Review - Health Care Survey - 2007
First Draft
History



How did the history of legal regulation of medicine
affect the organization of physician practices?
How this history shape the relationship between
physicians and hospitals?
 Independent contractor v. employee?
What are schools of medicine versus medical
specialties?
 Why is this a legal issues rather than medical
issue?
Accreditation


What is the JCAH, now JACHO?
 What groups formed it and why?
 How does it enforce its standards?
 Why do hospitals participate?
How are physicians certified as specialists?
 Is this enforced by the government?
 What are the market advantages?
 What is the impact on health care of providing
economic incentives to specialize?
Charitable Hospitals


What was charitable immunity and why did we
have it?
What is the social bargain behind charitable
status of hospitals?
 What is competitive advantage of being a
charitable hospital?
 What issues does this raise during a
conversion to a for-profit hospital?
Charitable Purpose



What is charitable purpose?
 What were the issues in Intermountain Health
Care?
 Is a bigger better hospital a proper charitable
purpose?
What are ways to measure community service?
What should the IRS or state tax agencies look at
in determining charitable purpose?
Who Benefits in Charitable Organizations?



Who stands in the shoes of shareholders in overseeing
the mission of charitable organizations?
What is surplus?
What is the inurnment problem?
 How do you decide if there is an inurnment problem?
 What are the constraints on joint ventures between
charitable and for-profit organizations?
Paying for Health Care


Why do economists believe that the US system of
health insurance limits the market's ability to
control costs?
What is consumer driven health care?
 How does it improve the market in health care?
 What perverse incentives does it create for
chronic disease management and prevention?
Government Health Insurance






How much of the health care budget is paid by
government?
What is Medicare and who qualifies?
What is Medicaid and who qualifies?
What is the Social Security Disability Insurance program?
Why did these plans not cover drug benefits when they
were started?
Why is this a problem?
Political Implications of Medicare and
Medicaid




Why is Medicaid the #1 problem for many states?
Why is Medicare different for the states?
How do the politics of these programs differ,
based on their demographics?
How can a state LEGALLY make money on
Medicaid?
Private Health Insurance



How is most private health insurance financed?
 How is this a tax on labor?
 How does this affect the cost of our goods and
services in the world market?
How does this affect labor mobility?
What is group insurance versus individual?
 What is job lock and how did HIPAA affect this?
 What are the rating issues for each?
Hospital Finance

How did the introduction of DRGs and other
capitation-based reimbursement strategies affect
the financial incentives facing hospitals?
 In particular, how does moving to DRGs from
fee for service affect how a hospital views a
patient?
 How does it change the underlying cause of the
right to die issues from the 1970s?
Quality in Health Care


Why is it difficult to define quality in health care?
 What are the factors that complicate the definition of
quality?
 How does cost affect this problem?
How does medical malpractice litigation affect quality?
 What is the argument for it improving quality?
 What is the argument for it hurting quality and raising
costs?
Licensing of Health Care Professionals



How is a state licensing board an administrative
agency?
 Standard of proof?
 Level of deference of courts to the ruling?
What must the agency show in the record to
support a license action?
In the cases in the book on licensing, what are the
statutory problems (not board procedural
problems) in the licensing actions?
Scope of Practice


What is the role of the legislature in establishing the scope of
practice of different providers?
 What factors do legislators consider other than the scientific
proof of effectiveness of the practices of the providers?
 Why do legislatures allow the practice by alternative healers
whose practices are scientifically proven to be ineffective?
What are the limits of a physician licensing board in dealing with
alternative healers?
 Can the board prevent physicians from offering alternative
medicine?
 What are the pros and cons for banning alternative medicine by
physicians?
Nursing Homes




How is the organization and regulation of nursing homes
different from that hospitals?
How is nursing home care paid for?
 Why does this make it much more difficult to provide
proper care in nursing homes?
How do so many nursing homes get away with being so
sleazy?
 Demographics?
 Who inspects them?
What does facility centered standards versus patient
centered standards mean?
EMTALA







How does EMTALA work?
Who does it apply to?
Is EMTALA a medical malpractice law?
What is emergency care under EMTALA?
 Why does this pose a problem for chronic disease
management?
What are the government remedies for violations?
What are the private remedies for violation?
What incentives does EMTALA give hospitals in poor
neighborhoods?
Specialty Hospitals





What is the quality justification for specialty
hospitals?
What is the cost justification?
How does EMTALA affect their economics in LA?
What is the impact on community hospitals?
What problems does this cause for health care in
the community?
Review theories of tort liability



Direct negligence
Vicarious liability
 Employee?
Control theories
 Ostensible agency
 Implied agency
 Apparent agency
Tort Liability for Managed Care


Discuss vicarious liability for physician
malpractice for hospitals versus managed care
organizations (MCOs)
 What factors will the court look for in
determining vicarious liability?
 What is corporate negligence?
Explain the bind for the physician worried about
malpractice suits but working managed care
ERISA




What is ERISA?
Why was health insurance included in ERISA?
What competitive advantages does an ERISA qualified
health plan have?
 Who regulates the plans - state or the feds?
 Affects on liability for medical necessity decisions?
 About coverage decisions, i.e., does the plan have to
pay for things like experimental care?
How do you tell the difference between a coverage
decision and a medical necessity decision?
ERISA and Health Care Reform





How does ERISA affect state efforts to create
statewide access to health care?
What was the Maryland Wal-Mart bill?
Why did it run afoul of ERISA?
What things can a state do that are not a problem
for ERISA?
What state actions will run afoul of ERISA
 Think about California and Massachusetts
Discrimination Law




How does the ADA affect health care providers?
What other discrimination laws do health care
providers have to worry about?
Explore the issues posed by an HIV or hepatitis B
infected health care provider
Explore the issues posed by an HIV or hepatitis B
infected patient
Staff Privileges and Hospital–Physician
Contracts



What is the effect of removing a physician from the hospital
medical staff?
 National Practitioner Database issues?
 Practice issues?
What are the due process rights for physicians?
 Private hospitals?
 Public (government) hospitals?
What legal claims might a physician make for improper
termination?
 How did Congress limit these claims?
 Why did Congress limit these claims?
Medical Staff Organization




What is an open staff?
What is a closed staff?
How are the legal issues different for excluding a
physician from an open staff than from a closed
staff?
May hospitals base credentialing of physicians on
economic grounds?
Managed Care Contracts




What due process do managed care companies owe
terminated physicians?
What is economic credentialing?
Can physicians in a community band together to
negotiate better deals with MCOs?
What are capitation agreements?
 What perverse incentives do they create for quality of
care?
 Who is responsible if the patient is injured because of
these incentives?
Labor and Employment



What is employment at will?
What is the NLRB?
 What can unionized physicians do that
independent contractor physicians cannot do?
 Who can form a union?
 What is a bargaining unit?
 Why do hospitals hate unions?
Discuss the limitations of whistleblower laws
Fiduciary Duties




What are the sources of law establishing that
physicians are fiduciaries?
What are the duties of a fiduciary toward the
beneficiary/ward/patient?
How does this underlie informed consent law?
How does underlie kickback and bribery laws for
physicians?
Corporate Practice of Medicine



What is the corporate practice of medicine?
Why did many states ban it in the 1920s?
 How does corporate employment undermine
professionalism?
 Are these conflicts absent in private practice?
Why are these bans ending?
 What are the benefits of corporate practice of
medicine, i.e., integrated delivery systems?
Review the Slides on Fraud and Abuse
and on Antitrust
The End