The Law Of Health Care Organization And Finance

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

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ISBN: 9780314154057 | 0314154051
Cover: Paperback
Copyright: 9/3/2004

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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.

Preface

Acknowledgements

vii

Table of Cases

xxi

Introduction to Health Law and Policy

(49)

Defining Sickness

(14)

Katskee v. Blue Cross/Blue Shield of Nebraska

(6)

Notes and Questions

(1)

Problem: The Couple's Illness

(1)

Alain Enthoven, PH.D., What Medical Care is and Isn't

(4)

Notes and Questions

(1)

Quality in Health Care

(12)

Defining the Nature of Quality in Health Care

(1)

Avedis Donabedian, The Definition of Quality and Approaches to its Assessment

(1)

Notes and Questions

(3)

Problem: Why Operate?

(1)

Assessing Quality

(1)

Avedis Donabedian, The Definition of Quality and Approaches to its Assessment

(1)

Notes and Questions

(3)

Improving Quality

(1)

Timothy S. Jost, Oversight of the Quality of Medical Care: Regulation, Management, or the Market?

(1)

Notes and Questions

(1)

Distributive Justice and the Allocation of Health Care Resources---The Example of Human Organ Transplantation

(23)

Introduction

(4)

Rationing of Scarce Human Organs

(1)

Problem: Selecting an Organ Transplant Recipient

(1)

Note: The Organ Procurement Transplant Network

(1)

Geographic Distribution of Organs

(1)

Listing Patients for Transplantation

(1)

Zero Antigen Mismatch and Disparate Impact by Race

(2)

Problem: Setting Priorities

(1)

Problem: State or Federal Control?

(1)

Increasing the Supply of Organs for Transplantation: The Impact of Legal Restraints

(1)

Newman v. Sathyavaglswaran

(3)

Notes and Questions

(3)

Note: Market Solutions to Organ Shortages

(2)

Problem: Organ Donation From an Adolescent

(1)

Note: Organs from Living Donors

(3)

PART I. PROMOTING QUALITY

Quality Control Regulation: Licensing of Health Care Professionals

(38)

Discipline

(12)

In re Williams

(2)

Hoover v. The Agency for Health Care Administration

(3)

Notes and Questions

(4)

Note: State Medical Boards and Online Prescribing

(2)

Problem: Virtual Advice

(1)

Alternative and Complementary Medicine

(8)

State Board of Registration for the Healing Arts v. McDonagh

(6)

Notes and Questions

(2)

Unlicensed Providers

(8)

State Board of Nursing and State Board of Healing Arts v. Ruebke

(5)

Notes and Questions

(2)

Scope of Practice Regulation

(9)

Sermchief v. Gonzales

(3)

Notes and Questions

(2)

Problem: Physicians, Physician Assistants, and Nurses

(3)

Quality Control Regulation of Health Care Institutions

(34)

Introduction

(2)

Mauceri v. Chassin

(1)

Notes and Questions

(1)

Regulatory Systems

(27)

Differences Among Health Care Institutions

(4)

Notes and Questions

(1)

Nursing Homes: Licensure and Medicare/Medicaid

(1)

The Regulatory Process

(1)

Standard Setting

(1)

In re the Estate of Michael Patrick Smith v. Heckler

(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

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The Law Of Health Care Organization And Finance

Summary

Table of Contents

Supplemental Materials