Health Care Law Outline

HEALTH LAW
WATSON
FALL 2011
 
 
Monday, August 22, 2011
 
I.                   Introduction to Healthcare
a.      Policy themes in healthcare and health law
                                                              i.      Access: (a) role of private insurance, (b) credit cards pushed access into cost
                                                            ii.      Costs: (a) medical costs versus insurance premiums, (b) cost shifting [when insurance doesn’t cover; among payers; over one’s life time] (c) whose costs: patient, insurer, employer, federal government, state government, taxpayers, (d) factors fueling cost increases…
                                                          iii.      Quality
b.      Health care: legal perspectives
                                                              i.      Delegation to the professionals: (a) offers: expertise, what makes pros, pros, (b) cons: cost increases in the 1960s
                                                            ii.      Regulator structures: (a) offers [flexibility and expertise; focus on healthcare specific policies: access, cost, quality]                                                           iii.      Approaches to law: (a) delegate to professionals, (b) set up structures to make markets work better (Katsee regulatory solution), (c) others…
                                                          iv.      Market competition: (a) theoretical economics, (b) political economics, (c) behavioral economics.
 
Health Law – Course Introduction
The New Yorker – Getting There From Here Notes
 
(1)   This article begins with the notion that universal healthcare, especially in other countries, has come to be from some catalyst – a significant moment in time – in which the country was forced to adopt a different health delivery system. It differs between countries but the article presents perhaps a moment in American history where it is possible that we adopt universal healthcare (woman who was fired from her job, forced the midwife to induce labor in order to file an insurance claim, and the insurer denied coverage and the woman received a bill for $17,000.
(2)   In Great Britain – “90% of the British Medical Association’s members signed up with the program voluntarily – and found that they had a larger and steadier income by doing so.”
(3)   The article continues to argue that the most important moment in GB’s healthcare system was its declaration of war on Germany.
(4)   On the British healthcare system – “It was, instead, an almost conservative creation: a program that built on a tested, practical means of providing adequate health care for everyone, while protecting the existing services that people depended upon every day.”
(5)   The gist of this article centers around the fact that the United States need not construct an entirely new healthcare system but, like other similarly situated countries, build upon the patchwork in place.
 
Law and the American Health Care System – Law and American Health Care Delivery by Rand E. Rosenblatt, Sylvia A. Law and Sara Rosenbaum, Notes
 
(1)   American health law is shaped by three perspectives:
a.       (1) medical autonomy and expertise
b.      (2) modestly egalitarian social contract
c.       (3) a focus on legal principles appropriate to full-fledged market competition.
(2)   “By defining this as outside the province of medicine, the scientist-clinicians of the late 19th and early 20th centuries set the stage for one of the major policy conflicts of our own time: immense expenditures for sophisticated surgery, drugs, and diagnostic tests, and an astonishing inability to address the political, social, and behavioral causes of most illness and injury.”
(3)   Idemnity plan – the patient pays doctor and hospital bills and then seeks reimbursement from the plan to which premiums were previously paid.
(4)   Service benefit plans – the plan persuades providers – hospitals and doctors – to “participate” in the plan, that is, to accept the plan’s payments for services.
(5)   The shift from “charges” to “reasonable costs” occurred in 1950 – a looser definition in order to expand the cost of care. In other words, there’s more leeway in what you can and cannot charge for. Either good or bad, depending on how you want to argue.
(6)   “While some of these increases are undoubtedly justified by higher volume and quality of service, a significant part reflects the profit motive’s distortion and corruption of American health care.
 
Long Time Coming: Why Health Reform Finally Passed Notes
 
(1)   This reading might have been a waste of time, but it is basically a short political synopsis of why the “landmark” healthcare legislation passed in 2009/2010.
 
The End of the Beginning: Enactment of Health Reform Notes
 
Monday, August 22, 2011
 
Introduction to Health Law – Class 1
 
 
I.                   Recurring Issues and Themes in Health Law
a.       Three large issues:
                                                              i.      Quality,
                                                            ii.      Access
                                                          iii.      And Cost
1.      Access —–Quality and (this appeared as a triangle on the board)
a.       Cost
b.      Professional Delegation (1880-1940-1960’s)
                                                              i.      Medical malpractice is based in the “reasonable professional” as opposed to the “reasonable, ordinary prudent person”
c.       Regulation (1960’s) à the attraction of administrative law and regulatory agencies (Medicare, EPA, etc.)
                                                              i.      The idea: create an agency that has expertise in a certain area (i.e. education, etc.), it occurs at the substatory level (using regulations and policies) that would create a specialized solution that would create  a solution for that context.
1.      For regulations, you can be explicit about cost, access, and quality.
d.      Market Competition (1980’s)
                                                              i.      Page 569, note 2 à Watson’s version of this note: Things we don’t pay for, we tend to use more. Ken Arrow applied this theory to health insurance, and he noted that at the time that he was writing, health insurances was very byzantine system. In terms of private insurance, most of us get our insurance through our employer. Our premiums come out of our payroll, so we don’t see our share coming out and “it kind of feels free” to the privately insured. However, he says no, and we’re not keeping track of our true costs here, and we are about to hit a wall here, and he was right.
                                                            ii.      The article that starts on page 565, provides some problems with applying theoretical economic theory in the real world.
1.      The article on the CBO notes that we need information to detemrine how people will react, but we don’t’ have this information in health care. The people in behavioral economics notes that we are not particularly rational people. Behavioral economics attempts to bring in psychological factors that will influence a person’s decision making.
2.      Political economics à The private sector can always do it better than the public sector. In other words, this idea is rooted in “who can do things best” and taps into a “deep strain” of Americanism, where we revolted against government.
e.       How well does the doctrinal law work in the health law context? Questions to ask are, would we need a statutory fix? Or would we need a new area of common law in order to fix it?
f.       Katskee v. BlueCross/Blue Shield of Nebraska (p. 3-10).
                                                              i.      Watson had us refer to the Rand/Rosenblatt article (p. 12) and noted the chart on the number insured/uninsured in the country.
                                                            ii.      Two legal issues in this case:
1.      (1) The definition of “medically necessary” (which we will talk about tomorrow night) and,
2.      (2) the contract says, it has to be “for an ilness, bodily disorder, or disease,” and the contract does not provide any definition.
a.       What is the underlying thing going on in this case? The question on the face of the case is whether the woman is sick. However, there’s a strong underlying notion of cost and access.
g.      When is care “medically necessary”?