Health Care Law

GWU School of LawProfessor RosenbaumFall 2013

ContentsPART ONE: ACCESS TO HEALTH CARE9Chapter 1. Barriers to Access and the Right to Health Care9Part 1. Health Insurance and the Uninsured9Part 2. The Consequences of Being Uninsured10Part 3. A Right to Health Care10The Right to Health Care10Chapter 2. The Common Law: From No Duty of Care to Limited Social Responsibility10Part 1. A Brief Overview of American Common Law10Part 2. The Basis of the No Duty Principle11Hurley v. Eddingfield11Part 3. Termination and Formation of the Doctor-Patient Relationship: Undertaking and Abandonment12Ricks v. Budge12Muse v Charter Hospital of Winston Salem12Part 4. Medical Ethics as the Basis of a Duty to Care12Part 5. The Evolution of the No Duty of Care Principle under the Common Law13oWilmington Gen. Hosp. v. Manlove13Childs v. Weis13Hiser v. Randolph13Dillon v. Silver13Payton v Weaver13oNew Biloxi Hospital v. Frazier14oCampbell v. Mincey14EMTALA14Chapter 3. Federal Legislative Reform of the No Duty Principle: The Emergency Medical Treatment and Labor Act (EMTALA)14Part 1. Introduction14Part 2. The EMTALA Statute15oBarris v. County of Los Angeles17oPower v. Arlington Hospital Assn17Part 3. The Duty to Provide an Appropriate Screening17Power v. Arlington Hospital Association17Summers v. Baptist Medical Center Arkadelphia17Lewellen v. Schneck Medical Center18Part 4. What Does it Mean to Come to the Hospitals Emergency Department?18Part 5. The Duty to Stabilize Persons with Emergency Medical Conditions19oBryan v. University of Virginia19oMoses v. Providence Hospital and Medical Centers19oArrington c. Wong19In the Matter of Baby K19Part 6. The Duty to Stabilize and Furnish A Medically Appropriate Transfer20Part 7. The Duties of Transferee Hospitals20Part 8. On-Call Specialists20Dabney v. Fort Walton Beach Medical Center21Part 9. How Does the EMTALA Stabilization Duty Apply to Inpatients?21Lopez Soto v. Hawayek21Urban v. King21Roberts v. Galen21Harry v. Marchant22Bryant v. Adventist Health22How the Law Creates Access to Health Care22Chapter 4. Civil Rights and Access to Health Care22Part 1. Prohibiting Discrimination on the Basis of Race and National Origin by Recipients of Federal Financial Assistance under Title VI of the 1964 Civil Rights Act23Part 3. Prohibition of Discrimination on the Basis of Disability: The Americans with Disabilities Act and the Realization of Health Care as a Public Accommodations24The Role of Civil Rights law in Access to Health Care25Chapter 5. Direct Public Provision of Medical Care25Part 1. Safety-Net Hospitals25Part 2. Community Health Centers25PART TWO: HEALTH CARE FINANCING26The Rise and Evolution of Insurance26Chapter 6. The Rise and Evolution of Health Insurance26Part 1. Health Care Costs and the Search for Solutions26Part 2. The Evolution of Heath Insurance and Health Insurance Law27oSorrell v. IMS Health Inc27Hailey v.California Physicians' Service28Part 3. Escalating Costs and New Models of Health Insurance31Part 4. The Patient Protection and Affordable Care Act32Supplement. Slogging Toward the New Normal: Implementation of the Affordable Care Act32Insurer Obligations and Remedies under State Law34Chapter 7: Defining Insurer Obligations and Remedies Under State Law34Part 1. Remedies for Bad Faith Breach of Contract in Denying Coverage34Albert H. Wohlers & Co. v. Bartkis34ERISA35Chapter 8. ERISA35Part 2. History and Statutory Structure35Part 3. Fiduciary Duty of Information and Disclosure35Mondry v. American Family Mutual Insurance Company36Part 4. Full and Fair Review of Claims36Shelby County Health Care Corp. v. Majestic Star Casino, LLC Group Health36Part 5. Health Benefit Plan Design and the ERISA Settlor Function37McGann v. H&H Music37Jones v. Kodak38Part 6. Judicial Review of Fiduciary Decisions38oFirestone Tire & Rubber v. Bruch39Krauss v. Oxford Health Plans40Part 7. ERISA and Preemption of State Law40oShaw v. Delta Airlines41oNew York State Conference of Blue Cross & Blue Shield Plans v. Travelers42oCalifornia Division of Labor Standards Enforcement v. Dillingham Construction42oDe Buono v. NYSA-ILA Medical and Clinical Services Fund43Boggs v. Boggs43Foster v. Blue Cross and Blue Shield of Michigan43Egelhoff v. Egelhoff43oMassachusetts v. Met Life43oRush Prudential HMO v. Moran43oKentucky Assn of Health Plans, Inc. v. Miller44oPilot Life Insurance Co. v. Dedeaux45oRush Prudential v. Moran45oConnecticut General Life v. Insurance Commissioner45The Interaction of Coverage and the Americans with Disabilities Act46Chapter 9. Private Health Insurance and Coverage Discrimination46Part 1. Introduction46Part 2. The Americans with Disabilities Act46Doe v. Mutual of Omaha Insurance Company46Medicare47Chapter 10. Medicare47Part 3. Defining the Scope and Limits of the Medicare Entitlement50Part 4. Appeals of Individual Medicare Claims Denials50Supplement. Note: The Final Demise of the Improvement Standard50Medicaid51Chapter 11. Medicaid51Part 4. Medicaids History51Enactment51Movement to Medicaid Managed Care: Medicaid as a Market Purchaser51Achievements51Challenges51oNational Federation of Independent Business v. Sebelius52How Medicaid works53Statutory Requirements for the States53General Requirements53Rules for Assessing Eligibility54People Who MUST be Covered54Rules for what Medical Care MUST be Covered54Acceptable State Coverage Limits55Curtis v. Taylor55Cowan v. Meyers55Miller v. Whitburn55Dexter v. Kirschner55Unacceptable State Coverage Limits55Pinnecke55Weaver v Reagan55Rules on Provider Participation and Compensation55Getting the Plan Approved56Medicaid Statutory Entitlement56Private Enforcement of Federal Obligations56Chevron U.S.A. Inc. v. Echazabal56Providers Rights when dealing with the Termination of Contract with the State57Goldberg v. Kelly57MEDCARE HMO v. Bradley57Beneficiaries Rights when there is a Violation of the State Plan57Beneficiaries and Providers Rights when the State Plan is in Violation of the Federal Medicaid Statute57Implied Right of Action/Supremacy Clause57Rosado v. Wyman57Douglas v. Independent Living Center of Southern California57Wos v. E.M.A59General Federal Cause of Action Statute - 42 USC 198360Maine v. Thiboutot60Wilder v. Virginia61Suter v. Artist M.61Blessing v. Freestone61Gonzaga v. Doe61Special Concerns: Americans with Disabilities Act62Paying for Health Care63Chapter 12. Paying for Health Care: Conceptual and Structural Considerations63Introduction63Provider Payment64What services to cover?64Setting Payment Rate64Selecting Payment Method65Pay for Performance65Special Issues for Medicare and Medicaid65Disproportionate Share (DSH) Payments65oAdena Regional Medical Center v. Leavitt66Bad Debt66oBattle Creek v. Leavett66Medical Necessity67Special Issue for Private Insurance67Provider Access to Health Insurance Markets: Selection and De-selection67Fair Procedure Doctrine Applies to Exclusion67Palm Medical Group v. State Compensation Ins. Fund67Any Willing Provider Laws68ERISA Preemption and Provider Payment68oFranciscan Skemp v. Central States68PART THREE: HEALTH CARE QUALITY70Medical Malpractice70Chapter 14. Medical Malpractice and Health Care Quality70Part 1. What Does Medical Malpractice Tell Is About Health Care Quality?70Part 2. From Physician Authority to Egalitarian Social Contract and Market Competition: Medical Malpractice Law and Transformation of the Professional Standard of Care72Part 3. From Local Medical Customer Practices to a National Standard of Acceptable Care72Shilkret v. Annapolis Emergency Hospital Association73Hall v. Hilbun73Part 4. The Problem of Competing Standards: The Two Schools of Thought or Respectable (or Reputable) Minority Doctrine73Jones v. Chidester73Part 5. Overriding the Professional or Industry Standard of Care74TJ Hooper74Helling v. Carey74Part 6. When Has a New Standard Emerged? The Best Judgment Rule and the Problem of New Knowledge and Technologies75Washington v. Washington Hospital Center75Part 7. Clinical Practice Guidelines and the Standard of Care75Diaz v. New York Downtown Hospital75Part 8. Challenging Professional and Industry Standards76The Equally Well-Informed Expert and Available and Proven Scientific Safeguards Doctrines76United Blood Services v. Quintana76Osborn v. Irwin Mem. Blood Bank76Part 9. Should the Professional Standard of Care Be Adjusted to Account for Patients Economic Circumstances?76Murray v. UNMC Physicians76Greater Washington DC Area Council of Senior Citizens v. District of Columbia Government77Informed Consent78Chapter 15. Informed Consent to Treatment78Part 1. Introduction78Part 2. The Ride of a Patient-Oriented Standard of Informed Consent78Canterbury v. Spence78Part 4. Conflicts of Interest and the Physicians Fiduciary Duty79Moore v. The Regents of the University of California79Health Information Confidentiality and Health Information Privacy79Chapter 16. The Confidentiality of Health Information and Information Privacy79Part 1. Introduction79MacDonald v. Clinger79Part 2. Health Information Privacy: The HIPAA Privacy Rule80Liability Reform81Chapter 17. Medical Liability and the Politics of Legal Change81Part 2. What Is the Nature and Extent of the Medical Liability Problem?81Part 3. Fixing the Medical Liability Crisis82Part 5. Enterprise Liability82Definition82Proposals for Systematic Enterprise Liability in Health Care82Hospitals and Health Care Quality83Chapter 18. Hospitals and Health Care Quality83Part 2. The Role of Law in the Age of Expanding Hospital Authority83Charitable Immunity Doctrine83Part 4. The Rise of Respondeat Superior84Truhitte v. French Hospital84Part 5. Non-Employee Physicians and the Expanding Concepts of Agency Nondelegable Duty84Nondelegable Duties for Hospitals84oJackson v. Power84Part 6. The Rise of Hospital Corporate Liability85The Structure of Hospital Governance85The Scope of Corporate Liability85The Hospitals Duty to Monitor Treatment Done by Staff with Privileges86Darling v. Charleston Community Memorial Hospital86Corporate Interference with Appropriate Medical Care86Hospitals have a duty not to implement policies that interfere with the medical judgment of the physicians they employ. If the hospital breaches that duty, it will be liable for any damages caused by the policy.87Muse v. Charter Health Care87Part 7. The Charitable Immunity Doctrine and Contractual Releases87Tunkl v. Regents of University of California87Part 8. Structuring the Hospital Peer Review Process: State-Law Immunity, Privilege, and Regulation87Peer Review87Bryan v. James E. Holmes Regional Medical Center88Part 9. Substantive Grounds for Adverse Hospital Action88Payers and Health Care Quality88Chapter 20. Payers and Health Care Quality: Awakening the Sleeping Giant89Part 1. Introduction: Old Concerns, Old Techniques and the Rise of Value-Based Purchasing89Utilization Review (UR) of providers for them to participate90Professional Standards Review Organizations (PSROs)90Peer Review Organizations (PROs)90Quality Improvement Organizations (QIOs)90oDoyle v. Secretary of Health and Human Services91Part 2. Legal Issues in Value-Based Purchasing91Liability of Payers for Medical Negligence and ERISA Preemption92Chapter 21. Liability for Medical Negligence: Special Issues that Arise in Situations Involving Insurers and Health Plan Administrators92Part 2. Insurer Negligence in Connection with Coverage Determinations92Wickline v. State of California92McEvoy v. Group Health Cooperative of Eau Claire93Part 3. Liability for Medical Injuries Arising From Health Care Negligence93Vicarious Liability and Agency93Boyd v. Albert Einstein Medical Center94Chase v. IPA, Inc.94Petrovich v Share Health Plan of Illinois94Williams v Good Health Plus, Inc.94Corporate Liability94McClellan v. HMO95Shannon v. McNulty95Jones v. Chicago HMO95Part 4. When Does ERISA Preempt the Medical Liability of Insurers and Plan Administrators?95Corcoran v. United Healthcare95Dukes v. U.S. Healthcare96Pegram v. Herdrich97Aetna Health v. Davila97SUMMARY98PART FOUR: REGULATION OF HEALTH CARE TRANSACTIONS99Tax Exemption in the Modern Health Care System99Chapter 23. Tax Exemption in the Modern Health Care System99Part 1. The Nature of Community Benefit99Part 2. The Integral Part Doctrine99Part 3. Joint Ventures with Nonexempt Entities99Health Care Fraud and Abuse99Chapter 24. Health Care Fraud and Abuse99Part 1. False Claims Act99Part 3. The Anti-Kickback Statute (AKS) and Stark99Antitrust and Health Care99Chapter 25. The Application of Antitrust to Health Care99Part 1. Market Power99United States v. Long Island Jewish Medical Center99Part 2. Exclusionary Conduct or Lawfulness100Part 3. Special Problems Raised by Horizontal Collaborations100

PART ONE: ACCESS TO HEALTH CAREChapter 1. Barriers to Access and the Right to Health CarePart 1. Health Insurance and the Uninsured(Today in the United States, 18% of Americans do not have health care coverage.)

Causes of un-insurance Wary of government interference into free market Federalism / divided government Medicaid does not cover all low income persons Fractured health care system Cost of insurance rises faster than underlying cost of care/wages; High cost due to: aging population spread of advanced technologies relatively poor health rising prices Administrative costs people insulated from cost of insurance reliance on marketsEmployment-based Health Insurance - Voluntary employer-sponsored health insurance A majority of Americans receive their health care insurance from employers (55.8% of nonelderly persons in 2011, 75% at its apex) The system arose during the great depression while other countries began establishing systems of universal coverage Employer-coverage has been disintegrating over the last 25 years, due to the labor market has moving away from high paying jobs with benefits, towards lower paying jobs w/o benefits Increasing numbers of single parents who are less likely to earn benefits for their households Children are at particular risk under the current system. They are more likely to live in families without employer insurance, and therefore rely heavily on public insurance. Medicaid and Children's Health Insurance Program Exponential increases in the cost of health care/insurance causing many small employers to cease offering benefits Even the economic boom from 2000-2006 saw an increase in uninsured Americans The employer mandate in the ACA, establishes very narrow circumstances in which businesses are required to provide health insurance Unlikely to make any significant changes to the current systemUnderinsured Populations A growing and significant problem that will hopefully be remedies by the ACA Causes Low income in relation to the value of coverage (premiums take up too much of earnings) Exceptionally high medical bills that exhaust coverage limits *BC-ACA, annual/lifetime coverage limits are prohibited Rising health care costs - trimming of coverage Higher premiums, deductibles, coinsurance and copayments"Freedom" to remain uninsured Historically health insurance has been a voluntary for both employers and individuals. However, the vast majority of uninsured Americans were unable to afford health insurance. It is therefore, misleading to suggest there is a long tradition of Americans choosing not to pay for coverage. Americans who do decide to not purchase available insurance, overwhelmingly cite cost as their reason as the most important factor. These truths have not stopped opponents of the ACA from arguing that many Americans will be losing their liberty due to the individual mandateIndividual Insurance Market - Too expensive and too exclusive Besides being prohibitively expensive, individual insurance is traditionally ruled by medical underwriting BC-ACA, most individuals were denied coverage or given a policy with many exclusions and limitations Not a viable option for most Americans

Part 2. The Consequences of Being Uninsured Uninsured people are poorer and sicker than the general population Almost half of poor people are uninsured Poor non-elderly adults have far high rates of physical & mental illness Health insurance (public or private) is associated with greater access to all types of health care. Preventative services and advanced care for chronic conditionsEffects of high percentage of uninsured On communities Fewer hospital beds Fewer specialized services for vulnerable populations Less likely to have advanced emergency services and burn and shock/trauma systems Rural hospitals lack intensive care and inpatient psychiatric services More susceptible to economic downturns Budgetary shortfalls for public health systems Adverse effects on public health disease surveillance and emergency preparedness On the nation Diminished health and premature mortality Financial stress for families Reduced workforce productivity Greater financial stresses on government programs Financial consequences Nation spends a lot to treat uninsured Loss of "health capital" annual aggregated cost of not financing health care for the population as a whole ranges from $65 to $135 billionPart 3. A Right to Health Care Despite long standing belief in the United States that all persons should receive health care in emergency situations, there remains a serious debate over the right to health care coverage. In most countries, health care is considered a universal good and an individual right. The World Health Organization defines enjoyment of "the highest attainable standard of health" to be a fundamental right. However, the US continues to fight against establishing a right to health care Opponents consider universal health care to be unfair and unattainably expensiveThe Right to Health CareChapter 2. The Common Law: From No Duty of Care to Limited Social Responsibility Part 1. A Brief Overview of American Common Law

The American common law of contracts and torts developed at the same time as medical care began taking its modern shape. As a result, the no duty principle was highly affected by common law. Here are four important aspects of common law to keep in mind:1. Charitable Tradition There was a strong tradition of charity where donors were vested with broad discretion over when and what to give. This personal choice was directly at odds with the developing understanding of legal obligation Though many medical providers did help some people who could not pay, it was considered charity and optional Hospitals that were built to help the poor were strictly voluntary for doctors No patient had a "right" to treatment2. Lochner Era The court was exceptionally committed to protecting unregulated markets and individual liberty3. Rise of the medical profession This time period saw a significant rise in the status/social authority of doctors, as well as expanding scientific knowledge and efficacy4. Racism & Nativism During this time Jim Crow laws were beginning, much of the south was just as bad as it had been before with slavery. Even in the north people were creating restrictive covenants. This was an era of huge immigration in which many people of many nationalities were coming to the states. Lots of people recoiled from the new comers and held prejudiced ideas As a result, the courts were unlikely to force people to contract with immigrants or African Americans because it was considered an intrusion of personal liberty.Part 2. The Basis of the No Duty Principle

Hurley Principle - Medical providers retain the liberty to contract, and therefore have no duty to provide care.

Hurley v. Eddingfield (1901) FACTS A woman went into labor and called for her doctor who had previously taken care of her. The doctor did not come, even after he was called upon multiple times, paid, and told that there were no other doctors available. The woman and the child died during childbirth. The woman's husband sued the doctor. HELD Found for the doctor. The relationship between a doctor and a patient is a contract of employment. Under contract law, a party has no duty to accept an offer to contract (even though this doctor had delivered her previous children) Since there was no acceptance of the offer, there was no contract and hence no duty to the plaintiff The licensing process in the state only permits doctor's to practice medicine, but doesnt require a doctor to provide care. Doctor still has the freedom to refuse offers. analogies to innkeepers, common carriers and the like who do have a common law duty to accept reasonable offers are beside the mark; Therefore there was no wrongful act by the defendant, even if all the facts alleged by the plaintiff are assumed to be true. NOTES The woman's husband made the argument in court the public accommodation theory should be extended to physicians because they are now licensed and regulated. The court rejected the argument and said that public accommodation regulation has no place in medical practice The courts reasoning relied on prioritizing individual liberty versus public dutyPart 3. Termination and Formation of the Doctor-Patient Relationship: Undertaking and Abandonment

Undertaking and Abandonment A physician who has undertaken to care for a patient may terminate that relationship only by cessation of the necessity which gave rise to the relationship or by discharge by the physician after giving the patient reasonable notice so as to enable the patient to secure other medical attention.Economic abandonment Once a doctor starts treating a person, he may not abandon a patient for economic reasons including the failure or refusal to pay for services He can give the patient notice of the termination of the relationship that permits the patient to find other care. Ricks v. Budge (1937) FACTS A man goes to the hospital because he has an infection in his hand. He stays in the hospital for 4 days for treatment then he leaves against medical advice. When he left, the doctors instructed him to continue to treat the hand and contact them if it got worst. The man's hand got worse and he went to the doctor's who told him that he needed surgery. But the doctor would not perform the procedure until the man settled his balance for previous treatment. The man left, sought care elsewhere, and eventually lost his hand. HELD For the man. Once a doctor has undertaken a patient and agreed to give care, he is not permitted to stop before the problematic condition is resolved. The majority held that there was no cessation in care. The dissent held that the patient ended the relationship when he left the hospital against medical advice. This man probably suffered as a result of the delay in his care cause by his doctor's refusal to act.

Hospitals are also barred from ceasing care for economic reasons. Muse v Charter Hospital of Winston Salem (1995)Hospital breached duty by discharging patients based on end of coverage rather than based on medical facts/judgment.

Part 4. Medical Ethics as the Basis of a Duty to Care

Medical ethics vs. legal ethics American Medical Association Principles of Medical Ethics Gives physicians discretion to decide who to treat with the exception of emergencies. Reasoning makes sense because Some physicians may lack technical competency The standard of care is higher when doctors choose who to care for This theory has begun to give way But also says that should support access to medical care for all people

AMAs principles of medical ethics:

VI. A physician shall, in the provision of appropriate care, except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide medical care.VII. A physician shall recognize a responsibility to participate in activities contributing to the improvement of the community and the betterment of public health.VIII. A physician shall, while caring for a patient, regard responsibility to the patient as paramount.IX. A physician shall support access to medical care for all people.

Part 5. The Evolution of the No Duty of Care Principle under the Common LawNo Duty to Rescue at common law Tort law historically draws a sharp distinction between action and inaction One can be liable if their action causes harm, but does not require one to affirmatively act to help others in distressExceptions of No Duty to Rescue:Detrimental reliance A provider cannot refuse a person who is relying on potential service if refusal of care may worsen the condition of the injured. Wilmington Gen. Hosp. v. Manlove (1961) FACTS A young couple went to an emergency room with a very sick infant. Their personal doctor was unavailable. The ER refused to admit the child because the family was not referred by a staff doctor at the hospital. A few hours after being refused admission, the child died of meningitis. The couple sued for wrongful death. HELD The court held that the emergency room of a private hospital owes the public duty to accept any patient who is significantly injured. ER's must treat people in emergency situationUndertaking A physician who has undertaken to care for a patient may terminate that relationship only by cessation of the necessity which gave rise to the relationship or by discharge by the physician after giving the patient reasonable notice so as to enable the patient to secure other medical attention. Problems Difficult to know when exactly an undertaking begins - upon arrival to office, at check-in, at payment Duty of on-call physicians: Courts divided as to whether on-call doctors have duty to treat in hospital Childs v. Weis (1969): on call physician had no duty to come to hospital to see a woman who had come after delivering baby on highway Hiser v. Randolph (1980): a doctor who agrees to be on call owes a duty to patients who seek emergency aid Dillon v. Silver (1987): hospital bylaws, that required doctors to be on call for certain periods and to accept patients during that time, were the basis for patient's claim, when the on-call doctor refused to treat her after conditions worsened Payton v Weaver (1982): court held that a doctor could cease to treat patient who insisted on self-destructive behaviors, but only after giving patient notice and time to find alternative treatment.Public Function and Public Accommodations General tort law prohibits certain actors from denying certain services; duty not absolute or independent of patients duty Was developed because public accommodations are vital services that create reliance Transportation, inns, restaurants Applies to hospitals, usually in context of emergency care Does NOT apply to private physiciansEmergency Care (Pre-EMTALA) Definition of Emergency Care: immediately and reasonably necessary for the preservation of life, limb or health New Biloxi Hospital v. Frazier (1962) FACTS A black man came to a hospital bleeding profusely. He was checked by a nurse and placed on an ER table. Despite the clear medical emergency, the man was transferred to another hospital. He arrived at the second hospital and was pronounced dead. HELD Hospital had duty of care to treat Frazier because they began treatment and this was an emergency medical case. Hospital was a negligent because they undertook his care then failed to finish his treatment: Campbell v. Mincey (1976) FACTS In 1975, a young black woman arrived at a public Mississippi hospital in labor. The admitting nurse refused to admit her because she was black. The woman returned to the parking lot, where she gave birth in the front seat of her neighbors care. After she gave birth, the nurse once again refused to admit her and the baby. The nurse did give the woman a sheet to wrap the baby in. HELD hospital had no duty to render care to woman who gave birth in parking lot No common law duty exists to admit and treat every patient seeking assistance This was not a departure from hospital custom or procedure treat only patients of on-staff doctors Court refused to see discrimination or violation of equal protection she had been treated before (not race/indigency) patients without on-staff doctors not protected class No evidence that actual emergency cases not admitted - court didn't see labor as an emergency Distinctions between Campbell and New Biloxi Factual differences Ms. Campbell was never touched, did not get inside ER, no chart started Legal differences Campbell did not argue gross negligence (basis of New Biloxi) BUT nurse called doctor and he rendered opinion, could have been considered diagnosis Should have argued gross negligence in provision of care, in addition to undertaking Court in Campbell relies on common law principles, to determine whether the patient was treated in the same way as other patients only patients of doctors with admitting privileges were treated, hospital custom to deny care Court could not find detrimental relianceEMTALAChapter 3. Federal Legislative Reform of the No Duty Principle: The Emergency Medical Treatment and Labor Act (EMTALA)Part 1. IntroductionGeneral information about emergency departments The majority of the people who come to the ER have insurance, either public or private, and are at the ER because of an acute condition for which they cannot get seen elsewhere. Frequently referred their by primary care physicians Many people consider the insanely busy ERs to be a result of the massive flaws in the US healthcare system Part 2. The EMTALA StatuteEmergency Medical Treatment and Labor Act Imposes certain basic obligations on all Medicare participating hospitals with emergency departments A hospital does not need a formal ER to qualify, even without a formal department a hospital that treats a certain number of emergent people must still follow EMTALA Part of the Medicare statute Not a condition of participation, only applies to Medicare hospitals with emergency departments The purpose of EMTALA was enacted to address the distinct and narrow problem of hospitals dumping the uninsured, underinsured or indigent patients by hospitals who did not want to treat them. Summers v. Baptist Medical Center Arkadelphia

42 USC 1395dd - Examination and treatment for emergency medical conditions and women in labor(a)Medical screening requirementIn 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 individuals behalf for examination or treatment for a medical condition, the hospital must provide for an appropriate medical screening examination within the capability of the hospitals emergency department, including ancillary services routinely available to the emergency department, to determine whether or not an emergency medical condition (within the meaning of subsection (e)(1) of this section) exists.(b)Necessary stabilizing treatment for emergency medical conditions and labor(1)In generalIf any individual (whether or not eligible for benefits under this subchapter) comes to a hospital and the hospital determines that the individual has an emergency medical condition, the hospital must provide either(A)within the staff and facilities available at the hospital, for such further medical examination and such treatment as may be required to stabilize the medical condition, or(B)for transfer of the individual to another medical facility in accordance with subsection (c) of this section.(2)Refusal to consent to treatmentA hospital is deemed to meet the requirement of paragraph (1)(A) with respect to an individual if the hospital offers the individual the further medical examination and treatment described in that paragraph and informs the individual (or a person acting on the individuals behalf) of the risks and benefits to the individual of such examination and treatment, but the individual (or a person acting on the individuals behalf) refuses to consent to the examination and treatment. The hospital shall take all reasonable steps to secure the individuals (or persons) written informed consent to refuse such examination and treatment.(3)Refusal to consent to transferA hospital is deemed to meet the requirement of paragraph (1) with respect to an individual if the hospital offers to transfer the individual to another medical facility in accordance with subsection (c) of this section and informs the individual (or a person acting on the individuals behalf) of the risks and benefits to the individual of such transfer, but the individual (or a person acting on the individuals behalf) refuses to consent to the transfer. The hospital shall take all reasonable steps to secure the individuals (or persons) written informed consent to refuse such transfer.(c)Restricting transfers until individual stabilized(1)RuleIf an individual at a hospital has an emergency medical condition which has not been stabilized (within the meaning of subsection (e)(3)(B) of this section), the hospital may not transfer the individual unless(A)(i)the individual (or a legally responsible person acting on the individuals behalf) after being informed of the hospitals obligations under this section and of the risk of transfer, in writing requests transfer to another medical facility,(ii)a physician (within the meaning of section1395x(r)(1)of this title) has signed a certification that based upon the information available at the time of transfer, the medical benefits reasonably expected from the provision of appropriate medical treatment at another medical facility outweigh the increased risks to the individual and, in the case of labor, to the unborn child from effecting the transfer, or(iii)if a physician is not physically present in the emergency department at the time an individual is transferred, a qualified medical person (as defined by the Secretary in regulations) has signed a certification described in clause (ii) after a physician (as defined in section1395x(r)(1)of this title), in consultation with the person, has made the determination described in such clause, and subsequently countersigns the certification; and(B)the transfer is an appropriate transfer (within the meaning of paragraph (2)) to that facility.A certification described in clause (ii) or (iii) of subparagraph (A) shall include a summary of the risks and benefits upon which the certification is based.(2)Appropriate transferAn appropriate transfer to a medical facility is a transfer(A)in which the transferring hospital provides the medical treatment within its capacity which minimizes the risks to the individuals health and, in the case of a woman in labor, the health of the unborn child;(B)in which the receiving facility(i)has available space and qualified personnel for the treatment of the individual, and(ii)has agreed to accept transfer of the individual and to provide appropriate medical treatment;(C)in which the transferring hospital sends to the receiving facility all medical records (or copies thereof), related to the emergency condition for which the individual has presented, available at the time of the transfer, including records related to the individuals emergency medical condition, observations of signs or symptoms, preliminary diagnosis, treatment provided, results of any tests and the informed written consent or certification (or copy thereof) provided under paragraph (1)(A), and the name and address of any on-call physician (described in subsection (d)(1)(C) of this section) who has refused or failed to appear within a reasonable time to provide necessary stabilizing treatment;(D)in which the transfer is effected through qualified personnel and transportation equipment, as required including the use of necessary and medically appropriate life support measures during the transfer; and(E)which meets such other requirements as the Secretary may find necessary in the interest of the health and safety of individuals transferred.

Enforcement By Health and Human Services (HHS): Hospitals in violation civil money penalties Physicians who sign certificates of transfer and misrepresent the persons physical condition are subject to penalties (if gross/flagrant cant participate in Medicare/Medicaid) Hospital not subject to penalties if on-call physician fails to show Civil Enforcement: EMTALA has express right of action injured individuals can recover damages hospital that incurs financial loss due to other hospitals non-compliance can get damages Barris v. County of Los Angeles (1999): California damage caps on malpractice apply to EMTALA claims because EMTALA states individuals may obtain damages available for personal injury under the law of the state in which the hospital is located court finds personal injury was meant to be inclusive, include general and specific provisions re: malpractice damages Power v. Arlington Hospital Assn (2007) Not all malpractice claims are EMTALA and vice versa, finds that any action for violation of EMTALAs duty of care provisions qualifies as an action based on professional negligence subject to VAs damage caps (fact-specific)[footnoteRef:1] [1: uninsured patient went to a hospital emergency room complaining of pain. She was given a prescription and, before the results of her urine test were back, she was discharged and told to return if the pain got worse. The patient returned the next day, and it was determined that she had an infection from attempting to lance a boil on her face. The existence of the boil was not referenced on any reports. Because of the lack of earlier treatment, her legs were partially amputated, and she lost sight in one eye. On appeal, the court found that it was not necessary for the patient to prove an improper An motive for the hospital's treatment or discharge decision in order to recover for a breach of EMTALA. The patient met her burden of showing that the screening she was provided deviated from that given to other patients, who likely would have received a blood test. However, the state's limitation of damages was applicable, and recovery should have been limited to one million dollars underVa. Code Ann. 8.01-581.15. In addition, the liability limit for the tax-exempt hospital should have applied, underVa. Code Ann. 8.01-38, because the action was one for negligence or other tort.]

Historically cases largely decided in favor of P; today the majority of cases come out in favor of D

Part 3. The Duty to Provide an Appropriate Screening

What is an appropriate screening?Appropriate screening is designed to identify conditions of symptomatic patients, must be applied uniformly. Patients are entitled to be treated as similarly situated patients would be treated, within a hospitals capabilities. But the hospital itself determines what an appropriate screening is for them. E.g. If the hospital does not have an MRI machine, then it will not be expected for an appropriate screening. EMTALA does not guarantee a patient appropriate treatment, just screening. Malpractice occurs after the screening; e.g. misdiagnosis and bad treatment EMTALA is NOT a federal malpractice statute. In order to prove an EMTALA violation, a patient only needs to prove disparate treatment. Does NOT need to show motive. Power v. Arlington Hospital Association An EMTALA suit will survive summary judgment if the plaintiff can show a genuine dispute over a material fact as to the hospitals negligent/intentional behavior. Lewellen v. Schneck Medical CenterCases:Power v. Arlington Hospital Association (1994) FACTS Susan Powers goes to the emergency department at Arlington Hospital in severe pain. The doctors gave her pain meds and a referral, but did no blood test and discharged her before her urine test came back. Powers returned the next night nearly dead from sepsis. She was immediately admitted into the ICU and put on life support. She eventually lost both of her legs, site in one eye, and suffered severe damage to her lung. Powers sued under EMPALA arguing that the hospital did not give her an appropriate screening because her screening was less thorough than other patients usually receive. Hospital argued that this was a malpractice suit not an EMPALA suit. They cited congress's express intention not to preempt state malpractice law. HELD Power's claim was proper under EMPALA It was not necessary for her to prove motive of the hospital, its only necessary to show disparate treatment.

Summers v. Baptist Medical Center Arkadelphia (1996) FACTS An examination of a patient who had fallen from a tree was incomplete because the physician failed to take a chest x-ray before discharging him. Two days later the patient went to another hospital and was diagnosed multiple rib and vertebrae fractures. HELD The hospital was negligent because the patient did not receive an appropriate screening for the situation. Failure to order a chest x-ray when a patient is complaining of popping in his chest is negligence. NOTE This case was decided on summary judgment

Lewellen v. Schneck Medical Center (2007) FACTS A drunk driver was brought to the ER by the police. The man was in severe pain and had multiple open wounds. The hospital discharged him without properly screening or treating him. He refused to sign the discharge papers and the police begged the hospital to continue to treat him. Lewellen sued under EMPALA HELD The suit could survive summary judgment because Lewellen had enough evidence to show that there was a genuine issue of material fact on whether the emergency room physical was deliberately indifferent to Lewellen's serious medical needsPart 4. What Does it Mean to Come to the Hospitals Emergency Department?How can a patient come to an emergency department? Present self at ED Present self at hospital, or adjacent areas to a hospital By ambulance Hospitals own ambulance City-owned ambulance if ambulance called in advance and hospital not on diversionary status

Case Law Before Arrington, all that mattered was the ownership of the ambulance In Arrington, the court held that the CMS regulation was satisfied when a call as made from the ambulance and the hospital was not on diversionary status Morales followed Arrington, applied Chevron to find that the CMSs interpretation of the statute was reasonable better to have crews call ahead rather than forcing them to show up unannounced to the person can present at the ER

2003 amendments give a clearer understanding of the comes to standard:Dedicated emergency departmentmeans any department or facility of the hospital, regardless of whether it is located on or off the main hospital campus, that meets at least one of the following requirements:(1) It is licensed by the State in which it is located under applicable State law as an emergency room or emergency department;(2) It is held out to the public (by name, posted signs, advertising, or other means) as a place that provides care for emergency medical conditions on an urgent basis without requiring a previously scheduled appointment; or(3) During the calendar year immediately preceding the calendar year in which a determination under this section is being made, based on a representative sample of patient visits that occurred during that calendar year, it provides at least one-third of all of its outpatient visits for the treatment of emergency medical conditions on an urgent basis without requiring a previously scheduled appointment.

Part 5. The Duty to Stabilize Persons with Emergency Medical Conditions

Necessary Stabilizing Treatment Second half of EMTALA If hospital determines there is emergency condition it MUST provide further examination and or treatment or transfer in accordance with section (c) EMTALA is violated if a patient is discharged patient without knowledge of emergency condition and/or without engaging in exam/treatment to assure that no material deterioration of the condition will occur (trigger for stabilization requirement was transfer) Requirements Stabilization requires such treatment of an emergency medical condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from of occur during the transfer of the individual from a facility. Must provide exam/treatment as may be required to stabilize the medical condition to an objective standard HOWEVER if a hospital does not have the facilities to stabilize a patient, s/he must be transferred to an appropriate facility. EMTALA doesnt specify how long a patient needs to remain stable before discharge, and the circuits are split: Bryan v. University of Virginia (1994) (4th Cir): only need to stabilize in immediate aftermath but allows hospitals to admit patients that dont intend to treat and then dump them after what would be considered immediate aftermath Moses v. Providence Hospital and Medical Centers (2009) (6th Cir.): stabilization requirement applies way after admitted otherwise hospitals may circumvent EMTALA by admitting patients (although runs risk of impeding state malpractice laws contrary to Congresss stated intent of EMTALA) Arrington v. Wong (2001) (9th Cir.) is in between EMTALA is ended when admitted as inpatient BUT if patient demonstrates was admitted to avoid EMTALA, EMTALA liability may attach (most in-line with statute)

Case LawIn the Matter of Baby K (1994) FACTS Woman finds out during pregnancy that fetus has anencephaly (no brain above brain stem), decides not to abort for religious reasons when she gave birth, the baby stopped breathing, mother wanted respiratory support rather than just comfort care physicians put baby on respirator even though violated standard of care baby stabilized, went to nursing home, but would stop breathing periodically and come back to ER Hospital filed lawsuit for declaratory rule that not required providing respiratory support to Baby K because violated standard of care. Hospital claimed condition was anencephaly, that EMTALA merely requires that they provide a uniform service and the mode of treating anencephaly is comfort care problem is that uniformity applies to screening, not stabilization because the stabilization requirement does not use appropriate The word appropriate is what triggers the discriminatory analysis under the screening requirement HELD Court found it was respiratory distress; not relevant that the baby had anencephaly according to the court, once comes to hospital w/ emergency condition has to stabilize Hospital argued that under VA law, doctors cant be compelled to provide treatment they believe to be ethically or medically inappropriate But EMTALA preempts state law emergency condition is apnea, not anencephaly also when baby born, put her on respirator, so have shown willingness to act outside standard of care NOTE The lower court denied hospital under EMTALA and baby doe law, which declares it to be a violation of civil rights laws covering people with disabilities to withhold life-sustaining treatment from infants with disabilities. This decision was very controversial. The fourth circuit upheld decision solely under EMTALA.Part 6. The Duty to Stabilize and Furnish A Medically Appropriate Transfer

Transfer: Cant transfer a patient who is not stable unless: (1) Person consents to transfer (informed consent) (2) Physician finds medical benefits outweigh medical risks of transfer; or (3) A qualified medical person who has conferred w/ physician signs statement agreeing that transfer is necessary Transfer must be appropriate: Transferring hospital provides medical treatment with the capacity to minimize risks to individuals health and sends all medical records relating to emergency condition Receiving facility Has available space/qualified personnel Has agreed to accept transfer and provide appropriate medical treatment Transfer effectuated through qualified personnel and transfer equipment Medically appropriate is highly fact-specific, must look at the medical condition and technological and personnel capacity of both hospitals Other facilities can seek damages from unlawful transfer

Part 7. The Duties of Transferee Hospitals

Original EMTALA statute required that any hospital with specialized capabilities accept all transfers of emergent patients that they had the capacity to help.

(g) Nondiscrimination. A participating hospital that has specialized capabilities or facilities (such as burn units, shock-trauma units, neonatal intensive care units, or (with respect to rural areas) regional referral centers as identifies by the Secretary in regulation) shall not refuse to accept an appropriate transfer or an individual who required such specialized capabilities or facilitates if the hospital has the capacity to treat the individual.

BUT the 2008 Amendments changed this: Eliminated the requirement that all specialized hospitals have to accept transfers they have the ability to treat This is the biggest issue with EMTALA today - especially comes up with psych patients A hospital admits a psych patient, two days later they realize that this patient needs more supervision or resources than they have at the hospital. But when they ask a hospital with a more intense psych department for a transfer, the other hospital frequently refuses The result is that the patient stays in the hospital that can't handle and help them. As a result, many hospitals keep patients in the ER as long as possible to insure that the patient can be transferred if necessary

Part 8. On-Call Specialists

2003 Rule No longer required hospitals to have on-call specialists, even when there are no transfer possibilities. Would not be a violation of EMTALA if transfer unstably because no transfer possible, no on-call specialist availableRULE: Each hospital must maintain an on-call list of physicians on its medical staff in manner that best meets the needs of the hospitals patients, who are receiving services required under this section, in accordance with the resources available to the hospital, including the availability of on-call physicians. The hospital must have written procedures in place to respond to situations in which a particular specialty is not available or the on-call physician cannot respond because of circumstances beyond the physicians control; to provide that emergency services are available to meet the needs of patients with emergency medical conditions if it elects to permit on-call physicians to schedule elective surgery during the time that they are on call or to permit on-call physicians to have simultaneous on-call duties

Example:Dabney v. Fort Walton Beach Medical Center (2007) FACTS Patient came in with neurological damage. The on-call neurosurgeon was sick, no other specialists available and three other hospitals refused to accept a transfer of P. P sued hospital for failing to have a back-up system to insure patient safety. HELD No violation of EMTALA because the statute does not require having a system in place guaranteeing transfer

Part 9. How Does the EMTALA Stabilization Duty Apply to Inpatients? Two types of emergencies as inpatient: Admitted from ER w/ emergency condition Emergency arises once admitted Courts were all over the placeLopez Soto v. Hawayek(1998) FACTS Baby born, developed complications, on-call specialist not available. The hospital decided to transfer child to specialized care, which was not available and the baby died. Although the mother presented herself at ER to give birth, the emergency arose as an inpatient. HELD The court found that the screening and stabilization requirements are disjunctive reading together makes (b)s comes to hospital superfluous in light of (a)s comes to language; comes to hospital reflects desire to cast wide net, no reference to ED Screening duty applies only to those who presents at ED BUT stabilization requirement applies to any individual in the hospital Legislative history supports stabilization applies outside ED, Congress had broader concerns re: antidumping than ED Transfer provisions apply regardless of how entered hospital b and c are linked because (b)(1) ties need to stabilize to transfer provisionsUrban v. King (1994) (10th Cir): followed same disjunctive approachRoberts v. Galen (1999) (SCOTUS): FACTS The plaintiff Johnson was treated for severe injuries from a car accident at Humana Hospital. Some Humana personnel were aware that Johnson did not have insurance, and pushed for a transfer, but her treating physicians both claimed to be unaware that she was uninsured. The question before the court was whether it was necessary for the hospital to be motivated by financial considerations in order for Johnson to have an EMTALA claim. HELD EMTALA does not require that a plaintiff prove improper motive as part of a stabilization claim you have to stabilize people in hospital (does not mention linkage between screening and stabilization)Harry v. Marchant (2001) (11th Cir.) found time between admittance through ED for emergency condition and transfer was long enough that there was no duty to stabilize (read stabilization and screening requirements together once admitted no longer covered by EMTALA, if discharged unstably can sue for malpractice)Bryant v. Adventist Health (2002) (9th Cir): if you come through ED and are admitted, you lose EMTALA protections unless it is shown that you were admitted as an inpatient to avoid EMTALA protections (subterfuge)

HEALTH & HUMAN SERVICES Rule specifying applicability of EMTALA to inpatients (appears to codify Marchant, decreased scope of stabilization requirement, EMTALA ceases to apply once admitted as inpatient): Exception: Application to inpatients. (i) if a hospital has screened an individual * * * and found the individual to have an emergency medical condition and admits the individual as an inpatient in good faith in order to stabilize the emergency medical condition, the hospital has satisfied its (EMTALA) responsibilities * * * (ii) This section is not applicable to an inpatient who was admitted for elective (non-emergency) diagnosis or treatment.

How to show good faith? Consider whether the hospital asked about the patients ability to pay, whether really tried to stabilize as inpatient But hospitals are still required to provide quality care because: Malpractice liability Requirement of participation in Medicare/Medicaid Some facts may lead to different result depending on whether malpractice/EMTALA applies Doesnt seem to apply if admitted through other means does not seem to square with Lopez Soto)How the Law Creates Access to Health CareChapter 4. Civil Rights and Access to Health Care

Federal Civil Rights Law: Prohibits discrimination on basis of: Race National Origin Gender Religion Physical/mental impairments Not poor (except Hill-Burton, is limited) Applies to: Public Entities Some private i.e. public accommodation (physicians successful in making selves not seen as public accommodation)Civil Rights are Important in Health Care due to Disparities Low income, health status, and health care are closely related (esp. w/ regards to preventable conditions) Systemic causes: access, insurance coverage (lower offer/take up) Attitudes of physicians play a role: prescribe more sophisticated/expensive treatment to whites Smaller number of minorities in health profession educational funding not equal; until 1946 Congress voted for segregated facilitiesPart 1. Prohibiting Discrimination on the Basis of Race and National Origin by Recipients of Federal Financial Assistance under Title VI of the 1964 Civil Rights Act

Title VI of the 1964 Civil Rights Act Reached entities that received federal assistance, enacted with healthcare in mind (designed to reach hospitals receiving $ from Hill-Burton/NIH/State funds that started as federal grants that were still segregated; Medicare and Medicaid had not been enacted). Simkins v. Gressette (4th Cir 1980): FACTS South Carolinas hospitals were discriminating for their failure to give admitting privileges to black physicians enjoined part of Hill-Burton that allowed for state facilities to be segregated Supreme Court made clear in writ that would strike down Hill-Burton provision that allowed for segregated hospitals, Congress refused Blown away in 1965 by passage of Medicare/Medicaid (gave federal $ to doctors, so Title VI applied) Requirement not to discriminate to participate in Medicare Medicaid has huge impact on health care system Title VI does not reach physicians because not paid directly by Medicare (part B not treated as type of federal assistance) was an oral agreement between Johnson and Southern Bloc to ensure passage of Act Treated as a K of insurance allows doctors to select patients regardless of race/gender/language Does not exist if get paid by managed care or Medicaid Even still, Johnson required every hospital to sign a Title VI assurance of non-discrimination to participate in Medicare Provisions No discrimination in programs receiving federal assistance Agencies that give out federal funds are in charge of enforcement Regulations: detailed enforcement scheme, specific to health care Recipients of federal assistance must sign assurance that will comply Cant discriminate in selecting individuals to participate Federal Assistance includes: loans, grants, Ks, Medicaid, cash welfare, grants to health care institutions, payments to institutions participating in Medicare/Medicaid Enforcement of Title VI No express right of action title VI covers both: De jure: intentional discrimination De facto: facially neutral policy w/ disproportionate impact Was most prevalent way to get into court - i.e. change to Medicaid disproportionately affected minorities (could not challenge on income discrimination because not covered by federal civil rights law) 2000 no longer a right of action to enforce de facto discrimination (Alexander v. Sandoval), still an action for de jure Now get around Sandoval by making demand to Attorney General to investigate discriminatory practices rather than going to court The reasoning in Sandoval threatens implied right of action in other federal civil rights laws Subtly shifted burden of proof asks whether there was an intent to create a private remedy Claimed 602 was focused on agencies, not individuals Medicaid has no specific private right of action re: denial of benefits After Nixons election stripping of Civil Rights Authoritys power over Medicare/Medicaid could only enforce by getting other agencies to adopt their standards

Part 3. Prohibition of Discrimination on the Basis of Disability: The Americans with Disabilities Act and the Realization of Health Care as a Public Accommodations

Relevant Titles - ADA has 5 titles that were all worked on by separate committees then mashed together to pass Title II: public benefits; Title III: Public accommodations includes doctors office Break with common law; recognizes healthcare as a public accommodation Up until this point, only emergency departments were considered public accommodations Meant to parallel the title VI of Civil Rights Act of 1964 Wanted to require private entities to provide public accommodations In order for a patient to qualify, must have: (1) Mental/physical disability that substantially limits a major life function - Physical or mental impairment that substantially limits 1+ major life function (include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working) Record of such impairment; or Regarded as having such an impairment Bragdon v. Abbott FACTS Sydney Abbott was refused service from her dentist, Randon Bragdon, after disclosing her status as asymptomatic HIV+ Bragdon agreed to fill the cavity, if it could be done in a hospital setting, but Abbott would be required to pay the extra costs Abbott sued for discrimination She argued that reproduction should be considered "a major life function" and her HIV interfered with that function HELD Opinion of the court - J. Kennedy Reproduction is a major life function under the ADA Asymptomatic HIV qualifies one for protection under the act Howe v. Hull Doctor signing an invalid transfer order can be held liable under ADA if motivated by discriminatory intent (2) Must be qualified (can do the job with reasonable accommodations) i.e. you are the person for whom the public benefit was intended (3) Must be discrimination Exceptions: Where the individual poses a direct threat More than an insignificant risk Objective: Determined based on medical information; would a reasonable doctor perceive a direct threat (not whether this doctor did) Individual is offered a reasonable alternative really has to be reasonable

The Role of Civil Rights law in Access to Health Care

Chapter 5. Direct Public Provision of Medical Care

Part 1. Safety-Net Hospitals

A safety net hospital or health system provides a significant level of care to low-income, uninsured, and vulnerable populations. Safety net hospitals are not necessarily distinguished from other providers by ownership some are publicly owned and operated by local or state governments and some are non-profit. Rather, they are distinguished by their commitment to provide access to care for people with limited or no access to health care due to their financial circumstances, insurance status, or health condition.

Core safety net providers have two distinguishing characteristics 1. By legal mandate or explicitly adopted mission, they maintain an open door, offering patients access to services regardless of their ability to pay 2. A substantial share of their patient mix is uninsured, Medicaid and other vulnerable patients.

Defining substantial shareIt is necessary to define substantial share so that safety net hospitals are distinguished from the 64% of all hospitals that receive Medicare disproportionate share hospital (DSH) payments. Possible means of measuring substantial share (1) A low-income utilization rate (LIUR) of 25% or more LIUR is calculated by adding the ratio of Medicaid revenues divided by total revenues to the ratio of inpatient charity charges divided by total charges (2) A Medicaid utilization rate more than one standard deviation above the mean Medicaid utilization rate in the state (3) A low-income cost ratio criteria for designating a Medicare DSH hospital Looks at the costs of all low-income patients, including Medicaid, poor Medicare patients, patients financed by state or local indigent care programs, and uncompensated care (4) Measuring uncompensated care as a percent of total cost.Part 2. Community Health CentersCommunity Health Centers (CHCs) in the U.S.are neighborhood health centers generally serving Medically Underserved Areas (MUAs) including persons who are Uninsured Underinsured low-income living in areas where there is little access to primary health care available

CHCs are largely federally and locally funded.

Medically Underserved Areas/Populations are areas or populations designated by the Health Resources and Services Administration, or HRSA as having: (1) too few primary care providers, (2) high infant mortality, (3) high poverty and/or (4) high elderly population.

Health Professional Shortage Areas (HPSAs) are designated by HRSA as having shortages of (1) primary medical care, (2) dental or (3) mental health providers and (a) may be geographic (a county or service area), (b) demographic (low income population) or (c) institutional (comprehensive health center, federally qualified health center or other public facility).

PART TWO: HEALTH CARE FINANCINGThe Rise and Evolution of Insurance Chapter 6. The Rise and Evolution of Health Insurance

Brief Timeline of Health Insurance in the United States

Beginning of the 20th Century Physicians - not licensed, many types of healers Hospitals: Grew exponentially in this period Hospitals were for treatment of poor; middle and upper class treated at home All hospitals were non-profits that were actually governed by doctors Doctors were not employees of the hospital, but private practitioners that had admitting privileges Brought patients to the hospital to use the facilities Public hospitals organized similar to non-profits1930s - Great Depression and the rise of employment-based health insurance Blue Cross/Blue Shield (BCBS) A non-profit organization that offered pre-paid health care (early health insurance) Didnt have to pay insurance tax - in exchange for tax breaks BCBS promised that they would serve the community Anybody could enroll and they used community rating BCBS dominated until 1950s; After WWII people began to enter insurance market Private insurance began to skim off healthy people As healthier people began to abandon BSBC had to abandon its original commitment to the community rating - different prices for groups of people Insurance became unaffordable for the elderly (an easy to identify group with high health care costs)1965 - Enactment of Medicare and Medicaid Democrats took control of both house and senate in white house - addressed growing problem uninsured Americans couldn't get/afford health insurance. Passed: Medicaid - coverage for poor families and children Medicare - coverage for the elderly and qualifying disabled Americans2010 - Passage of the Patient Protection and Affordable Care Act2014 - Many ACA provisions take effect Remaining provisions will be phased in by 2020Part 1. Health Care Costs and the Search for Solutions

What is health care spending? Health care spending is a function of quantity (how much care is used) and the price paid for that care Americans currently spend more on healthcare than any other nation, but our outcomes are not better High levels of US spending is the result of far higher out-of-pocket payments by individuals and employers' contributions to workers' health insurance coverage

Causes of increased spending Quantity is increased by poor health Americans are in poorer health than other nations when it comes to infant mortality and preventable chronic illness In the US obesity increases spending by 50%, but Americans are less likely than other nations to have access to the type of care that can actually help with obesity. Lack of access to the right care in the right place at the right time is a significant factor in cost. 100 million Americans live in communities designated as medically underserved because of poor health indicators and lack of access to primary care "Increased capability of medicine" A philosophy about medicine that values the steady and rapid introduction into the health care economy of high process technologies whose effectiveness and value are not well-analyzed before they become available. Problems - not necessarily more efficient or effective. Can increase cost without bettering outcomes. Health care fragmentation When different health care providers (doctors, therapists, hospitals, insurance companies) don't coordinate or work together to increase quality and efficiency of care The majority of the US health system is fragmented, cause problems with the continuity of care Integrated care, health care systems in which hospitals and physician practices are combined into a single enterprise that provides more complete integrated care, has proven to be significantly more effective and efficient. Cost of health insurance US relies on many small regional and national health insurance networks Other nations risk across the entire country, which cuts down on administrative costs and allows for collective bargaining The many different companies attempting to look for the best risks while excluding the worst The system results in a bad ombination of risk selection market instability higher administrative costs insurance tied to employment the inability to control costs unpredictable and uncontrollable flow of financingPart 2. The Evolution of Heath Insurance and Health Insurance Law

State Regulation of the Insurance Industry McCarran-Ferguson Act - left insurance regulation to the states by stipulating primacy of state law States were able to regulate insurers because they had to be licensed to sell product in state,

Areas that the states regulate The relationship between pharmaceutical companies and health care providers Sorrell v. IMS Health Inc (2011) (SCOTUS) FACTS Vermont passed legislation making it illegal for pharmacies to sell the names of prescribing doctors to pharmaceutical companies. The goal was to stop drug companies from directly lobbying doctors and therefore, stop them from persuading doctors to use higher-cost brand name drugs The law did permit the sale of the information if doctors consented to it. Drug companies argues that the law violated the first amendment because it did not outlaw all uses of prescriber information, only use of the information to sell pharmaceuticals HELD Found for the drug companies Agreed that the law impermissibly violated the first amendment because it was a content based regulation Attempts to ensure solvency by regulating Licensure Companies are frequently subject to oversight Capitalization Companies must maintain adequate reserves to pay claims Operations and management Including control of experience rating and medical underwriting practices Consumer Protection Statutes Prohibiting overreaching, unfairness, fraud or deceptive practices. High pressure sales tactics are outlawed Insurance sales agents are required to be registered and licensed There must be a certain level of fairness in processing claims Companies are frequently required to get state approval of the form of sales contracts and appeals processes to ensure appropriate enforcement of contracts State insurance departments may have the power to impose penalties and issue cease and desist orders. Access to insurance Defining who must be allowed access to individual and group policies When coverage may be restricted with the use of pre-existing conditions or waiting periods When companies can vary premiums in relation to certain characteristics of policyholders Such as age, gender, health status, or prior claim experience Content of insurance coverage What benefits must be covered Such as coverage of treatment for mental illness, substance abuse, maternity care, or prescription drugs

Problems with state regulation Lack of resources: State insurance commissions often do not have the power or resources to regulate effectively or enforce regulations To remedy this problem, commissioners formed the National Association of Insurance Commissioners (NAIC), but the insurance industry is very powerful Exit fear: States fear that strict regulation will cause large providers to leave the state This is remedied slightly by the ACA and the new national medical-loss ratios Weakness: State standards are often weak and leave enormous discretion to the industry. Permitted some terrible practices: Medical underwriting (Hailey: under CA law, there is a permissible scope of medical underwriting); Refusing to renew plans Rescinding coverage instead of paying for care Hailey v.California Physicians' Service (2007) FACTS Wife applied for health insurance and left out her husbands conditions. She could have been insured under employer but then could not see family doctor. Application did not ask for husbands health information and the broker didnt have a very penetrating conversation with her. They were rated as one of the best customers, but then her husband gets sick and they are sent to the investigation unit. CA statute prohibited post-claims underwriting, was defined as rescinding, canceling, limiting K due to plans failure to do underwriting of information on or provided in a K (with exception for willful misrepresentation); HELD In order to avoid violating the statute, insurance companies need to make a record of their investigation at the front end Insurers cannot rescind coverage after subscriber begins to rely on it It would give companies incentive remain ignorant take subscriber's premiums before rescinding the coverage when it's actually needed Rescissions have now been outlawed by the ACA

Federal regulation of the insurance industry Employee Retirement Income Security Act (ERISA) (1974) Established a limited regulatory framework for group health benefit plans sponsored by private employers Preempts much of state law Despite the McCarran Ferguson Act's preservation of state regulatory power over insurance, federal health insurance legislation has taken the authority back because of uneven and dysfunctional state regulation Set standards for Disclosure Plan administration The review of claims and benefits Coverage requirements Mothers and newborns threatened with premature discharge from hospitals following birth Women with breast cancer Genetic non-discrimination Continuation coverage COBRA Amendment to ERISA Continuation benefits for beneficiaries for 18-36 months following a qualifying event, although you have to pay 102% of the premium; Entitled to same coverage under plan as employees that are still covered Huge benefit to sick person because Affordable coverage depends on being a member of a large insured group; individual plans have higher rates even where = subsidized Waiting periods/exclusions for preexisting conditions Employee must elect continuation of coverage within 60 days Non-discrimination and portability requirements Health Insurance Portability and Accountability Act (HIPAA) (1996) Federal law limits ability of insurers in group and individual markets to dictate their market and aims to prevent job lock Structure/Scope: covers employer plans, individual/group coverage by commercial insurance, state/local government employees; does NOT preempt state laws that are stricter Group Market Reforms: Limits denial of coverage for pre-existing conditions For employer plans insurance companies were not permitted to look back more than 6 months Prohibits employer plans/group insurers from discriminating against individuals Regulates insurance practices in small group availability and renewability Portability Protections A group health plan and health insurance issuer offering group health insurance coverage may, with respect to a participant or beneficiary, impose a pre-existing condition exclusion only if: (1) such exclusion relates to a condition (whether physical or mental) regardless of the cause of the condition, for which medical advice, diagnosis, care or treatment was recommended or received within the 6 month period ending on the enrollment date; (2) such exclusion extends for a period of not more than 12 months (or 18 months in the case of a late enrollee) after the enrollment date; and (3) the period of such preexisting condition exclusion is reduced by the aggregate of the periods of creditable coverage applicable to the participant or beneficiary as of the enrollment date An individual with one years creditable coverage could not as a general rule be subject to pre-existing condition exclusions Plans cant use preexisting condition exclusions for greater than 12 months Plans cant use: genetic information, pregnancy, conditions of newborn or adopted kid as preexisting conditions Caveats regarding use of preexisting condition: Can use alternative method to calculate creditable coverage (i.e. without regard to specific benefits or based on several classes or categories of benefits) Differential can be based on different deductibles (i.e. difference of deductibles for mental illness services preexisting exclusion for those services may be applied) HMOs can impose affiliation period as opposed to preexisting condition exclusion Four conditions to special enrollment periods (1) The individual must have turned down enrollment initially because she has other coverage at the time coverage was previously offered to the employee or dependent (2) The individual must state in writing at the time that enrollment was offered that his or her other coverage was the reason for declining new coverage (3) The individuals other coverage must either have been exhausted or else terminated as a result of the loss of eligibility for the coverage (4) The individual must request enrollment within 30 days after the date of exhaustion or termination Anti-Discrimination - Plans cannot establish rules for eligibility of any individual to enroll based on: Health status; Medical condition; Claims experience; Receipt of health care; Medical history; Genetic information; Evidence of insuraibility; Disability Also not allowed to use higher premiums based on health status or base waiting periods on health condition Discrimination provisions do not require benefits other than those covered to prevent them from establishing limitations in benefits It is OK for generally applicable terms of plan to have disparate impact, unless is directed at individuals Wellness programs dont violate HIPAA, but essentially precludes coverage for members with health conditions by turning wellness incentives into penalties Availability and Renewability Guaranteed Issue: Small Group Market: Any insurance issuer that offers insurance coverage in the small group market in a state: (A) Must accept every small employerin that state that applies for such coverage; and (B) must accept for enrollment under such coverage every eligible individualwho applies for enrollment during the period in which the individual first becomes eligible to enroll under the terms of the group health plan and may not place any restriction which are inconsistent with the anti-discrimination provisions on eligible individual being a participant or beneficiary Note: can exclude them if employees dont live/work in network area; cant deny access to employers for reasons other than non-payment, fraud, non-compliance, or ceasing to serve area Individual Insurance Market: Each health insurance issuer that offers health insurance coveragein the individual market in a state may not, with respect to an eligible individual, (A) decline to offer such coverage, or deny enrollment of such individual; or (B) impose any preexisting condition exclusionwith respect to such coverage Limitations on Guaranteed Coverage are substantial: No need to offer in individual market If does, insurer must offer to individuals who meet five complex requirements Options regarding nature of coverage extended to individuals: acceptable alternative mechanism in state, OR > two forms of polices that are designed for, made generally available to, and enroll both eligible and other individuals by the insurer Need not offer same coverage available to other individuals may choose separate policy for guarantee issue individuals Although the two forms must: (1) have the largest and next largest premium value; and (2) be representative of individual health insurance coverage by the insurer THERE IS NO LIMIT ON PREMIUMS Can avoid enrolling people by not having a network where they livePart 3. Escalating Costs and New Models of Health Insurance

How the Government has dealt with the cost of care First attempts Introduction of peer review into Medicare Exclusion of certain services as entirely unnecessary Across the board wage/price controls (Nixon) too politically problem-ridden to be sustained Repeal state power to increase Medicaid and other constraints on public financing HMO Act (designed to increase vertically integrated industrial plans allowed intermediary to set prices) 1974 revised health planning to reduce supply (largely toothless) Carter all-payer rate-setting techniques Further federal efforts were limited to Medicare/Medicaid 1982 prospective pricing in Medicare 1984 physician fee payments Eligibility restrictions in Medicaid Reduce federal money to states Redefine federally recognized services Introduce new pay limitations/exclusions Regulations requiring states to greatly increase share (will cause them to cut) Enactment of fraud and abuse statutes to reduce spending (has had little effect in terms of costs)New models of health insurance Indemnity products patient paid doctor, insurer paid them back (no legal relationship between doctor/insurer, although some doctors accepted assignment Balance bill Insurers introduced fee schedules amount paid by insurer did not raise as the doctors/hospitals raised their charges; if doctors accepted assignment the patient would owe the remainder Networks In-network doctors agree to accept a lower fee in exchange for a flow of patients; this model took off quickly, also in public sector; but cost savings were temporary Health Maintenance Organizations (HMO) An organization that on a pre-paid basis provides managed care for health insurance and acts as a liaison with health care providers. HMOs require that all health care is provided by in-network providers, except emergency care. Purpose To integrate financing and health care into hybrid entities that, through greater clinical and financial integration, could insure the population while managing care through greater emphasis on prevention and efficiencies. Utilization review Retrospective: insurance companies would not pay after procedure was done because deemed medically unnecessary; insurance companies did not fare well in court Prospective: insurance companies required prior authorization of a certain treatment before would agree to pay for it Managed Care Goal is to combine financing and care with a single enterprise in which coverage is conditioned in whole or in part on the use of a network, while providers' access to insured patients depends on their participation and acceptance of the insurer's control over access to coverage Consumer-driven Care High deductible health plans (HDHP) with HSAs Problems HDHP plans fail to distinguish between the unnecessary use of high cost services and the use of large amounts of care to address significant health needs. Therefore people often forgo necessary care. These plans are primarily bought buy young people, leaving older people to buy traditional plans. In turn traditional plans get more expensive. Lower income people rarely receive employer contributions to their HSAs.

Part 4. The Patient Protection and Affordable Care ActSupplement. Slogging Toward the New Normal: Implementation of the Affordable Care Act

Prelude to reform Prior to the ACA, insurers used three types of risk-shielding techniques (1) Keeping bad risks out of the poor to begin with both through outright exclusion (either entirely or for pre-existing conditions) and through rescissions (cancellations) as part of their practice of medically underwriting individuals and groups. (2) Exorbitant pricing (3) Limiting coverage coupled with a lot of treatment exclusions and high cost-sharing in order to hold down unanticipated coverage costs Unsurprisingly, these techniques sucked for everyone not an insurer

ACA Structure and Elements Guaranteed issue prohibits insurers from denying coverage to individuals due topre-existing conditions, and a partialcommunity ratingrequires insurers to offer the same premium price to all applicants of the same age and geographical location without regard to gender or most pre-existing conditions (excludingtobaccouse). Minimum standards for health insurance policiesare established. Individual mandate requires all individuals not covered by anemployer sponsored health plan,Medicaid,Medicareor other public insurance programs to secure an approved private-insurance policy orpay a penalty, unless the applicable individual has a financial hardship or is a member of a recognized religious sect exempted by theInternal Revenue Service. The law includes subsidies to help people with low incomes comply with the mandate. Health insurance exchanges Each exchange will serve as an online marketplace where individuals and small businesses can compare policies and buy insurance (with a government subsidy if eligible).In the first year of operation,open enrollmenton the exchanges runs from October 1, 2013 to March 31, 2014, and insurance plans purchased by December 15, 2013 will begin coverage on January 1, 2014.In subsequent years, open enrollment will start on October 15 and end on December 7. Vouchers for the exchanges Low-income individuals and families whose incomes are between 100% and 400% of thefederal poverty levelwill receivefederal subsidieson asliding scaleif they purchase insurance via an exchange. Those from 133% to 150% of the poverty level will be subsidized such that their premium costs will be 3% to 4% of income.In 2013, the subsidy would apply for incomes up to $45,960 for an individual or $94,200 for a family of four; consumers can choose to receive their tax credits in advance, and the exchange will send the money directly to the insurer every month.Small businesses will be eligible for subsidies. Medicaid Expansion Eligibility expanded to include individuals and families with incomes up to 133% of thefederal poverty level, including adults without disabilities and without dependent children.The law also provides for a 5% "income disregard", making the effective income eligibility limit for Medicaid 138% of the poverty level.Furthermore, theState Children's Health Insurance Program(CHIP) enrollment process is simplified. However, inNational Federation of Independent Business v. Sebelius (2012), the Supreme Court ruled that states may opt out of the Medicaid expansion, andseveral have done so. Reforms to theMedicarepayment system Intended to promote greater efficiency in the healthcare delivery system by restructuring Medicare reimbursements fromfee-for-servicetobundled payments.Under the new payment system, a single payment is paid to a hospital and a physician group for a defined episode of care (such as a hip replacement) rather than individual payments to individual service providers. In addition, it has been asserted that theMedicare Part D coverage gap will shrink incrementally, closing completely by January 1, 2020. Employer Mandate Businesses which employ 50 or more people but do not offer health insurance to their full-time employees will pay a tax penalty if the government has subsidized a full-time employee's healthcare through tax deductions or other means. In July 2013, however, this provision was unilaterally delayed for one year by President Obama.

Insurer Obligations and Remedies under State LawChapter 7: Defining Insurer Obligations and Remedies Under State Law Part 1. Remedies for Bad Faith Breach of Contract in Denying Coverage

RemediesCommon law came to recognize a series of remedies against insurers; courts began to hand down remedies under already existing theories of: 1. Unfair and deceptive practices2. Bad faith breach of contract3. Bad faith (making of a contract)

Albert H. Wohlers & Co. v. Bartkis (1998) FACTS Bartkis bought a health insurance policy from Wohlers that was later swapped for another policy. Wohlers assured Bartkis that the new policy was essentially the same. Bartkis got cancer and got pre-approved for 24-hour hospital stay and surgery. However, the actual stay took 27 hours in total. The insurance company billed Bartkis for everything other than the room and board, calling all medical expenses ancillary charges. The ancillary charges, a new provision of the second policy, took into effect because Bartkis was in the hospital for more than 24 hours and was therefore an inpatient. Bartkis sued for breach of contract and bad faith. HELD The jury did not error in their finding of bad faith. An insurer's belief that the contract does not cover certain claims is not sufficient to preclude a finding of bad faith. Allowing insurers to avoid punitive damages merely be including vague language would encourage poorly written contracts that manipulate subscribers. Wohlers represented Bartkis's new policy as comprehensive and comparable to the old one, when it actually was no better than a hotel voucher. This undeniable misrepresentation and absurd interpretation of "ancillary charges" are unreasonable. Bad faith generally requires: deliberate intent to mislead NOT negligent or sloppy language Contrapreferendum: construe a contract against the drafter because has control of the language

ERISA

Chapter 8. ERISAPart 2. History and Statutory Structure

Why pass ERISA? Established by Congress to address the mismanagement of employee benefits Under-funded pension plans Mismanagement failings during periods of decline Create uniformity in 1974 states were the only entities that regulated health insurance therefore there was a lot of variation between states. State-to-state variation put a huge burden on national companies and unions When enacted, Congress was considering nationalized health care (either growing Medicare to cover all Americans, or creating a new federally-administered health insurance system)

What did ERISA cover? ERISA addresses Employee Welfare Benefit Plans (EWBP) (1002) (Does NOT apply to benefits plans for employees of religious organizations/government) Does not require that an employer provide insurance to its employees or retirees, but it regulated the operation of a health benefit plan if an employer chooses to establish one. Requires that EWBPs1. Have certain ascertainable eligibility and benefits; 2. Are offered in the context of private employment; 3. Involve some degree of ER administration Can be either Self-insured Fully insured the product sold to the plan is NOT an EWBP Categories of legal a