Health Law I
Professor Furrow
Drexel University
Fall 2014
Table of Contents
Duties to Treat……………………………………………………………………………………………………………. 4
EMTALA……………………………………………………………………………………………………………………………………………………………. 5
Quality…………………………………………………………………………………………………………………………. 5
Licensure………………………………………………………………………………………………………………………………………………………….. 5
Unlicensed providers………………………………………………………………………………………………………………………………….. 6
Scope of Practice…………………………………………………………………………………………………………………………………………… 7
Nursing Homes………………………………………………………………………………………………………………………………………………. 7
Public Health………………………………………………………………………………………………………………. 8
Contagious Diseases……………………………………………………………………………………………………………………………………. 8
Health insurance protection……………………………………………………………………………………… 9
Experience v. Community Rating………………………………………………………………………………………………………… 10
Individual Mandate…………………………………………………………………………………………………………………………………… 12
Managed Care…………………………………………………………………………………………………………… 13
HMO v PPO…………………………………………………………………………………………………………………………………………………. 14
ACA Managed Care Changes…………………………………………………………………………………………………………………… 15
Medicare…………………………………………………………………………………………………………………… 16
Medicaid…………………………………………………………………………………………………………………… 18
Eligibility………………………………………………………………………………………………………………………………………………………. 19
Professional relationships……………………………………………………………………………………….. 21
Duties of Boards……………………………………………………………………………………………………….. 24
Fraud and Abuse………………………………………………………………………………………………………. 24
Cost, Quality, Access, Choice
How is the ACA shaping the insurance field?
· Spreading cost/risk – subsidizing those who have high medical costs
o If only paying for the really sick, the really sick are not paying enough premiums to cover the services
§ Actuarial value – charge based on the probability of whether the person will get sick or stay healthy – ACA is working to reverse this
Katskee v. BC/BS
· Patient has condition which increases her risk of breast/ovarian cancer from 1.4% to over 55% – claims breach of K
o However, at this point no test exists to provide definitive proof
§ Doctors look at genetic disposition – recommend removal of uterus, fallopian tubes, and ovaries
o Patient does NOT have cancer at this point, just a predisposition
· BC/BS says that the procedure is not medically necessary at that time
o I/T/C – waiting until cancer develops for insurance to cover a procedure isn’t good enough – especially since ovarian cancer is difficult to discover and hard to treat
· Cost/benefit analysis
· We need to think about the patient’s mental welfare – constant fear of developing the disease
· HOLDING: Illness is defined by deviation from the normal that carries some harm or risk of harm
Gawande Article – how do we define and measure quality? How do we deliver these?
· Attorney Costs
· Advanced technology
· Style of practice, lack of preventative services, overutilization
· Asymmetry of information
· Fee for service structure – entrepreneurial doctors are a problem
· Different parts of the system have different priorities
Reference Points for this reading
· ACA is trying to provide better medical services
· Bundle pay
· Interventions to try to reduce error
Duties to Treat
Ricks v. Budge
· Infected Hand case
· Patient physician relationship existed because the doctor had started to treat
· EXCEPTIONS for duty of continuing care:
o Patient withdrawal
o Withdrawal of physician so long as there is sufficient notice
o Cessation of necessity (problem is fixed)
Childs v. Weis
· Pregnant woman comes to ER, doctor says she should consult with her OB/go see the doctor (dispute over the language)
· Relationship is based on implied or express K
o Without this, no duty exist
· Dr did not have duty to treat, he acted ethically
· Child dies after being born on way to other doctor in the car
Williams
· Post-EMTALA but EMTALA does not apply here
o EMTALA only applies to Medicare hospitals
· Native American hospital which exempts the hospital from EMTALA
· White (deceased), probably only needed more oxygen in his tank while in respiratory distress
o Is it that if the hospital had started to treat, would they have been required to continue care? (see Ricks)
Summary of last 3 cases
· At common law, no duty to treat, unless:
o Patient physician relationship – either express or implied K – if true, then duty of continued care with exceptions (3) noted in th
· Three questions for the court to decide:
o Is the statute unconstitutionally vague? – NO
§ Court decides that the statute is not unconstitutionally vague
o Does the statute cover midwifery? – NO
§ Pregnancy is not a disease or pathology, therefore the statute does not cover it
o If lay midwives are not included in the statute, is Ruebke in violation of the law by providing services that would be covered by the statute – NO
§ No, she is working under the supervision of physicians
· Big picture – pregnancy itself may not be entirely medical – midwives are not conflicting with obstetricians
· Persuasive that the legislature never said anything about the care of midwives
Scope of Practice
Sermchief
· Board is worried about licensed nurses giving doctor-like care (costs less)
· Court: Nurses are acting like nurses do, no question as to the qualifications of these specific nurses
· Court: the law requires supervision for non-nursing type care. Was there adequate supervision in this case? – New law eliminates the requirement that a physician directly supervise nursing functions – new law provides more leeway
Nursing Homes
· Nature of the nursing home situation (activities of daily living – ADLs)
o Not subject to peer review or private accreditation
o Difficult to regulate
o Funded and operate through a licensure system – normally don’t have enough beds for the community
§ Many states operate under a certificate of need (CON) program – states power to determine whether a health care facility should be built in the community
· State doesn’t want facilities with empty beds – costs too much
o Counter-argument – demand and not enough supply
o Medicare – covers people over 65 and social security eligible, or disabled – only will fund 100 days of skilled nursing care (in-hospital based insurance)
§ Will pay for home-based care without a cap
o Medicaid – covers long-term care, BUT must meet an income threshold level
§ Nursing care is one of the largest expenditures of Medicaid
§ Primary way that people finance their long-term nursing care
Smith v. Heckler
· State must comply with quality standards set by federal government
· Facility-oriented v. patient-oriented
o SSA-1569 – has nursing homes submit written documents about their care
§ Doesn’t require patient interviews, feedback, etc. Not patient centered
· Medicaid act has in mind the type of care actually delivered
· HOLDING: Medicaid act requires a patient-oriented system, rather than a facility oriented enforcement system
· NHRA (Nursing Home Reform Act) – created to apply a patient oriented system
