1. Review - Health Care Survey - 2007 First Draft

2. 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?

3. 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?

4. 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?

5. 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?

6. 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?

7. 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?

8. 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?

9. 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?

10. 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?

11. 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?

12. 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?

13. 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?

14. 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?

15. 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?

16. 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?

17. 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?

18. Review theories of tort liability • Direct negligence • Vicarious liability • Employee? • Control theories • Ostensible agency • Implied agency • Apparent agency

19. 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

20. 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?

21. 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

22. 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

23. 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?

24. 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?

25. 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?

26. 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

27. 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?

28. 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?

29. Review the Slides on Fraud and Abuse and on Antitrust The End