviewed here.

Masquerading Physician

An action was brought against Canton (who was masquerading as a physician, Dr. LaBella), the hospital, and others in Insinga v. LaBella [29] for the wrongful death of a 68-year-old woman whom Canton had admitted. The patient died while she was in the hospital. Canton was found to be a fugitive from justice in Canada, where he was under indictment for the manufacture and sale of illegal drugs. He fraudulently obtained a medical license from the state of Florida and staff privileges at the hospital by using the name of LaBella, a deceased physician. Canton was extradited to Canada without being served process. The U.S. District Court for the Southern District of Florida directed a verdict in favor of the hospital. On appeal, the Florida Supreme Court held that the corporate negligence doctrine imposes on hospitals an implied duty to patients to select competent physicians who, although they are independent practitioners, would be providing in-hospital care to their patients through staff privileges. Hospitals are in the best position to protect their patients and consequently have an independent duty to select competent independent physicians.

U.S Judicial Code of Conduct

As with other branches of government federal judges are expected to abide by a code of conduct that includes ethical principles and guidelines. "The Code of Conduct provides guidance for judges on issues of judicial integrity and independence, judicial diligence and impartiality, permissible extra-judicial activities, and the avoidance of impropriety or even its appearance." -The Code of Conduct for United States Judges includes the following ethical canons: -Canon 1: A Judge should uphold the integrity and independence of the Judiciary -Canon 2: A judge should avoid impropriety and the appearance of impropriety in all activities -Canon 3: A judge should preform the duties of the office fairly, impartially, and diligently -Canon 4: A judge may engage in extrajudicial Activities that are consistent with the obligations of judicial office -Canon 5: a judge should refrain from political activity

Title VI: Civil Rights Act

Civil rights are those rights ensured by the U.S. Constitution and by the acts of Congress and the state legislatures. Generally, the term includes all the rights of each individual in a free society. Congress and the federal courts have dealt with discriminatory practices in healthcare organizations. Discrimination in the admission of patients and segregation of patients on racial grounds are prohibited in any organization receiving federal financial assistance. Pursuant to Title VI of the Civil Rights Act of 1964, the guidelines of the Department of Health and Human Services (DHHS) prohibit the practice of racial discrimination by any organization or agency receiving money under any program supported by DHHS. This includes all "providers of service" receiving federal funds under Medicare legislation.

Corporate Negligence

Corporate negligence occurs when a corporation fails to perform those duties it owes directly to a patient or to anyone else to whom a duty may extend. If such a duty is breached and a patient is injured as a result of that breach, the organization can be held culpable under the theory of corporate negligence. Corporate negligence is a doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed the patient, which is to ensure the patient's safety and well-being while at the hospital. This theory of liability creates a nondelegable duty which the hospital owes directly to a patient. Therefore, an injured party does not have to rely on and establish the negligence of a third party.[7] Liability extends to nonemployees who act as a hospital's ostensible agents. For example, in Thompson v. Nason Hospital,[8] a Pennsylvania court recognized that hospitals are more than mere conduits through which healthcare professionals are brought into contact with patients. Hospitals owe some nondelegable duties directly to their patients independent of the negligence of their employees, such as duties to use reasonable care in the maintenance of safe and adequate facilities and equipment; select and retain only competent physicians; oversee all persons who practice medicine within their walls as to patient care; and formulate, adopt, and enforce adequate rules and policies to ensure the best quality care for their patients. Darling v. Charleston Community Memorial Hospital, discussed next, has had a major impact on the liability of healthcare organizations for patient injuries suffered within their walls. The immunity status of nonprofit hospitals was no longer an acceptable defense against a plaintiff's negligence claims.

Ensure Competency

Healthcare entities have a responsibility to take reasonable steps to ensure that physicians are qualified for the privileges granted. Failure to screen a medical staff applicant's credentials properly can lead to liability for injuries suffered by patients as a result of that omission. Hospitals must adhere to procedures established under both their own bylaws and state statutes. The measure of quality and the degree of quality control exercised in a hospital are the direct responsibilities of the medical staff. Supervision of the manner of appointment of physicians to its staff is mandatory, not optional.

Emergency Medical Treatment and Active Labor Act (EMTALA)

In 1986, Congress passed the Emergency Medical Treatment and Active Labor Act (EMTALA), which forbids Medicare-participating hospitals from "dumping" patients out of emergency departments. The act provides that: In the case of a hospital that has a hospital emergency department, if any individual (whether or not eligible for benefits under this subchapter) comes to the emergency department and a request is made on the individual's behalf for examination or treatment for a medical condition, the hospital must provide for an appropriate medical screening examination within the capability of the hospital emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition ... exists.[24]

Ethics in Patient Referral Act

In 1989, the Ethics in Patient Referral Act was enacted, prohibiting physicians who have ownership interest or compensation arrangements with a clinical laboratory from referring Medicare patients to that laboratory. The law also requires all Medicare providers to report the names and provider numbers of all physicians or their immediate relatives with ownership interests in the provider entity prior to October 1, 1991.

Organizational Ethics and the Law

Legal and ethical issues in the healthcare setting are being carefully scrutinized across the nation by state and federal regulatory agencies. Organizations, like individuals, must comply with rules of law and ethical conduct. This chapter introduces the reader to corporate authority, contents for codes of ethics for organizations, and the ethical and legal risks to which healthcare organizations and their governing bodies can be exposed. There is an overview of corporate negligence, respondeat superior, and independent contractors. The emphasis of this chapter is on the duties and responsibilities of healthcare organizations.

Search for Best Practices

Look at what other healthcare systems are doing to provide a culture of safety for both patients and staff. All the catchwords: Leadership: governing body professional staff, senior management, middle management, individuals Recruitment Sentara Leigh Healthcare—recognize that senior management must champion a culture of safety Focus groups—best practices Trust, respect, inclusion Best practices Vision, mission, goals (short term and long term), where are we and where do we want to go Education, education, education ... (e.g., age-specific competencies) Pay attention to detail Communicate clearly Have a questioning attitude Perform hands-off effectively Look out for each other Transparent culture of compassionate care and safety Reinforce best practices Accountability Zero tolerance for reckless, disruptive behavior

Public Policy

Public policy is the principle of law that holds that no one can lawfully do that which tends to be injurious to the public or against the public good. The sources of public policy "include legislation; administrative rules, regulations, or decisions; and judicial decisions. In certain instances, a professional code of ethics may contain an expression of public policy." -Ethics and the law are not mutually exclusive—they are intertwined and resonate the history of our land. The following pages present an overview of laws, influenced by ethical principles, designed to protect each individual's rights (e.g., the right to privacy and self-determination).

Corporate Ethics

Organizational ethics describes the ethics of an organization in terms of how it responds to internal or external circumstances affecting the organization's mission and values. Ethical behavior in an organization can be enhanced by providing staff members with a written code of ethics; providing training and education to improve each staff member's knowledge base, skills, and competencies; providing easy access to professional sources to assist in resolving ethical issues in the workplace; and providing systems for confidential reporting of breaches in ethical conduct within and outside the organization. Although most healthcare organizations have published their mission, vision, and values statements, policy and practice continue to be distant relatives. Commitment to organizational ethics begins with the organization's leadership. The purpose of organizational ethics in the healthcare setting is to promote responsible behavior in the decision-making process. Recent interest in organizational ethics is, in part, the result of concerns of government regulations (e.g., Sarbanes-Oxley Act, Emergency Medical Treatment and Active Labor Act) and accrediting agencies that certain unethical practices continue to plague the industry. These practices include billing scams, false advertising and marketing, and patient care issues (e.g., inappropriate patient transfers based on ability to pay, transferring patients before they have been clinically stabilized). Commitment to organizational ethics must begin with the organization's leadership.

Political Malpractice

Political malpractice is negligent conduct by an elected or appointed political official. Ronald Brownstein wrote in a news column in the St. Petersburg Times, "Practical steps are possible to help millions of low income families live healthier lives and receive more effective care when they need it. Ignoring that opportunity, while waiting for consensus on coverage, would be a form of political malpractice." The likelihood of a successful negligence case against a member of Congress is doubtful. If such a case ever got through a courtroom door the following four elements of negligence would have to be proven: The first element necessary to prove political malpractice requires that the plaintiff/s be able to establish there is a duty to care. Establishing this first element of negligence for a senator, for example, would be a difficult hurdle to jump. The oath of office for a senator is so amorphous that it would be difficult to establish a duty to care, as illustrated in the following quotes.

CEO Responsibilities and Challenges

The CEO is responsible for the supervision of the administrative staff and managers who assist in the daily operations of the organization. The CEO derives authority from the owner or governing body. The CEO of an organization owned and operated by a governmental agency may be an appointed public official. The CEO is responsible to lead and oversee the implementation of the company's long- and short-term plans in accordance with its strategy. The CEO must implement as well as interpret the policies of the governing body. Appropriate action must be taken where noncompliance with rules and regulations occurs. The CEO is responsible for making periodic reports to the governing body regarding policy implementation. There may be occasions when the CEO believes that following a direction of the governing body may create a danger to the patients or others. If the CEO knows or should have known, as a reasonably prudent person, of a danger or unreasonable risk or harm that will be created by certain directed activity but nevertheless proceeds as directed, he or she could become personally liable for any resulting injury. The CEO, therefore, must take appropriate steps to notify the governing body of any policies that create dangers or unreasonable risks. Although the CEO cannot assume the functions of the professional staff, he or she must ensure that proper admission and discharge policies and procedures are formulated and carried out. The CEO must cooperate with the professional staff in maintaining satisfactory standards of medical care. The CEO is responsible to keep current as to regulatory changes that affect organizational operations. Periodic meetings should be conducted to inform the staff of regulatory changes affecting their duties and responsibilities. The CEO should designate a representative for administrative coverage during those hours he or she is absent from the organization. This individual should be capable of dealing with administrative matters and be able to contact the CEO when major problems arise. Among the many responsibilities that apply to CEOs are the following: Uphold the organization's and one's professional code of ethics. Show support and respect to all physicians and staff, knowing that as a team they are the ones who provide bedside care. Make daily rounds in the organization. Fix the things they can and find a way to fix the things they think they cannot. Develop friendships and supporters who can help the organization to meet those extraordinary goals. Implement community outreach programs. Reach out, teach, and educate members of the community on preventative care. Not be influenced by power brokers simply because of their position. CEOs and managers must do the right thing, all the time—not in a vacuum, but as a team. Show respect to all persons. Treat consultants, accreditation representatives, and inspectors on all levels (e.g., federal, state, local, and private) with respect, knowing that they are all there to help the organization become better in its delivery of patient care.

Patient Protection and Affordable Care Act (2010) PPACA

The Patient Protection and Affordable Care Act (PPACA) is a federal statute that contains a set of healthcare reforms passed by Congress and signed into law by President Barack Obama on March 23, 2010. After several challenges as to the constitutionality of the PPACA, the United States Supreme Court determined in 2012 that the PPACA was constitutional. The PPACA was designed to expand medical insurance coverage to Americans who did not already have it by offering affordable and competitive rates through a newly created Health Insurance Marketplace, providing subsidies to individuals based on ability to pay. The law was set to bring insurance coverage to over 30 million Americans who never had coverage. The PPACA includes provisions for reform of the private health insurance market, providing better coverage for people with preexisting conditions, improving prescription drug coverage in Medicare, and extending the life of the Medicare trust fund by at least 12 years. The website www.healthcare.gov was set up to assist those who wish to purchase health insurance. Initially, the website was fraught with problems in connecting and signing up for insurance. Glitches in the system should come as no surprise with such a far-reaching program considering a population of over 317 million. As with a wedding of 300 people, there are glitches; there may be angry people who were invited to the church but not the reception, the food is served cold rather than hot, the wedding was on an island in the South Pacific, you preferred to sit at a different table than the one you were assigned, you were placed too far away from the bride and groom's table, you were forgotten when the family picture was taken despite being the bride's grandparent. But in the end, glitches notwithstanding, there is a happily married couple. The plan for the PPACA was to provide a more affordable and accessible healthcare system, and to a certain extent despite glitches, in the years following its full roll-out, it succeeded.[33] Unfortunately, the political battles over the PPACA have upended some of its gains and continue to disrupt the democratic process. Congress continues to make decisions on a bipartisan basis, often seemingly without regard to the needs of the people. There are those who consider health care a right and others who consider it a privilege. Many believe that Congress considers health care to be their right—but no one else's—as indicated by their superior health insurance plans at reduced costs due to lucrative subsidized health insurance premiums paid by the people. The costs associated with PPACA are without question fraught with numerous ethical dilemmas. Responsibility for reducing the costs associated with PPACA lies in part with each individual and their chosen style of life, which includes the abuse of addictive substances.

Each state is required under the PSDA to provide a description of the law in the state regarding advance directives to providers, whether such directives are based on state statutes or judicial decisions. Providers must ensure that written policies and procedures with respect to all adult individuals regarding advance directives are established as follows:[32]

to provide written information to each such individual concerning an individual's rights under State law (whether statutory or as recognized by the courts of the State) to make decisions concerning such medical care, including the right to accept or refuse medical or surgical treatment and the right to formulate advance directives ... and written policies of the provider organization respecting the implementation of such rights; to document in the individual's medical record whether or not the individual has executed an advance directive; not to condition the provision of care or otherwise discriminate against an individual based on whether or not the individual has executed an advance directive; to ensure compliance with requirements of State law (whether statutory or recognized by the courts of the State) respecting advance directives at the facilities of the provider or organization; and to provide (individually or with others) for education for staff and the community on issues concerning advance directives. Although the PSDA is being cheered as a major advancement in clarifying and nationally regulating this often-obscure area of law and medicine, there are continuing problems and new issues that must be addressed.

Discipline of Physicians

Although the governing body has ultimate responsibility for disciplining members of the professional staff (e.g., disruptive behavior, incompetence, psychological problems, substance abuse), responsibility for disciplinary actions is generally delegated to the administrator and various department directors and managers. Depending on the seriousness of alleged misconduct, disciplinary action may require board involvement for resolution, such as those occurrences noted in the following news clipping. The Joint Commission responded to complaints of disruptive physician behavior that can place patient care at risk and increase medical errors.[30] The Joint Commission in its 2018 Comprehensive Accreditation Manual for Hospitals in its Leadership Standards states: "Leaders create and maintain a culture of safety and quality throughout the hospital."[31] The rationale for this standard further states that "Leaders must address such behavior in individuals working at all levels of the hospital, including management, clinical and administrative staff, licensed independent practitioners, and governing body members."[32] The standards made it mandatory for hospitals to establish written policies designed to address behavior that is demeaning, aggressive, uncivil, or hostile in the patient care setting.[33] The American Medical Association (AMA) has defined disruptive behavior as "a style of interaction with physicians, hospital personnel, patients, family members, or others that interferes with patient care or adversely affects the health care team's ability to work effectively." The discipline of a physician is sometimes difficult without adequate support of the medical staff, as noted in the following Reality Check. -A hospital and its governing body were determined to be immune from liability under the federal Health Care Quality Improvement Act of 1986 in Taylor v. Kennestone Hosp.,[35] for claims arising out of their decision to deny a physician's application to renew his medical staff privileges. A peer review board found that reasonable investigation had adduced evidence demonstrating that the physician had a history of sexual misconduct toward both nurses and patients. He admitted that he had sexual harassment problems, that he stopped seeing patients at the hospital, and that he sought psychiatric treatment. He admitted that he failed to comply fully with his own psychiatrist's plan of care before he resumed seeing patients in the hospital. The evidence established that the peer reviewers could reasonably believe that their actions were warranted and that those actions furthered the quality of health care.

Fiduciary Responsibility

Board members (trustees, directors) are not always fully aware of their fiduciary responsibilities and legal risks when serving on a corporate board. Although it is an honor to be a member of a hospital board, board members must be fully knowledgeable as to their legal liability risks in their positions of trust and service to the organization. A person who has a relationship of trust or confidence with another is called a fiduciary. A fiduciary's relationship with an organization is one-sided, meaning that the relationship is designed to meet only the needs of the organization and the fiduciary must act without regard to his or her own needs. In hospitals and systems, board members are fiduciaries because they have been entrusted with overseeing the fulfillment of the organization's mission. They must be principally concerned about the performance of the nonprofit and that its interests are pursued faithfully. Corporate boards must act in the best interests of the healthcare entities they represent and the communities they serve. Their fiduciary responsibilities include: corporate finances; providing quality care and a safe work environment for staff, patients, and visitors; and periodically assessing the organization's progress, programs, and services. Trustees must be fully informed by the CEO prior to making business decisions. They must abide by applicable laws, rules, and regulations and standards that regulate hospital operations. Trustees must be objective in the decision-making process and free from the pressures and the all too often challenging demands and influences from within (e.g., professional staff requests designed to improve personal economic gain) and outside the organization. Board members must be free of conflicts of interest when discussing and making policy and financial decisions. Conflicts of interest statements for trustees and staff should disclose on an annual basis known financial interests with any business entity that transacts business with the corporation or its subsidiary businesses, when applicable. Board members can be held liable for their actions or inactions when carrying out their fiduciary duties and responsibilities.

Board Education

Clearly identify the responsibilities and accountabilities of board membership Accurately describe the mission and goals of the organization Appoint a qualified CEO who understands and can support the mission of the organization and who can provide meaningful and actionable reports, not so voluminous that little will be understood or sufficiently discussed Provide a conduit for open communications up and down and across the organization Understand both the relevant and timely financial, ethical, and legal issues, as well as the local issues impacting the board's decision-making responsibilities Conduct an annual retreat that focuses on system strategies to meet the stated mission of the organization and continuously improve the quality of patient care Encourage collaboration between managers and physicians on all levels in the organization

Code of Ethics for Organization

Codes of ethics for organizations provide guidelines for behavior that help carry out an organization's mission, vision, and values. Organizational codes of ethics build trust, increase awareness of ethical issues, guide decision making, and encourage staff to seek advice and report misconduct when appropriate. The following list provides some value statements that should be considered when preparing an organization's code of ethics. Employees and staff members will comply with the organization's code of ethics, which includes compassionate care; an understanding and acceptance of the organization's mission, vision, and values; and adherence to one's professional code of conduct. Ethics training will be provided as required training for all employees. Ethics competencies will be reviewed at the time of each employee's initial ethics training and scheduled evaluation. The organization will be honest and fair in dealings with employees. The organization will develop and maintain an environment that fosters the highest ethical and legal standards. Corporate officers, managers, and employees will be impartial when personal interests conflict with those of the organization and fellow employees. Employees will be free to speak up without fear of retribution or retaliation. A compliance officer will be available to protect employees who wish to speak up as to unprofessional practices he or she observes in the organization. The compliance officer will be held accountable for maintaining the confidentiality of the employee's identity. Failure to do so will result in the immediate termination of the compliance officer. The pitfalls of groupthink will not be acceptable conduct in the organization. The preservation of harmony will not become more important than the critical evaluation of ideas by all employees. Employees and patients will be provided with a safe environment (e.g., freedom from sexual harassment) within which to work. The drive to increase revenues will not be tied to unethical activities, such as workforce cutbacks as a means to discharge employees when they are encouraged to speak up and then blacklisted because of their honesty. Employees will avoid conflict-of-interest situations by not favoring one's own interests over those of others, including the organization. Patients will be provided with care that is of the highest quality regardless of the setting. All patients will be treated with honesty, dignity, respect, and courtesy. Patients will be informed as to the risks, benefits, and alternatives to care. Patients will be treated in a manner that preserves their rights, dignity, autonomy, self-esteem, privacy, and involvement in their care. Each patient's culture, religion, and heritage will be respected and addressed as appropriate. The organization will provide for a patient advocacy program. The organization will provide appropriate support services for those with physical disabilities (e.g., those with language barriers and those who are hearing- or seeing-impaired). Patients will be provided with a "Patient's Bill of Rights and Responsibilities" on admission to the hospital. Each patient's right to execute advance directives will be honored.

Oath of Office

For nearly three-quarters of a century, that oath served nicely, although to the modern ear it sounds woefully incomplete. Missing are the soaring references to bearing "true faith and allegiance"; to taking "this obligation freely, without any mental reservation or purpose of evasion"; and to "well and faithfully" discharging the duties of the office.[36] As to the elements of political malpractice, the elements of negligence that must be proven are as follows: 1. The first element of negligence requires that a duty to care must be established. 2. The second element of political malpractice requires the plaintiff to prove that the duty to care was breached. Arguably, politicians, for example, who agree to veto any program the President supports while he is in office is contrary to the spirit of the law. The dilemma here requires the plaintiff/s to prove what specific duty to care was breached. 3. The third element of political malpractice requires proof of harm. 4. The fourth element requires proof of a causal connection between the politician's breach of duty and harm suffered. In other words, the plaintiff/s must prove that the breach of duty was the proximate cause of the plaintiff's injury. Like medical malpractice, political malpractice involves a failure to offer professional services to help prevent the travesties that take place daily, as illustrated by the following anonymous true story in the preceding Reality Check.

HIPAA regulations were designed to: 1) protect individuals' rights to privacy and confidentiality and 2) assure the security of electronic transfer of personal information The first, protecting privacy and confidentiality rights, is the subject of this instructional program.

Health information is used by multiple agents in the course of a single episode with a health problem. Below are some of the agencies and individuals who may handle health information. You could, no doubt, add several more. • Admitting clerks • Caregivers from the ED to the morgue • Physical therapists • Nutritionists • Lab personnel • Receptionists in MD offices • Transport techs • Respiratory therapists • Billing clerks • Insurance agents/clerks • School teachers/nurses • Home health personnel • Medical records clerks • Website managers

Provide Timely Treatment

Healthcare organizations are expected to provide timely treatment to patients. Hospitals can be liable for delays in treatment that result in injuries to their patients. For example, the patient in Heddinger v. Ashford Memorial Community Hospital [44] filed a malpractice action against a hospital and its insurer, alleging that a delay in treating her left hand resulted in the loss of her little finger. Medical testimony presented at trial indicated that if proper and timely treatment had been rendered, the finger would have been saved. The U.S. District Court entered judgment on a jury verdict for the plaintiff in the amount of $175,000. The hospital appealed, and the U.S. Court of Appeals held that even if the physicians who attended the patient were not employees of the hospital but were independent contractors, the risk of negligent treatment was clearly foreseeable by the hospital.

Partner with the Community

Hospitals can provide health and fitness wellness centers. A model wellness center is the Michigan Athletic Club owned in operated by the Sparrow Health System, Lansing, MI (http://www.sparrow.org/mac-why-the-best).

False Statements

In Hoxie v. Ohio State Med. Bd., it was determined that a physician had made false statements concerning his criminal history when he stated in a deposition that he had never been arrested. There was sufficient evidence presented to support permanent revocation of his license to practice medicine. Certified records held by the state of California indicated that the physician had been arrested or detained by the Los Angeles Police Department multiple times in the 1970s and 1980s for possessing marijuana and PCP, for driving under the influence of alcohol and/or drugs, and for driving with a suspended license. Although the physician asserted that documentation of his criminal past had been fabricated by police and was not credible, law enforcement investigation reports are generally admissible. The physician himself added to the reliability of the records by verifying all significant identifying information contained within the documents and records.

Develop a Culture of Compassion and Kindness

In her article entitled "Drive Hospital Bottom Line with Culture of Kindness, Compassion," Katie Sullivan writes, Hospitals that want to stand out among their competitors must emphasize kindness and compassion, according to Forbes contributor Rob Asghar. "Compassion and kindness aren't expensive, but the yield is priceless," Lloyd H. Dean, president and CEO of Dignity Health, a California-based non-profit healthcare system, told Forbes. Hospitals must hold all members of the organization accountable and hold them to high standards of kindness and compassion, Dean said. Furthermore, he said, leaders must make caregivers and frontline workers feel valued and respected so they can provide care for others in the best way possible.[70]

Allocate Scarce Resources

It is the responsibility of the governing body, and not the legal system, to provide appropriate staffing and provide adequate supplies and equipment for patients. Although the courts do not overlook the importance of maintaining adequate levels of patient care, it is not the job of the courts to referee disagreements. For example, a disagreement between the governing body and the local community as to how to allocate limited resources is not a question for the courts to settle. Questions of this sort often involve ethical principles and values. How to spend limited resources that provide good for the many is a value judgment, not a legal decision. Hospitals are in the business of serving patients with many kinds of illnesses and disabilities. Recognizing that the medical community is best equipped to conduct the balancing that medical resource allocations inevitably require, Congress has declined to give courts a mandate to arbitrate allocation disputes.[38]

State Ethics Committees

Many states have legislative ethics committees that hear complaints of ethics violations by legislators. They often investigate complaints and impose penalties for ethics-related violations. Duties vary among the state committees. A state-by-state review can be found at http://www.ncsl.org/research/ethics/table-of-legislative-ethics-committees.aspx. "State legislatures pass ethics laws that impose restrictions on themselves and lobbyists. To ensure these laws are kept, legislatures establish oversight entities that include ethics committees, ethics commissions or a combination of both. Internal ethics committees are an important way for legislatures to solidify their credibility with the public."

Doctrine of Respondeat Superior

Respondeat superior (let the master respond) is a legal doctrine holding employers liable, in certain cases, for the wrongful acts of their agents (employees). This doctrine has also been referred to as vicarious liability, whereby an employer is answerable for the torts committed by employees. In the healthcare setting, an organization, for example, is liable for the negligent acts of its employees, even though there has been no wrongful conduct on the part of the organization. "Hospitals are vicariously liable for the negligence of an independent contractor emergency-room physician where the patient enters the emergency room seeking treatment from the hospital rather than a specific physician of the patient's own choosing."[11] For liability to be imputed to the employer: A master-servant relationship must exist between the employer and the employee; and The wrongful act of the employee must have occurred within the scope of his or her employment. The question of liability frequently rests on whether persons treating a patient are independent agents (responsible for their own acts) or employees of the organization. The answer to this depends on whether the organization can exercise control over the particular act that was the proximate cause of the injury. The basic rationale for imposing liability on an employer developed because of the employer's right to control the physical acts of its employees. It is not necessary that the employer actually exercise control, only that it possesses the right, power, and authority to do so. When filing a lawsuit, the plaintiff's attorney generally names both the employer and employee. This occurs because the employer is generally in a better financial condition to cover the judgment. The employer is not without remedy if liability has been imposed against the organization due to an employee's negligent act. The employer can seek indemnification from the employee. Although it would be highly unlikely for a hospital to seek recovery from an employee, the ever-increasing number of employed physicians could give rise to a hospital seeking indemnification from a physician who is the cause of a negligent injury and carries his own malpractice insurance policy.

Health Care Improvement Act (HCQIA)

The Health Care Quality Improvement Act of 1986 (HCQIA) was enacted in part to provide those persons giving information to professional review bodies and those assisting in review activities limited immunity from damages that may arise as a result of adverse decisions that affect a physician's medical staff privileges. Before enacting the HCQIA, Congress found that "[t]he increasing occurrence of medical malpractice and the need to improve the quality of medical care ... [had] become nationwide problems," especially in light of "the ability of incompetent physicians to move from State to State without disclosure or discovery of the physician's previous damaging or incompetent performance."[27] The problem, however, could be remedied through effective professional peer review combined with a national reporting system that made information about adverse professional actions against physicians more widely available. HCQIA was enacted by Congress to "facilitate the frank exchange of information among professionals conducting peer review inquiries without the fear of reprisals in civil lawsuits. The statute attempts to balance the chilling effect of litigation on peer review with concerns for protecting physicians improperly subjected to disciplinary action."

Health Insurance Portability and Accountability Act (HIPAA)

The Health Insurance Portability and Accountability Act (HIPAA) of 1996 (Public Law 104-191) was designed to protect the privacy, confidentiality, and security of patient information. HIPAA standards are applicable to all health information in all of its formats (e.g., electronic, paper, verbal). It applies to both electronically maintained and transmitted information. HIPAA privacy standards include restrictions on access to individually identifiable health information and the use and disclosure of that information, as well as requirements for administrative activities such as training, compliance, and enforcement of HIPAA mandates.

Veterans Administration

The House Committee on Veterans' Affairs reviews veteran programs, examines current laws, and reports bills and amendments to strengthen existing laws concerning veterans and the Department of Veterans Affairs (VA), such as health care and disability compensation. Phil Roe, M.D. (R-TN), chairs the committee.[19] The news clippings below describe a variety of concerns with care veterans are receiving in Veterans Hospitals. Although there is undoubtedly excellent care in the VA system, there is a need to improve the care for every veteran, as noted by committee chairman Phil Roe: As of this writing, the Veterans Administration is led by Acting Secretary Peter O'Rourke, pending Senate approval of President Trump's nominee, Robert Wilkie, a longtime Pentagon staffer. -Daniel Somers eventually saw a caregiver. Unfortunately for Daniel, the caregiver retired. He attempted to make a new appointment. That is when he ran into the all too common roadblock, being told that there was a shortage of caregivers and that he would be notified when he could be scheduled for his next appointment. -The following reality check is believed by some to be an all too common experience by inspectors of not only VA hospitals but many hospitals across the country. -The next reality check illustrates how the majority of veterans standing outside a major VA hospital waiting for the clinics to open viewed their care. As I approached them and inquired about their care, it was reassuring that these veterans were extremely positive as to the care they were receiving.

Office of Congressional Ethics (OCE)

The Office of Congressional Ethics (OCE) was created in March 2008 as an independent, nonpartisan office governed by a board composed of private citizens that provides more public review and insight into the ethical conduct of members of the House of Representatives. The OCE reviews allegations of misconduct against members, officers, and staff of the House and, when appropriate, refers matters to the House Committee on Ethics. The OCE is not authorized to determine if a violation occurred nor it is it authorized to sanction members, officers, or employees of the House or to recommend sanctions. The OCE is unable to provide advice or education on the rules and standards of conduct applicable to members, officers, and employees of the House. -The mission of the OCE and its board is to assist the House in upholding high standards of ethical conduct for its members, officers, and staff and, in so doing, to serve the American people. The board of directors consists of eight members, which are private citizens and cannot serve as members of Congress or work for the federal government.[13] As the reader will note, there are a variety of laws and agencies that provide oversight and regulations that are designed to protect the rights and safety of all citizens. Government is a reflection of the people it serves. Failure of the many to participate in the political process leads to government for the few who do. Additional information as to the work of the Office of Congressional Ethics is available at its website.[14]

U.S Office of Government (OGO)

The Office of Government Ethics (OGE) is an agency within the executive branch of government whose mission and goals are to foster high ethical standards for employees in the executive branch of government. Common ethical issues that come under the committee's purview include gifts from outside sources, gifts between employees, conflicting financial interests, remedies for financial conflicts of interest, impartiality in performing official duties, seeking other employment, misuse of position, outside activities, postemployment, representation to government agencies and courts, supplementation of salary, financial disclosure, informal advisory letters and memoranda and formal opinions, DAEOgrams (memoranda to Designated Agency Ethics Officials providing guidance on how to interpret and comply with modifications or new issuances of ethics laws, policies, and procedures; copies of the memoranda released since 1992 are available in the DAEOgrams section of the OGE website), and contractors in the workplace. The public may lose confidence in the integrity of Government if it perceives that an employee's Government work is influenced by personal interests or by payments from an outside source. An executive branch employee's Government work may have the potential to benefit the employee personally, affect the financial interests of the employee's family, or involve individuals or organizations with which the employee has some past, present, or future connection away from the employee's Government job. Separately, an employee might be offered a payment from a non-Federal source, such as a former employer, either before or after entering Government. Accordingly: An employee may be disqualified from working on a particular Government matter. An employee may be prohibited from holding specified property. An employee may be prohibited from accepting a payment from a non-Federal source.

Patient-Self Determination Act (PSDA)

The Patient Self-Determination Act of 1990 (PSDA)[29] was enacted to ensure that patients are informed of their rights to execute advance directives and accept or refuse medical care. On December 1, 1991, the PSDA[30] took effect in hospitals, skilled nursing facilities, home health agencies, hospice organizations, and health maintenance organizations serving Medicare and Medicaid patients. As a result of implementation of the PSDA,[31] healthcare organizations participating in the Medicare and Medicaid reimbursement programs must address patient rights regarding life-sustaining decisions and other advance directives. Healthcare organizations have a responsibility to explain to patients, staff, and families that patients have a legal right to direct their own medical and nursing care as it corresponds to existing state law, including right-to-die directives. A person's right to refuse medical treatment is not lost when his or her mental or physical status changes. When a person is no longer competent to exercise his or her right of self-determination, the right still exists, but the decision must be delegated to a surrogate decision maker. Those organizations that do not comply with a patient's medical directives or those of a legally authorized decision maker are exposing themselves to the risk of a lawsuit.

Privacy Act (1974)

The Privacy Act of 1974, Title 5 United States Code (U.S.C.) 552, was enacted to safeguard individual privacy from the misuse of federal records, to give individuals access to records concerning themselves that are maintained by federal agencies, and to establish a Privacy Protection Safety Commission. Section 2 of the Privacy Act reads as follows:[a] The Congress finds that (1) the privacy of an individual is directly affected by the collection, maintenance, use, and dissemination of personal information by Federal agencies; (2) the increasing use of computers and sophisticated information technology, while essential to the efficient operations of the Government, has greatly magnified the harm to individual privacy that can occur from any collection, maintenance, use, or dissemination of personal information; (3) the opportunities for an individual to secure employment, insurance, and credit, and his right to due process, and other legal protections are endangered by the misuse of certain information systems; (4) the right to privacy is a personal and fundamental right protected by the Constitution of the United States; and (5) in order to protect the privacy of individuals identified in information systems maintained by Federal agencies, it is necessary and proper for the Congress to regulate the collection, maintenance, use, and dissemination of information by such agencies. [b] The purpose of this Act is to provide certain safeguards for an individual against an invasion of personal privacy by requiring Federal agencies, except as otherwise provided by law, to (1) permit an individual to determine what records pertaining to him are collected, maintained, used, or disseminated by such agencies; (2) permit an individual to prevent records pertaining to him obtained by such agencies for a particular purpose from being used or made available for another purpose without his consent; (3) permit an individual to gain access to information pertaining to him in Federal agency records, to have a copy made of all or any portion thereof, and to correct or amend such records; (4) collect, maintain, use, or disseminate any record of identifiable personal information in a manner that assures that such action is for a necessary and lawful purpose, that the information is current and accurate for its intended use, and that adequate safeguards are provided to prevent misuse of such information.

Sherman Antitrust Act

The Sherman Antitrust Act, named for its author, Senator John Sherman of Ohio, prescribes that every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce among the several states is declared to be illegal. Those who attempt to monopolize, combine, or conspire with any other person or persons to monopolize any part of the trade or commerce can be deemed guilty of a felony. Areas of concern for healthcare organizations include reduced market competition, price fixing, actions that bar or limit new entrants to the field, preferred provider arrangements, and exclusive contracts. -A healthcare organization must be cognizant of the potential problems that may exist when limiting the number of physicians that it will admit to its medical staff. Because closed staff determinations can effectively limit competition from other physicians, the governing body must ensure that the decision-making process in granting privileges is based on legislative, objective criteria and is not dominated by those who have the most to gain competitively by denying privileges. Physicians have attempted to use state and federal antitrust laws to challenge determinations denying or limiting medical staff privileges. Generally, these actions claim that the organization conspired with its medical staff to ensure that the complaining physician would not obtain privileges in order to reduce competition.

Corporate Compliance Program

The federal government's initiative to investigate and prosecute healthcare organizations for criminal wrongdoing, coupled with strong sanctions imposed after conviction, has resulted in healthcare organizations establishing corporate compliance programs. These programs establish internal mechanisms for preventing, detecting, and reporting criminal conduct. Sentencing incentives are in place for organizations that establish such programs. An effective compliance program should include the design, implementation, and enforcement of program policies, procedures, and processes to facilitate the prevention and detection of criminal conduct. An effective corporate compliance program should include the following elements: Appointment of a corporate compliance officer to oversee the corporate compliance program. Development of standards of conduct, policies, procedures, and processes to help reduce the risk of criminal conduct. Assignment of duties, authority, and responsibility to employees with high integrity. Communication and education of all employees and agents as to the organization's corporate compliance standards. This can be accomplished through required educational programs, computer training modules, and disseminating publications that describe the organization's compliance program. Utilization of monitoring and auditing systems designed to detect criminal conduct by employees and agents. This should include a program for publicizing a reporting system whereby employees and other agents are easily able to report criminal conduct by others within the organization without fear of retribution. A hotline number should be available to receive and review complaints. Procedures should be implemented to protect the anonymity of complainants from retaliation. Policies must be consistently enforced through appropriate disciplinary mechanisms. Suspected illegal conduct should be handled through the corporate compliance officer. The organization must take all reasonable steps to respond appropriately to any offense in order to prevent similar offenses. An audit of the organization's corporate compliance program should be conducted annually. Policies, procedures, and processes should be redesigned as necessary. It is important that the corporate board participate in the review and evaluation process. The integrity and effectiveness of a compliance program will hold up only as long as there is trust in management on all levels within the organization. The duties and responsibilities of the compliance officer can be compromised when the corporation pays the salary of the compliance officer. As they say in the world of finance, "follow the money," and then you will know where loyalties lie.

Improving Organizational Preformance and Ethics

The following describe actions the healthcare organization can take to improve its effectiveness in delivering patient care to the community it serves.

CEO Code of Ethics

The following is the preamble to the Code of Ethics of the American College of Healthcare Executives (ACHE):[22] The purpose of the Code of Ethics of the American College of Healthcare Executives is to serve as a standard of conduct for members. It contains standards of ethical behavior for health care executives in their professional relationships. These relationships include colleagues, patients, or others served; members of the health care executive's organization and other organizations, the community, and society as a whole. The Code of Ethics also incorporates standards of ethical behavior governing individual behavior, particularly when that conduct directly relates to the role and identity of the health care executive. The fundamental objectives of the health care management profession are to maintain or enhance the overall quality of life, dignity, and well-being of every individual needing health care service and to create a more equitable, accessible, effective, and efficient health care system. Health care executives have an obligation to act in ways that will merit the trust, confidence, and respect of health care professionals and the general public. Therefore, health care executives should lead lives that embody an exemplary system of values and ethics.

Comply with Rules and Regulations

The governing body in general and its agents are responsible for compliance with federal, state, and local rules and regulations regarding the operation of the organization. Depending on the scope of the wrong committed and the intent of the governing body, failure to comply could subject board members and/or their agents to civil liability and, in some instances, to criminal prosecution. The following Reality Check describes what can happen when an organization fails to comply with the provisions of the Family Medical Leave Act (FMLA).

Appointment of a CEO

The governing body is responsible for appointing a chief executive officer (CEO) to act as its agent in the management of the organization. The CEO is responsible for the day-to-day operations. The CEO plans, directs, and coordinates the operational activities of the organization. The individual selected as CEO must possess the competence and the character necessary to maintain satisfactory standards of patient care. The responsibilities and authority of the CEO should be expressed in an appropriate job description, as well as in any formal agreement or contract that the organization has with the CEO. Some state health codes describe the responsibilities of administrators in broad terms. They generally provide that the CEO/administrator shall be responsible for the overall management of the organization; enforcement of any applicable federal, state, and local regulations, as well as the organization's bylaws, policies, and procedures; appointment of, with the approval of the governing body, a qualified medical director; liaison between the governing body and medical staff; and appointment of an administrative supervisor to act during the CEO's absence from the organization. The general duty of a governing body is to exercise due care and diligence in supervising and managing the organization. This duty does not cease with the selection of a CEO. A governing body can be liable if the level of patient care becomes inadequate because of the governing body's failure to supervise properly the management of the organization. CEOs, like board members, can be personally liable for their own acts of negligence that injure others.

Credentialing, Appointment, Privileging, and Discipline

The governing body is ultimately responsible for the credentialing, appointment, and privileging process of the organization's professional staff. The duty to select members of the professional staff is legally vested in the governing body charged with managing the organization. Although cognizant of the importance of professional staff membership, the governing body must meet its obligation to maintain high standards of practice and fairness. The governing body of all healthcare entities must therefore be given the latitude necessary when prescribing the necessary qualifications for potential applicants. No court should substitute its evaluation of professional competency for that of the board, a court's review should be limited to ensuring that the qualifications imposed by a board are reasonably related to the operation of the organization and fairly administered. Moreover, courts are generally reluctant to get involved with the internal affairs of hospitals or professional societies unless any sanctions they impose violate public policy. Credentialing is a process for validating the background of healthcare professionals and assessing their qualifications to provide healthcare services. The process is an objective evaluation of a professional's current licensure, training, or experience; competence; and ability to perform the services or procedures requested. Credentialing occurs during both the initial appointment and reappointment process. The delineation of clinical privileges is the process by which the medical staff determines precisely what procedures a physician is authorized to perform. This determination is based on the credentials necessary to competently perform the privileges requested. The medical staff is responsible to the governing body for the quality of care rendered by members of the medical staff. The hospital's governing body has a duty to ensure that a mechanism is in place for the medical staff to evaluate, counsel, and when necessary take disciplinary action against physicians who pose an unreasonable risk of harm to patients.

Provide Adequate Staff

The governing body must be involved in the decision-making process when staffing shortages and long work hours stress caregivers. The governing body should require that the CEO report and discuss with the board at their monthly board meetings as to how management is addressing operating issues that include supply, equipment, and staffing issues and how they are being addressed in the organization. Staffing issues in particular continue to plague the healthcare industry, as noted in the new clipping presented here. -Various state and federal regulations address staffing requirements; however, they do not adequately address the problems associated with poor staffing and the plethora of regulations that require documentation by caregivers, detracting from the need for hands-on bedside care, thus to the detriment of patient care. Because the quality of care provided by nursing facilities is subject to substantial scrutiny, American families face difficult decisions about whether to move a loved one into such a setting. Under federal law, nursing facilities must have sufficient nursing staff to provide nursing and related services adequate to attain and maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care. As nursing facilities are increasingly filled with older, disabled residents with complex care needs, the demands for highly educated and trained nursing personnel continue to grow.

Provide Adequate Supplies and Equipment

The governing body must ensure that there are adequate supplies and equipment on hand in each of its facilities. If the board is unable to provide the necessary supplies and equipment, it must consider finding the funds necessary to fulfill its mission or scaling back operations and, if necessary, consider other options, such as filing for bankruptcy or selling the organization's assets to a competing organization.

Restoring Trust

The lack of trust is slowly deteriorating the people's faith in the nation's healthcare system. A lack of trust in physicians, hospitals, and insurers is pervasive throughout the healthcare system. The horror stories in newspapers, malpractice suits, and the Institute of Medicine's report on healthcare mistakes identify problems and provide a catalyst for encouraging lawsuits. Organizations need to make a concerted effort to develop strategies to build and restore trust in the healthcare industry. The following strategies assist in building consumer trust: Conduct business in compliance with applicable laws, rules, and regulations. Adhere to ethical standards. Provide cost-effective care. Fairly and accurately represent the organization's capabilities when treating a patient's ailments. Maintain a uniform standard of care throughout the organization, regardless of a person's ability to pay, race, creed, color, and/or national origin. Consider patient values and preferences as part of recognizing the organization's legal responsibilities. Inform patients of their rights and responsibilities. Develop and recommend guidelines that assist and support patients and their families in exercising their rights. Describe the process to patients by which hospital staff interact and care for them. Trust must begin within the organization between management and employees. As the following Reality Check describes, organizations can often become dysfunctional and cause employee turnover and resentment among employees.

Ethics and the law are not mutually exclusive—they are intertwined. Without the two, we would become a lawless land. The words of Abraham Lincoln, so passionately spoken, resonate true today. Political corruption, antisocial behavior, declining civility, lack of integrity and transparency, and rampant unethical conduct have heightened discussions over the nation's moral decline and decaying value systems. The numerous instances of questionable political decisions, executives with shocking salaries, dishonesty at work and school, sexually explicit websites, and the entertainment media have contributed to this decline. Legislators, investigators, prosecutors, and the courts have been quick to speak moral truths but continue to be slow in action. Can this boat be turned around, or are we just plugging the holes with new laws and creating more leaks in a misguided sinking ship?

The question remains: Can the decline in ethical behavior be reversed as citizens struggle with a broken legal system inundated with new laws? The answer is more likely to be a return to practicing the virtues and values upon which this nation was founded. Ethics and the law are not mutually exclusive—they are intertwined throughout the text, providing an overview of government agencies designed to protect each individual's rights (e.g., the right to privacy and self-determination).

Corporate Authority

The typical healthcare organization is incorporated under state law as a freestanding for-profit or not-for-profit corporation. The corporation has a governing body that has ultimate responsibility for the decisions made in the organization. The existence of this authority creates certain duties and liabilities. The governing body, having ultimate responsibility for the operation and management of the organization, generally delegates responsibility for the day-to-day operations of the organization to the organization's chief executive officer. Although healthcare organizations may operate as sole proprietorships or partnerships, most function as corporations. Thus, an important source of law applicable to governing boards and to the duties and responsibilities of their members is state law regarding corporations. An incorporated healthcare organization is a legal person with recognized rights, duties, powers, and responsibilities. Because the legal "person" is in reality a "fictitious person," there is a requirement that certain people are designated to exercise the corporate powers and that they are held accountable for corporate decision making. Healthcare corporations—governmental, charitable, or proprietary—have certain powers expressly or implicitly granted to them by state statutes. Generally, the authority of a corporation is expressed in the law under which the corporation is chartered and in the corporation's articles of incorporation. The existence of this authority creates certain duties and liabilities for governing bodies and their individual members.