Health Law Outline

Health Law I
Fall 2013
Schwartz
 
 
 
MODULE 1
 
Iron triangle of healthcare enterprise:
·         There are three parts to the triangle:
o   1) ACCESS
o   2)COST, and
o   3)QUALITY(including choice)
§  Others parts that don’t fit into the triangle:
o   4) CHOICE – liberty an individual has to make a choice about getting healthcare, setting of care, and manner of care.  Doesn’t fit directly into the triangle.  Quality is partly defined by the choice that we have.
o   5) FAIRNESS – Arbitrary, disparity; rich or poor people get certain types of care
§  Pre-existing condition exclusions: Affordable Care Act: By next year, fewer insurance policies will be able to have “pre-existing condition” exclusions.  Most are absolutely prohibited by the ACA; many are already prohibited in employer-provided insurance.  The only things they can charge more for is by:
·         1) Age
·         2) Smoking status
·         3) Willingness to participate in wellness program
 
ILLNESS/DISEASE: Absence of, or deviation from normal functioning. 
§  Can we spend healthcare resources on this condition?
§  Does insurance cover it?
§  Is it an illness that we would miss work for?
§  Fairness
 
QUALITY OF CARE: Institute of Medicine defines it as “the degree to which health services for individuals and populations increase the likelihood of desired health outcomes and are consistent with current professional knowledge.”Quality of care issues that make quality analysis in health care so difficult:
1.       More care is not necessarily better than less care
2.       More costly care is not necessarily better than cheaper care
3.       What patients want is not always better care
4.       Standard practice is not always right
5.       We often do not know what is better care
 
THE PROBLEM OF MEDICAL ERROR & THE PATIENT SAFETY MOVEMENT
What kind of systems changes would reduce hospital (and other medical) injuries?
·         Discovery of errors – If we could have data about injuries that cause damage and the near misses, then we could analyze them.  We don’t already them because it is inconsistent with the Medical mindset that “ don’t make mistakes”
·         Prevention of errors – how can they be reduced?
o   Reduced reliance on memory (e.g. checklists)
o   Improved info access (e.g., electronic medical records?)
o   Error proofing
o   Standardization
o   Training
o   Change way of thinking about errors
o   Have someone reviewing work
 
PUBLIC HEALTH: what a community, generally through its government, does to establish the conditions that allow members of that community to lead long and healthy lives.  Focuses on the health of the community
 
Tools of public health:
1.       Use of public power or coercion (e.g. government power) to meet a health goal that’s applied to the community as a whole instead of an individual patient. 
o   Argument: because everything cost healthcare, then Always justified in using coercion for heath.  Government can coerce whether it will help you or not (e.g. taxing soda: even if you are not obese you will still be taxed)
2.       Use of government provided incentive to meet a health goal that’s applied to the community as a whole instead of an individual patient
 
State Law And Government Requirements For Public Health
·         Due Process Argument: Fundamental right to not have government force someone to do something to his body that he doesn’t want to do
·         City argument for public health measures: If City is rationally making decision to protect its city, it can make the determination to require/force immunization when it comes to the health of the public (E.g. argue that it’s an epidemic and spreading).  Due Process clause doesn’t forbid city from imposing this burden on its citizens when acting rationally. City is held to two Constitutional exceptions:
o   1) Religious exemption – First Amendment
§  What is “true religion” and religious beliefs?
o   2) Medical exemption- If medically harmful for someone to be vaccinated, then it would violate substantive due process to force them to be vaccinated.  You can always opt out for medical reasons.
o   3) Philosophical exemption (personal beliefs)
 
LICENSING IN HEALTH CARE
·         All licensing done by states. There is no federal licensing of hc professional.  This is a constitutional requirement: no federal government power in states
o   Protecting the public health a police power within the authority of the states
o   Giving, removal of licenses and sanctions are also a matter of state law
 
“Off label use” – not using for particularly described purpose and official approval; however, permitted under the FDA.
 
REQUIRED EVIDENCE FOR STANDARD OF CARE:
·         There has to be some evidence that a physician fell below standard of care at the hearing.  If no evidence, then doctor can’t protect himself because he has nothing to defend himself against.  “Scintilla rule”: there must be at least a scintilla of evidence supporting an agency’s argument. An absence of evidence is insufficient.  It is impossible for Dr. to defend himself on a basis of evidence that he had no idea the Board considered.
·         Actual evidence determined by hearing examiner.  Board interprets evidence
 
Licensing questions to ask:
1.       Who is professionally licensed?
2.       What is the professional’s scope of practice?
3.       What is the statute for practicing medicine?
4.       Does the professional’s scope of practice fall within scope of practicing medicine?  Two exceptions:
a.       1) Remember the exception for practicing medicine: if you are LICENSED (which is different from certified/registered) to do something, and your responsibility falls under practice of medicine, you are free to practice medicine.  As long as your practice falls within the practice of medicine, you can practice medicine.
b.       2) Common law physician assistant exception: under the supervision of licensed physician, and therefore is not practicing medicine without a license.  Clown got referral from social worker (licensed to do her work), who was referred from the physician
 
Constitutional Arguments
1.      14th Amendment – Due Process
a.      Cannot prosecute someone if they did not know about case
b.      Statute is vague
c.       Public health arguments:
                                                              i.      Fundamental right not to have government force someone to do something to his body that he doesn’t want to do
                                                           ii.      Medical Reasons – If medically harmful for someone to be vaccinated, then it would violate substantive due process to force them to be vaccinated.  There must be an opt-out option
2.      10th Amendment – Police power: If City is rationally making decision to protect its city for public health measures, it can make the determination to require/force immunization when it comes to the health of the public.
3.      1st Amendment
a.      Religious Argument – mostly applicable for vaccinations. 
b.      Freedom of speech – Physicians letting  patients know about certain kinds of treatments is available
 
Other Arguments:
·         Legislature has already defined the scope of nursing, so you’re overstepping the bounds of your authority to issue the regulation.
·         Admin law: always argue they didn’t correctly promulgate the rule
·         [Regarding homeopathy—not typical medicine practiced].  State Court interpreted the statute saying that it is within the States power to make statute because the legislature reasonably believed that a general risk of endangering the public is inherent in any practices which fail to conform to the standards of ‘acceptable and prevailing’ medical practice in the state.   Legislative intent was to prohibit any practice departing from acceptable and prevailing medical standards without regard to whether the particular prac