The Law Of Health Care Organization And Finance

by Furrow, Barry R.; Greaney, Thomas L.; Johnson, Sandra H.; Jost, Timothy Stoltzfus; Schwartz, Robert L.

• ISBN13: 9780314154057
• ISBN10: 0314154051
• Edition: 5th
• Format: Paperback
• Copyright: 2004-09-03
• Publisher: West Academic

Summary

A spin-off publication of Health Law: Cases, Materials & Problems, 5th Edition, the text begins with an introduction to fundamental concepts affecting law and policy. The next chapter considers quality control in the health care setting. The following four chapters examine issues central to structuring integrated systems and the organization of health care institutions. It also covers the problem of health care access and cost control issues, with particular attention paid to the ongoing policy debate about the proper role of government and the nation's responsibilities to provide health care for indigent citizens. Examines legal oversight of private health financing, and looks at Medicare and Medicaid.

Table of Contents

Preface	v
Acknowledgements	vii
Table of Cases	xxi
Introduction to Health Law and Policy	1	(49)
Defining Sickness	1	(14)
Katskee v. Blue Cross/Blue Shield of Nebraska	3	(6)
Notes and Questions	9	(1)
Problem: The Couple's Illness	9	(1)
Alain Enthoven, PH.D., What Medical Care is and Isn't	10	(4)
Notes and Questions	14	(1)
Quality in Health Care	15	(12)
Defining the Nature of Quality in Health Care	15	(1)
Avedis Donabedian, The Definition of Quality and Approaches to its Assessment	15	(1)
Notes and Questions	16	(3)
Problem: Why Operate?	19	(1)
Assessing Quality	19	(1)
Avedis Donabedian, The Definition of Quality and Approaches to its Assessment	20	(1)
Notes and Questions	21	(3)
Improving Quality	24	(1)
Timothy S. Jost, Oversight of the Quality of Medical Care: Regulation, Management, or the Market?	25	(1)
Notes and Questions	26	(1)
Distributive Justice and the Allocation of Health Care Resources---The Example of Human Organ Transplantation	27	(23)
Introduction	27	(4)
Rationing of Scarce Human Organs	31	(1)
Problem: Selecting an Organ Transplant Recipient	31	(1)
Note: The Organ Procurement Transplant Network	32	(1)
Geographic Distribution of Organs	33	(1)
Listing Patients for Transplantation	33	(1)
Zero Antigen Mismatch and Disparate Impact by Race	34	(2)
Problem: Setting Priorities	36	(1)
Problem: State or Federal Control?	36	(1)
Increasing the Supply of Organs for Transplantation: The Impact of Legal Restraints	37	(1)
Newman v. Sathyavaglswaran	38	(3)
Notes and Questions	41	(3)
Note: Market Solutions to Organ Shortages	44	(2)
Problem: Organ Donation From an Adolescent	46	(1)
Note: Organs from Living Donors	47	(3)
PART I. PROMOTING QUALITY
Quality Control Regulation: Licensing of Health Care Professionals	50	(38)
Discipline	51	(12)
In re Williams	51	(2)
Hoover v. The Agency for Health Care Administration	53	(3)
Notes and Questions	56	(4)
Note: State Medical Boards and Online Prescribing	60	(2)
Problem: Virtual Advice	62	(1)
Alternative and Complementary Medicine	63	(8)
State Board of Registration for the Healing Arts v. McDonagh	63	(6)
Notes and Questions	69	(2)
Unlicensed Providers	71	(8)
State Board of Nursing and State Board of Healing Arts v. Ruebke	72	(5)
Notes and Questions	77	(2)
Scope of Practice Regulation	79	(9)
Sermchief v. Gonzales	80	(3)
Notes and Questions	83	(2)
Problem: Physicians, Physician Assistants, and Nurses	85	(3)
Quality Control Regulation of Health Care Institutions	88	(34)
Introduction	88	(2)
Mauceri v. Chassin	89	(1)
Notes and Questions	90	(1)
Regulatory Systems	90	(27)
Differences Among Health Care Institutions	90	(4)
Notes and Questions	94	(1)
Nursing Homes: Licensure and Medicare/Medicaid	95	(1)
The Regulatory Process	96	(1)
Standard Setting	96	(1)
In re the Estate of Michael Patrick Smith v. Heckler	96	(5)
Notes and Questions	101	(2)
Problem: Setting Standards for Staffing	103	(1)
Problem: Residents' Rights	104	(4)
Survey and Inspection	108	(1)
Sanctions	109	(1)
Fairfax Nursing Home, Inc. v. U.S. Dep't. of Health & Human Services	109	(3)
Notes and Questions	112	(2)
Problem: Restful Manor	114	(3)
Private Accreditation of Health Care Facilities	117	(5)
PART II. ACCESS AND COST CONTROL
Health Care Cost and Access: The Policy Context	122	(34)
The Problems	122	(14)
The Problem of Access	123	(2)
Problem: Getting Covered	125	(1)
The Problem of Cost	125	(1)
Recent Developments in Health Care Cost Inflation	125	(2)
A Primer on Health Economics	127	(1)
Congressional Budget Office, Economic Implications of Rising Health Care Costs	127	(4)
Notes and Questions	131	(1)
Factors that Explain High American Health Care Costs	131	(5)
Approaches to Expanding Access and Controlling Costs	136	(20)
Options for Expanding Access to Care	137	(1)
Approaches Relying on Public Finance	137	(1)
European Parliament, Directorate General Research, Working Paper: Health Care Systems in the EU: A Comparative Study	137	(4)
Notes and Questions	141	(1)
Approaches to Encouraging the Purchase of Private Insurance	142	(3)
Cost Control	145	(1)
Regulatory Strategies	145	(1)
Consumer Choice in Purchasing Health Care Services: The Medical Savings Account	146	(1)
Haavi Morreim, Redefining Quality by Reassigning Responsibility	147	(3)
Managed Competition	150	(3)
Managed Care	153	(1)
Problem: Health Reform	154	(2)
Access to Health Care: The Obligation to Provide Care	156	(38)
Common Law Approaches	157	(9)
Ricks v. Budge	157	(3)
Childs v. Weis	160	(2)
Williams v. U.S.	162	(1)
Notes and Questions	163	(2)
Problem: Cheryl Hanachek	165	(1)
Problem: Ethics and Law: Never the Twain Shall Meet?	165	(1)
Statutory Exceptions to the Common Law	166	(28)
Emtala	166	(1)
Emergency Medical Treatment and Labor Act	167	(2)
Baber v. Hospital Corporation of America	169	(6)
Notes and Questions	175	(3)
Problem: Mrs. Miller	178	(1)
The Americans With Disabilities Act and Section 504 of the Rehabilitation Act	179	(1)
Howe v. Hull	180	(3)
Bragdon v. Abbott	183	(4)
Notes and Questions	187	(2)
Title VI	189	(3)
Problem: Emmaus House I	192	(1)
Problem: Emmaus House II	192	(2)
Private Health Insurance and Managed Care: State Regulation and Liability	194	(78)
Insurance and Managed Care: Some Basic Concepts	194	(10)
The Concept of Managed Care	194	(2)
Jacob S. Hacker and Theodore R. Marmor, How Not to Think About ``Managed Care''	196	(3)
Note	199	(1)
The Concept of Insurance	199	(1)
Congressional Research Service, Insuring the Uninsured: Options and Analysis	200	(3)
Notes and Questions	203	(1)
Deborah Stone, The Struggle for the Soul of Health Insurance	203	(1)
Contract Liability of Private Insurers and Managed Care Organizations	204	(4)
Lubeznik v. HealthChicago, Inc	204	(3)
Notes and Questions	207	(1)
Tort Liability of Managed Care	208	(28)
Vicarious Liability	209	(1)
Petrovich v. Share Health Plan of Illinois, Inc.	209	(11)
Notes and Questions	220	(3)
Direct Institutional Liability: Corporate Negligence	223	(1)
Shannon v. McNulty	223	(4)
Notes and Questions	227	(1)
Problem: The Overworked HMO Physician	228	(2)
Physician Incentive Systems	230	(1)
Bush v. Dake	230	(2)
Notes and Questions	232	(2)
Problem: Wanting the ``Best''	234	(2)
Regulation of Private Health Insurance Under State Law	236	(6)
Traditional Insurance Regulation	236	(1)
Attempts to Increase Access to Insurance Through Regulation	237	(1)
Colonial Life Insurance Company of America v. Curiale	238	(2)
Notes and Questions	240	(2)
Problem: Expanding Insurance Coverage	242	(1)
State Regulation of Managed Care	242	(19)
Introduction	242	(1)
Massachusetts General Laws Annotated: An Act Relative to Managed Care Practices in the Insurance Industry	243	(8)
Notes and Questions	251	(1)
Problem: Advising Under State Managed Care Law	252	(1)
State Law Regulating MCO Networks	253	(2)
Utilization Controls	255	(4)
Provider Incentives	259	(2)
Quality Regulation	261	(1)
Problem: Regulating Managed Care	261	(1)
Perspectives on Managed Care Regulation	261	(4)
David Hyman, Regulating Managed Care: What's Wrong with a Patient Bill of Rights	262	(3)
What Follows Managed Care? Consumer--Directed Health Care and Defined--Contribution Health Plans	265	(7)
John Jacobi, After Managed Care: Gray Boxes, Tiers and Consumerism	265	(4)
Notes and Questions	269	(3)
Regulation of Insurance and Managed Care: The Federal Role	272	(87)
Introduction	272	(1)
The Employee Retirement Income Security Act of 1974 (ERISA)	272	(69)
Erisa Preemption of State Health Insurance Regulation	272	(2)
Rush Prudential HMO, Inc., v. Debra C. Moran, Et Al.	274	(8)
Notes and Questions	282	(5)
Problem: ERISA Preemption of State Managed Care Regulation	287	(1)
The Relationship Between Federal ERISA Fiduciary and State Tort Claims Against Managed Care Plans: Pegram v. Herdrich	288	(1)
Pegram v. Herdrich	288	(9)
Notes and Questions	297	(1)
ERISA Preemption of State Tort Litigation	298	(7)
DiFelice v. Aetna U.S. Healthcare	305	(15)
Notes and Questions	320	(1)
Beneficiary Remedies Provided By ERISA	321	(1)
Doe v. Group Hospitalization & Medical Services	322	(5)
Notes and Questions	327	(5)
Problem: ERISA Litigation	332	(1)
Administrative Claims And Appeals Procedures Under ERISA	332	(2)
Notes and Questions	334	(1)
Provider Disclosure Of Financial Incentives	334	(1)
Horvath v. Keystone Health Plan East	334	(5)
Notes and Questions	339	(2)
Federal Initiatives to Expand Private insurance Coverage: The Health Insurance Portability and accountability Act of 1996, the Consolidated Omnibus Reconciliation Act of 1995, and the Americans With Disabilities Act	341	(18)
The Health Insurance Portability and Accountability Act of 1996 and Cobra Coverage Requirements	342	(2)
Notes and Questions	344	(1)
Problem: Advising under HIPAA and COBRA	345	(1)
Federal Prohibitions Against Discrimination on the Basis of Disability	345	(2)
Winslow v. IDS Life Insurance Co.	347	(6)
Notes and Questions	353	(2)
Other Antidiscrimination Laws	355	(1)
Problem: Private Cost Containment	356	(3)
Public Health Care Programs: Medicare and Medicaid	359	(79)
Introduction	359	(3)
Medicare	362	(38)
Eligibility	362	(1)
Benefits	363	(1)
Coverage	363	(4)
Prescription Drugs	367	(4)
Problem: The Medicare Prescription Drug Benefit	371	(1)
Payment for Services	372	(1)
Introduction	372	(1)
Medicare Prospective Payment Under Diagnosis--Related Groups	373	(4)
Problem: DRGs	377	(1)
Medicare Payment of Physicians	378	(3)
Problem: Resource--Based Payment for Lawyers	381	(1)
Medicare Managed Care	381	(1)
Geraldine Dallek, Brian Biles, and Lauren Hersch Nicholas, Lessons from Medicare + Choice for Medicare Reform	382	(4)
Notes	386	(1)
Note: The Medicare Advantage Program	386	(4)
Note on Beneficiary Protections in Medicare Managed Care	390	(1)
Administration and Appeals	391	(1)
Shalala v. Illinois Council on Long Term Care, Inc.	391	(5)
Notes and Questions	396	(1)
Notes: Medicare Administrative Appeals	397	(3)
Medicaid	400	(30)
Eligibility	401	(4)
Note: The Policy Context of Medicaid Eligibility and ``Medicaid Planning''	405	(2)
Benefits	407	(2)
Hern v. Beye	409	(3)
Notes and Questions	412	(3)
Payment for Services	415	(1)
Fee-for-Service Medicaid	415	(2)
Problem: Representing Providers in Medicaid Litigation	417	(1)
Medicaid Cost Sharing	417	(1)
Medicaid Managed Care	417	(3)
Program Administration and Financing: Federal/State Relationships	420	(2)
Westside Mothers v. Haveman	422	(5)
Notes	427	(3)
The State Children's Health Insurance Program (SCHIP)	430	(2)
State Pharmaceutical Benefit Programs	432	(6)
Problem: Health Care Coverage for the Poor	436	(2)
PART III. ORGANIZING THE HEALTH CARE ENTERPRISE
Professional Relationships in Health Care Enterprises	438	(57)
Introduction	438	(1)
Staff Privileges and Hospital--Physician Contracts	439	(19)
Sokol v. Akron General Medical Center	440	(4)
Notes and Questions	444	(1)
Note on HCQIA Immunity	445	(1)
Mateo--Woodburn v. Fresno Community Hospital	446	(4)
Notes and Questions	450	(2)
Mahan v. Avera St. Luke's	452	(4)
Notes and Questions	456	(1)
Problem: Dr. Bennett and Onyx General Hospital	457	(1)
Managed Care Contracts	458	(6)
Potvin v. Metropolitan Life Ins. Co	458	(4)
Notes and Questions	462	(2)
Labor and Employment	464	(22)
Employment--At--Will	464	(1)
Wright v. Shriners Hospital for Crippled Children	465	(3)
Notes and Questions	468	(1)
National Labor Relations Act	469	(1)
Supervisor?	470	(1)
NLRB v. Kentucky River Community Care	470	(7)
Notes and Questions	477	(1)
Problem: Respond to the NLRB	477	(1)
Employee or Independent Contractor?	478	(1)
AmeriHealth and United Food And Commercial Workers Union	478	(3)
Notes and Questions	481	(1)
Concerted Activity	481	(1)
New York University Medical Center And Association Of Staff Psychiatrists, Bellevue Psychiatric Hospital	481	(3)
Notes and Questions	484	(1)
Problem: Changing Things	485	(1)
Discrimination Law	486	(9)
Estate of Mauro v. Borgess Medical Center	486	(6)
Notes and Questions	492	(3)
The Structure of the Health Care Enterprise	495	(108)
Introduction: Where's Waldo?---Part I	495	(1)
Forms of Business Enterprises and Their Legal Consequences	496	(38)
Choice of Entity	496	(2)
Questions	498	(1)
Governance and Fiduciary Duties in Business Associations	498	(1)
Stern v. Lucy Webb Hayes National Training School for Deaconesses And Missionaries	498	(7)
In re Caremark International Inc. Derivative Litigation	505	(4)
Notes and Questions	509	(4)
Conversions, Asset Sales, and Mergers of Not-For-Profit Corporations	513	(1)
Manhattan Eye, Ear and Throat Hospital v. Spitzer	514	(8)
Notes and Questions	522	(4)
Note on Limited Liability for Investors	526	(1)
Professionalism and the Corporate Practice of Medicine Doctrine	527	(1)
Berlin v. Sarah Bush Lincoln Health Center	527	(5)
Notes and Questions	532	(2)
Integration and New Organizational Structures	534	(14)
Where's Waldo---Part II	534	(1)
The Changing Structure of the Modern Health Care Enterprise	535	(1)
Physician Payment Review Commission, Annual Report to Congress	536	(3)
Notes	539	(2)
The Mechanics of Integration and Disintegration	541	(1)
Organizational Structures for Physician Integration	542	(1)
Organizational Structures for Physician-Hospital Integration	543	(1)
Dis--Integration and Bankruptcy	544	(1)
The Specialty Hospital Phenomenon	545	(2)
Where's Waldo---Part III	547	(1)
Review Problem: Organizing All Saints Health Care	547	(1)
Tax-Exempt Health Care Organizations	548	(55)
Introduction	548	(1)
Charitable Purposes: Hospitals	548	(1)
Utah County v. Intermountain Health Care, Inc.	548	(7)
Notes and Questions	555	(2)
Note on Charitable Purpose under Section 501(c)(3)	557	(2)
Problem: St. Andrew's Medical Center	559	(2)
Charitable Purposes: Health Maintenance Organizations	561	(1)
IHC Health Plans, Inc., v. Commissioner of Internal Revenue	561	(7)
Notes and Questions	568	(1)
Charitable Purposes: Integrated Delivery Systems (IDSS)	569	(1)
IHC Health Plans, Inc., v. Commissioner of Internal Revenue	569	(2)
Notes and Questions	571	(2)
Joint Ventures Between Tax-Exempt and For-Profit Organizations	573	(1)
General Counsel Memorandum	573	(2)
Notes and Questions	575	(1)
Revenue Ruling 98--15	576	(4)
Notes	580	(1)
Redlands Surgical Services v. Commissioner of Internal Revenue	581	(6)
Notes and Questions	587	(2)
Inurement, Private Benefit and Excess Benefit Transactions: Relationships Between Physicians and Tax--Exempt Health Care Organizations	589	(1)
Joint Ventures with Physicians	589	(1)
General Counsel Memorandum	589	(2)
Physician Recruitment	591	(1)
Revenue Ruling 97--21	591	(3)
Notes and Questions	594	(2)
Excess Benefit Transactions: Protecting Hospitals and Other Tax Exempt Organizations From Exploitation By Insiders	596	(4)
Excess Benefit Exercises	600	(1)
Review Problem: St. Andrew's Medical Center, Part Two	600	(3)
Fraud and Abuse	603	(70)
False Claims	603	(30)
Governmental Enforcement	604	(1)
United States v. Krizek (859 F.Supp. 5)	604	(8)
United States v. Krizek (111 F.3d 934)	612	(2)
Notes and Questions	614	(4)
United States ex rel. Mikes v. Straus	618	(8)
Notes and Questions	626	(2)
Note on Corporate Fraud and Abuse	628	(2)
Qui Tam Actions	630	(1)
Notes and Questions	631	(2)
Medicare and Medicaid Fraud and Abuse	633	(27)
The Statute: 42 U.S.C.A. § 1320A--7b	633	(2)
Problems: Advising Under the Fraud and Abuse Laws	635	(1)
Penalties for Fraud and Abuse	636	(2)
Treatment of Referral Fees Under Fraud and Abuse Laws	638	(1)
United States v. Greber	638	(3)
Notes and Questions	641	(3)
United States v. Starks	644	(5)
Notes and Questions	649	(2)
Problem: Enforcement of the Fraud and Abuse Law by Private Parties	651	(1)
Statutory Exceptions, Safe Harbors and Fraud Alerts	651	(5)
OIG Advisory Opinion No. 03--5	656	(3)
Notes	659	(1)
Problem: Sorting It Out	659	(1)
The Stark Law: A Transactional Approach to Self-Referrals	660	(10)
Scope of the Prohibition	661	(1)
Notes	662	(2)
Exceptions	664	(1)
Problem: Space and Equipment Rentals, Physician Recruitment	664	(1)
Note on Fair Market Value	665	(1)
Problem: Group Practices	666	(2)
Note on the Stark Regulations	668	(2)
Note on State Statutes and Alternative Approaches to Referrals And Fee Splitting	670	(3)
Antitrust	673	(88)
Introduction	673	(5)
Cartels and Professionalism	678	(26)
Classic Cartels	678	(1)
In re Michigan State Medical Society	678	(5)
Notes and Questions	683	(1)
Federal Trade Commission v. Indiana Federation of Dentists	684	(3)
Notes and Questions	687	(1)
Collective Activities With Justifications	687	(1)
Restrictions on Advertising and Dissemination of Information	687	(1)
California Dental Association v. Federal Trade Commission	687	(10)
Notes and Questions	697	(2)
Private Accreditation and Professional Standard--Setting	699	(1)
Wilk v. American Medical Association	699	(2)
Notes and Questions	701	(2)
Note on Physician Staff Privileges	703	(1)
Health Care Enterprises, Integration and Financing	704	(57)
Provider-Controlled Networks and Health Plans	705	(1)
Arizona v. Maricopa County Medical Society	705	(7)
Notes and Questions	712	(1)
U.S. Department of Justice and Federal Trade Commission, Statements of Antitrust Enforcement Policy in Health Care	713	(5)
Notes and Questions	718	(2)
Federal Trade Commission, Advisory Opinion In re Medsouth, Inc.	720	(8)
Notes and Questions	728	(1)
Note on Physician Unions and Legislative Proposals to Legalize Collective Bargaining by Physicians	728	(3)
Note on Exclusion of Providers by Managed Care	731	(1)
Payors With Market Power	732	(1)
Kartell v. Blue Shield of Massachusetts, Inc.	732	(6)
Notes and Questions	738	(2)
Mergers and Acquisitions	740	(1)
Hospital Mergers	740	(1)
Hospital Corporation of America	740	(11)
Notes and Questions	751	(5)
Problem: Evaluating Hospital Mergers	756	(1)
Managed Care Mergers	756	(1)
Physician Mergers	757	(1)
Vertical Mergers	758	(1)
Virtual Mergers	759	(2)
Index	761